<PAGE> 1
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
<TABLE>
<S> <C>
[X] Preliminary Proxy Statement [ ] Confidential, for Use of the Commission
Only (as permitted by Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-2.
</TABLE>
SWISSRAY INTERNATIONAL, INC.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-12.
(1) Title of each class of securities to which transaction applies:
------------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
------------------------------------------------------------------------
(5) Total fee paid:
------------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
------------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
------------------------------------------------------------------------
(3) Filing Party:
------------------------------------------------------------------------
(4) Date Filed:
------------------------------------------------------------------------
<PAGE> 2
SWISSRAY INTERNATIONAL, INC.
747 THIRD AVENUE INDUSTRIESTRASSE 6
NEW YORK, NEW YORK 10017 CH 6285 HITZKIRCH
SWITZERLAND
January 31, 1997
Dear Stockholder:
You are cordially invited to attend the annual meeting of stockholders
which will be held in New York, New York on Friday, February 21, 1997. By
attending the meeting, you will have an opportunity to hear a report on the
operations of your Company and to meet your directors and executives.
The enclosed notice of the meeting and proxy statement describe the
matters to be acted upon at the meeting, including the election of directors,
ratification of the appointment of auditors, change of state of incorporation to
Delaware, increase in authorized shares of Company common stock and transaction
of such other business as may properly come before the meeting.
Please read the proxy statement, then complete, sign, and return your
proxy in the enclosed envelope. Your vote is important.
Sincerely,
Ruedi G. Laupper, President
<PAGE> 3
SWISSRAY International, Inc.
NOTICE OF ANNUAL STOCKHOLDERS' MEETING
January 31, 1997
TO THE HOLDERS OF SHARES OF COMMON STOCK:
NOTICE IS HEREBY GIVEN that pursuant to the call by its Directors the regular
annual meeting of stockholders of SWISSRAY International, Inc. will be held at
{INSERT NAME OF HOTEL} located at {INSERT ADDRESS} New York, New York, on
Friday, February 21, 1997 at 4:30 p.m., local time, for the purpose of
considering and voting upon the following matters.
1. Election of Directors. To elect the five nominees listed in the Proxy
Statement dated January 31, 1997 as directors.
2. Ratification of the Board of Directors' action of the selection of
Bederson & Company LLP as independent auditor for the fiscal year
ending June 30, 1997.
3. Approval of the proposal to reincorporate the Company in Delaware.
4. Approval of the proposal to increase the authorized shares of Common
Stock of the Company from 15,000,000 shares to 30,000,000 shares.
5. Transactions of such other business as may properly come before the
Meeting or any adjournment or postponement thereof.
By order of the Board of Directors
Ulrich Ernst
Chairman of the Board of Directors
WE URGE YOU TO MARK, SIGN, AND RETURN THE ENCLOSED PROXY AS PROMPTLY AS
POSSIBLE, WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING IN PERSON. IF YOU DO
ATTEND THE MEETING, YOU MAY THEN WITHDRAW YOUR PROXY. ALSO, YOU MAY REVOKE YOUR
PROXY AT ANY TIME PRIOR TO THE MEETING BY SUBMITTING A LATER SIGNED PROXY OR
UPON WRITTEN NOTIFICATION TO THE PRESIDENT.
<PAGE> 4
PROXY STATEMENT
SWISSRAY INTERNATIONAL, INC.
747 THIRD AVENUE INDUSTRIESTRASSE 6
NEW YORK, NEW YORK 10017 CH 6285 HITZKIRCH
SWITZERLAND
This Proxy Statement is being furnished by SWISSRAY International, Inc.
(the "Company"), a New York corporation, to its stockholders in connection with
the solicitation by the Board of Directors of proxies to be voted at the Annual
Meeting of Stockholders to be held at 4:30 p.m. local time, on February 21, 1997
(the "Meeting"), at {INSERT NAME OF HOTEL} located at {INSERT ADDRESS} New York,
New York and at any postponement or adjournment thereof.
In the course of discussions in this Proxy Statement of recommendations
and solicitations of votes, the term "Management" refers to the Board of
Directors of the Company, unless otherwise required by the context.
The approximate date on which this Proxy Statement is first being sent
or given to stockholders is January 31, 1997.
A COPY OF FORM 10-KSB (ANNUAL REPORT) FOR THE FISCAL YEAR ENDED JUNE
30, 1996, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION BY THE COMPANY, MAY
BE OBTAINED BY STOCKHOLDERS WITHOUT CHARGE BY WRITTEN REQUEST TO JOSEF LAUPPER,
SECRETARY, SWISSRAY INTERNATIONAL, INC., INDUSTRIESTRASSE 6, CH 6285 HITZKIRCH,
SWITZERLAND.
VOTING, PROXY SOLICITATION AND REVOCATION
Your proxy is solicited by the Board of Directors of the Company for
use at the Meeting.
If the enclosed proxy is properly executed and returned prior to or at
the Meeting, and is not revoked prior to or at the Meeting, all shares
represented thereby will be voted at the Meeting as specified in the proxy by
the persons designated therein. If a signed proxy card is returned and the
stockholder has made no specifications with respect to voting matters, the
shares will be voted "FOR" the election of the nominees as directors, "FOR"
ratification of the auditors, "FOR" the proposal to reincorporate the Company in
Delaware (the "Reincorporation Proposal"), "FOR" the proposal to increase the
number of authorized shares of common stock of the Company from 15,000,000 to
30,000,000 shares (the "Increase in Common Stock Proposal"), and in accordance
with the judgement of the person or persons voting such proxies with respect to
such other matters, if any, as may properly come before the meeting. Abstentions
and broker non-votes are counted only for purposes of determining whether a
quorum is present at the Meeting, but will not be considered as votes cast with
respect to any matter as to which the
1
<PAGE> 5
abstention or non-vote is indicated. The solicitation of proxies will be by
mail, but proxies may also be solicited by telephone, telegraph or in person by
officers and other employees of the Company. The entire cost of this
solicitation will be borne by the Company. Should the Company, in order to
solicit proxies, request the assistance of banks, brokerage houses and other
custodians, nominees or fiduciaries, the Company will reimburse such persons for
their reasonable expenses in forwarding the proxies and proxy material to the
beneficial owners of such shares. A stockholder may revoke his proxy by a later
proxy or by delivery of notice of revocation to the President, in writing, at
any time prior to the date and time of meeting or in open meeting. Attendance at
the Meeting will not in and of itself revoke a proxy.
SHARES ENTITLED TO VOTE
The Board of Directors has fixed the close of business on January 17,
1997, as the record date for the determination of stockholders entitled to
notice of and to vote at the Meeting. At the close of business on such date,
there were outstanding and entitled to vote at the Meeting ___shares of Common
Stock, par value $.01 per share. Each outstanding share is entitled to one vote
at the Meeting for all items set forth in the notice. Cumulative voting for the
nominees for director is not permitted.
If sufficient stockholders approve Proposal #3 (the reincorporation
proposal), the Board of Directors will merge the Company into a wholly-owned
Delaware subsidiary of the Company which would be the surviving corporation and
adopt the Certificate of Incorporation of the Delaware subsidiary attached as
Exhibit A hereto as the Certificate of Incorporation of the surviving
corporation, thereby reincorporating the Company in Delaware and authorizing the
increase in the number of authorized shares of Company Common stock in
accordance with proposal 4.
Pursuant to New York law, approval of the Reincorporation Proposal
requires the affirmative vote of no less than two-thirds of all outstanding
shares entitled to vote thereon, while approval of the other Proposals require
the affirmative vote of a majority of all outstanding shares entitled to be
voted thereon, in person or by proxy, at the meeting.
PRINCIPAL BENEFICIAL OWNERS OF COMMON STOCK
As of the January 17, 1997 record date, the following person(s) and/or
firm(s) were known to the Company to be the beneficial owner of more than five
percent of the Company's common stock. Such person(s) and/or firm(s) has
beneficial ownership of the shares and has sole voting power and sole investment
power with respect to the number of shares beneficially owned.
