SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c)
of the Securities Exchange Act of 1934
(Amendment No. )
Check the appropriate box:
[ ] Preliminary Information Statement [ ] Confidential, For Use of the
Commission Only (as Per-
mitted by Rule 14c-5(d)(2))
[x] Definitive Information Statement
SEAFOODS PLUS, LTD.
(Name of Registrant as Specified in its Charter)
Payment of Filing Fee (Check the appropriate box):
[x] No fee Required
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(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):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
<PAGE>
[ ] 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:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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<PAGE>
SEAFOODS PLUS, LTD.
110 Commerce Drive
Allendale, New Jersey 07401
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON AUGUST 10, 1998
To Our Shareholders:
A special meeting of shareholders of SEAFOODS PLUS, LTD., a Utah
corporation (the "Company"), will be held at 110 Commerce Drive, Allendale, New
Jersey 07401 on August 10, 1998, at 9:30 a.m., Eastern Standard Time, for the
following purposes:
1. To ratify the adoption of the Company's 1998 Incentive Plan
pursuant to which options to purchase shares of Common Stock will be granted to
employees, directors and others;
2. To approve the reincorporation of the Company as a Delaware
corporation and a related Agreement and Plan of Merger pursuant to which the
Company will be merged into a wholly-owned Delaware subsidiary;
3. To approve an amendment to the Certificate of Incorporation of the
Company to change the Company's name from Seafoods Plus, Ltd. to Cadapult
Graphic Systems, Inc.
4. To transact such other business as may properly come before the
meeting or any adjournment(s) thereof. Management is presently aware of no
other business to come before the meeting.
The Board of Directors has fixed the close of business on July 9,
1998, as the record date for the determination of Shareholders entitled to
notice of and vote at the meeting or any adjournment(s) thereof (the "Record
Date"). Shares of Common Stock can be voted at the meeting only if the holder
is present at the meeting in person or by valid proxy. Management is not
soliciting proxies in connection with the Special Meeting, and Shareholders are
requested not to send proxies to the Company.
By Order of the Board of Directors
Frances Blanco,
Secretary
Allendale, New Jersey
July 9, 1998
<PAGE>
SEAFOODS PLUS, LTD.
110 Commerce Drive
Allendale, New Jersey 07401
INFORMATION STATEMENT
WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY
DATE, TIME AND PLACE INFORMATION
This Information Statement is being furnished to the shareholders of
Seafoods Plus, Ltd., a Utah corporation (the "Company"), in connection with the
Special Meeting of the Shareholders of the Company to be held at 110 Commerce
Drive, Allendale, New Jersey 07401, on August 10, 1998, at 9:30 a.m., Eastern
Standard Time, and any adjournment or postponement thereof (the "Special
Meeting"). A copy of the notice of the Special Meeting accompanies this
Information Statement. It is anticipated that the mailing of this information
statement will commence on or about July 20, 1998.
DISSENTERS' RIGHT OF APPRAISAL
Pursuant to Sections 16-10a-1301 to 16-10a-1331 of Part 13 of the Utah
Business Corporation Act (the "Utah BCA"), in the event that a shareholder
votes against the proposal for the reincorporation of the Company as a Delaware
corporation, that shareholder may obtain payment of the fair value of its
shares. Pursuant to the Utah BCA, the shareholder must cause the corporation to
receive, before the vote is taken, written notice of its intent to demand
payment for shares if the proposed action is effectuated, and that shareholder
may not vote its shares in favor of the proposal. Failure to follow this
procedure will result in the forfeiture of a shareholder's dissenters' rights.
A copy of Part 13 of the Utah BCA is attached hereto as Exhibit 1. The Company
will give a written dissenters' notice to all shareholders who are entitled to
demand payment for their shares. The dissenters' notice will be sent no later
than ten days after the effective date of the corporate action creating
dissenters' rights. The dissenters' notice will set a date by which the Company
must receive the payment demand, which date may not be fewer than thirty days
nor more than seventy days after the date the dissenters' notice is given. A
shareholder's vote against, or failure to vote against, the proposed action,
without giving notice to the Company of intent to demand payment, will
constitute a waiver of the shareholder's dissenters' rights.
VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF
Only shareholders of record at the close of business on July 9, 1998
(the "Record Date") are entitled to notice of and to vote at the Special
<PAGE>
Meeting or any adjournment or postponement thereof. On the Record Date,
2,287,518 shares of common stock, par value $.001 per share (the "Common
Stock") were issued and outstanding. The only class of voting stock outstanding
is the Common Stock. There are no preferred stock issued or outstanding. Each
share of Common Stock is entitled to one vote and there is no cumulative
voting.
SECURITY OWNERSHIP FOR CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information concerning the beneficial
ownership of the Company's Common Stock as of July 9, 1998, by (i) each
beneficial owner of more than 5% of the Company's Common Stock, (ii) each
director of the Company, (iii) each executive officer of the Company, and (iv)
all executive officers and directors as a group. This information was
determined in accordance with Rule 13(d)-3 under the Securities Exchange Act of
1934, as amended, and is based upon the information furnished by the persons
listed below. Except as otherwise indicated, each shareholder listed possesses
sole voting and investing power with respect to the shares indicated as being
beneficially owned.
Shares of Stock
Beneficially owned
Title of Name and Address Amount and Nature Percent of
Shares of Beneficial Owner of Beneficial Owner Class
-------- ------------------- ------------------- -----------
Common Stock Michael Levin(1)(2) 1,548,450 67.7%
Common Stock Frances Blanco(1)(3) 40,775 1.8%
Common Stock Duncan Huyler(1)(4) 40,775 1.8%
Common Stock Paul Baker(1)(5)(6) 67,500 3.0%
Common Stock Jensen Services, Inc.(6) 428,580 18.7%
5525 S. 900 E.,
Suite 110, Salt Lake
City, Utah 84117
Common Stock All directors and 1,697,500 74.2%
executive officers of
the Company as a group
(4 persons)
(1)c/o Cadapult Graphic Systems, Inc., 110 Commerce Drive, Allendale, New
Jersey 07401.
<PAGE>
(2) Mr. Levin is the President, Chief Executive Officer and Chairman of the
Board of Directors of the Company. Includes 1,516,450 shares of common stock
owned individually by Mr. Levin and 32,000 shares owned by Mr. Levin's
children, in which Mr. Levin has beneficial interest. Excludes 800,000 shares
of common stock issuable upon exercise of options held by Mr. Levin that are
currently not exercisable and will not become exercisable within 60 days.
(3) Ms. Blanco is Vice President, Secretary, Treasurer and a Director of the
Company.
(4) Mr. Huyler is Vice President of the Company.
(5) Mr. Baker is a director of the Company.
(6) Gives effect to an agreement for the sale and purchase of 67,500 shares of
common stock by Mr. Baker from Jensen Services, Inc.
CHANGE IN CONTROL
Pursuant to an Agreement and Plan of Reorganization by and between
the Company and Cadapult Graphic Systems Inc., a New Jersey corporation
("CGSI"), all the shareholders of CGSI, Jenson Services, Inc., a Utah
corporation, Duane S. Jenson and Jeffrey D. Jenson, dated June 5, 1998, the
Company acquired all of the outstanding shares of CGSI and all the former
shareholders of CGSI collectively acquired 1,650,000 shares of the Company (the
"Reorganization"). The Reorganization closed on June 18, 1998. As a result of
the shares issued at the closing of the Reorganization to Michael W. Levin, a
change in control occurred from Jenson Services, Inc., which had effective
control of the Company prior to the Reorganization, to Mr. Levin. Mr. Levin
beneficially owns approximately 68% of the Company. The source of the
consideration used by the shareholders of CGSI to acquire their respective
interest in the Company was the exchange of all the outstanding capital stock
of CGSI pursuant to the Reorganization. The basis of control by Michael W.
Levin is stock ownership. Pursuant to the Reorganization, all the prior
directors and officers resigned, in seriatim, and nominated Mr. Levin's
designees as officers and directors of the Company. Michael W. Levin is
Chairman of the Board of Directors, Chief Executive Officer and President.
Frances Blanco is Vice President, Treasurer, Secretary and a director. Duncan
Huyler is a Vice President. Paul Baker is a director.
COMPENSATION OF DIRECTORS AND EXECUTIVE OFFICERS
The following table summarizes all compensation paid to the Company's
Chief Executive Officer and all other named executive officers of the Company
for services rendered in all capacities to the Company during the fiscal years
ended 1997, 1996 and 1995:
<PAGE>
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Annual Compensation Long Term Compensation
------------------- ----------------------
Awards Payouts
--------------------------------------------------------------------------
Other
Annual Restricted Options All Other
Compensa- stock SAR(s) LTIP compensat
Name and principal Year Salary (s) Bonus tion award(s) (#) payouts ion
position ($) ($) ($) ($) ($)
(a) (b) (c) (d) (e) (f) (g) (h) (i)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Kathleen L. 1997 0 0 0 0 0 0 0
Morrison, President 1996 0 0 0 0 0 0 0
and Director(1)(2) 1995 0 0 0 0 0 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Jason R. Osborne, 1997 0 0 0 0 0 0 0
Vice President and 1996 0 0 0 0 0 0 0
Director(1)(2) 1995 0 0 0 0 0 0 0
-----------------------------------------------------------------------------------------------------------------------------------
Terry Hardman, 1997 0 0 0 0 0 0 0
Secretary, Treasurer 1996 0 0 0 0 0 0 0
and Director(1)(2) 1995 0 0 0 0 0 0 0
===================================================================================================================================
(1) Pursuant to the closing of the Reorganization between the Company and CGSI
on June 18, 1998, the above listed individuals resigned as officers and
directors of the Company, in succession, and elected the nominees of Mr. Levin
to fill the vacancies.
(2) On or about June 10, 1998, the Company issued 1,000 shares of common stock
to each of the above listed individuals.
</TABLE>
COMPENSATION PLANS
No cash compensation, deferred compensation or long-term incentive
plan awards were issued or granted to the Company's management during the years
ended December 31, 1997, 1996 or 1995. Further, no member of the Company's
management has been granted any option or stock appreciation right during the
years ended December 31, 1997, 1996 or 1995; accordingly, no tables relating to
such items have been included within this Item.
COMPENSATION OF DIRECTORS
There are no standard arrangements pursuant to which the Company's
directors are compensated for any service provided as director. No additional
amounts are payable to the Company's directors for committee participation or
special assignments.
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT AND
CHANGE-IN-CONTROL ARRANGEMENT
None of the executive officers named in the Summary Compensation Table
had an employment agreement with the Company. The Company had no compensatory
plans or arrangements, including payments to be received from the Company, with
respect to any person named in the Summary Compensation Table set out above
which would in any way result in payments to any such person because of his or
her resignation, retirement or othertermination of such person's employment
with the Company or its subsidiaries, or any change in control of the Company,
or a change in the person's responsibilities following a change in control of
the Company.
<PAGE>
PROPOSAL NO. 1
TO APPROVE THE COMPANY'S 1998 INCENTIVE PLAN
On June 18, 1998, the Board of Directors of the Company adopted the
Seafoods Plus, Ltd. 1998 Incentive Plan (the "1998 Plan"). The 1998 Plan
authorized the Board to grant options to employees, directors and others to
purchase in the aggregate an amount of shares of Common Stock up to 500,000 of
the shares of the Common Stock. The Company presently has approximately three
directors, three officers and approximately twenty-five employees, all of which
may be entitled to a grant of Options. Directors, officers and other employees
of the Company who, in the opinion of the Board of Directors, are responsible
for the continued growth and development and the financial success of the
Company are eligible to be granted options under the 1998 Plan. Options may be
non-qualified options, incentive stock options, or any combination of the
foregoing. In general the options granted under the 1998 Plan have a maximum
duration of ten years from the date of the grant and are not transferable. The
per share exercise price of any incentive stock option granted under the 1998
Plan may not be less than the fair market value of the Common Stock on the date
of grant. Incentive stock options granted to persons who have voting control
over ten percent or more of the Company's capital stock are granted at 110% of
fair market value of the underlying common stock on the date of grant and
expire five years after the date of grant. No options may be granted after June
18, 2008. The grant of Options may have a dilative effect on Stockholder's
interests in the Company.
The 1998 Plan provides the Board of Directors with the discretion to
determine when options granted thereunder will become exercisable. Generally,
such options may be exercised after a period of time specified by the Board of
Directors at any time prior to expiration, so long as the optionee remains
employed by the Company. No option granted under the 1998 Plan is transferable
by the optionee other than by will or the laws of the descent and distribution,
and each option is exercisable during the lifetime of the optionee only be the
optionee.
DESCRIPTION OF THE 1998 PLAN.
The following summary of the 1998 Plan does not purport to be
complete, and is subject to and qualified in its entirety by reference to the
text of the 1998 Plan, which is attached hereto as Appendix A.
ADMINISTRATION. The 1998 Plan shall be administered by the Board of
Directors or, if authorized by Board of Directors, by the Compensation
Committee of the Company's Board of Directors, if created (collectively the
"Administrator"). The Board of Directors has full authority, subject to the
provisions of the 1998 Plan, to award incentive stock options and nonstatutory
stock options.
<PAGE>
Subject to the provisions of the 1998 Plan, the Administrator
determines in its discretion, among other things, the persons to whom from time
to time options may be granted ("Participants"), the number of shares subject
to each option, exercise prices under the options, any restrictions or
limitations on such option including any vesting, exchange, deferral,
surrender, cancellation, acceleration, termination, or forfeiture provisions
related to such options. The interpretation and construction by the
Administrator of any provisions of, or the determination of any questions
arising under, the 1998 Plan or any rule or regulation established by the Board
of Directors or the Committee pursuant to the 1998 Plan, shall be final,
conclusive and binding on all persons interested in the 1998 Plan.
SHARES SUBJECT TO THE OPTION PLAN. The 1998 Plan authorizes the Board
to grant options to directors and employees of the Company to purchase in the
aggregate an amount of shares of Common Stock up to 500,000 shares of Common
Stock. In order to prevent the dilution or enlargement of the rights of the
Participants under the 1998 Plan, the number of shares of Common Stock
authorized by the 1998 Plan and the number of shares subject to outstanding
options are subject to adjustment in the event of any increase or decrease in
the number of shares of outstanding Common Stock resulting from a stock
dividend, stock split, combination of shares, merger, reorganization,
consolidation, recapitalization or other change in the corporate structure
affecting the Company's capital stock. If any Option granted under the 1998
Plan is forfeited or terminated, the shares of Common Stock that were
underlying such Option shall again be available for distribution in connection
with Options subsequently granted under the 1998 Plan.
ELIGIBILITY. Subject to the provisions of the 1998 Plan, options may
be granted to Directors and full-time employees of the Company or its
subsidiaries.
EFFECTIVE DATE AND TERM OF THE 1998 PLAN. If approved by the Company's
shareholders, the 1998 Plan will be deemed effective on June 18, 1998, the date
on which it was adopted by the Board of Directors. No option may be granted
after June 18, 2008. The 1998 Plan will terminate ten (10) years after is
effective date, subject to earlier termination by the Board. No Option may be
granted under the 1998 Plan after the termination date, but Options previously
granted may extend beyond such date.