2
<PAGE> 6
<TABLE>
<CAPTION>
Name and Address of Amount and Nature of Percent
Beneficial Owner Beneficial Ownership of Class (1)
- --------------------- ---------------------- --------
<S> <C> <C>
Tomlinson Holding Inc. (2) 3,200,000 %
Postfach 925
6301 Zug
Switzerland
</TABLE>
(1) On the basis of ___shares outstanding on January 17, 1997, the record date.
(2) These shares are beneficially owned by the Company's President, Ruedi G.
Laupper.
In addition, the only record holder known by the Company to hold more
than five percent of the Company's Common stock is Cede & Co., P.O. Box 20,
Bowling Green Station, New York, New York 10004. As of the record date Cede &
Co. held a total of ___shares of the Company's Common Stock, which represented
___% of the total number of shares outstanding. Cede & Co. is a nominee of the
Depository Trust Company, which held such shares of record on behalf of various
of its customers. The names of the beneficial owners of the shares held by those
stockholders are unknown to Management.
3
<PAGE> 7
PROPOSAL NUMBER 1
ELECTION OF DIRECTORS
The Directors are elected annually by the stockholders of the Company.
The Certificate of Incorporation of the Company provides that the number of
Directors authorized to serve until the next annual meeting of stockholders
shall be the number established in the Company's Bylaws. The Bylaws provide that
the Board of Directors by resolution shall fix the number of directors. In
accordance with the Bylaws, the Board has fixed the number of directors at no
less than three or more than seven. In accordance therewith, a total of five
persons have been designated by the Board as nominees for election at the
Meeting and are being presented to the stockholders for election. The directors
to be elected at the Meeting shall be determined by a plurality vote of the
shares presented in person or by proxy, entitled to vote at the Meeting.
The Bylaws of the Company permit the Board of Directors by a majority
vote, between annual meetings of the stockholders, to increase the number of
directors and to appoint qualified persons to fill the vacancies created
thereby.
The persons named below are being proposed as nominees for election as
directors for the term expiring at the next annual meeting to be held in 1997,
and until their successors are elected and qualify. Each person, with the
exception of Ueli Laupper, is currently a director of the Company. The persons
named in the enclosed proxy intend to vote for such nominees for election as
directors, but if the nominees should be unable to serve, proxies will be voted
for such substitute nominees as shall be designated by the Board of Directors to
replace such nominees. It is believed that each nominee will be available for
election. The names of the nominees for election and certain information as to
each of them are as follows:
4
<PAGE> 8
<TABLE>
<CAPTION>
Principal Occupation During Number of Common Percentage of
Date of Past Five Years or More and Director Shares Beneficially Shares
Name Birth Other Directorships Since Owned on 1/17/97 (a) Outstanding
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Ruedi G. Laupper 4-22-50 See below 1995 %
Josef Laupper 7-22-45 See below 1995 %
Dr. Erwin Zimmerli 7-22-47 See below 1995 %
Ulrich Ernst 3-26-47 See below 1995 %
Ueli Laupper 4-4-70 See below -- %
</TABLE>
RUEDI G. LAUPPER has been President and a director of the Company since
May, 1995 and has been President and a director of both SR-Medical AG and
Teleray AG since their respective incorporations in 1988 and 1984 respectively.
Additionally, Ruedi G. Laupper has served as President of SR Finance AG, a
wholly owned subsidiary of the Company, since its incorporation in December
1995. He has approximately 16 years of experience in the field of radiology and
direct market knowledge as well as important business contacts throughout the
industry and with key clientele.
JOSEF LAUPPER is the brother of the Company's President and has been
Secretary and a director of the Company since May, 1995 maintaining comparable
positions with both SR- Medical AG and Teleray AG since their respective dates
of incorporation. Josef Laupper also serves as Managing Director of SR Finance
AG since its inception in December 1995. He is principally in charge of the
Company's financial, logistical and administrative tasks. As a former
entrepreneur in the medical supply business, Josef Laupper has in excess of 17
years of financial and marketing experience within the industry.
DR. ERWIN ZIMMERLI has been a director of the Company since May, 1995.
Since receiving his Graduate in law and economics degree from the University of
St. Gall, Switzerland (PhD) in 1979, Dr. Zimmerli has served as (a) head of the
White Collar Crime Department of the Zurich State Police (1980-86), (b) an
expert of a Parliamentary Commission for penal law and Lecturer at the
Universities of St. Gall and Zurich (1980-87), (c) Vice President of a leading
auditing firm (1987-1990) and (d) Executive Vice President of a multinational
aviation company (1990-92). Since 1992 he has been actively engaged in various
independent consulting capacities primarily within the legal community.
ULRICH ERNST has been Chairman of the Board of Directors and Treasurer
of the Company since May, 1995 and has had approximately 24 years of experience
in international business development in various industries with background
primarily in management consulting, financial advisory services and rendering
advice to new growth business ventures. Mr. Ernst received his Diploma in
Economic Studies in 1968 from the School of Economics and received his Masters
of Business Administration degree in 1973 from the University of Zurich.
(a) The information under this caption regarding ownership of securities is
based upon statements by the individual nominees, directors, and
officers.
5
<PAGE> 9
UELI LAUPPER is the son of the Company's President with overall Company
responsibilities in the area of marketing and sales with approximately 3 years
experience within the international x-ray marketing industry.
All current directors and executive officers as a group beneficially
own ____shares as of January 17, 1997, which represents ____% of total shares
outstanding, exclusive of Options exercisable within sixty days.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Directors, executive officers, and any beneficial owners of more than
10% of a company's stock must, under Section 16(a) of the Securities Exchange
Act of 1934, file certain periodic reports of changes in beneficial ownership of
Company securities. The Company endeavors to assist directors and executive
officers in filing the required reports. To the Company's knowledge all filing
requirements under the Securities Exchange Act during the fiscal year ended June
30, 1996 were satisfied.
BOARD MEETINGS AND COMMITTEES OF THE BOARD
During the fiscal year which ended June 30, 1996, there were three
meetings of the Board of Directors. Three of the four incumbent directors
attended all three meetings of the Board while the fourth incumbent director
attended two of the meetings. The Company has no standing audit, nominating, or
compensation committees. The Board of Directors performs all of the functions
that might otherwise be performed by such committees.
COMPENSATION OF DIRECTORS AND OFFICERS
BOARD OF DIRECTORS FEES
For the fiscal year ended June 30, 1996, members of the Board of
Directors did not receive any fees for attending meetings of the Board of
Directors. The Company's policy is to reimburse Board members for their expenses
incurred to attend Board meetings. Officers of the Company, who are also
Directors, do not receive any fees.
EXECUTIVE COMPENSATION
The following table sets forth information concerning the chief
executive officers of the Company and compensation received for the fiscal year
ended June 30, 1996.
6
<PAGE> 10
<TABLE>
<CAPTION>
Securities
Salaries, Fees, or Property, Aggregate of
Capacities Directors' Fees, Insurance Benefits Contingent
Name of In Which Commissions or Reimbursement, Forms of
Individual Served and Bonuses Personal Benefits (3) Remuneration
- ---------- ---------- -------------- --------------------- ------------
<S> <C> <C> <C> <C>
Ruedi Laupper President and a $176,085 -0- -0-
Director
Josef Laupper Secretary and a $118,229 -0- -0-
Director
Ulrich Ernst Treasurer and $113,197 -0- -0-
Chairman of the
Board Directors
Erwin Zimmerli Director $ 8,385 -0- -0-
Peter Wagli Former Officer of $123,763 -0- -0-
Telray AG (1)
Ueli Laupper (2) $ 73,117 -0- -0-
</TABLE>
(1) Mr. Wagli was neither an officer or director of the Company but was an
officer of Telray AG, a wholly owned subsidiary of SR-Medical AG, with
the latter being a wholly owned subsidiary of the Company. He no longer
serves in such capacity.