NATURE OF OPTIONS. The 1998 Plan provides for the grant of options,
which may be non-qualified options, incentive stock options, or any combination
of the foregoing. In general, options granted under the 1998 Plan are not
transferable and expire ten (10) years after the date of grant. The per share
exercise price of an incentive stock option granted under the 1998 Plan may not
be less than the fair market value of the Common Stock on the date of grant.
Incentive stock option granted to persons who have voting control over 10% or
more of the Company's capital stock are granted at 110% of the fair market value
of the underlying shares on the date of grant and expire five years after the
date of grant.
<PAGE>
EXERCISE OF OPTIONS. The 1998 Plan provides the Administrator with the
discretion to determine when options granted thereunder will become
exercisable. Generally, such options may be exercised after a period of time
specified by the Administrator, at any time prior to expiration, so long as the
optionee remains employed by the Company. No option granted under the 1998 Plan
is transferable by the optionee other than be will of the laws of descent and
distribution, and each optionee. The Board of Directors may, in its sole
discretion, financially assist an optionee in the exercise of options by
offering loans to the optionee or guaranteeing third party loans to the
optionee, the proceeds of which would be used to exercise the options.
AGREEMENTS. Options granted under the 1998 Plan will be evidenced by
agreements consistent with the 1998 Plan in such from as the Board of Directors
or the Committee may prescribe. Neither the 1998 Plan nor agreements thereunder
confer any right to continued employment upon any Participant.
AMENDMENTS TO THE 1998 PLAN. The Board of Directors may at any time,
and from time to time, amend, modify or terminate any of the provisions of the
1998 Plan, but no amendment, modification or termination shall be made which
would impair the rights of a Participant under any agreement theretofore
entered into pursuant to an Option grant, without the Participant's consent.
FEDERAL INCOME TAX CONSIDERATIONS.
The discussion that follows is a summary, based upon current law, of
some of the significant federal income tax considerations relating to awards
under the 1998 Plan. The following discussion does not address state, local or
foreign tax consequences.
If the 1998 Plan is approved by the shareholders, a Participant in the
1998 Plan will not recognize taxable income upon the grant or exercise of an
incentive stock option except under certain circumstances when the exercise
price is paid with already-owned shares of Common Stock that were acquired
through the previous exercise of an incentive stock option. However, upon the
exercise of an incentive stock option, the excess of the fair market value of
the shares received on the date of exercise over the exercise price of the
shares will be treated as a tax preference item for purposes of the alternative
minimum tax. In order for the exercise of an incentive stock option to qualify
for the foregoing tax treatment, the Participant generally must be an employee
of the Company from the date the incentive stock option is granted through the
date three months before the date of exercise, except in the case of death or
disability, where special rules apply. The Company will not be entitled to any
deduction with respect to the grant or exercise of an incentive stock option.
If shares acquired upon exercise of an incentive stock option are not
disposed of by the Participant within two years from the date of grant or
within one year after the transfer of such shares to the Participant (the "ISO
Holding Period"), then (i) no amount will be reportable as ordinary income with
respect to such shares by the Participant or recipient and (ii) the Company
will not be allowed a deduction in connection with such incentive stock option
or the Common Stock acquired pursuant to the exercise of the incentive stock
option. If a sale of such Common Stock occurs after the ISO Holding Period has
expired, then any amount recognized in excess of the exercise price will be
reportable as a long-term capital gain, and any amount recognized below the
exercise price will be reportable as a long-term capital loss. The exact amount
of tax payable on a long-term capital gain will depend upon the tax rates in
effect at the time of the sale. The ability of a participant to utilize a
long-term capital loss will depend upon the Participant's other tax attributes
<PAGE>
and the statutory limitations on capital loss deductions not discussed herein.
To the extent that alternative minimum taxable income was recognized on
exercise of the incentive stock option, the basis in the Common Stock acquired
may be higher for determining a long-term capital gain or loss for alternative
minimum tax purposes.
A "disqualifying disposition" will result if Common Stock acquired
upon the exercise of an incentive stock option (except in the circumstances of
a decedent's incentive stock option as described below) is sold before the ISO
Holding Period has expired. In such case, at the time of a disqualifying
disposition (except in the case of a Participant subject to Section 16
restrictions of the Exchange Act, as noted below), the Participant will
recognize ordinary income in the amount of the difference between the exercise
price and the lesser of (i) the fair market value on the date of exercise or
(ii) the amount realized on disposition. If the amount realized on the sale is
less than the exercise price, then the Participant will recognize no ordinary
income, and the recognized loss will be reportable as a short-term capital
loss. The Participant will report as a short-term capital gain, as applicable,
any amount recognized in excess of the fair market value on the date of
exercise, and the Company will be allowed a deduction on its federal income tax
return in the year of the disqualifying disposition equal to the ordinary
income recognized by the Participant. To the extent that alternative minimum
taxable income was recognized on the exercise of the incentive stock option,
the basis in the Common Stock acquired may be higher for determining a
short-term capital gain or loss for alternative minimum tax purposes.
The general rules discussed above are different if the Participant
disposes of the shares of Common Stock in a disqualifying disposition in which
a loss, if actually sustained, would not be recognized by the Participant.
Examples of these dispositions include gifts or sales to related parties such
as members of the Participant's family and corporations or entities in which
the Participant owns a majority equity interest. In such circumstances, the
Participant would recognize ordinary income equal to the difference between the
exercise price of the Common Stock and the fair market value of the Common
Stock on the date of exercise. The amount of ordinary income would not be
limited by the price at which the Common Stock was actually sold by the
Participant.
If the Participant retires or otherwise terminates employment with the
Company, other than by reason of death or permanent and total disability, an
incentive stock option must be exercised within three months of such
termination in order to be eligible for the tax treatment of the incentive
stock options described above, provided the ISO Holding Period requirements are
met. If a Participant terminates employment because of a permanent and total
disability, the incentive stock option will be eligible for such treatment if
it is exercised within one year of the date of termination of employment,
<PAGE>
provided the ISO Holding Period requirements are met. In the event of a
Participant's death, the incentive stock option will be eligible for such
treatment if exercised by the Participant's legatees, personal representatives
or distributees within one year from the date of death, provided that the death
occurred while the Participant was employed, within three months of the date of
termination of employment or within one year following the date of termination
of employment because of permanent and total disability.
In general, a Participant to whom a nonqualified option is granted
will recognize no taxable income at the time of the grant. Upon exercise of a
nonqualified option, the Participant will recognize ordinary income in an
amount equal to the amount by which the fair market value of the Common Stock
on the date of exercise exceeds the exercise price of the nonqualified option,
and the Company will generally be entitled to a deduction equal to the ordinary
income recognized by the Participant in the year the Participant recognized
ordinary income, subject to the limitations of Section 162(m) of the Code.
For purposes of the "alternative minimum tax" applicable to
individuals, the exercise of an incentive stock option is treated in the same
manner as the exercise of a nonqualified option. Thus, a Participant must, in
the year of the option exercise, include the difference between the exercise
price and the fair market value of the stock on the date of exercise in the
alternative minimum taxable income. The alternative minimum tax is imposed upon
an individual's alternative minimum taxable income currently, but only to the
extent that such tax exceeds the taxpayer's regular income tax liability for
the taxable year.
The Company is required to withhold certain income taxes from
Participants upon exercise of nonqualified options. The Company will be
entitled to a business expense deduction for both financial statement and for
federal income tax purposes equal to the ordinary income recognized by the
Participant in the year the Participant recognizes ordinary income from the
exercise of nonqualified options.
In addition to the foregoing federal tax consequences, the exercise,
ultimate sale or other disposition of Options by Participants will in most
cases by subject to state income taxation.
<PAGE>
OPTIONS GRANTED UNDER THE PLAN
As of July 9, 1998, the Company has granted under the 1998 Plan
options to purchase an aggregate of 140,183 shares of Common Stock at exercise
prices of $1.25 to $1.375 per share to certain employees of the Company, which
grants are contingent upon approval of the 1998 Plan by the Company's
stockholders. The following table provides certain information with respect to
such grants to the Executive Officers of the Company and others:
NEW PLAN BENEFITS
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1998 Incentive Plan
-------------------------------------------------------------------------------
Name and Position Exercise Price($)(a) Number of
Options
Granted
-------------------------------------------------------------------------------
Kathleen L. Morrison, President and Director(1) 0 0
-------------------------------------------------------------------------------
Jason R. Osborne, Vice President and Director(1) 0 0
-------------------------------------------------------------------------------
Terry Hardman, Secretary, Treasurer and 0 0
Director(1)
-------------------------------------------------------------------------------
Michael W. Levin, Chief Executive Officer, $1.375 51,223
President and Chairman of the Board(2)
-------------------------------------------------------------------------------
Frances Blanco, Vice President, Secretary, $1.25 7,741
Treasurer and Director(2)
-------------------------------------------------------------------------------
Duncan Huyler, Vice President(2) $1.25 9,265
-------------------------------------------------------------------------------
Executive Group $1.25-$1.375 68,229
-------------------------------------------------------------------------------
Non-Executive Director Group 0 0
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Non-Executive Officer Employee Group(6) $1.25 71,954
-------------------------------------------------------------------------------
(1) Pursuant to the closing of the Reorganization on June 18, 1998, the
indicated individuals resigned as officers and directors of the Company.
(2)Pursuant to the closing of the Reorganization on June 18, 1998, the
indicated individuals were elected to fills vacancies caused by the resignation
of the former officers and directors of the Company.
(3) The exercise price of all option grants are at or above the fair market
value of a share of Common Stock on the date of grant.
REASON FOR APPROVAL.
The Board of Directors believes that in order to attract and retain
officers, employees and directors of the highest quality, provide increased
incentive for such persons to strive to attain the Company's long-term goal of
increasing shareholder value, and to continue to promote the well being of the
Company, it is in the best interests of the Company and its shareholders to
provide officers, directors and employees of the Company, through the granting
of stock options, the opportunity to participate in the appreciation in value
of the Company's Common Stock.
Shareholder approval of the 1998 Plan is necessary in order that
incentive stock options granted under the 1998 Plan will qualify for treatment
as such under the Internal Revenue Code of 1986, as amended (the "Code").
Unless shareholder approval is obtained, options granted under the 1998 Plan
will have less value and consequently, will not provide the incentive to
recipient intended by the Board.
<PAGE>
In addition, the grant of stock options pursuant to a plan which has been
approved by shareholders and meets certain conditions is exempt from the
"Short-Swing Profits" liability provisions of Section 16(b) of the Securities
and Exchange Act of 1934, as amended (the "Act"). Section 16(b) provides that
upon the purchase and sale (or sale and purchase) of the Company's Common Stock
within any six month period by a principal officer, director or beneficial owner
of more than 10% of the Company's Common Stock, any "profit" realized by such
person is recoverable by the Company. As a result of the complexities of this
rule, optionees may unwittingly fall within its scope and be forced to disgorge
gains to the Company, thereby frustrating the Company's intent to provide
incentive to officers and employees under the 1998 Plan. Thus, shareholder
approval of the 1998 Plan is sought in order to exempt from the liability
provisions of Section 16(b) the grant of options to officers, directors and
employees who are eligible to participate in the 1998 Plan.
VOTE REQUIRED.
Assuming a quorum consisting of a majority of the votes entitled to be
cast by holders of the Common Stock (the "Votes"), is present, in person or by
proxy, at the Special Meeting, the affirmative vote of the holders of a
majority of the Votes present, in person or by proxy, at the Special Meeting,
is required to approve the 1998 Plan. Mr. Levin, who has voting power over a
majority of the Votes, has agreed that he will vote for the approval of the
1998 Plan. Accordingly, it is expected that the 1998 Plan will be approved.
PROPOSAL NO. 2
TO APPROVE THE REINCORPORATION OF THE COMPANY AS A DELAWARE CORPORATION
The Company's Board of Directors has approved the reincorporation of
the Company as a Delaware corporation (the "Reincorporation") and a related
Agreement and Plan of Merger (the "Merger Agreement"). The Reincorporation will
be effected by the merger of the Company into Cadapult Graphic Systems, Inc.
("Cadapult"), a corporation formed under the laws of the State of Delaware as a
wholly-owned subsidiary of the Company. The addresses of the principal
executive offices of each the Company and Cadapult are 110 Commerce Drive,
Allendale, New Jersey 07401, telephone number 201-236-1100. Cadapult presently
has no operations, but after the Reincorporation, it will undertake the same
business as is currently undertaken by the Company. A copy of the Merger
Agreement is attached as Appendix B. Stockholders will be asked to approve the
Reincorporation and Merger Agreement at the Special Meeting.
If the Merger Agreement is duly authorized and adopted by the
requisite votes of stockholders and is not terminated and abandoned pursuant to
the provisions the Merger Agreement, a Certificate of Merger shall be filed
with the Secretary of State of Delaware, and Articles of Merger shall be filed
with the Secretary of the State of Utah. The merger and Reincorporation shall
be effective immediately upon the aforementioned filings. If approved, the
<PAGE>
Company expects that the merger and Reincorporation will become effective on a
date as soon as practicable after the Special Meeting date (the "Effective
Date"). On the Effective Date, the existing stockholders of the Company will
become stockholders of Cadapult, and the separate legal existence of the
Company will terminate. However, the Reincorporation will not result in any
substantial change in the Company's business, directors, management, assets,
liabilities, net worth, operations or financial statements or any change in the
ownership interests of any stockholders of the Company. In addition, on the
Effective Date, the proposed merger and Reincorporation may be abandoned, or
the Merger Agreement may be amended (with certain exceptions), either before or
after stockholder approval has been obtained, if, in the opinion of the Board
of Directors, circumstances arise that make such action advisable.
ADOPTION AND APPROVAL OF THE REINCORPORATION AND THE MERGER AGREEMENT WILL
AFFECT CERTAIN RIGHTS OF STOCKHOLDERS. ACCORDINGLY, STOCKHOLDERS ARE URGED TO
READ CAREFULLY THIS ENTIRE INFORMATION STATEMENT AND THE ATTACHMENTS HERETO.
REASON FOR APPROVAL OF THE MERGER AGREEMENT
The Board of Directors of the Company believes that the
Reincorporation is in the best interest of the Company and its stockholders.
For many years, Delaware has followed a policy of encouraging incorporation in
that state. In furtherance of that policy, Delaware has adopted comprehensive,
modern and flexible corporate laws which are periodically updated and revised
to meet changing business needs. As a result, many major corporations have
initially chosen Delaware for their domicile or have subsequently
reincorporated in Delaware in a manner similar to that proposed by the company.
Delaware courts have developed 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. The
favorable business corporation laws of Delaware should benefit the Company by
allowing it to conduct its affairs in a more flexible and efficient manner.
Prior to the Reincorporation, the Company's state of incorporation is Utah.
Since neither the Company's executive offices nor any of the Company's
employees are located in Utah, the Company has no important ties to or presence
in Utah that would make incorporation in Utah convenient for the Company.
In connection with the proposed Reincorporation, the shares of the
Company's issued and outstanding Common Stock would be exchanged on a
one-for-one basis for shares of Common Stock of Cadapult, and all outstanding
capital stock of Cadapult would be cancelled.