(2) Mr. Ueli Laupper is a key employee of the Company and a nominee to its
Board of Directors. His primarily activities relate to services
rendered directly to SR Medical AG, a wholly owned subsidiary of the
Company.
(3) The Company's consolidated financial statements for fiscal year ended
June 30, 1996 indicate that with respect to Swiss Mandated Pension Plan
the Company is required to contribute approximately 5% of eligible
employees salaries into a government pension plan and the fact that the
Company additionally contributes approximately 5% of eligible employees
salaries into a private pension plan with total contributions charged
to operations. Total contributions for fiscal year ended June 30, 1996
amounted to $198,722.
There are no current written employment agreements between the Company
and any of its officers and directors.
OPTIONS GRANTED TO JUNE 30, 1996
The Board of Directors has adopted a non-statutory stock option plan
and reserved 3,000,000 shares for issuance to eligible full and part-time
employees, officers, directors and consultants. Options are non-transferrable
and are exercisable during a term of not more than ten (10) years from the grant
date. The options are issuable in such amounts and at such prices as determined
by the Board of Directors, except that each option price of each grant will not
be less than twenty (20%) percent of the fair market value of such shares on the
date the options are granted.
7
<PAGE> 11
The following table summarizes common stock options outstanding as of
June 30, 1996.
<TABLE>
<CAPTION>
Price Per Options Options Options
Date Granted Share Granted Exercised Outstanding
------------ ----- ------- --------- -----------
<S> <C> <C> <C> <C>
September 20, 1995 $6.50 200,000 - 200,000
June 8, 1996 5.00 100,000 - 100,000
March 11, 1996 2.00 2,000,000 1,000,000 1,000,000
May 16, 1996 4.75 35,000 - 35,000
------ ---------- ------------ ----------
2,335,000 1,000,000 1,335,000
========== ============ ==========
</TABLE>
On March 11, 1996 the Company granted options to purchase up to 50,000
shares at $1.00 per share to an individual who exercised all such options and
paid full cash consideration.
On July 22, 1996, the Company granted options to purchase up to 200,000
shares of the Company's common stock under the 1996 non-statutory stock option
plan with an exercise price of $.73 per share. As of January 17, 1997 only 1,000
of such 200,000 options have been exercised.
RETIREMENT PLAN
The Company, mandated by Swiss government regulations, is required to
contribute approximately five (5%) percent of eligible, as defined, employees'
salaries into a government pension plan. The Company also contributes
approximately five (5%) percent of eligible employee salaries into a private
pension plan. Total contributions charged to operations for the year ended June
30, 1996 was $198,772.
RELATED PARTY TRANSACTIONS
For the fiscal year ended June 30, 1996 there have not been any
material transactions between the Company and any director, executive officer,
security holder or any member of the immediate family of any of the
aforementioned which exceeded $60,000 other than as may be indicated in its Form
10-KSB and the audited consolidated financial statements and notes thereto which
are a part thereof.
8
<PAGE> 12
PROPOSAL NUMBER 2
PROPOSAL TO RATIFY THE BOARD OF DIRECTORS ACTION IN SELECTION OF
BEDERSON & COMPANY LLP AS INDEPENDENT AUDITOR FOR THE COMPANY
The Board of Directors has appointed Bederson & Company LLP,
independent certified public accountants, as auditor of the Company to examine
the financial statements for the fiscal year ending June 30, 1997; Bederson &
Company LLP having previously audited the Company's financial statements for the
fiscal year ended June 30, 1996. The firm has no relationship with the Company
except the existing professional relationship of independent auditor.
Ratification of the employment of Bederson & Company LLP will require
the affirmative vote of the holders of a majority of the shares represented at
the Meeting in person or by proxy and entitled to vote. The Board of Directors
recommends a vote FOR Proposal Number 2. In the event the stockholders fail to
ratify this employment, it will be considered as a directive to the Board of
Directors to select other auditors for the current year.
Representatives of Bederson & Company LLP are expected to be present at
the Meeting, will have the opportunity to make a statement if they choose, and
will be expected to be available to respond to appropriate questions.
9
<PAGE> 13
ADDITIONAL PROPOSALS 3 AND 4
The Company's Board of Directors has unanimously approved the
Reincorporation Proposal and the Increase in Common Stock Proposal which,
although related, will be voted upon separately by stockholders. Proposal Number
3 relates to the change of the Company's state of incorporation to Delaware from
New York, which will be effected by merging the Company with and into a
wholly-owned Delaware subsidiary of the Company (having the same name as the
Company) which would be the surviving corporation (the "Merger"). Proposal
Number 4 is the authorization of an additional 15,000,000 shares of Common Stock
which would be effected by retaining the capitalization of the Delaware
subsidiary as the capitalization of the surviving corporation, or by changing
the capitalization of the Company if the Reincorporation Proposal is not
approved.
If sufficient stockholders approve the Reincorporation Proposal and the
Increase in Common Stock Proposal the Board of Directors will consummate the
Merger and adopt the Certificate of Incorporation of the Delaware subsidiary
attached as Exhibit A hereto as the Certificate of Incorporation of the
surviving corporation, thereby reincorporating the Company in Delaware and
authorizing the additional shares of Common Stock. If the stockholders approve
the Increase in Common Stock Proposal, but fail to approve the Reincorporation
Proposal, the Board of Directors will consummate the capitalization by amending
its New York Certificate of Incorporation as may be required.
If sufficient stockholders approve the Reincorporation Proposal, but
fail to approve the Increase in Common Stock Proposal, the Board of Directors
will cause the Delaware subsidiary's Certificate of Incorporation to be amended
prior to the Merger so that its capitalization will be that of the Company and
will reflect those proposals that have been approved by stockholders. Even if
sufficient stockholders approve the Reincorporation Proposal, the Board of
Directors has reserved the right to terminate and abandon the Merger as
described below.
PROPOSAL NUMBER 3
CHANCE THE STATE OF INCORPORATION FROM NEW YORK TO DELAWARE
The proposed reincorporation will be effected by the merger of the
Company into a wholly-owned Delaware subsidiary of the Company organized for
such purpose (interchangeably, the "Delaware Company" or the "Surviving
Corporation"). The Delaware Company will be the surviving corporation in the
Merger. There will be no change in the business or properties of the Company and
the Delaware Company as a result of the Merger, and the Surviving Corporation
will assume all of the obligations of the Company. The directors and officers of
the Surviving Corporation will be the same as those of the Company.
The Plan of Merger (the "Merger Agreement"), in the form attached
hereto as Exhibit B, providing for the Merger has been unanimously approved by
the Board of Directors.
10
<PAGE> 14
The Merger Agreement provides, however, that the Board of Directors may
terminate the Merger Agreement and abandon the Merger if for any reason,
including, but not limited, to the number of shares for which appraisal rights
have been exercised and the cost to the Company thereof, the Board of Directors
determines that it is inadvisable to proceed with the Merger. See "Rights of
Dissenting Stockholders" below.
The Certificate of Incorporation for the Delaware Company (the
"Delaware Certificate") provides for the authorization of 30,000,000 shares of
Common Stock of the Company all of which are shares of Common Stock, $.0001 par
value per share. Pursuant to the Merger Agreement, each outstanding share of the
Company's Common Stock will be converted into a fully paid and non-assessable
share of Common Stock of the Surviving Corporation with identical rights
attached thereto, i.e. the holders of Common Stock (i) have equal ratable rights
to dividends from funds legally available therefore, when, as and if declared by
the Board of Directors of the Company; (ii) are entitled to share ratably in all
of the assets of the Company available for distribution to holders of Common
Stock upon liquidation, dissolution or winding up of the affairs of the Company;
(iii) do not have preemptive, subscription or conversion rights and there are no
redemption or sinking funds provisions applicable thereto; and (iv) are entitled
to one non-cumulative vote per share on all matters which stockholders may vote
on at all meetings of stockholders.. Outstanding options and warrants to
purchase any number of shares of the Company's Common Stock will be converted
into options or warrants to purchase the same number of shares of the Surviving
Corporation's Common Stock at the same exercise price. IT WILL NOT BE NECESSARY
FOR STOCKHOLDERS TO EXCHANGE THEIR EXISTING STOCK CERTIFICATES FOR STOCK
CERTIFICATES OF THE SURVIVING CORPORATION. OUTSTANDING CERTIFICATES FOR SHARES
OF COMMON STOCK OF THE COMPANY SHOULD NOT BE DESTROYED OR SENT TO THE COMPANY.
The Common Stock of the Surviving Corporation will be listed on the NASDAQ
SmallCap Market. Delivery of certificates for the Company's Common Stock issued
prior to the effectiveness of the Merger will constitute "good delivery" of
shares in transactions subsequent to the Merger. Certificates representing
shares of the Surviving Corporation's Common Stock will be issued with respect
to transfers consummated after the Reincorporation. New certificates will also
be issued upon the request of any stockholder, subject to normal requirements as
to proper endorsement, signature guarantee, if required, and payment of
applicable taxes.
AT THE EFFECTIVE TIME OF THE MERGER, THE COMPANY WILL BE GOVERNED BY
DELAWARE LAW, BY A NEW CERTIFICATE OF INCORPORATION AND NEW BY-LAWS, EACH OF
WHICH WILL RESULT IN CHANGES IN THE RIGHTS OF THE STOCKHOLDERS.
For additional information and details relating to these and other
changes, reference is made to the Delaware Certificate, attached to this Proxy
Statement as Exhibit A, and the discussions in this Proxy Statement under
"Principal Reasons for Changing the State of Incorporation," "Principal
Differences Between New York and Delaware Corporation Laws" and "Changes in
Certificate of Incorporation and By-laws." The discussion herein of the
provisions of the Delaware Certificate is subject to, and qualified in its
entirely by, reference to all the
11
<PAGE> 15
provisions of the Delaware Certificate. Copies of the Certificate of
Incorporation and By-laws of the Company and the Certificate of Incorporation
and By-laws of the Delaware Company are available for inspection at the
principal office of the Company and copies will be sent to stockholders upon
written request.
PRINCIPAL REASONS FOR CHANGING THE STATE OF INCORPORATION
For many years, Delaware has followed a policy of encouraging
incorporation in that state and, in furtherance of that policy, has adopted
comprehensive, modern and flexible corporate laws which are periodically updated
and revised to meet changing business needs. As a result, many corporations
initially choose Delaware as their domicile and many others have reincorporated
in Delaware in a manner similar to that proposed by the Company. Because of
Delaware's long-standing policy of encouraging incorporation in that state, and
its consequent preeminence as the state of incorporation for many major
corporations, the Delaware courts have developed a considerable expertise in
dealing with corporate issues and a substantial body of case law has developed
construing Delaware law and establishing public policies with respect to
Delaware corporations.
It is anticipated that Delaware corporate law will continue to be
interpreted and explained in a number of significant court decisions which may
provide greater predictability with respect to the Company's corporate legal
affairs. Certain aspects of Delaware corporate law have, however, been publicly
criticized on the ground that they do not afford minority stockholders the same
substantive rights and protection as are available in a number of other states.
For a discussion of certain differences in stockholders' rights and the powers
of management under the Delaware General Corporation Law (the "Delaware GCL")
and the New York Business Corporation Law (the "New York BCL") see "Principal
Differences Between New York and Delaware Corporation Laws" and "Changes in
Certificate of Incorporation and By-laws" below.
In the event the Reincorporation Proposal is not approved, the Company
will remain a New York corporation.
PRINCIPAL DIFFERENCES BETWEEN NEW YORK AND DELAWARE CORPORATION LAWS
The Merger will effect several changes in the rights of stockholders as
a result of differences between the New York BCL and the Delaware GCL. The
provisions of the New York BCL and Delaware GCL differ in many respects.
Summarized below are certain of the principal differences affecting the rights
of stockholders. This summary does not purport to be a complete statement of
differences affecting stockholders' rights under the New York BCL and the
Delaware GCL and is subject to, and qualified in its entirely by reference to,
all the provisions thereof.
DIVIDENDS.
The Delaware GCL provides that a corporation may, unless otherwise
restricted by its certificate of incorporation, declare and pay dividends out of
surplus, or if no surplus exists, out
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of net profits for the current or preceding fiscal year (provided that the
amount of capital of the corporation is not less than the aggregate amount of
the capital represented by the issued and outstanding stock of all classes
having a preference upon the distribution of assets). Under the New York BCL,
dividends may be paid only out of surplus. The Company does not now, and has not
recently, paid any dividends on its Common Stock. The payment by the Company of
dividends, if any, in the future rests within the discretion of its Board of
Directors and will depend, among other things, upon the Company's earnings, its
capital requirements and its financial condition, as well as other relevant
factors. By reason of its present financial status and its contemplated
financial requirements, the Company does not contemplate or anticipate paying
any dividends upon its Common Stock in the foreseeable future
DISSENTERS' RIGHTS OF APPRAISAL.
Under the New York BCL, dissenting stockholders who follow prescribed
statutory procedures are entitled to appraisal rights in connection with certain
mergers, consolidations and sales of all or substantially all the assets of a
corporation. The Delaware GCL provides similar rights and procedures for mergers
and consolidations only. Furthermore, under the Delaware GCL, even in those
cases, such rights are not provided in certain circumstances, including
transactions in which shares of the corporation being voted in a merger or
consolidation are listed on a national securities exchange (the Company's Common
Stock is, and the Delaware Company's Common Stock will be, listed on the NASDAQ
SmallCap Market) or are held of record by more than 2,000 stockholders and in
which the shares to be received in such merger or consolidation are shares of
the surviving corporation or are listed on a national securities exchange or are
held of record by more than 2,000 stockholders.
The availability of appraisal rights to stockholders of the Company who
dissent from the Merger is discussed under "Rights of Dissenting Stockholders"
below.
ISSUANCE TO OFFICERS, DIRECTORS AND EMPLOYEES OF RIGHTS OR OPTIONS TO PURCHASE
SHARES.
The New York BCL, requires the affirmative vote of a majority of the
shares entitled to vote in order to issue to officers, directors or employees
options or rights to purchase stock. The Delaware GCL does not require
stockholders approval of such transactions. However, the Company will remain
subject to the rules of NASDAQ which may require stockholders approval of the
Company's option plans and grants thereunder in certain instances.
VOTE REQUIRED.
The New York BCL requires that certain mergers and consolidations and
sales of all or substantially all of the assets not in the ordinary course of
business be approved by the holders of not less than two- thirds of the
outstanding stock entitled to vote thereon. Under the Delaware GCL, such
transactions require approval by the holders of a majority of the outstanding
stock
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entitled to vote thereon, and a vote of the stockholders of the surviving
corporation is not necessary where, in the case of a merger, (i) no amendment of
its certificate of incorporation or change in its outstanding stock is involved
and (ii) the merger results in no more than a 20% increase in its outstanding
common stock.
LOANS TO DIRECTORS.
Under the Delaware GCL, loans may be made to employees or officers,
even those who are also directors if the Board of Directors finds that the loan
may benefit the corporation. The New York BCL requires that loans to directors
be authorized by an affirmative vote of stockholders.
REDEEMABLE SHARES.
The Delaware GCL permits redeemable shares to be redeemed at the option
of the corporation or the stockholder, while the New York BCL generally permits
redemption only at the option of the corporation.
CORPORATE ACTION WITHOUT A STOCKHOLDERS' MEETING.