After considering the advantages and disadvantages of the proposed
Reincorporation, including the differences between the Utah BCA and the General
Corporation Law of the State of Delaware ("Delaware GCL"), the Board of
Directors has concluded that it is in the best interest of the Company and its
stockholders to change its domicile from Utah to Delaware. It is anticipated
that if the proposal for Reincorporation is approved, the Board of Directors
may authorize the parent-subsidiary merger under the laws of the State of
Delaware of the Company and its wholly-owned operating subsidiary, CGSI.
<PAGE>
CERTAIN CONSEQUENCES OF THE REINCORPORATION
Management after the Reincorporation. Upon effectiveness of the
---------------------------------------
Reincorporation, the Board of Directors of Cadapult will consist of those
persons serving on the Board of Directors of the Company immediately prior to
the Effective Date of the Reincorporation. The directors will continue to hold
office as directors of Cadapult for the same term for which they would
otherwise serve as directors of the Company, and if appropriate, will be
subject to re-election at the next Annual Meeting of stockholders of Cadapult.
The individuals serving as executive officers of the Company immediately prior
to the Effective Date of the Reincorporation will serve as executive officers
of Cadapult upon the effectiveness of the Reincorporation.
Capitalization. The Company's Utah Articles of Incorporation
--------------
authorizes the Company to issue 50,000,000 shares of common stock, par value
$.001 per share, (the "Common Stock"). As of June 18, 1998, there were
2,287,518 shares of Common Stock issued and outstanding. Cadapult's Delaware
Certificate of Incorporation authorizes the Company to issue 50,000,000 shares
of common stock, par value $.001 per share. The relative rights and limitations
of the Common Stock will remain unchanged after the Reincorporation.
Common Stock Options. Unexpired, unexercised outstanding options to
--------------------
purchase Common Stock of the Company will be deemed to be valid options issued
by Cadapult to purchase shares of Common Stock of Cadapult on the same terms
and conditions as presently provided. The Company's proposed 1998 Plan will not
be changed in any material respect by the Reincorporation.
Indebtedness of the Company. All indebtedness of the Company
------------------------------
outstanding at the Effective Date of the Reincorporation will be assumed by
Cadapult in connection with the Merger. To the Company's knowledge, no
indebtedness of the Company will be accelerated as a result of the proposed
transaction.
Stock Certificates. Stock certificates of the Company will be deemed
-------------------
to represent the same number of shares of Cadapult following the
Reincorporation. HOWEVER, IT WILL BE NECESSARY FOR STOCKHOLDERS TO EXCHANGE
THEIR COMPANY STOCK CERTIFICATES FOR CADAPULT STOCK CERTIFICATES.
POSSIBLE NEGATIVE CONSEQUENCES OF THE REINCORPORATION
Notwithstanding the belief of the Board of Directors as to the
potential benefits to stockholders of the Reincorporation and the Merger
Agreement, stockholders should realize that there may be negative consequences
of the Reincorporation and the Merger Agreement. A negative consequence may be
payment of higher franchise taxes charged by Delaware, as compared to the lower
franchise taxes the Company would pay in Utah.
<PAGE>
RIGHTS OF STOCKHOLDERS TO DISSENT
Since the proposed Reincorporation will be conducted through a merger
of a parent corporation (the Company) into its wholly-owned subsidiary
(Cadapult), under Utah law, stockholders of the Company will have the right
under Part 13 of the Utah BCA to dissent from the Reincorporation and receive
the fair market value of their shares in cash.
Under Utah law, a holder of the Company's Common Stock or Preferred
Stock who desires to dissent from the proposed merger and receive cash payment
for the fair value of his or her shares must give the Company, prior to the
vote on Proposal No. 2 at the Special Meeting, written notice of his or her
intent to demand payment for his or her shares if the proposed action is
effectuated. Within 10 days after receiving the required stockholder approval
for the Merger Agreement, the Company shall send written notice of the approval
to those stockholders who dissented and did not vote in favor of the
Reincorporation and the Merger Agreement.
Stockholders who are given a dissenter's notice and wish to assert
dissenters' rights must, within 30 days after the date of the dissenters'
notice and in accordance with the terms of such notice, cause the Company to
receive a payment demand and submit the certificates representing their shares
to the Company or the Company's transfer agent as directed in the dissenters'
notice. Voting against such proposal, either by proxy or at the meeting, does
not fulfill the statutory requirements with respect to notice of his or her
intent to demand payment and the required demand for payment. A vote, in person
or by proxy, in favor of the proposal to approve the Reincorporation and the
Merger Agreement (Proposal No. 2) constitutes a waiver of appraisal rights. A
stockholder giving such notice and making such demand, who did not vote for the
proposal to approve the Reincorporation and the Merger Agreement, shall be
entitled, if and when the merger is effected, to be paid by the Company the
fair value of his or her shares.
Upon the later of the Effective Date and receipt by the Company of
each payment demand, the Company shall pay the fair value of the dissenter's
shares, plus interest, to each dissenter who has timely deposited his or her
certificates. If the dissenter is dissatisfied with the payment, the dissenter
may, within 30 days after the Company made payment for his or her shares,
notify the Company in writing of his or her own estimate of the fair value of
his or her shares and demand payment of the estimated amount, plus interest,
less the payment already made. The dissenter may also deliver such notice to
the Company if the Company fails to make payment within 60 days after the
deadline to receive payments demands. If a demand for payment remains
unresolved, the Company must commence a proceeding within 60 days after
receiving the dissenter's payment demand to petition the court to determine the
fair value of the shares, including interest. If the Company does not commence
such a proceeding within the 60 day period, it must pay each dissenter whose
demand remains unresolved the amount demanded.
<PAGE>
The above summary with respect to the rights of the Company and the
stockholders to object and demand payment for their shares does not purport to
be complete and is qualified in its entirety by reference to the provisions of
Part 13 of the Utah BCA, a copy of which is attached hereto as Exhibit 1.
CERTAIN SIGNIFICANT DIFFERENCES BETWEEN THE CORPORATION LAWS OF UTAH AND
DELAWARE
Although it is impractical to note all of the differences between the
corporation statutes of Utah and Delaware, the most significant differences in
the judgment of the management of the Company are summarized below. The summary
is not intended to be complete and reference should be made to the Utah BCA and
the Delaware GCL.
Appraisal Rights. Under Utah law, dissenting stockholders are entitled
----------------
to appraisal rights in connection with the lease, sale, exchange, transfer or
other disposition of all or substantially all of the assets of a corporation
and in connection with certain amendments to the corporation's articles of
incorporation. Stockholders of a Utah corporation being merged into or
consolidated with another corporation are also entitled to appraisal rights. In
addition, stockholders of an acquiring corporation are entitled to appraisal
rights in any merger, combination or other transaction in which such
stockholders are entitled to voting rights. Under Delaware law, appraisal
rights are available only in connection with certain mergers or consolidations,
unless otherwise provided in the certificate of incorporation.
Dividends. Utah law prohibits the distribution of dividends if, after
---------
a distribution is given effect, the corporation would not be able to pay its
debts as they become due in the usual course of business or if the
corporation's total assets would be less than the sum of its total liabilities
plus the amount that would be needed, if the corporation were to be dissolved
at the time of the distribution, to satisfy the preferential rights upon
dissolution of stockholders whose preferential rights are superior to those
receiving the distribution. Like Utah, Delaware law prohibits the distribution
of dividends if the capital of the corporation shall have been diminished by
depreciation in the value of its property, or by losses or otherwise, to an
amount less than the aggregate amount of capital represented by the issued and
outstanding stock of all classes having a preference upon the distribution of
assets.
Neither the Company nor Cadapult has any current plans to pay
dividends or make any other distributions on its capital stock. Nevertheless,
the difference between the Utah BCA and the Delaware GCL with respect to
amounts available for dividends or other distributions could conceivably affect
future dividends or other distributions, if they are declared.
<PAGE>
Right to Call Special Meetings of Stockholders. Under Utah law, the
------------------------------------------------
holders of at least 10% of the outstanding shares of a corporation have the
authority to call special meetings of stockholders. Delaware law does not
require that stockholders be given the right to call special meetings. The
Bylaws of Cadapult provide, however, that the a special meeting may be called
upon written request of stockholders of record holding a majority in amount of
the capital stock of the Company outstanding and entitled to vote.
Provisions Affecting Business Combinations/Corporate Control. Delaware
------------------------------------------------------------
has enacted a business combination statute that is contained in Section 203 of
the Delaware Code. Utah has no comparable statute. Section 203 provides that
any person who acquires 15% or more of a corporation's voting stock (an
"Interested Stockholder") many not engage in a wide range of "business
combinations" with the corporation for a period of three years unless certain
approvals are obtained from the Board of Directors or stockholders. A "business
combination" is defined to include: (i) mergers and sales or other dispositions
of ten percent or more of the assets of a corporation with or to an interested
stockholder; (ii) certain transactions resulting in the issuance or transfer to
the interested stockholder of any stock of the corporation or its subsidiaries;
(iii) certain transactions which would result in increasing the proportionate
share of the stock of the corporation or its subsidiaries owned by the
interested stockholder; and (iv) receipt by the interested stockholder of the
benefit (except proportionately as a stockholder of any loans, advances,
guarantees, pledges or other financial benefits).
These restrictions do not apply under certain circumstances if the
corporation's certificate of incorporation or bylaws contain a provision
expressly electing not to be governed by Section 203. The Cadapult Certificate
of Incorporation and Bylaws do not contain any provision electing not to be
governed by Section 203 of the Delaware Code. The Board of Directors of the
Company believes that the provisions of Section 203 will help ensure that a
change in control of the Company does not occur without the consent of the
Board of Directors or the stockholders, or both, and will encourage any person
who seeks to acquire control of the Company to do so by a negotiated
transaction. Because Section 203 of the Delaware Code has not been extensively
applied by the courts of Delaware, uncertainties exist concerning the
application of this statute to particular situations. Management is not aware
of any attempt to acquire the Company by a third party and does not have any
current plans to propose any changes to the charter documents or corporate
structure of Cadapult that would have an anti-takeover purpose or effect.
In addition, the Utah BCA generally disallows the exercise of voting
rights with respect to "control shares" of an "issuing corporation" held by an
"acquiring person," unless such voting rights are conferred by a majority vote
of the disinterested stockholders. "Control shares" are the voting shares of an
issuing corporation acquired in connection with the acquisition of a
"controlling interest." "Controlling interest" is defined in terms of threshold
levels of voting share ownership, which thresholds, whenever each may be
crossed, trigger application of the voting bar with respect to the shares newly
acquired. Delaware does not have a similar control shares statute.
<PAGE>
Indemnification of Officers and Directors and Advancement of Expenses.
---------------------------------------------------------------------
Utah and Delaware have similar provisions regarding indemnification by a
corporation of its officers, directors, employees and agents for claims against
such persons as a result of their position.
Limitation on Personal Liability of Directors. Delaware corporations
---------------------------------------------
are permitted to adopt charter provisions limiting, or even eliminating, the
liability of a director of a company and its stockholders for monetary damages
for breach of fiduciary duty as a director, provided that such liability does
not arise from certain proscribed conduct, including breach of the duty of
loyalty, acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law or liability to the corporation based
on unlawful dividends or distributions or improper personal benefit. The Utah
Business Corporation Act provision permitting the adoption of provisions in the
articles of incorporation limiting personal liability is similar to Delaware's,
but differs in one major respect. While the Delaware provision does not permit
limitation of liability for breach of duty of loyalty, the Utah counterpart
does not contain this exception.
CERTAIN DIFFERENCES BETWEEN CHARTER AND BYLAWS OF THE COMPANY
AND CADAPULT
Upon completion of the Reincorporation, the Cadapult Certificate of
Incorporation and Bylaws will become the charter and bylaws of the surviving
corporation. The Cadapult Certificate of Incorporation contains provisions
relating to indemnification of directors and limitation of liability that
reflect current Delaware law, whereas the Company's Articles of Incorporation
contain no similar provisions relating to Utah law. The Cadapult Certificate of
Incorporation contains no provision concerning the voidability of interested
transactions, whereas the Company's Articles of Incorporation provide that
interested transactions shall not be void or voidable if the relationship is
disclosed to the Board of Directors or the stockholders or if the transaction
is fair and reasonable to the Company. The Cadapult Certificate of
Incorporation, unlike the Company's Articles of Incorporation, contains a
provision limiting the personal liability of directors.
In order for the Company's stockholders to call a special meeting of
stockholders, the the Company's Bylaws require holders of at least 10% of the
outstanding shares to request such a meeting, whereas the Cadapult Bylaws
require holders of at least 50% of the outstanding shares to request the same.
To act without a meeting, the Company's Bylaws require the unanimous written
consent to the action to be taken by the Board of Directors or the
stockholders, as applicable. Cadapult's Bylaws also require the unanimous
consent of the directors to act without a meeting of the Board of Directors,
but in the case of action by the stockholders without a meeting, Cadapult's
Bylaws require only the written consent of the holders of outstanding stock
having not less than the number of votes that would have been necessary to
authorize such action at a meeting at which all shares entitled to vote were
present and voted.
<PAGE>
Cadapult's Bylaws provide for the removal of directors with or without
cause in accordance with Delaware law. The Company's Bylaws provide for the
removal of directors by a majority of the shares of outstanding stock of the
corporation entitled to vote without reference to removal with or without
cause; however, Utah law permits the removal of directors with or without cause
by the stockholders. Unlike the Company's Bylaws, which authorize only the
Board of Directors to amend the Bylaws, the Cadapult Bylaws provide that they
may be amended by the holders of a majority of outstanding shares.
Cadapult's Certificate of Incorporation and Bylaws are attached hereto
as Exhibits 2 and 3, respectively. Copies of the Company's Articles of
Incorporation and Bylaws are available for inspection by stockholders upon
request to the Secretary of the Company.
ABANDONMENT OR AMENDMENT OF THE REINCORPORATION
The boards of directors of the Company and Cadapult may terminate the
merger by mutual consent, whether it be before or after approval of the
Reincorporation by the Company's stockholders. In addition, the Company and
Cadapult may by written agreement amend, modify or supplement any provision of
the Merger Agreement, provided that an amendment made subsequent to approval of
the Reincorporation by the Company's stockholders shall not, without the
subsequent approval of the Company's stockholders, (a) alter or change the
amount or kind of securities or rights to be received for or on conversion of
all or any of the shares of capital stock of the Company or Cadapult, (b) alter
or change any material term of the Certificate of Incorporation of Cadapult, or
(c) alter or change any of the terms and conditions of the Merger Agreement if
such alteration or change would adversely affect the stockholders of the
Company or Cadapult. The Company is not aware of, and does not contemplate, any
circumstances that would cause the Company to abandon or amend the terms of the
proposed Reincorporation.
FEDERAL INCOME TAX CONSEQUENCES
It is anticipated the Reincorporation will be treated as a tax-free
reorganization under the Code. Accordingly, no gain or loss will be recognized
by holders of Common Stock of the Company or by Cadapult as a result of the
consummation of the Reincorporation. THE FOREGOING IS ONLY A SUMMARY OF THE
FEDERAL INCOME TAX CONSEQUENCES AND IS NOT TAX ADVICE. NO RULING FROM THE
INTERNAL REVENUE SERVICE AND NO OPINION OF COUNSEL WITH RESPECT TO THE TAX
CONSEQUENCES OF THE MERGER HAVE BEEN OR WILL BE OBTAINED BY THE COMPANY.
STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISERS REGARDING THE TAX
CONSEQUENCES OF THE MERGER.
<PAGE>
REGULATORY REQUIREMENTS
To the best knowledge, the Company is not required to comply with any
federal or state regulatory requirements other than filing of Articles of
Merger and a Certificate of Merger with the Utah Secretary of State and the
Delaware Secretary of State, respectively, or to seek any federal or state
regulatory approvals in connection with the Merger.
VOTING
Approval of Proposal No. 2 requires the affirmative vote of a majority
of the outstanding Votes of the Company. Mr. Levin, who has voting power over a
majority in interest of the Votes, will vote FOR approval of the
Reincorporation and the Agreement and Plan of Merger. Accordingly, it is
expected that the Reincorporation and the Agreement and Plan of Merger will be
approved.
INDEPENDENT AUDITORS
Representatives of the Company's independent auditors are not expected
to be present in person at the Special Meeting but may be present by conference
call, and if present, will have the opportunity to make a statement if they
desire to do so and respond to appropriate questions if they desire to do so.
PROPOSAL NO. 3.
TO APPROVE THE PROPOSED AMENDMENT TO
ARTICLES OF INCORPORATION
It is proposed that the Articles of Incorporation be amended to change
the name of the Company from Seafoods Plus, Ltd. to Cadapult Graphic Systems,
Inc. The Board of Directors proposed an amendment to the First provision of the
Articles of Incorporation pursuant to which the name of the Company would be
changed to Cadapult Graphic Systems, Inc. in the event that the Reincorporation
into the State of Delaware is not approved or is abandoned, and the Board of
Directors directed that the proposed amendment be submitted to a vote of the
stockholders for their approval and adoption. A copy of the proposed amendment
to the Articles of Incorporation is attached hereto as Appendix C.
In June 1998, the Company acquired all the outstanding shares of
Cadapult Graphic Systems Inc., a New Jersey corporation ("CGSI"). CGSI is the
Company's wholly-owned subsidiary and sole operating entity. The Board believes
that changing the Company's name to Cadapult Graphic Systems, Inc. will enhance
the Company's business and prospects as a systems integrator of computer
graphics systems supplies and services.
<PAGE>
OTHER BUSINESS
The Special Meeting is being held for the purposes set forth in the Notice that
accompanies this Information Statement. The Board of Directors is not presently
aware of any business to be transacted at the Special Meeting other than as set
forth in such Notice.
BY ORDER OF THE BOARD OF DIRECTORS
Michael W. Levin, President and Chairman
Allendale, NJ
July 9, 1998
<PAGE>
LIST OF EXHIBITS
Exhibit 1 Utah Business Corporation Act, Part 13
Exhibit 2 Certificate of Incorporation of Cadapult
Exhibit 3 Bylaws of Cadapult
<PAGE>
EXHIBIT 1
Part 13. Dissenters' Rights
16-10a-1301 DEFINITIONS.--For purposes of Part 13:
(1) "Beneficial shareholder" means the person who is a beneficial owner of
shares held in a voting trust or by a nominee as the record shareholder.
(2) "Corporation" means the issuer of the shares held by a dissenter before
the corporate action, or the surviving or acquiring corporation by merger or
share exchange of that issuer.
(3) "Dissenter" means a shareholder who is entitled to dissent from
corporate action under Section 16-10a-1302 and who exercises that right when
and in the manner required by Sections 16-10a-1320 through 16-10a-1328.
(4) "Fair value" with respect to a dissenter's shares, means the value of
the shares immediately before the effectuation of the corporate action to which
the dissenter objects, excluding any appreciation or depreciation in
anticipation of the corporate action.
(5) "Interest" means interest from the effective date of the corporate
action until the date of payment, at the statutory rate set forth in Section
15-1-1, compounded annually.
(6) "Record shareholder" means the person in whose name shares are
registered in the records of a corporation or the beneficial owner of shares
that are registered in the name of a nominee to the extent the beneficial owner
is recognized by the corporation as the shareholder as provided in Section
16-10a-723.
(7) "Shareholder" means the record shareholder or the beneficial
shareholder.
16-10a-1302 RIGHT TO DISSENT.--(1) A shareholder, whether or not entitled to
vote, is entitled to dissent from, and obtain payment of the fair value of
shares held by him in the event of, any of the following corporate actions:
(a) consummation of a plan of merger to which the corporation is a party
if:
(i) shareholder approval is required for the merger by Section 16-10a-1103
or the articles of incorporation; or
(ii) the corporation is a subsidiary that is merged with its parent under
Section 16- 10a-1104;
(b) consummation of a plan of share exchange to which the corporation is a
party as the corporation whose shares will be acquired;
(c) consummation of a sale, lease, exchange, or other disposition of all,
or substantially all, of the property of the corporation for which a
shareholder vote is required under Subsection 16-10a-1202(1), but not including
a sale for cash pursuant to a plan by which all or substantially all of the net
proceeds of the sale will be distributed to the shareholders within one year
after the date of sale; and
(d) consummation of a sale, lease, exchange, or other disposition of all,
or substantially all, of the property of an entity controlled by the
corporation if the shareholders
<PAGE>
of the corporation were entitled to vote upon the consent of the corporation to
the disposition pursuant to Subsection 16-10a-1202(2).
(2) A shareholder is entitled to dissent and obtain payment of the fair
value of his shares in the event of any other corporate action to the extent
the articles of incorporation, bylaws, or a resolution of the board of
directors so provides.
(3) Notwithstanding the other provisions of this part, except to the extent
otherwise provided in the articles of incorporation, bylaws, or a resolution of
the board of directors, and subject to the limitations set forth in Subsection
(4), a shareholder is not entitled to dissent and obtain payment under
Subsection (1) of the fair value of the shares of any class or series of shares
which either were listed on a national securities exchange registered under the
federal Securities Exchange Act of 1934, as amended, or on the National Market
System of the National Association of Securities Dealers Automated Quotation
System, or were held of record by more than 2,000 shareholders, at the time of:
(a) the record date fixed under Section 16-10a-707 to determine the
shareholders entitled to receive notice of the shareholders' meeting at which
the corporate action is submitted to a vote;
(b) the record date fixed under Section 16-10a-704 to determine
shareholders entitled to sign writings consenting to the proposed corporate
action; or
(c) the effective date of the corporate action if the corporate action is
authorized other than by a vote of shareholders.
(4) The limitation set forth in Subsection (3) does not apply if the
shareholder will receive for his shares, pursuant to the corporate action,
anything except:
(a) shares of the corporation surviving the consummation of the plan of
merger or share exchange;
(b) shares of a corporation which at the effective date of the plan of
merger or share exchange either will be listed on a national securities
exchange registered under the federal Securities Exchange Act of 1934, as
amended, or on the National Market System of the National Association of
Securities Dealers Automated Quotation System, or will be held of record by
more than 2,000 shareholders;
(c) cash in lieu of fractional shares; or
(d) any combination of the shares described in Subsection (4), or cash in
lieu of fractional shares.
(5) A shareholder entitled to dissent and obtain payment for his shares
under this part may not challenge the corporate action creating the entitlement
unless the action is unlawful or fraudulent with respect to him or to the
corporation.
16-10a-1303 DISSENT BY NOMINEES AND BENEFICIAL OWNERS.--(1) A record
shareholder may assert dissenters' rights as to fewer than all the shares
registered in his name only if the shareholder dissents with respect to all
shares beneficially owned by any one person and causes the corporation to
receive written notice which states the dissent and the name and address of
each person on whose behalf dissenters' rights are being asserted. The rights
of a partial dissenter under this subsection are determined as if the shares
as to which the shareholder dissents and the other shares held of record by
him were registered in the names of different shareholders.
<PAGE>
(2) A beneficial shareholder may assert dissenters' rights as to shares
held on his behalf only if:
(a) the beneficial shareholder causes the corporation to receive the record
shareholder's written consent to the dissent not later than the time the
beneficial shareholder asserts dissenters' rights; and
(b) the beneficial shareholder dissents with respect to all shares of which
he is the beneficial shareholder.
(3) The corporation may require that, when a record shareholder dissents
with respect to the shares held by any one or more beneficial shareholders,
each beneficial shareholder must certify to the corporation that both he and
the record shareholders of all shares owned beneficially by him have asserted,
or will timely assert, dissenters' rights as to all the shares unlimited on the
ability to exercise dissenters' rights. The certification requirement must be
stated in the dissenters' notice given pursuant to Section 16-10a-1322.
16-10a-1320 NOTICE OF DISSENTERS' RIGHTS.--(1) If a proposed corporate action
creating dissenters' rights under Section 16-10a-1302 is submitted to a vote at
a shareholders' meeting, the meeting notice must be sent to all shareholders of
the corporation as of the applicable record date, whether or not they are
entitled to vote at the meeting. The notice shall state that shareholders are
or may be entitled to assert dissenters' rights under this part. The notice
must be accompanied by a copy of this part and the materials, if any, that
under this chapter are required to be given the shareholders entitled to vote
on the proposed action at the meeting. Failure to give notice as required by
this subsection does not affect any action taken at the shareholders' meeting
for which the notice was to have been given
(2) If a proposed corporate action creating dissenters' rights under
Section 16-10a- 1302 is authorized without a meeting of shareholders pursuant to
Section 16-10a-704, any written or oral solicitation of a shareholder to execute
a written consent to the action contemplated by Section 16-10a-704 must be
accompanied or preceded by a written notice stating that shareholders are or may
be entitled to assert dissenters' rights under this part, by a copy of this
past, and by the materials, if any, that under this chapter would have been
required to be given to shareholders entitled to vote on the proposed action if
the proposed action were submitted to a vote at a shareholders' meeting. Failure
to give written notice as provided by this subsection does not affect any action
taken pursuant to Section 16-10a-704 for which the notice was to have been
given.
16-10a-1321 DEMAND FOR PAYMENT--ELIGIBILITY AND NOTICE OF INTENT.--
(1) If a proposed corporate action creating dissenters' rights under
Section 16-10a- 1302 is submitted to a vote at a shareholders' meeting, a
shareholder who wishes to assert dissenters' rights:
(a) must cause the corporation to receive, before the vote is taken,
written notice of his intent to demand payment for shares if the proposed
action is effectuated; and
(b) may not vote any of his shares in favor of the proposed action.
(2) If a proposed corporate action creating dissenters' rights under
Section 16-10a- 1302 is authorized without a meeting of shareholders pursuant
to Section 16-10a-704, a shareholder who wishes to assert dissenters' rights
may not execute a writing consenting to the proposed corporate action.
(3) In order to be entitled to payment for shares under this part, unless
otherwise provided in the articles of incorporation, bylaws, or a resolution
adopted by the board of directors, a shareholder must have been a shareholder
with respect to the shares for which payment is demanded as of the date the
proposed corporate action creating dissenters' rights under Section 16-10a-1302
is approved by the shareholders, if shareholder approval is required, or as of
the effective date of the corporate action if the corporate action is
authorized other than by a vote of shareholders.
<PAGE>
(4) A shareholder who does not satisfy the requirements of Subsections (1)
through (3) is not entitled to payment for shares under this part.
16-10a-1322 DISSENTERS' NOTICE.--(1) If a proposed corporate action creating
dissenters' rights under Section 16-10a-1302 is authorized, the corporation
shall give a written dissenters' notice to all shareholders who are entitled to
demand payment for their shares under this part.
(2) The dissenters' notice required by Subsection (1) must be sent no later
than ten days after the effective date of the corporate action creating
dissenters' rights under Section 16-10a-1302, and shall:
(a) state that the corporate action was authorized and the effective date
or proposed effective date of the corporate action;
(b) state an address at which the corporation will receive payment demands
and an address at which certificates for certificated shares must be deposited;
(c) inform holders of uncertificated shares to what extent transfer of the
shares will be restricted after the payment demand is received;
(d) supply a form for demanding payment, which form requests a dissenter to
state an address to which payment is to be made;
(e) set a date by which the corporation must receive the payment demand and
by which certificates for certificated shares must be deposited at the address
indicated in the dissenters' notice, which dates may not be fewer than 30 nor
more than 70 days after the date the dissenters' notice required by Subsection
(1) is given;
(f) state the requirement contemplated by Subsection 16-10a-1303 3), if the
requirement is imposed; and
(g) be accompanied by a copy of this part.
16-10a-1323 PROCEDURE TO DEMAND PAYMENT.--(1) A shareholder who is given a
dissenters' notice described in Section 16-10a-1322, who meets the requirements
of Section 16-10a-1321, and wishes to assert dissenters' rights must, in
accordance with the terms of the dissenters' notice:
(a) cause the corporation to receive a payment demand, which may be the
payment demand form contemplated in Subsection 16-10a-1322(2)(d), duly
completed, or may be stated in another writing;
<PAGE>
(b) deposit certificates for his certificated shares in accordance with the
terms of the dissenters' notice; and
(c) if required by the corporation in the dissenters' notice described in
Section 16- 10a-1322, as contemplated by Section 16-10a-1327, certify in
writing, in or with the payment demand, whether or not he or the person on
whose behalf he asserts dissenters' rights acquired beneficial ownership of the
shares before the date of the first announcement to news media or to
shareholders of the terms of the proposed corporate action creating dissenters'
rights under Section 16-10a-1302.
(2) A shareholder who demands payment in accordance with Subsection (1)
retains all rights of a shareholder except the right to transfer the shares
until the effective date of the proposed corporate action giving rise to the
exercise of dissenters' rights and has only the right to receive payment for
the shares after the effective date of the corporate action.
(3) A shareholder who does not demand payment and deposit share
certificates as required, by the date or dates set in the dissenters' notice,
is not entitled to payment for shares under this part.
16-10a-1324 UNCERTIFICATED SHARES.--(1) Upon receipt of a demand for payment
under Section 16-10a-1323 from a shareholder holding uncertificated shares, and
in lieu of the deposit of certificates representing the shares, the corporation
may restrict the transfer of the shares until the proposed corporate action is
taken or the restrictions are released under Section 16-10a-1326.
(2) In all other respects, the provisions of Section 16-10a-1323 apply to
shareholders who own uncertificated shares.
16-10a-1325 PAYMENT.--(1) Except as provided in Section 16-10a-1327, upon the
later of the effective date of the corporate action creating dissenters' rights
under Section 16- 10a-1302, and receipt by the corporation of each payment
demand pursuant to Section 16- 10a-1323, the corporation shall pay the amount
the corporation estimates to be the fair value of the dissenters' shares, plus
interest to each dissenter who has complied with Section 16- 10a-1323, and who
meets the requirements of Section 16-10a-1321, and who has not yet received
payment.
(2) Each payment made pursuant to Subsection (1) must be accompanied by:
(a) (i) (A) the corporation's balance sheet as of the end of its most
recent fiscal year, or if not available, a fiscal year ending not more than 16
months before the date of payment;
(B) an income statement for that year;
(C) a statement of changes in shareholders' equity for that year and a
statement of cash flow for that year, if the corporation customarily provides
such statements to shareholders; and
(D) the latest available interim financial statements, if any;
(ii) the balance sheet and statements referred to in Subsection (i) must be
audited if the corporation customarily provides audited financial statements to
shareholders;
(b) a statement of the corporation's estimate of the fair value of the
shares and the amount of interest payable with respect to the shares;
<PAGE>
(c) a statement of the dissenter's right to demand payment under Section
16-10a- 1328; and
(d) a copy of this part.