The New York BCL permits corporate action without a stockholders'
meeting only upon the written consent of all stockholders entitled to vote on
such action. The Delaware GCL permits corporate action without a meeting of
stockholders upon the written consent of the holders of that number of shares
necessary to authorize the proposed corporate action being taken, unless the
certificate of incorporation expressly provides otherwise, and then requires the
corporation to provide notice of the actions taken through such procedure to the
stockholders who did not vote with respect to such action.
CONSIDERATION FOR SHARES.
Under the New York BCL, neither obligations of the subscriber for
future payments nor obligations of the subscriber for future services
constitutes payment or part payment for shares of a corporation. Furthermore,
certificates for shares may not be issued until the full amount of the
consideration therefor has been paid (except in the case of shares purchased
pursuant to stock options under a plan permitting installment payments). Under
the Delaware GCL, shares of stock may be issued, and deemed to be fully paid and
nonassessable, if the corporation receives consideration (in the form of cash,
services rendered, personal property, real property, leases of real property, or
a combination thereof) having a value not less than the par value of such shares
and the corporation receives a binding obligation of the subscriber to pay the
balance of the subscription price.
CLASSIFICATION OF THE BOARD OF DIRECTORS.
The New York BCL permits a classified board with as many as four
classes but forbids
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fewer than three directors in any class. The Delaware GCL permits a classified
board of directors with as many as three classes, provided that separate classes
of directors must have staggered terms of office with only one class of
directors coming up for election each year. Neither the Delaware Certificate nor
the Certificate of Incorporation of the Company provide for a classified board
of directors.
BUSINESS COMBINATION STATUTES.
The New York BCL prohibits any "business combination" (as therein
defined) between a "domestic corporation" and an "interested stockholder" for
five years after the date that the interested stockholder became an interested
stockholder unless prior to that date the board of directors of the domestic
corporation approved the business combination or the transaction that resulted
in the interested stockholder becoming an interested stockholder. After five
years, such a business combination is permitted only if (i) it is approved by a
majority of the shares not owned by, or by an affiliate of, the interested
stockholder or (ii) certain statutory fair price requirements are met. A
"resident domestic corporation" is defined as any corporation that (i) is
incorporated in New York, (ii) has its principal executive offices and
significant business operations in New York or has at least 250 or 25% of its
employees in New York (including employees of its 80% owned subsidiaries , if
any), and (iii) has at least 10% of its stock beneficially owned by New York
residents. An "interested stockholder" is any person who beneficially owns,
directly or indirectly, 20% or more of the outstanding voting stock of the
corporation.
The Delaware GCL prohibits any "business combination" between a
Delaware corporation and an "interested stockholder" for three years following
the date that the interested stockholder became an interested stockholder unless
(i) prior to that date the board of directors approved the business combination
or the transaction that resulted in the interested stockholder becoming an
interested stockholder, (ii) upon consummation of the transaction that resulted
in the interested stockholder becoming an interested stockholder the interested
stockholder held at least 85% of the outstanding voting stock of the corporation
(not counting shares owned by officers and directors and certain shares in
employee stock plans), or (iii) on or subsequent to such date the business
combination is approved by the board of directors and at least two thirds of the
outstanding shares of voting stock not owned by the interested stockholder. The
Delaware GCL defines "interested stockholder" as any person who beneficially
owns, directly or indirectly, 15% or more of the outstanding voting stock of the
corporation. Unlike New York, Delaware does not require that the corporation's
principal executive offices or significant operations be located in Delaware in
order to be covered by this law.
NUMBER OF DIRECTORS.
Under the Delaware GCL, a corporation may have as few as one director
and there are no maximum limits. The specific number may be fixed in the
certificate of incorporation but if so, it may be changed only with both board
of directors and stockholder approval. If the certificate of incorporation is
silent as to the number of directors, the board of directors may fix
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<PAGE> 19
or change the authorized number of directors pursuant to a provision of the
by-laws.
Under the New York BCL, the number of directors may not be less than
three, and any higher number may be fixed by the by-laws or by action of the
stockholders or of the board of directors under specific provisions of the
by-laws adopted by the stockholders. The number of directors may be increased or
decreased by amendment of the by-laws or by action of the stockholders or of the
board of directors under the specific limitation of a by-law adopted by the
stockholders, subject to certain limitations.
INSPECTION OF STOCKHOLDER'S LIST.
With respect to the inspection of stockholder's lists, the New York BCL
provides a right of inspection on at least 5 days written demand to (i) any
person who shall have been a stockholder for at least 6 months immediately
preceding his demand or (ii) any person holding, or thereunto authorized in
writing by, at least 5% of any class of outstanding shares. The corporation has
certain rights calculated to assure itself that the demand for inspection is not
for a purpose or interest other than that of the corporation.
The Delaware GCL permits any stockholder to inspect the stockholder's
list for a purpose reasonably related to such person's interest as a stockholder
and, during the 10 days preceding the stockholder's meeting, for any purpose
germane to that meeting.
CHANGES IN CERTIFICATE OF INCORPORATION AND BY-LAWS
The Delaware Certificate differs from the Certificate of Incorporation
of the Company primarily as a result of differences between the Delaware GCL and
the New York BCL. The By-laws of the two corporations likewise differ primarily
as a result of differences between the Delaware GCL and the New York BCL and the
Delaware Certificate and the Certificate of Incorporation of the Company. Set
forth below is a discussion of certain significant changes set forth in the
Delaware Certificate.
CHANGE OF COMPANY PURPOSES.
The purpose for which the Company was formed as set forth in its
Certificate of Incorporation initially adopted in 1968 and subsequently amended
included certain activities in which the Company, in its present form is no
longer engaged. Moreover, the Company may elect to pursue other activities in
the future. The Delaware Certificate states broadly that the Company's purpose
is to engage in any lawful activity, which is the customary purpose clause for
modern corporations.
CHANGE IN PAR VALUE OF AUTHORIZED CAPITAL STOCK.
The Delaware Certificate authorizes the Company to issue up to
30,000,000 shares of Common Stock and sets the par value of $ .0001 per share
instead of the current $.01 par value
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per share of Common Stock. The purpose and effect of this change in par value is
to minimize the annual franchise tax payable by the Company.
INDEMNIFICATION AND ELIMINATION OF LIABILITY.
The Delaware Certificate and the By-laws of the Delaware Company
contain indemnification provisions eliminating the personal liability of
directors to the fullest extent permitted by the Delaware GCL. The provision is
parallel to the provision of the Company's Certificate of Incorporation
eliminating the liability of directors of the Company to the extent permitted by
the New York BCL.
TRANSACTIONS WITH AFFILIATES.
The Delaware Certificate does not contain provisions requiring special
authorization in respect of certain transactions with affiliated stockholders,
since the purpose of the provisions to this effect in the Company's Certificate
of Incorporation is addressed by Section 203 of the Delaware GCL.
RIGHTS OF DISSENTING STOCKHOLDERS.
Because the Company will not be technically the "surviving
corporation," stockholders of the Company who do not vote in favor of the
Reincorporation Proposal may have the right to seek to obtain payment in cash of
the fair value of their shares by complying with the requirements of Section 623
of the New York BCL. The dissenting stockholders must file with the Company
before a taking of the vote on the Reincorporation Proposal a written objection
including a statement of intention to demand payment for shares and stating such
stockholder's name and residence address, the number of shares of stock as to
which dissent is made and a demand for payment of the fair value of such shares
if the Merger is consummated. Such stockholder may not dissent as to less than
all shares owned. Within ten days after the vote of stockholders authorizing the
Reincorporation Proposal, the Company must give written notice of such
authorization to each such dissenting stockholder. Within twenty days after the
filing of such notice, any stockholder to whom the Company failed to give notice
of the Annual Meeting who elects to dissent from the Merger must file with the
Company a written notice of such election, stating such stockholder's name and
residence address, the number of shares of stock as to which dissent is made and
a demand for payment of the fair value of the shares. Such stockholder may not
dissent as to less than all shares owned. At the time of filing the notice of
election to dissent or within one month thereafter, dissenting stockholders must
submit certain certificates representing shares to the Company or its transfer
agent for notation thereon of the election to dissent, after which such
certificates will be returned to the stockholder.
Failure to submit the certificates may result in the loss of
dissenter's rights. Within 15 days after the expiration of the period within
which stockholders may file their notices of election to dissent, or within 15
days after consummation of the Merger, whichever is later (but not later than
ninety days after the stockholders' vote authorizing the Merger), the Company
must make
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a written offer (which, if the Merger has not been consummated, may be
conditioned upon such consummation) to each stockholder who has filed such
notice of election to pay for the shares at a specified price which the Company
considers to be their fair value. If the Company and the dissenting stockholder
are unable to agree as to such value, Section 623 provides for judicial
determination of value. A negative vote on the Reincorporation Proposal does not
constitute a written objection required to be filed by an objecting stockholder.
Failure by a stockholder to vote against the Reincorporation Proposal, however,
will not constitute a waiver of rights under Section 623 provided that a written
objection has a been properly filed and such stockholder has not voted in favor
of the Reincorporation Proposal.
The foregoing does not purport to be a complete statement of the
provisions of Section 623 and is qualified in its entirety by reference to said
Section .
Because the Reincorporation Proposal does not involve any change in the
nature of the Company's business but is a technical matter only, management
hopes that no stockholder will exercise dissenter's right. Under the Merger
Agreement, the Board of Directors may abandon the Merger, even after stockholder
approval, if for any reason the Board of Directors determines that it is
inadvisable to proceed with the Merger, including considering the number of
shares for which appraisal rights have been exercised and the cost to the
Company thereof. THE BOARD OF DIRECTORS CURRENTLY INTENDS TO ABANDON THE MERGER
IN THE EVENT THAT ITS CONSUMMATION WOULD RESULT IN STOCKHOLDERS REPRESENTING
MORE THAN A RELATIVELY NOMINAL NUMBER OF SHARES BEING ENTITLED TO APPRAISAL
RIGHTS.
FEDERAL INCOME TAX CONSEQUENCES
Holders of the Company's Common Stock who do not exercise their
dissenter's rights will not recognize gain or loss for federal income tax
purposes as a result of the Merger and the conversion of their shares into
shares of the Delaware Company. The basis of the shares of the Delaware Company
in the hands of each stockholder will be the same as the basis of the holder's
shares of the Company, and the holding period for shares of the Delaware Company
will include the holding period for shares of the Company, provided that the
shares of the Company were held as capital assets at the date of the Merger.
Stockholders who exercise their dissenters' rights to obtain payment for their
shares will recognize such gain or loss.
VOTE REQUIRED FOR APPROVAL OF THE REINCORPORATION PROPOSAL
Approval of the Reincorporation Proposal will require the affirmative
vote of two-thirds of the outstanding shares of Common Stock of the Company
entitled to vote thereon at the Annual Meeting. Proxies solicited by the Board
of Directors will be voted for the Reincorporation Proposal, unless stockholders
specify otherwise.
The Board of Directors unanimously recommends that stockholders vote
FOR the Reincorporation Proposal.
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PROPOSAL NUMBER 4
INCREASE THE AUTHORIZED SHARES OF COMMON STOCK OF THE
COMPANY BY 15,000,000 SHARES
The Company's Certificate of Incorporation currently authorizes the
Company to issue up to 15,000,000 shares of Common Stock. As of January 17, 1997
the Company had shares of Common Stock issued and outstanding. In the past the
Company had raised capital needed to furnish its proposed growth primarily
through the sale and issuance of shares of Company Common stock for cash by
means of equity financing and debt financing. Due to the limited number of
authorized but unissued shares available for issuance as referred to above, the
number of authorized, non-designated shares of Common Stock available for
issuance by the Company in the future (for financing purposes or otherwise) has
been greatly reduced. Hence, much of the Company's flexibility with respect to
possible future stock splits, equity and/or debt financings, stock-for-stock
acquisitions, stock dividends or other transactions that involve the issuance of
Common Stock has been lost. The Increase in Common Stock Proposal, by increasing
the shares of authorized Common Stock to 30,000,000 from 15,000,000, if adopted,
will restore the Company's ability to take such actions by increasing the number
of authorized unissued and undesignated shares of Common Stock of the Company.
If the Increase in Common Stock Proposal is adopted by the Company's
stockholders, such proposal will become effective on the date the Merger is
effected if the Reincorporation Proposal is approved by the Company's
stockholders, and on the date a certificate of amendment is filed in New York,
the Company's state of incorporation, if the Reincorporation Proposal is not so
approved.
VOTE REQUIRED FOR APPROVAL OF THE INCREASE IN COMMON STOCK PROPOSAL
Approval of the Increase in Common Stock Proposal requires the
affirmative vote of a majority of the outstanding shares of Common Stock of the
Company entitled to vote thereon at the Annual Meeting. Proxies solicited by the
Board of Directors will be voted for the Increase in Common Stock Proposal,
unless stockholders specify otherwise.
The Board of Directors unanimously recommends a vote FOR the
authorization of additional shares of Common Stock.
STOCKHOLDER PROPOSALS
The Company anticipates that the 1997 Annual Meeting will be held on or
about October 10, 1997 and that the proxy materials for the 1997 Annual Meeting
will be mailed on or about September 10, 1997. If any security holder wishes a
proposal to be considered for inclusion in the 1997 Proxy Statement, this
material must be received by the Chief Executive Officer no later than June 12,
1997.
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OTHER MATTERS
Management does not know of any other matters which may come before the
Meeting. However, if any matters properly come before the Meeting, it is the
intention of the persons named in the enclosed proxy to vote such proxy in
accordance with the recommendations of the Board of Directors. It is important
that proxies be returned promptly. Therefore, stockholders who do not expect to
attend in person are urged to mark, date, sign and return the enclosed proxy in
the accompanying envelope.
By Order of the Board of Directors
Ulrich Ernst
Chairman of the Board of Directors
Dated: January 31, 1997
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EXHIBIT INDEX
Number Description
Exhibit A Delaware Certificate of Incorporation
Exhibit B Agreement and Plan of Merger of
SWISSRAY International, Inc. (New York)
and SWISSRAY International, Inc. (Delaware)
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CERTIFICATE OF INCORPORATION
OF
SWISSRAY INTERNATIONAL, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisi and subject to the requirements of the Laws of the
State of Delaware (particularly Chapter 1 Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is SWISSRAY International, Inc.
SECOND: The address, including street number, city and county, of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, and
the name of the registered agent of the Corporation in the State of Delaware at
such address is The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
The foregoing provisions of this Article THIRD shall be construed both
as purposes and powers and each as an independent purpose and power. The
foregoing enumeration of specific purposes and powers shall not be held to limit
or restrict in any manner the purposes and powers of the Corporation, and the
purposes and powers herein specified shall, except when otherwise provided in
this Article THIRD, be in no wise limited or restricted by reference to, or
inference from, the terms of any provision of this or any other Article of this
Certificate of Incorporation; provided, that the Corporation shall not conduct
any business, promote any purpose, or exercise any power or privilege within or
without the State of Delaware which, under the laws thereof, the Corporation may
not lawfully conduct, promote, or exercise.
FOURTH: The total number of shares of Common Stock which the
Corporation shall have authority to issue is Thirty Million (30,000,000) shares
all of which shall be Common Stock, par value $.0001 per share without
cumulative voting rights and without any preemptive rights.
FIFTH: The name and mailing address of the incorporator is as follows:
Name Mailing Address
---- ---------------
Ruedi G. Laupper c/o SWISSRAY International, Inc.
747 Third Avenue
New York, New York 10017
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SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to reorganization of
this Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of
Directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the ByLaws. The phrase "whole
Board" and the phrase "total number of Directors" shall be deemed to
have the same meaning, to wit, the total number of Directors which the
Corporation would have if there were no vacancies. No election of
Directors need be by written ballot.