16-10a-1326 FAILURE TO TAKE ACTION.--(1) If the effective date of the corporate
action creating dissenters' rights under Section 16-10a-1302 does not occur
within 60 days after the date set by the corporation as the date by which the
corporation must receive payment demands as provided in Section 16-10a-1322,
the corporation shall return all deposited certificates and release the
transfer restrictions imposed on uncertificated shares, and all shareholders
who submitted a demand for payment pursuant to Section 16-10a-1323 shall
thereafter have all rights of a shareholder as if no demand for payment had
been made.
(2) If the effective date of the corporate action creating dissenters'
rights under Section 16-10a-1302 occurs more than 60 days after the date set by
the corporation as the date by which the corporation must receive payment
demands as provided in Section 16-10a- 1322, then the corporation shall send a
new dissenters' notice, as provided in Section 16-10a- 1322, and the provisions
of Sections 16-10a-1323 through 16-10a-1328 shall again be applicable.
16-10a-1327 SPECIAL PROVISIONS RELATING TO SHARES ACQUIRED AFTER ANNOUNCEMENT OF
PROPOSED CORPORATE ACTION.--(1) A corporation may, with the dissenters' notice
given pursuant to Section 16-10a-1302, state the date of the first announcement
to news media or to shareholders of the terms of the proposed corporate action
creating dissenters' rights under Section 16-10a-1302 and state that a
shareholder who asserts dissenters' rights must certify in writing, in or with
the payment demand, whether or not he or the person on whose behalf he asserts
dissenters' rights acquired beneficial ownership of the shares before that date.
With respect to any dissenter who does not certify in writing, in or with the
payment demand that he or the person on whose behalf the dissenters' rights are
being asserted, acquired beneficial ownership of the shares before that date,
the corporation may, in lieu of making the payment provided in Section
16-10a-1325, offer to make payment if the dissenter agrees to accept it in full
satisfaction of the demand.
(2) An offer to make payment under Subsection (1) shall include or be
accompanied by the information required by Subsection 16-10a-1325(2).
16-10a-1328 PROCEDURE IF SHAREHOLDER DISSATISFIED WITH PAYMENT OFFER.--(1) A
dissenter who has not accepted an offer made by a corporation under Section
16-10a-1327 may notify the corporation in writing of his own estimate of the
fair value of his shares and demand payment of the estimated amount, plus
interest, less any payment made under Section 16-10a-1325, if:
(a) the dissenter believes that the amount paid under Section 16-10a-1325
or offered under Section 16-10a-1327 is less than the fair value of the shares;
(b) the corporation fails to make payment under Section 16-10a-1325 within
60 days after the date set by the corporation as the date by which it must
receive the payment demand; or
<PAGE>
(c) the corporation, having failed to take the proposed corporate action
creating dissenters' rights, does not return the deposited certificates or
release the transfer restrictions imposed on uncertificated shares as required
by Section 16-10a-1326.
(2) A dissenter waives the right to demand payment under this section
unless he causes the corporation to receive the notice required by Subsection
(1) within 30 days after the corporation made or offered payment for his
shares.
16-10a-1330 JUDICIAL APPRAISAL OF SHARES--COURT ACTION.--(1) If a demand for
payment under Section 16-10a-1328 remains unresolved, the corporation shall
commence a proceeding within 60 days after receiving the payment demand
contemplated by Section 16- 10a-1328, and petition the court to determine the
fair value of the shares and the amount of interest. If the corporation does
not commence the proceeding within the 60-day period, it shall pay each
dissenter whose demand remains unresolved the amount demanded.
(2) The corporation shall commence the proceeding described in Subsection
(1) in the district court of the county in this state where the corporation's
principal office, or if it has no principal office in this state, the county
where its registered office is located. If the corporation is a foreign
corporation without a registered office in this state, it shall commence the
proceeding in the county in this state where the registered office of the
domestic corporation merged with, or whose shares were acquired by, the foreign
corporation was located.
(3) The corporation shall make all dissenters who have satisfied the
requirements of Sections 16-10a-1321, 16-10a-1323, and 16-10a-1328, whether or
not they are residents of this state whose demands remain unresolved, parties
to the proceeding commenced under Subsection (2) as an action against their
shares. All such dissenters who are named as parties must be served with a copy
of the petition. Service on each dissenter may be by registered or certified
mail to the address stated in his payment demand made pursuant to Section
16-10a- 1328. If no address is stated in the payment demand, service may be
made at the address stated in the payment demand given pursuant to Section
16-10a-1323. If no address is stated in the payment demand, service may be made
at the address shown on the corporation's current record of shareholders for
the record shareholder holding the dissenter's shares. Service may also be made
otherwise as provided by law.
(4) The jurisdiction of the court in which the proceeding is commenced
under Subsection (2) is plenary and exclusive. The court may appoint one or
more persons as appraisers to receive evidence and recommend decision on the
question of fair value. The appraisers have the powers described in the order
appointing them, or in any amendment to it. The dissenters are entitled to the
same discovery rights as parties in other civil proceedings.
(5) Each dissenter made a party to the proceeding commenced under
Subsection (2) is entitled to judgment:
(a) for the amount, if any, by which the court finds that the fair value of
his shares, plus interest, exceeds the amount paid by the corporation pursuant
to Section 16-10a- 1325; or
(b) for the fair value, plus interest, of the dissenter's after-acquired
shares for which the corporation elected to withhold payment under Section
16-10a-1327.
<PAGE>
16-10a-1331 COURT COSTS AND COUNSEL FEES.--(1) The court in an appraisal
proceeding commenced under Section 16-10a-1330 shall determine all costs of the
proceeding, including the reasonable compensation and expenses of appraisers
appointed by the court. The court shall assess the costs against the
corporation, except that the court may assess costs against all or some of the
dissenters, in amounts the court finds equitable, to the extent the court finds
that the dissenters acted arbitrarily, vexatiously, or not in good faith in
demanding payment under Section 16-10a-1328.
(2) The court may also assess the fees and expenses of counsel and experts
for the respective parties, in amounts the court finds equitable:
(a) against the corporation and in favor of any or all dissenters if the
court finds the corporation did not substantially comply with the requirements
of Sections 16-10a-1320 through 16-10a-1328; or
(b) against either the corporation or one or more dissenters, in favor of
any other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously, or not in good faith with
respect to the rights provided by this part.
(3) If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the
fees for those services should not be assessed against the corporation, the
court may award to those counsel reasonable fees to be paid out of the amounts
awarded the dissenters who were benefited.
<PAGE>
EXHIBIT 2
CERTIFICATE OF INCORPORATION
OF
CADAPULT GRAPHIC SYSTEMS, INC.
FIRST: The name of this corporation is Cadapult Graphic Systems, Inc.
(the "Corporation").
SECOND: The registered office of the Corporation in the State of
Delaware is to be located at 11th Floor, Rodney Square North, 11th & Market
Streets, City of Wilmington, County of New Castle, State of Delaware, and the
name of its registered agent at such address is YCS&T Services Corporation.
THIRD: The purpose of this Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock that this Corporation is
authorized to issue is fifty million (50,000,000) shares of common stock with a
par value $0.001 per share.
FIFTH: The name and mailing address of the incorporator is James P,
Hughes, Esquire, 11th Floor, Rodney Square North, 11th & Market Streets,
Wilmington, Delaware 19801.
SIXTH: Provisions for the management of the business and for the
conduct of the affairs of this Corporation and provisions creating, defining,
limiting and regulating the powers of this Corporation, the directors and the
stockholders are as follows:
(1) The board of directors shall have the power to make, adopt,
alter, amend and repeal the bylaws of this Corporation without the assent or
vote of the stockholders, including, without limitation, the power to fix, from
time to time, the number of directors that shall constitute the whole board of
directors of this Corporation, subject to the right of the stockholders to
alter, amend and repeal the bylaws made by the board of directors.
(2) Election of directors of this Corporation need not be by
written ballot unless the bylaws so provide.
(3) The directors, in their discretion, may submit any contract
or act for approval or ratification at any annual meeting of the stockholders
or at any meeting of the stockholders called for the purpose of considering any
such act or
<PAGE>
contract, and any contract or act that shall be approved or be ratified by the
vote of the holders of a majority of the stock of this Corporation that is
represented by person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person
or by proxy) shall be a valid and as binding upon this Corporation and upon all
the stockholders as though it had been approved or ratified by every
stockholder of this Corporation, whether or not the contract or act would
otherwise be open to legal attack because of directors' interest, or for any
other reason.
(4) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the board of directors of this
Corporation are hereby expressly empowered to exercise all such powers and to
do all such acts and things as may be exercised or done by this Corporation;
subject, nevertheless, to the provisions of the statutes of the State of
Delaware and of this Certificate of Incorporation as each may be amended,
altered or changed from time to time and to any bylaws from time to time made
by the directors or stockholders; provided, however, that no bylaw so made
shall invalidate any prior act of the board of directors that would have been
valid if such bylaw had not been made.
(5) Whenever this Corporation shall be authorized to issue more
than one class of stock, the holders of the stock of any class that is not
otherwise entitled to voting power shall not be entitled to vote upon the
increase or decrease in the number of authorized shares of such class.
SEVENTH: To the fullest extent permitted by the General Corporation
Law of Delaware, including, without limitation, as provided in Section
102(b)(7) of the General Corporation Law of Delaware, as the same exists or may
hereafter be amended, a director of this Corporation shall not be personally
liable to this Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director. If the General Corporation Law of Delaware is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of this
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of Delaware, as so amended. Any repeal or
modification of this Article SEVENTH by the stockholders of this Corporation
shall not adversely affect any right or protection of a director of this
Corporation existing at the time of such repeal or modification or with respect
to events occurring prior to such time.
EIGHTH: (1) Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding")
by reason of the fact that he or she is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as such director or officer or, in the
<PAGE>
case of another corporation, as an employee or agent, or in any other capacity
while serving as such director, officer, employee or agent shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, other expenses and losses, amounts paid or
to be paid in settlement, and excise taxes or penalties arising under the
Employee Retirement Income Security Act of 1974, as amended) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
Subsection (2) of this Article EIGHTH, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the board of directors of the Corporation. The right to
indemnification conferred in this Article EIGHTH shall be a contract right and
shall include the right to be paid by the Corporation the expenses (including
attorneys' fees) incurred in defending any such proceeding in advance of its
final disposition; provided, however, that the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, which undertaking shall itself be sufficient without the need for
further evaluation of any credit aspects of the undertaking or with respect to
such advancement, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined by a final,
non-appealable order of a court of competent jurisdiction that such director or
officer is not entitled to be indemnified under this Article EIGHTH or
otherwise.
(2) If a claim under Subsection (1) of this Article EIGHTH is not
paid in full by the Corporation within sixty (60) days after a written claim,
together with reasonable evidence as to the amount of such expenses, has been
received by the Corporation, except in the case of a claim for advancement of
expenses (including attorneys' fees), in which case the applicable period shall
bc twenty (20) days, the claimant may at my time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole of in part, the claimant shall also be entitled to be paid the expense,
including attorneys' fees, of prosecuting such claim. It shall be a defense to
any such action, other than an action brought to enforce a claim for expenses
(including attorneys' fees) incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
<PAGE>
been tendered to the Corporation, that the claimant has not met the standards
of conduct that make it permissible under the General Corporation Law of the
State of Delaware for the orporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its board of directors or a
committee thereof, independent legal counsel, or its stockholders) to have made
a determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of the
State of Delaware, nor an actual determination by the Corporation (including
its board of directors or a committee thereof, independent legal counsel, or
its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct. In any suit brought by
an indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article EIGHT or otherwise shall be on the Corporation.
(3) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition
conferred in this Article EIGHT shall not be exclusive of any other right that
any person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint investments or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability
or loss under the General Corporation Law of the State of Delaware.
(5) In the case of a claim for indemnification or advancement of
expenses against the Corporation under this Article EIGHTH arising out of acts,
events or circumstances for which the claimant, who was at the relevant time
serving as a director, officer, employee or agent of any other entity at the
request of the Corporation, may be entitled to indemnification or advancement
of expenses pursuant to such other entity's certificate of incorporation or
bylaws or contractual agreement between the claimant and such entity, the
claimant seeking indemnification hereunder shall first seek indemnification and
advancement of expenses pursuant to any such certificate of incorporation,
bylaw or agreement. To the extent that amounts to be indemnified or advanced to
a claimant hereunder are paid or advanced by such other entity, the claimant's
right to indemnification and advancement of expenses hereunder shall be
reduced.
NINTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
<PAGE>
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 the General Corporation Law of the State of
Delaware or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of Section 279 of
the General Corporation Law of the State of Delaware, order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case my 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 any 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.
TENTH: This Corporation reserve the right to restate this Certificate
of Incorporation and to amend, alter, change or repeal any provision contained
in this Certificate of Incorporation in the manner now or hereafter prescribed
by law, and all rights and powers conferred herein on stockholders, directors
and officers are subject to this reserved power.
THE UNDERSIGNED, being the sole incorporator, for the purpose of
forming a corporation pursuant to the General Corporation Law of the State of
Delaware and the Acts amendatory thereof and supplemental thereto, does make
and file this Certificate of Incorporation hereby declaring and certifying that
the facts stated herein are true, and accordingly hereunto has set his hand and
seal this 11th day of June, 1998.
In the Presence of:
/s/ Gayle Ignudo /s/ James P. Hughes, Jr. (SEAL)
------------------------------ -----------------------------
James P. Hughes
Incorporator
<PAGE>
EXHIBIT 3
BYLAWS
OF
CADAPULT GRAPHIC SYSTEMS, INC.
ARTICLE I. OFFICES
Section 1. Registered Office. The address of the registered office of the
corporation in Delaware shall be 11th Floor, Rodney Square North, 11th & Market
Streets, Wilmington, Delaware, and the registered agent at such address in
charge thereof shall be YCS&T Services Corporation all of which shall be
subject to change from time to time as permitted by law.
Section 2. Other Offices. The corporation may also have an office or
offices or place or places of business within or without the State of Delaware
as the Board of Directors may from time to time designate.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. The Annual Meeting. The annual meeting of stockholders for the
election of directors shall be held within or without the State of Delaware on
the date and at the time and place designated by the board of directors; but if
no date, time and place are otherwise designated by the board, it shall be held
on the 1st day of May in each year, or if that day be a legal holiday, on the
next succeeding day not a legal holiday, at 10:00 a.m., at the registered
office of the corporation in the State of Delaware. At the annual meeting, the
stockholders shall elect by plurality vote, a whole board of directors and may
transact such other business as may come before the meeting.
Section 2. Special Meetings. Special meetings of the stockholders may be
called at any time by the President or Chairman of the Board and shall be
called by the President or Secretary either upon the request in writing by a
majority of the directors or upon the request in writing of stockholders of
record holding a majority in amount of the capital stock outstanding and
entitled to vote.
Section 3. Place of Meetings. Meetings of the stockholders shall be held
at such place or places, within or without the State of Delaware, as may from
time to time be designated by the board of directors or as shall be designated
in the respective notices or waivers of notice thereof, unless otherwise
specified in these Bylaws.
Section 4. Voting. Each stockholder entitled to vote shall, at every
meeting of the stockholders, be entitled to one vote in person or by proxy,
signed by him, for each share of voting stock held by him, but no proxy shall
be voted on after three years from its date unless it provides for a longer
period. Such right to vote shall be subject to the right of the board of
directors to fix a record date for voting stockholders.
<PAGE>
Section 5. Notice. Notice of all meetings shall be mailed by the Secretary
to each stockholder of record entitled to notice of or to vote at such meeting,
at his last known post office address.
Section 6. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote shall constitute a quorum, but the holders of
a smaller amount may adjourn from time to time without further notice, if the
time and place of the adjourned meeting are announced at the meeting at which
the adjournment is taken, until a quorum is secured. The vote of the holders of
a majority of the stock issued and outstanding present at a meeting or any
adjournment thereof at which a quorum is present shall be the act of the
stockholders unless a different vote is required by the Certificate of
Incorporation or applicable statutory law.
Section 7. Action Without Meeting. Any action permitted or required to be
taken at any meeting of shareholders may be taken by written consent without a
meeting subject to and to the extent permitted by applicable Delaware statutory
law.
ARTICLE III. DIRECTORS
Section 1. Number. The property and business of the corporation shall be
managed and controlled by its board of directors, composed of three (3)
persons. The number of directors may be increased by amendment of these Bylaws
either by the stockholders or by the directors in the same manner as any other
amendment to these Bylaws may be effected.
Section 2. Term, Vacancies and Newly Created Directorships. The directors
shall hold office until the next annual election and until their successors are
elected and qualify or until their earlier resignation or removal. They shall
be elected by the stockholders, except that if there be a vacancy in the board
by reason of death, resignation or otherwise, or if there be any newly created
directorships resulting from an increase in the authorized number of directors,
such vacancy or directorship shall be filled by a majority of the directors
then in office, although less than a quorum. Any director chosen by reason of
such vacancy or such newly created directorship shall hold office until the
next annual meeting and until his successor is elected and qualified or until
his earlier resignation or removal.
When one or more directors shall resign from the board, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective and each director so chosen shall hold office as provided in these
Bylaws in the filling of other vacancies.
Section 3. Removal. Any director or directors may be removed, either with
or without cause, at any time by the affirmative vote of the holders of a
majority of the stock issued and outstanding at a meeting called for that
purpose at which a quorum is present.
Section 4. Powers. The board of directors shall have all such powers and
authority, as may be exercised by the board of directors of a corporation
<PAGE>
organized under the General Corporation Law of the State of Delaware,
including, without limiting the generality of the foregoing, any powers and
authority granted by the Certificate of Incorporation and these Bylaws which
may lawfully be granted thereby, subject only to the provisions of the
Certificate of Incorporation and these Bylaws, and the following powers:
(A) To purchase or otherwise acquire property, rights or privileges
for the corporation, which the corporation has the power to take, at such
prices and on such terms as the board of directors may deem proper;
(B) To pay for such property, rights or privileges in whole or in
part with money, stock, bonds, debentures or other securities of the
corporation, or by the delivery of other property of the corporation;
(C) To create, make and issue mortgages, bonds, deeds of trust, trust
agreements and negotiable or transferable instruments and securities, secured
by mortgage or otherwise, and to do every act and thing necessary to effectuate
the same;
(D) To appoint agents, clerks, assistants, factors, employees and
trustees, and to dismiss them at its discretion, to fix their duties and
emoluments and to change them from time to time and to require such security as
the board may deem proper;
(E) To confer on any officer of the corporation the power of
selecting, discharging or suspending such employees;
(F) To fix the compensation of directors;
(G) To determine by whom and in what manner the corporation's bills,
notes, receipts, acceptances, endorsements, checks, releases, contracts or
other documents shall be signed.
Section 5. Meetings of Directors. After each annual election of directors,
the newly elected directors may meet for the purpose of organization, the
election of officers, and the transaction of other business, at such place and
time as may be fixed by the stockholders at the annual meeting, and if a
majority of the directors be present at such place and time, no prior notice of
such meeting shall be required to be given to the directors. The place and time
of such meeting may also be fixed by written consent of the directors. Regular
meetings of the directors may be held within the State of Delaware at such time
and place as may be fixed from time to time by resolution of the board. No
notice of regular meetings shall be required. Special meetings of the directors
may be called by the President on three days' notice in writing or on five
days' notice by telegraph to each director, and shall be called by the
President in like manner on the written request of two directors. Special
meetings of the directors may be held within the State of Delaware at such time
and place as is indicated in the notice or waiver of notice thereof.
Section 6. Quorum. A majority of the total number of directors shall
constitute a quorum for the transaction of business, but a smaller number may
adjourn from time to time, without further notice, until a quorum is secured.
Section 7. Vote Necessary to Act. The vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the board of directors.
<PAGE>
Section 8. Executive and Other Committees.
(A) The board of directors may, by resolution passed by a majority of
the whole board, designate an executive committee and/or one or more other
committees, each committee to consist of two or more of the directors of the
corporation. Any such committee, to the extent provided in the resolution or in
these Bylaws, shall have and may exercise the powers and authority of the board
of directors in the management of the business and affairs of the corporation,
except in reference to powers or authority expressly forbidden such a committee
by applicable statutory law, and may authorize the seal of the corporation to
be fixed to all papers which may require it.
(B) In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in the place of any such absent or disqualified member.
(C) The executive committee shall have and shall exercise, between
the meetings of the board of directors, the full power and authority of the
board in the management of the business and affairs of the corporation,
including, without limitation, the power and authority to declare a dividend
and to authorize the issuance of stock, except in reference to power and
authority expressly forbidden by applicable statutory law, and may authorize
the seal of the corporation to be affixed to all papers which require it;
provided, however, that the executive committee shall not have the power or
authority to fill vacancies in its own membership which vacancies shall be
filled by the board of directors.
(D) The executive committee and such other committees shall meet at
stated times or on notice to all by any of their own number. They shall fix
their own rules of procedure. A majority shall constitute a quorum, but the
affirmative vote of a majority of the whole committee shall be necessary in
every case.
(E) Such other committees shall have and may exercise the powers and
authority of the board of directors to the extent provided in such resolution
or resolutions.
Section 9. Compensation. The board of directors shall fix the compensation
of directors.
Section 10. Action Without Meeting. Any action permitted or required to be
taken at any meeting of the board of directors may be taken by written consent
without a meeting subject to and to the extent permitted by applicable Delaware
law.
ARTICLE IV. OFFICERS
Section 1. Officers. The officers of the corporation shall be a President,
Secretary and Treasurer. Other officers and agents, including one or more Vice
Presidents, may from time to time be chosen by the board of directors. In
addition, the board of directors may elect a Chairman. All officers of this
corporation shall be chosen by the board of directors by the vote of a majority
of the directors present at a meeting at which a quorum is present or by
written consent pursuant to applicable statutory law. No officer need be a
stockholder.
<PAGE>
Section 2. Number Of Offices. Any number of offices may be held by the
same person.
Section 3. Powers and Duties. The officers shall have such powers and
duties as are specified in these Bylaws as well as any other and additional
powers and duties as may, from time to time, be specified by the board of
directors.
Section 4. Terms. The officers of the corporation shall hold office until
their successors are chosen and qualify or until their earlier resignation or
removal. Any officer chosen or appointed by the board of directors may be
removed immediately either with or without cause at any time by affirmative
vote of a majority of the whole board of directors. If the office of any
officer or agent becomes vacant for any reason, the vacancy shall be filled by
the board of directors in the same manner as any officer or agent of this
corporation is chosen.
Section 5. Duties of the Chairman of the Board. The Chairman of the board
of directors, if one is elected, shall preside at all meetings of the board and
he shall have and perform such other duties, executive or otherwise, as from
time to time may be assigned to him by the board.
Section 6. Duties of the President. The President shall be the chief
executive officer of the corporation. It shall be his duty to preside at all
meetings of the stock holders and directors (unless as to directors a Chairman
is elected), to have general and active management of the business of the
corporation; to see that all orders and resolutions of the board of directors
are carried into effect; to execute all contracts, agreements, deeds, bonds,
mortgages and other obligations and instruments, in the name of the
corporation, and to affix the corporate seal thereto when authorized by the
board or the executive committee. He shall have general supervision and
direction of the other officers of the corporation and shall see that their
duties are properly performed.
He shall submit a report of the operations of the corporation for the year
to the directors at their meeting next preceding the annual meeting of the
stockholders and to the stockholders at their annual meeting.
He shall be ex-officio a member of all standing committees and shall have
the general duties and powers of supervision and management usually vested in
the office of President of a corporation as well as any other duties and powers
as may, from time to time, be prescribed by the board of directors.
Section 7. Duties of the Vice Presidents. The Vice President or Vice
Presidents, in the order designated by the board of directors, shall be vested
with all the powers and required to perform all the duties of the President in
his absence or disability and shall perform such other duties as may be
prescribed by the President and the board of directors. In the event of the
death, resignation or removal of the President and if the board of directors
has designated an Executive Vice President, he shall be the particular officer
so empowered and required to act as acting President unless the board has
designated some other particular officer so to act.
Section 8. President Pro Tem. In the absence or disability of the
President and the Vice Presidents, the board may appoint from their own number
a President Pro Tem.
<PAGE>
Section 9. Duties of the Secretary. The Secretary shall attend all
meetings of the stockholders, the board of directors, the executive committee
and standing committees. He shall act as clerk thereof and shall record all of
the proceedings of such meetings in a book to be kept for that purpose. He
shall give proper notice of meetings of stockholders and directors and shall
perform such other duties as may from time to time be assigned to him by the
President or the board of directors.
Section 10. Duties of the Treasurer. The Treasurer shall have custody of
the funds and securities of the corporation and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation
and shall deposit all moneys and other valuable effects in the name of and to
the credit of the corporation in such depositories as may be designated by the
board of directors.
He shall disburse the funds of the corporation as may be ordered by the
board, executive committee or President, taking proper vouchers for such
disbursements, and shall render to the President and directors, whenever they
may require it, an account of all his transactions as Treasurer and of the
financial condition of the corporation, and at the regular meeting of the board
next preceding year.
He shall keep an account of stock registered and transferred in such
manner and subject to such regulations as the board of directors may prescribe.
He shall give the corporation a bond, if required by the board of
directors, in such sum and in the form and with security satisfactory to the
board of directors, for the faithful performance of the duties of his office
and the restoration to the corporation, in case of his death, resignation or
removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession, belonging to the corporation. He shall
perform such other duties as the President and the board of directors may from
time to time prescribe or require.
Section 11. Delegation of Duties and Other Officers. In case of the
absence or disability of any officer of the corporation or for any other reason
deemed sufficient by the board, the board of directors may delegate his powers
or duties to any other officer or to any director for the time being. The board
may elect any number of Assistant Secretaries and Assistant Treasurers who
shall have such powers and shall perform such duties as shall be assigned to
them, respectively, by the board of directors.
Section 12. Salaries. The salaries and other compensation of the officers
of the corporation shall be fixed from time to time by the Board of Directors,
except that the Board of Directors may delegate to any person or group of
persons the power to fix the salaries or other compensation of any subordinate
officers or agents appointed in accordance with the Bylaws. No officer shall be
prevented from receiving any such salary or compensation by reason of the fact
that he or she is also a director of the corporation.
ARTICLE V. INDEMNIFICATION
A director of this corporation shall have no personal liability to the
corporation or its stockholders for monetary damages for breach of fiduciary
<PAGE>
duty as a director, provided that this provision shall not eliminate the
liability of a director (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) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
(A) This corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of this corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
this corporation, or is or was serving at the request of this corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of this corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of this corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(B) This corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of this corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee or
agent of this corporation, or is or was serving at the request of this
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of this corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to this corporation unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of the State of Delaware or such other
court shall deem proper.
(C) Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon the receipt of
an undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
<PAGE>
by the corporation as authorized in Section 145 of the Delaware General
Corporation Law. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
(D) In addition to the right of indemnification provided for in paragraphs
of this ARTICLE V, this corporation shall, to the fullest and broadest extent
permitted by applicable law, including, without limitation, Section 145 of the
Delaware General Corporation Law as it may be amended from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
(E) The right of indemnification provided by this ARTICLE V shall apply as
to action by any person 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 a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(F) The right of indemnification provided by this ARTICLE V shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any bylaw, 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 a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(G) The right of indemnification provided by this ARTICLE V shall be
deemed to be a contract between this corporation and each director, officer,
employee or agent of this corporation who serves in such capacity, both as to
action in his official capacity and as to action in another capacity while
holding such office, at any time while this ARTICLE V and the relevant
provisions of the General Corporation Law of the State of Delaware and other
applicable law, if any, are in effect, and any repeal or modification thereof
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
(H) Notwithstanding any provision of this ARTICLE V to the contrary, this
corporation may, but shall not be obligated to, purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
this corporation, or is or was serving at the request of this corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not this corporation would have the power to indemnify him against
such liability.
(I) For purposes of this ARTICLE V, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
<PAGE>
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
ARTICLE V.
ARTICLE VI. MISCELLANEOUS
Section 1. Certificates of Stock. Certificates of stock shall be signed by
the President or a Vice President and either the Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary. If a certificate of stock be lost
or destroyed, another may be issued in its stead upon proof of loss or
destruction and the giving of a satisfactory bond of indemnity in an amount
sufficient to indemnify the corporation against any claim. A new certificate
may be issued without requiring bond, when in the judgment of the directors, it
is proper to do so.
Section 2. Transfer of Stock. All transfers of stock of the corporation
shall be made upon its books by the holder of the shares in person or by his
lawfully constituted representative, upon surrender of certificates of stock
for cancellation.
Section 3. Fixing Date for Stockholders of Record. In order that the
corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent
to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any other lawful action, the
board of directors may fix, in advance, a record date, which shall not be more
than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action.
Section 4. Stockholders of Record. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in
fact thereof and accordingly shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any other person
whether or not it shall have express or other notice thereof, save as expressly
provided by the laws of Delaware.
Section 5. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the corporation, the year of its incorporation and the words
"Corporate Seal Delaware".
Section 6. Fiscal Year. The fiscal year of the corporation shall begin on
the 1st day of July in each year.
Section 7. Dividends. Dividends upon the capital stock may be declared
either by the board of directors at any regular or special meeting or in the
manner otherwise provided by the board and may be paid in cash or in property
or in shares of the capital stock. Before the payment of any dividend or the
making of any distribution of profits, a reserve or reserves may be set apart
out of any of the funds of the corporation available for dividends for any
proper purpose, and any such reserve or reserves may be altered or abolished.
Section 8. Checks for Money. All checks, drafts or orders for the payment
of money shall be signed by the President and/or Treasurer or by such other
<PAGE>
officer or officers or such other person or persons as the board of directors
may from time to time designate. No check shall be signed in blank.
Section 9. Books and Records. The books, records and accounts of the
corporation, except as may otherwise be required by the laws of the State of
Delaware, may be kept within or without the State of Delaware, at such place or
places as may from time to time be designated by the Bylaws or by resolution of
the directors.