2. After the original or other By-Laws of the Corporation have been
adopted, amended or repealed as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State
of Delaware, and, after the Corporation has received any payment for
any of its stock, the power to adopt, amend, or repeal the ByLaws of
the Corporation may be exercised by the Board of Directors of the
Corporation; provided, however, that any provision for the
classification of Directors of the Corporation for staggered terms
pursuant to the provisions of subsection (d) of Section 141 of the
General Corporation Law of the State of Delaware shall be set forth in
an initial By-Law or in a By-Law adopted by the stockholders entitled
to vote of the Corporation unless provisions for such classification
shall be set forth in this Certificate of Incorporation.
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3. Whenever the Corporation shall be authorized to issue only one class
of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders.
Whenever the Corporation shall be authorized to issue more than one
class of stock no outstanding share of any class of stock which is
denied voting power under the provisions of the Certificate of
Incorporation shall entitle the holder thereof to the right to vote at
any meeting of stockholders except as the provisions of paragraph
(c)(2) of Section 242 of the General Corporation Law of the State of
Delaware shall otherwise require; provided, that no share of any such
class which is otherwise denied voting power shall entitle the holder
thereof to vote upon the increase or decrease in the number of
authorized shares of said class.
NINTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-Law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
TENTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the Laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
Certificate of Incorporation are granted subject to the provisions of this
Article TENTH.
ELEVENTH: No Director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (i) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) for the payment of unlawful dividends or unlawful stock
repurchases or redemptions under Section 174 of the Delaware General Corporation
Law; or (iv) for any transaction from which the Director derived an improper
personal benefit.
TWELFTH: The effective date of the Certificate of Incorporation of the
Corporation, and the date upon which the existence of the Corporation shall
commence, shall be its date of filing.
Signed: New York, New York
February , 1997
______________________________
Ruedi G. Laupper, Incorporator
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AGREEMENT AND PLAN OF MERGER
OF
SWISSRAY INTERNATIONAL, INC. (A NEW YORK CORPORATION)
and
SWISSRAY INTERNATIONAL, INC. (A DELAWARE CORPORATION)
AGREEMENT AND PLAN OF MERGER, dated as of January , 1997, by and between
SWISSRAY International, Inc. a New York corporation ("SRMI"), and SWISSRAY
International, Inc., a Delaware corporation ("Surviving Corporation").
WITNESSETH:
SRMI is a corporation duly organized and existing under the laws of the State of
New York.
Surviving Corporation is a corporation duly organized and existing under the
laws of the State of Delaware.
The authorized number of shares of SRMI is 15,000,000 shares of Common Stock,
$.01 par value.
The authorized number of shares of Surviving Corporation is 30,000,000 shares of
Common Stock, $ .0001 par value.
The Boards of Directors of SRMI and Surviving Corporation deem it advisable for
the mutual benefit of SRMI and Surviving Corporation, and their respective
shareholders, that SRMI be merged with and into Surviving Corporation and have
approved this Agreement and Plan of Merger (the "Agreement").
NOW, THEREFORE, in consideration of the premises and of the mutual covenants,
agreements and provisions hereinafter contained, the parties hereto agree that,
in accordance with the applicable laws of the States of New York and Delaware,
SRMI shall be, at the Effective Date of the Merger (as hereinafter defined),
merged with and into Surviving Corporation, which shall be the surviving
corporation, and that the terms and conditions of such merger and the mode of
carrying it into effect shall be as follows:
ARTICLE I
Merger
1.1 On the Effective Date of the Merger, SRMI shall be merged with and into
Surviving Corporation. The separate existence of SRMI shall cease and Surviving
Corporation shall continue in existence and, without other transfer, succeed to
and posses all the properties, rights, privileges, immunities, powers, purposes
and franchises, of a public, as well as of a private nature, and shall be
subject to all of the obligations, liabilities, restrictions, disabilities and
duties
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of SRMI and Surviving Corporation, all without further act or deed, as provided
in Section 259 of the Delaware General Corporation Law.
1.2 All rights of creditors and all liens upon the property of either SRMI or
Surviving Corporation shall be preserved unimpaired by the Merger, and all
debts, liabilities, obligations and duties, including, but not limited to, the
obligations of SRMI pursuant to any existing guarantees, leases, stock options
or other contracts or agreements, of either SRMI or Surviving Corporation shall,
on the Effective Date of the Merger, become the responsibility and liability of
Surviving Corporation, and may be enforced against it to the same extent as if
said debts, liabilities, obligations and duties had been incurred or contracted
by it. All corporate acts, plans (including but not limited to stock option
plans), policies, arrangements, approvals and authorizations of SRMI, its
shareholders, board of directors, officers and agents, which were valid and
effective immediately prior to the Effective Date of the Merger, shall be taken
for all purposes as the acts, plans, policies, arrangements, approvals and
authorizes of Surviving Corporation and shall be as effective and binding
thereon as the same were with respect to SRMI.
1.3 Prior to the Effective Date of the Merger, SRMI and Surviving Corporation
shall taken all such action as shall be necessary or appropriate in order to
effectuate the Merger. In case at any time after the Effective Date of the
Merger Surviving Corporation shall determine that any further conveyance,
assignment or other documents or any further actions necessary or desirable to
vest in or confirm to Surviving Corporation full title to all the properties,
assets, rights, privileges and franchises of SRMI, the officers and directors of
SRMI, at the expense of Surviving Corporation, shall execute and deliver all
such instruments and take all such action as Surviving Corporation may determine
to be necessary or desirable in order to vest in and confirm to Surviving
Corporation title to and possession of all such properties, assets, rights,
privileges and franchises, and otherwise to carry out the purposes of this
Agreement.
ARTICLE II
Terms and Conditions of the Merger
The terms and conditions of the Merger, including the manner and basis of
converting the shares of capital stock of SRMI into shares of capital stock of
Surviving Corporation shall be as follows:
2.1 Certificate of Incorporation. From and after the Effective Date of the
Merger and until thereafter amended as provided by law, the Certificate of
Incorporation of Surviving Corporation in effect on the date hereof, as set
forth in Exhibit A shall be the Certificate of Incorporation of Surviving
Corporation.
2.2 By-laws. The By-laws of SRMI and/or Surviving Corporation, as the case may
be, in effect on the Effective Date of the Merger shall continue in force and be
the By-laws of Surviving Corporation until altered, amended or repealed.
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2.3 Directors and Officers. The directors and officers of SRMI in office on the
Effective Date of the Merger shall continue in office as, and be an constitute,
the directors and officers of Surviving Corporation, each to hold office as
provided by the By-laws until his successor shall have been elected and shall
have qualified or until his earlier death, resignation or removal.
2.4 Conversion of Outstanding Shares, Rights and Options. The manner and basis
of converting the shares, rights and options to purchase shares of SRMI into
shares, rights and options to purchase shares of Surviving Corporation, and the
cancellation and retirement of shares of Surviving Corporation, shall be as
follows:
2.4.1 Each share of Common Stock, par value $ .01 per share, of SRMI issued and
outstanding, or held in the treasury of SRMI, on the Effective Date of the
Merger shall forthwith and without the surrender of stock certificates or any
other action, be converted into the fully-paid and non-assessable share of
Common Stock, par value $ .0001 per share, of Surviving Corporation, issued and
outstanding or held in the treasury of Surviving Corporation, as the case may
be.
2.4.2 Each option or right to purchase shares of Common Stock, par value $ .01
per share, of SRMI which has been granted pursuant to any stock option plan or
financing of any nature of SRMI or otherwise, on the Effective Date of the
Merger shall forthwith and without any action by the holder of such option or
right, be converted into an option to purchase the same number of shares of
Common Stock, par value $ .0001 per share, of Surviving Corporation on the same
terms and with the same exercise price as such options contained immediately
prior to the Effective Date of the Merger.