Section 10. Notices. Notice required to be given under the provisions of
these Bylaws to any director, officer or stockholder shall not be construed to
mean actual notice, but may be given in writing by depositing the same in a
post office or letter box, in a postpaid sealed wrapper, addressed to such
stockholder, officer or director at such address as appears on the books of the
corporation, and such notice shall be deemed to be given at the time when the
same shall thus be mailed. Any stockholder, officer or director may waive, in
writing, any notice required to be given under these Bylaws, whether before or
after the time stated therein.
ARTICLE VII. AMENDMENT OF BYLAWS
These Bylaws may be amended, altered, repealed or added to at any regular
meeting of the stockholders or of the board of directors or at any special
meeting called for that purpose.
CERTIFICATE OF SECRETARY
The undersigned does hereby certify that she is the secretary of CADAPULT
GRAPHIC SYSTEMS, INC., a corporation duly organized and existing under and by
virtue of the laws of the State of Delaware; that the above and foregoing
Bylaws of said corporation were duly adopted as such by the Board of Directors
of the corporation at a meeting of the Board of Directors held on the 24th day
of June, 1998, and that the above and foregoing Bylaws are now in full force
and effect.
DATED this 24th day of June, 1998.
/s/ Frances Blanco
------------------------------
Frances Blanco, Secretary
<PAGE>
APPENDIX A
SEAFOODS PLUS, LTD.
1998 INCENTIVE PLAN
-------------------
ARTICLE I.
DEFINITIONS
-----------
1.01 Administrator means the Board and any delegate of the Board that
-------------
is appointed in accordance with Article III.
1.02 Agreement means a written agreement (including any amendment or
---------
supplement thereto) between the Company and a Participant specifying the terms
and conditions of a Stock Award or Option granted to such Participant.
1.03 Board means the Board of Directors of the Company.
-----
1.04 Change in Control shall mean an event or series of events that
-----------------
would be required to be described as a change in control of the Company in a
proxy or information statement distributed by the Company pursuant to section
14 of the Securities Exchange Act of 1934 (the "Exchange Act") in response to
Item 6(e) of Schedule 14A promulgated thereunder or otherwise adopted. The
determination whether and when a change in control has occurred or is about to
occur shall be made by the Board in office immediately prior to the occurrence
of the event or series of events constituting such change in control.
1.05 Code means the Internal Revenue Code of 1986, and any amendments
----
thereto.
1.06 Common Stock means the common stock of the Company.
------------
1.07 Company means Seafoods Plus, Ltd.
-------
1.08 Control Change Date means the occurrence of the event or series
--------------------
of events constituting a Change in Control as determined by the Board.
1.09 Exchange Act means the Securities Exchange Act of 1934, as
-------------
amended and as in effect on the date of this Agreement.
1.10 Fair Market Value means, on any given date, the closing price
-----------------
(or, if there is none, the average of the closing bid and asked price) of the
Common Stock on such quotation system or principal securities exchange on which
the Common Stock is traded on such day, or, if the Common Stock is not so
traded on such day, then on the next preceding day that the Common Stock was
traded, all as reported by such source as the Administrator may select.
<PAGE>
1.11 Forfeitable Shares shall have the meaning set forth in Section
-------------------
9.04.
1.12 Option means a stock option that entitles the holder to purchase
------
from the Company a stated number of shares of Common Stock at the price set
forth in an Agreement.
1.13 Participant means an employee of and non-employee director,
-----------
advisor and independent consultant to the Company or a Related Entity,
including an employee who is a member of the Board, who satisfies the
requirements of Article IV and is selected by the Administrator to receive a
Stock Award, an Option or a combination thereof.
1.14 Plan means the Company's 1998 Incentive Plan.
----
1.15 Related Entity means any entity that directly or indirectly,
---------------
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the Company.
1.16 Stock Award means Common Stock awarded to a Participant under
-----------
Article IX.
1.17 Stockholders means the stockholders of the Company.
------------
ARTICLE II.
-----------
PURPOSES
The Plan is intended to assist the Company and Related Entities in
recruiting and retaining employees, directors, officers, consultants, and
advisors who are exclusive agents of the Company, and in compensating such
individuals by enabling such individuals to participate in the future success
of the Company and the Related Entities and to associate their interests with
those of the Company and its Stockholders. The Plan is intended to permit the
grant of Stock Awards and the grant of both Options qualifying under Section
422 of the Code ("incentive stock options") and Options not so qualifying. No
Option that is intended to be an incentive stock option shall be invalid for
failure to qualify as an incentive stock option. The proceeds received by the
Company from the sale of Common Stock pursuant to this Plan shall be used for
general corporate purposes.
<PAGE>
ARTICLE III.
------------
ADMINISTRATION
The Plan shall be administered by the Administrator. The
Administrator shall have authority to grant Stock Awards and Options upon such
terms (not inconsistent with the provisions of this Plan) as the Administrator
may consider appropriate. Such terms may include conditions (in addition to
those contained in this Plan) on the exercisability of all or any part of an
Option or on the transferability or forfeitability of a Stock Award, including
by way of example and not limitation, conditions on which Participants may
defer receipt of benefits under the Plan, requirements that the Participant
complete a specified period of employment with or service to the Company or a
Related Entity, that the Company achieve a specified level of financial
performance or that the Company achieve a specified level of financial return.
Notwithstanding any such conditions, the Administrator may, in its discretion,
accelerate the time at which any Option may be exercised, or the time at which
a Stock Award may become transferable or nonforfeitable. In addition, the
Administrator shall have complete authority to interpret all provisions of this
Plan, to prescribe the form of Agreements, to adopt, amend, and rescind rules
and regulations pertaining to the administration of the Plan and to make all
other determinations necessary or advisable for the administration of this
Plan. The express grant in the Plan of any specific power to the Administrator
shall not be construed as limiting any power or authority of the Administrator.
Any decision made, or action taken, by the Administrator or in connection with
the administration of this Plan shall be final and conclusive. Neither the
Administrator nor any member of the Board shall be liable for any act done in
good faith with respect to this Plan or any Agreement, Option or Stock Award.
All expenses of administering this Plan shall be borne by the Company.
The Board, in its discretion, may appoint a committee of the Board
and delegate to such committee all or part of the Board's authority and duties
with respect to the Plan. The Board may revoke or amend the terms of a
delegation at any time but such action shall not invalidate any prior actions
of the Board's delegate or delegates that were consistent with the terms of the
Plan.
ARTICLE IV.
-----------
ELIGIBILITY
Section 4.01 General. Any employee, director, officer, or exclusive
-------
agent of, and advisor or consultant to, the Company or a Related Entity
(including a corporation that becomes a Related Entity after the adoption of
this Plan) is eligible to participate in this Plan if the Administrator, in its
sole discretion, determines that such person has contributed significantly or
can be expected to contribute significantly to the profits or growth of the
Company or a Related Entity. Directors of the Company who are employees of the
Company or a Related Entity may be selected to participate in this Plan.
<PAGE>
Section 4.02 Grants. The Administrator will designate individuals to
------
whom Stock Awards and Options are to be granted and will specify the number of
shares of Common Stock subject to each award or grant. All Stock Awards and
Options granted under this Plan shall be evidenced by Agreements which shall be
subject to the applicable provisions of this Plan and to such other provisions
as the Administrator may adopt. No Participant may be granted incentive stock
options (under all incentive stock option plans of the Company and any Related
Entity) which are first exercisable in any calendar year for stock having an
aggregate Fair Market Value (determined as of the date an Option is granted)
that exceed the limitation prescribed by Code section 422(d). The preceding
annual limitation shall not apply with respect to Options that are not
incentive stock options.
ARTICLE V.
----------
STOCK SUBJECT TO PLAN
Section 5.01 Shares Issued. Upon the award of shares of Common Stock
-------------
pursuant to a Stock Award, the Company may issue shares of Common Stock from
its authorized but unissued Common Stock. Upon the exercise of any Option, the
Company may deliver to the Participant (or the Participant's broker if the
Participant so directs), shares of Common Stock from its authorized but
unissued Common Stock.
Section 5.02 Aggregate Limit. The maximum aggregate number of shares
---------------
of Common Stock that may be issued under this Plan shall not exceed 500,000
shares.
Section 5.03 Reallocation of Shares. If an Option is terminated, in
----------------------
whole or in part, for any reason other than its exercise, or if a Stock Award
is forfeited in whole or in part, the number of shares of Common Stock
allocated to the Option or Stock Award or portion thereof may be reallocated to
other Options and Stock Awards to be granted under this Plan.
ARTICLE VI.
-----------
OPTION EXERCISE PRICE
The price per share for Common Stock purchased on the exercise of an
Option shall be determined by the Administrator on the date of grant; provided,
however, that the price per share for Common Stock purchased on the exercise of
an Option that is an incentive stock option shall not be less than the Fair
Market Value on the date the Option is granted. Notwithstanding the foregoing,
the price per share for Common Stock purchased on the exercise of an Option
granted to any person then owning more than ten percent (10%) of the total
combined voting power of all classes of shares of the Company, or of its parent
or subsidiary corporation, shall be one hundred ten percent (110%) of the Fair
Market Value of the Common Stock at the time of grant of the Option.
<PAGE>
ARTICLE VII.
------------
EXERCISE OF OPTIONS
Section 7.01 Maximum Option Period. The maximum period in which an
-----------------------
Option may be exercised shall be determined by the Administrator on the date of
grant, except that no Option that is an incentive stock option shall be
exercisable after the expiration of ten years from the date such Option was
granted. Notwithstanding the foregoing, any Option granted to any person then
owning more than ten percent (10%) of the total combined voting power of all
classes of shares of the Company, or of its parent or subsidiary corporation,
must be exercised within five years from the date of the grant thereof. The
terms of any Option that is an incentive stock option may provide that it is
exercisable for a period less than such maximum period.
Section 7.02 Nontransferability. Any Option granted under this Plan
------------------
shall be nontransferable except by will or by the laws of descent and
distribution. In the event of any such transfer, the Option must be transferred
to the same person or person(s). During the lifetime of the Participant to whom
the Option is granted, the Option may be exercised only by the Participant. No
right or interest of a Participant in any Option shall be liable for, or
subject to, any lien, obligation, or liability of such Participant.
Section 7.03 Employee Status. For purposes of determining the
----------------
applicability of Section 422 of the Code (relating to incentive stock options),
or in the event that the terms of any Option provide that it may be exercised
only during employment or within a specified period of time after termination
of employment, the Administrator may decide to what extent leaves of absence
for governmental or military service, illness, temporary disability, or other
reasons shall not be deemed interruptions of continuous employment.
Section 7.04 Change in Control. Section 7.01 to the contrary
-------------------
notwithstanding, after a Control Change Date, each Option shall be fully
exercisable thereafter in accordance with the terms of the applicable
Agreement. If not sooner exercisable under the terms of the applicable
Agreement, a Participant's Option shall be fully exercisable (i) as of his or
her termination of employment if his or her employment terminates after a
Control Change Date and he or she is terminated without cause or following his
refusal to move to another location or (ii) as of the date that there is a
material reduction in the Participant's compensation or duties if such
reduction occurs after a Control Change Date. For purposes of the preceding
sentence, the term "cause" means a willful neglect of responsibilities to the
Company or a Related Entity.
<PAGE>
ARTICLE VIII.
-------------
METHOD OF EXERCISE
Section 8.01 Exercise. Subject to the provisions of Articles VII and
--------
XI, an Option may be exercised in whole at any time or in part from time to
time at such times and in compliance with such requirements as the
Administrator shall determine. An Option granted under this Plan may be
exercised with respect to any number of whole shares less than the full number
for which the Option could be exercised. A partial exercise of an Option shall
not affect the right to exercise the Option from time to time in accordance
with this Plan and the applicable Agreement with respect to the remaining
shares subject to the Option.
Section 8.02 Payment. Unless otherwise provided by the Agreement,
-------
payment of the Option exercise price shall be made in cash or a cash equivalent
acceptable to the Administrator. If the Agreement provides, or in the
discretion of the Board, payment of all or part of the Option price may be made
by surrendering shares of Common Stock to the Company, including by allowing
the Company to deduct from the number of shares of Common Stock deliverable
upon exercise of the Option, a number of such shares which has an aggregate
Fair Market Value, determined as of the day preceding the date of exercise of
the Option, equal to the aggregate Option exercise price. If Common Stock is
used to pay all or part of the Option price, the shares surrendered must have a
Fair Market Value (determined as of the day preceding the date of exercise)
that is not less than such price or part thereof.
Section 8.03 Installment Payment. If the Agreement provides, and if
--------------------
the Participant is employed by the Company on the date the Option is exercised,
payment of all or part of the Option price may be made in installments. In that
event the Company may, if so determined by the Administrator, lend the
Participant an amount equal to not more than ninety percent (90%) of the Option
price of the shares acquired by the exercise of the Option. This amount shall
be evidenced by the Participant's promissory note and shall be payable in not
more than five equal annual installments, unless the amount of the loan exceeds
the maximum loan value for the shares purchased, which value shall be
established from time to time by regulations of the Board of Governors of the
Federal Reserve System. In that event, the note shall be payable in equal
quarterly installments over a period of time not to exceed five years.
The Participant shall pay interest on the unpaid balance at the
minimum rate necessary to avoid imputed interest or original issue discount
under the Code. All shares acquired with cash borrowed from the Company shall
be pledged to the Company as security for the repayment thereof. In the
discretion of the Administrator, shares of stock may be released from such
pledge proportionately as payments on the note (together with interest) are
made, provided the release of such shares complies with the regulations of the
Federal Reserve System relating to securities credit transactions then
applicable. While shares are so pledged, and so long as there has been no
default in the installment payments, such shares shall remain registered in the
name of the Participant, and he shall have the right to vote such shares and to
receive all dividends thereon.
<PAGE>
Section 8.04 Shareholder Rights. No Participant shall have any rights
------------------
as a stockholder with respect to shares subject to an Option until the date of
exercise of such Option.
ARTICLE IX.
-----------
STOCK AWARDS
Section 9.01 Awards. In accordance with the provisions of Article IV,
------
the Administrator will designate each individual to whom a Stock Award is to be
made and will specify the number of shares of Common Stock covered by such
awards.
Section 9.02 Vesting. The Administrator, on the date of the award,
-------
may prescribe that a Participant's rights in the Stock Award shall be
forfeitable or otherwise restricted for a period of time set forth in the
Agreement. By way of example and not of limitation, the restrictions may
postpone transferability of the shares or may provide that the shares will be
forfeited if the Participant separates from the service of the Company and its
Related Entities before the expiration of a stated term or if the Company and
its Related Entities or the Participant fails to achieve stated objectives.
Section 9.03 Change in Control. Section 9.02 to the contrary
-------------------
notwithstanding, after a Control Change Date, each Stock Award will become
transferable and nonforfeitable in accordance with the terms of the applicable
Agreement. If not sooner transferable and nonforfeitable under the terms of the
applicable Agreement, a Participant's interest in a Stock Award shall be
transferable and nonforfeitable (i) as of his termination of employment if his
employment terminates after a Control Change Date and he is terminated without
cause or following his refusal to move to another location or (ii) as of the
date that there is a material reduction in the Participant's compensation or
duties if such reduction occurs after a Control Change Date. For purposes of
the preceding sentence, the term "cause" means a willful neglect of
responsibilities to the Company or a Related Entity.