2.5 Dividends. The holders of shares of Common Stock of SRMI shall be entitled
to receive from Surviving Corporation (i) those dividends, if any, which were
declared by the Board of Directors of SRMI prior to, but not yet paid, as of the
Effective Date of the Merger and (ii) those dividends which may be declared by
the Board of Directors of Surviving Corporation subsequent to the Effective Date
of the Merger pursuant to the Certificate of Incorporation of Surviving
Corporation, and no holder of shares of Common Stock of SRMI shall be entitled
to any other dividends which might otherwise accrue on or prior to the Effective
Date of the Merger.
ARTICLE III
Procedures Regarding Stock Certificates
From and after the Effective Date, each outstanding stock certificate
theretofore representing shares of Common Stock of SRMI shall represent the same
number of shares of Common Stock of Surviving Corporation. Each holder of a
certificate or certificates theretofore representing shares of Common Stock of
SRMI may, but shall not be required to, surrender the same to Surviving
Corporation for cancellation and exchange or transfer, and each share such
holder or his transferee shall be entitled to receive certificates representing
one share of the Common Stock of Surviving Corporation for each of Common Stock
of SRMI represented by the certificates surrendered. Until so surrendered for
cancellation and exchange or transfer each outstanding
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certificate which, prior to the Effective Time, represented shares of Common
Stock of SRMI, shall be deemed and treated for all purposes to represent the
ownership of the same number of shares of the Common Stock of Surviving
Corporation as though such surrender had taken place.
ARTICLE IV
Effective Date
This Agreement shall be submitted to the stockholder of Surviving Corporation
and the shareholders of SRMI at meetings which shall be convened on or prior to
February 28, 1997, or such other dates as may be agreed on by the parties, as
provided by the applicable laws of the States of New York and Delaware. If this
Agreement is duly authorized and adopted by the requisite votes of the holder of
Common Stock of Surviving Corporation and holders of Common Stock of SRMI and
this Agreement is not terminated pursuant to the provisions of Article V hereof,
then a certificate of merger shall be filed in accordance with the laws of the
State of Delaware and a certificate of merger shall be filed in accordance with
the laws of the State of New York. The Merger shall become effective upon the
filing of the certificates of merger with the Secretaries of State of the States
of New York and Delaware (the "Effective Date of the Merger").
ARTICLE V
Approval of Shareholders --- Termination
5.1 This Agreement shall be submitted to the shareholders of SRMI and the
stockholder of Surviving Corporation as provided by law, and it shall take
effect and be deemed and be taken to be the Agreement and Plan of Merger of SRMI
and Surviving Corporation upon the approval or adoption thereof by the
shareholders of SRMI and the stockholder of Surviving Corporation, in accordance
with the requirements of the laws of the State of New York and the State of
Delaware, and upon the execution, filing and recording of such documents and the
doing of such other acts and things as shall be required for accomplishing the
merger under the provisions of the applicable statutes of the State of New York
and of the State of Delaware.
5.2 At any time prior to the filing of the certificates of merger with the
Secretaries of State of the States of Delaware and New York, this Agreement may
be terminated by the board of directors of either SRMI or Surviving Corporation,
notwithstanding the approval of this Agreement by either or both of the
shareholders of SRMI and the stockholder of Surviving Corporation, if for any
reason the board of directors of SRMI or Surviving Corporation determines that
it is inadvisable to proceed with the Merger, including, without limitation,
giving consideration to the number of shares for which appraisal rights have
been exercised and the cost to SRMI thereof.
5.3 In the event of the termination and abandonment of this Agreement pursuant
to the provisions of Section 5.2, this Agreement shall become null and void and
have no effect, without
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any liability on the part of either SRMI or Surviving Corporation or any of
their respective shareholders, stockholders, directors or officers.
ARTICLE VI
Certain Agreements of Surviving Corporation
6.1 Surviving Corporation, as the surviving corporation, hereby agrees that it
may be served with process in the State of New York in any proceeding for the
enforcement of any liability or obligation of SRMI or of the rights of
dissenting shareholder of SRMI.
6.2 Surviving Corporation, as the surviving corporation, hereby irrevocably
appoints the Secretary of the State of New York as its agent to accept service
of process in any action or proceeding described in Section 6.1.
6.3 Surviving Corporation, as the surviving corporation, hereby agrees that it
will promptly pay to dissenting shareholders, if any, of SRMI the amount, if
any, to which such dissenting shareholders shall be entitled pursuant to the
laws of the State of New York.
ARTICLE VII
Miscellaneous
7.1 This Agreement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
7.2 The headings of the several articles herein have been inserted for
convenience of reference only and are not intended to be a part or to affect the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, each of SRMI and Surviving Corporation, pursuant to
authority duly given by resolutions adopted by its Board of Directors has caused
these presents to be executed in its name by its President or a Vice-President
and its corporate seal to be affixed and attested by its Secretary or an
Assistant Secretary.
(Corporate Seal) SWISSRAY INTERNATIONAL, INC.
(New York)
Attest:
By:____________________________
Josef Laupper, Secretary
(Corporate Seal) SWISSRAY INTERNATIONAL, INC.
(Delaware)
Attest:
By:____________________________
Josef Laupper, Secretary
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<PAGE> 33
SWISSRAY INTERNATIONAL, INC.
Proxy for 1996 Annual Meeting
This Proxy is Solicited by the Board of Directors
KNOW ALL MEN BY THESE PRESENTS that I (we), the undersigned Stockholder(s) of
SWISSRAY International, Inc. (the "Company"), do hereby nominate, constitute and
appoint Ruedi G. Laupper and Josef Laupper or either of them (with full power to
act alone), my true and lawful attorney(s) with full power of substitution, for
me and in my name, place and stead to vote all the Common Stock of said Company,
standing in my name on the books on the record date, January 17, 1997, at the
Annual Meeting of its Stockholders to be held at {INSERT NAME OF HOTEL} located
at {INSERT ADDRESS} New York, New York, on February 21, 1997, at 4:30 p.m.,
local time, or at any postponement or adjournments thereof, with all the powers
the undersigned would possess if personally present.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTE AS DIRECTED BELOW. IN THE
ABSENCE OF ANY DIRECTION, THE SHARES REPRESENTED HEREBY WILL BE VOTED FOR THE
(a) ELECTION OF THE NOMINEES LISTED, (b) RATIFICATION OF THE APPOINTMENT OF THE
AUDITORS, (c) APPROVAL OF THE PROPOSAL TO REINCORPORATE THE COMPANY IN DELAWARE
AND (d) APPROVAL OF THE PROPOSAL TO INCREASE THE AUTHORIZED SHARES OF COMMON
STOCK OF THE COMPANY.
[ ] Please mark your votes in this example.
1. Election of Directors. Election of the five nominees, Ruedi G. Laupper,
Josef Laupper, Dr. Erwin Zimmerli, Ulrich Ernst and Ueli Laupper.
For All Withhold From
Nominees All Nominees
[ ] [ ]
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE NOMINEES. IF YOU DO NOT WISH
YOUR SHARES VOTED FOR A PARTICULAR NOMINEE, DRAW A LINE THROUGH THAT PERSON'S
NAME ABOVE.
2. Approval of the appointment of Bederson & Company LLP, as independent
auditors of the Company for the fiscal year ending June 30, 1997.
For Against Abstain
[ ] [ ] [ ]
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL.
3. Approval of the proposal to reincorporate the Company in Delaware.
For Against Abstain
[ ] [ ] [ ]
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL.
4. Approval of the proposal to increase the authorized shares of Common
Stock of the Company from 15,000,000 shares to 30,000,000 shares.
For Against Abstain
[ ] [ ] [ ]
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL.
<PAGE> 34
5. In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before such meeting or adjournment or postponement
thereof.
SIGNATURE(S)______________________________ DATE_________________________
_____________________________
NOTE: Please sign exactly as the name(s) appear hereon. Joint owners should
sign. When signing as attorney, executor, administrator, trustee, or guardian,
please give full title as such.