Section 9.04 Stockholder Rights. If all or any portion of a Stock
-------------------
Award is forfeitable pursuant to the Agreement, at all times prior to a
forfeiture thereof, a Participant will have all rights of a Stockholder with
respect to forfeitable shares of the Stock Award (the "Forfeitable Shares"),
including the right to receive dividends and vote the Forfeitable Shares;
provided, however, that (i) a Participant may not sell, transfer, pledge,
exchange, hypothecate, or otherwise dispose of the Forfeitable Shares, (ii) the
Company shall retain custody of the certificates evidencing the Forfeitable
Shares, and (iii) the Participant will deliver to the Company a stock power,
endorsed in blank, with respect to the Forfeitable Shares. The limitations set
forth in the preceding sentence shall not apply after the Forfeitable Shares
are no longer forfeitable.
<PAGE>
ARTICLE X.
----------
ADJUSTMENT UPON CHANGE IN COMMON STOCK
The maximum number of shares as to which Options that are incentive
stock options may be granted under this Plan shall be proportionately adjusted,
and the terms of outstanding Stock Awards and Options shall be adjusted, as the
Board shall determine to be equitably required in the event that (a) the
Company (i) effects one or more stock dividends, stock split-ups, subdivisions
or consolidations of shares or (ii) engages in a transaction to which Section
424 of the Code applies or (b) there occurs any other event which, in the
judgment of the Board necessitates such action. Any determination made under
this Article X by the Board shall be final and conclusive.
The issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash or property,
or for labor or services, either upon direct sale or upon the exercise of
rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with
respect to, outstanding Stock Awards or Options.
The Board may make Stock Awards and may grant Options in substitution
for performance shares, phantom shares, stock awards, stock options, stock
appreciation rights, or similar awards held by an individual who becomes an
employee of the Company or a Related Entity in connection with a transaction
described in clause (ii) of the first paragraph of this Article X.
Notwithstanding any provision of the Plan (other than the limitation of Article
V), the terms of such substituted Stock Award(s) or Option grant(s) shall be as
the Board, in its discretion, determines is appropriate.
ARTICLE XI.
-----------
COMPLIANCE WITH LAW AND
APPROVAL OF REGULATORY BODIES
No Option shall be exercisable, no Common Stock shall be issued, no
certificates for shares of Common Stock shall be delivered, and no payment
shall be made under this Plan except in compliance with all applicable federal
and state laws and regulations (including, without limitation, withholding tax
requirements), any listing agreement to which the Company is a party, and the
rules of all domestic stock exchanges on which the Company's shares may be
listed. The Company shall have the right to rely on an opinion of its counsel
as to such compliance. Any share certificate issued to evidence Common Stock
<PAGE>
when a Stock Award is granted or for which an Option is exercised may bear such
legends and statements as the Administrator may deem advisable to assure
compliance with federal and state laws and regulations. No Common Stock shall
be issued, no certificate for shares shall be delivered and no payment shall be
made under this Plan until the Company has obtained such consent or approval as
the Administrator may deem advisable from regulatory bodies having jurisdiction
over such matters.
ARTICLE XII.
------------
GENERAL PROVISIONS
Section 12.01 Effect on Employment. Neither the adoption of this
---------------------
Plan, its operation, nor any documents describing or referring to this Plan (or
any part thereof) shall confer upon any individual any right to continue in the
employ or service of the Company or a Related Entity or in any way affect any
right and power of the Company or a Related Entity to terminate the employment
or service of any individual at any time with or without assigning a reason
therefor.
Section 12.02 Disposition of Stock. A Participant shall notify the
--------------------
Administrator of any sale or other disposition of Common Stock acquired
pursuant to an Option that was an incentive stock option if such sale or
disposition occurs (i) within two years of the grant of an Option or (ii)
within one year of the issuance of the Common Stock to the Participant. Such
notice shall be in writing and directed to the Secretary of the Company.
Section 12.03 Rules of Construction. Headings are given to the
-----------------------
articles and sections of this Plan solely as a convenience to facilitate
reference. The reference to any statute, regulation, or other provision of law
shall be construed to refer to any amendment to or successor of such provision
of law.
Section 12.04 Employee Status. In the event that the terms of any
----------------
Stock Award or the grant of any Option provide that shares may be issued or
become transferable and nonforfeitable thereunder only after completion of a
specified period of employment, the Administrator may decide in each case to
what extent leaves of absence for governmental or military service, illness,
temporary disability, or other reasons shall not be deemed interruptions of
continuous employment.
Section 12.05 Limitation on Awards. Notwithstanding any other
----------------------
provision of the Plan, if any award under this Plan, either alone or together
with payments that a Participant has the right to receive from the Company or a
Related Entity, would constitute a "parachute payment" (as defined in section
280G of the Code), all such payments shall be reduced to the largest amount
that will result in no portion being subject to the excise tax imposed by
section 4999 of the Code.
<PAGE>
ARTICLE XIII.
-------------
AMENDMENT
The Board may amend or terminate this Plan from time to time;
provided, however, that no amendment shall, without a Participant's consent,
adversely affect any rights of such Participant under any Stock Award or Option
outstanding at the time such amendment is made.
ARTICLE XIV.
------------
DURATION OF PLAN
No Stock Award or Option may be granted under this Plan more than ten
years after the date the Plan is adopted by the Board, or the date the Plan is
approved by the Stockholder, whichever is earlier.
ARTICLE XV.
-----------
EFFECTIVE DATE OF PLAN
Stock Awards and Options may be granted under this Plan upon its
adoption by the Board, provided that no incentive stock option will continue to
be effective unless this Plan is approved by a majority of the votes entitled
to be cast by the Stockholders, voting either in person or by proxy, at a duly
held Stockholders' meeting or by the consent of Stockholders owning more than
fifty percent (50%) of shares of the Common Stock within twelve months of such
adoption.
<PAGE>
EXHIBIT B
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated this ___ day of August, 1998 (the
"Agreement"), pursuant to Section 252 of the General Corporation Law of
Delaware and Section 16-10a-1107 of the Utah Business Corporation Act between
Cadapult Graphic Systems, Inc., a Delaware corporation ("CGSI") and Seafoods
Plus, Inc., a Utah corporation ("SPL").
WITNESSETH THAT:
WHEREAS, all of the constituent corporations desire to merge into a single
corporation;
NOW, THEREFORE, the corporations, parties to this Agreement and Plan of
Merger, in consideration of the premises and the mutual covenants, agreements
and provisions contained herein, do hereby prescribe the terms and conditions
of said merger and plan of carrying the same into effect, as follows:
FIRST: SPL, which shall be the merged corporation, shall be merged into
CGSI, which shall be the surviving corporation, pursuant to the terms of this
Agreement.
SECOND: There are no shares of common stock or preferred stock of the
surviving corporation heretofore issued or outstanding. SPL has an authorized
capital of 50,000,000 shares of common stock, $.001 par value per share
("Common Stock"), and 2,287,518 shares of Common Stock issued and outstanding
on the date hereof. Upon filing of Certificate of Merger and Articles of Merger
with respect to the merger with the Secretary of State of Delaware and the
Secretary of State of Utah, each share of common stock of SPL, the merged
corporation, issued and outstanding immediately prior to the merger and all
rights in respect thereof shall forthwith be changed and converted into one
share of common stock of the surviving corporation, CGSI ("DE Common Stock").
Following the effective date of the merger, each holder of any certificate
representing shares of Common Stock of the merged corporation shall surrender
the same to the surviving corporation, and upon such surrender, each such
holder shall be entitled to receive a stock certificate of the surviving
corporation, representing the number of shares of DE Common Stock, par value
$.001 per share, of the surviving corporation on the basis provided
hereinabove. Until so surrendered, any certificate representing shares of stock
of the merged corporation to be converted into stock of the surviving
corporation as provided herein, may be treated by the surviving corporation for
all corporate purposes as evidencing the ownership of shares of the surviving
corporation as though said surrender and exchange shall have taken place. After
<PAGE>
the effective date of this Agreement, any uncertificated shares of common stock
of the merged corporation registered with such corporation shall be cancelled,
and the holder of any such uncertificated but registered shares shall be
entitled to receive the number of shares of DE Common Stock of the surviving
corporation into which such uncertificated shares of stock of the merged
corporation are required to be converted as provided herein.
THIRD: Certain terms and conditions of the merger are as follows:
The Certificate of Incorporation of CGSI as in effect on the date of
the merger provided for in this Agreement and Plan of Merger shall
continue in full force and effect as the Certificate of Incorporation of
the corporation surviving this merger, unless and until the same shall be
amended or modified in accordance with the provision thereof and of the
General Corporation Law of Delaware, which power to amend or modify is
hereby expressly reserved. Such Certificate of Incorporation shall
constitute the Certificate of Incorporation of CGSI separate and apart
from this Agreement and Plan of Merger and may be separately certified as
the Certificate of Incorporation of CGSI.
The Bylaws of the surviving corporation as they exist on the
effective date of this merger shall be and remain the Bylaws of the
surviving corporation until the same shall be altered, amended or repealed
as therein provided.
The directors and officers of the surviving corporation shall
continue in office as directors and officers of the surviving corporation
until the next annual meeting of stockholders and until their successors
shall have been elected and qualify.
This merger shall become effective upon filing of the Certificate of
Merger of CGSI and the Articles of Merger of SPL in the forms of Exhibits
A and B annexed hereto, respectively, with the Secretary of State of
Delaware and the Secretary of State of Utah.
Upon the effectiveness of the merger as provided herein, all of the
property, rights, privileges, franchises, patents, trademarks, licenses,
registrations and other assets of every kind and description of the merged
corporations shall be transferred to, vested in, and devolve upon the
surviving corporation without further act or deed, and all property,
rights, and every other interest of the surviving corporation and the
merged corporations shall be as effectively the property of the surviving
corporation as they were of the surviving corporation and the merged
corporation, respectively.
<PAGE>
Prior to the effectiveness of the merger, the merged corporations
hereby agree from time to time, as and when requested by the surviving
corporation or by its successors or assigns, to execute and deliver or
cause to be executed and delivered all such documents, deeds and
instruments and to take or cause to be taken such further or other action
as the surviving corporation may deem necessary or desirable in order to
vest in and confirm to the surviving corporation title to and possession
of any property of the merged corporations acquired or to be acquired by
reason of or as a result of the merger herein provided for and otherwise
to carry out the intent and purposes hereof, and the proper officers and
directors of the merged corporations are fully authorized in the name of
the merged corporations or otherwise to take any and all such action; the
proper officers and directors of the surviving corporation are fully
authorized, in the name of the merged corporations or otherwise, following
the effectiveness of the merger, to execute and deliver or cause to be
executed and delivered all such documents, deeds and instruments and to
take or cause to be taken such further or other actions as the surviving
corporation may deem necessary or desirable in order to vest in and
confirm to the surviving corporation title to and possession of any
property of the merged corporations acquired or to be acquired by reason
of or as a result of the merger herein provided for and otherwise to carry
out the intent and purposes hereof.
FOURTH: (a) Directors. The names and post office addresses of the
directors of CGSI, who shall be three in number and who shall hold office from
the effective date until the next annual meeting of stockholders of CGSI and
until their successors shall be duly elected and qualify, are as follows:
Name Post Office Address
---- -------------------
Michael W. Levin 8 Meadow Lane
Allendale, NJ 07041
Frances Blanco 1128 Park Avenue
Hoboken, NJ 07030
Paul C. Baker 98 Chestnut Ridge Road
Saddle River, NJ 07675
(b) Officers. The names and post office addresses of the officers of
CGSI who shall be three in number and who shall hold office from the
effective date until their successors shall be duly elected and qualify or
until they shall resign or be removed from office, are as follows:
Name Offices Post Office Address
---- ------- -------------------
Michael W. Levin Chairman of the Board 8 Meadow Lane
Chief Executive Officer Allendale, NJ 07401
and President
Frances Blanco Vice President, 1128 Park Avenue
Treasurer and Hoboken, NJ 07030
and Secretary
Duncan Huyler Vice President 551 Lattintown Road
Marlboro, NY 12542
<PAGE>
(c) Vacancies. If, upon the effective date, a vacancy exists still on
the Board of Directors or in any of the offices of CGSI as the same are
specified above, such vacancy shall thereafter be filled in the manner
provided by law and the Bylaws of CGSI.
FIFTH: Anything contained herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned by the Board of
Directors of any constituent corporation at any time prior to the date of
filing of a Certificate of Merger with respect to the merger with the Secretary
of State of Delaware, and an Articles of Merger with the Secretary of State of
Utah, provided that an amendment made subsequent to the adoption of this
Agreement and Plan of Merger by the stockholders of any constituent corporation
shall not (a) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on conversion of all
or any of the shares of any class or series thereof of such constituent
corporation, (b) alter or change any term of the Certificate of Incorporation
of the surviving corporation to be effected by the merger, or (c) alter or
change any of the terms and conditions of this Agreement and Plan of Merger if
such alteration or change would adversely affect the holders of any class of
such constituent corporation or any series of any such class.
IN WITNESS WHEREOF, the parties to this Agreement and Plan of Merger,
pursuant to the approval and authority duly given by resolutions adopted by
their respective Boards of Directors and the shareholders of SPL have caused
this Agreement and Plan of Merger to be executed by the President of each party
hereto as the respective act, deed and agreement of each of said corporations,
on this _____ day of August, 1998.
CADAPULT GRAPHIC SYSTEMS, INC.
(a Delaware corporation)
By:
---------------------------------
Michael W. Levin,
President
By:
---------------------------------
Frances Blanco,
Secretary
SEAFOODS PLUS, LTD.
(a Utah corporation)
By:
---------------------------------
Michael W. Levin,
President
By:
---------------------------------
Frances Blanco,
Secretary
<PAGE>
APPENDIX C
ARTICLES OF AMENDMENT
TO THE ARTICLES OF INCORPORATION OF
SEAFOODS PLUS, LTD.
Pursuant to the provisions of Section 16-10a-1003 of the Utah Business
Corporation Act, the undersigned corporation hereby adopts the following
Articles of Amendment to its Articles of Incorporation.
FIRST: The name of the corporation is Seafoods Plus, Ltd.
SECOND: The following amendments to the Articles of Incorporation of
Seafoods Plus, Ltd. were duly adopted by the shareholders of the corporation at
a meeting held on August ___, 1998, in the manner prescribed by the Utah
Business Corporation Act, to wit:
ARTICLE I - NAME
The name of this corporation is CADAPULT GRAPHIC SYSTEMS, INC.
THIRD: The number of shares of the corporation outstanding at the time of
the adoption of such amendments was 2,287,518, and the number entitled to vote
thereon was 2,287,518.
FOURTH: The designation and number of outstanding shares of each class
entitled to vote thereon as a class were as follows, to wit:
CLASS NUMBER OF SHARES
Common 2,287,518
FIFTH: The number of shares voted for such amendments was __________, with
________ opposing and _______ abstaining.
SIXTH: These amendments do not provide for any exchange, reclassification
or cancellation of issued shares.
<PAGE>
IN WITNESS WHEREOF, the undersigned President and Secretary, having been
thereunto duly authorized have executed the foregoing Articles of Amendment for
the corporation under the penalties of perjury this _______ day of August,
1998.
SEAFOODS PLUS, LTD.
By:
----------------------------------------
Michael W. Levin, President
Attest:
-------------------------------
Frances Blanco, Secretary
