SEC 733A
(1-2000)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14C
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 permitted by Rule 14c-5(d)(2))
[X] Definitive Information Statement
WORLD DIAGNOSTICS, INC.
(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:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined): N/A
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid: none
[_] Fee paid previously with preliminary materials. N/A
[_] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
Note. Where any item, other than Item 4, calls for information with respect to
any matter to be acted upon at the meeting or, if no meeting is being held, by
written authorization or consent, such item need be answered only with respect
to proposals to be made by the registrant. Registrants and acquirees that meet
the definition of "small business issuer" under Rule 12b-2 of the Exchange Act
(ss.240.12b-2) shall refer to the disclosure items in Regulations S-B (ss.228.10
et seq. of this chapter) and not Regulation S-K (ss.229.10 et seq. of this
chapter). If there is no comparable disclosure item in Regulation S-B, small
business issuers need not provide the information requested. Small business
issuers shall provide the financial information in Item 310 of Regulation S-B in
lieu of any financial statements required by Item 1 of ss.240.14c-101.
WORLD DIAGNOSTICS, INC.
15271 NW 60th Avenue, Suite 201
Miami Lakes, Florida 33014
------------------------
INFORMATION STATEMENT
PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND RULE 14c-2 THEREUNDER
------------------------
NO VOTE OR OTHER ACTION OF THE COMPANY'S SHAREHOLDERS IS REQUIRED
IN CONNECTION WITH THIS INFORMATION STATEMENT.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
--------------------------
This Information Statement, which is being mailed on or about August 10,
2000 to the holders of record of shares of common stock, par value $0.001 per
share ("Common Stock"), of World Diagnostics, Inc., a Delaware corporation (the
"Company"), on June 30, 2000 (the "Record Date"), is being furnished in
connection with resolutions adopted on July 31, 2000 by stockholders holding a
majority of the issued and outstanding Common Stock of the Company to amend and
restate the Company's Certificate of Incorporation and By-laws and ratify the
election of the members of the Board of Directors of the Company (the "Board").
The Amended and Restated Certificate of Incorporation, Amended and
Restated By-laws and ratification of the election of members of the Board will
become effective upon the Company's filing of the Amended and Restated
Certificate of Incorporation with the Office of the Secretary of State of the
State of Delaware, which is anticipated to take place on or about September 1,
2000 (the "Effective Date").
GENERAL
In late June 2000 the Company became aware of a technical defect in its
Certificate of Incorporation and By-laws which did not affect the Company's
status as a corporate entity under the of Delaware General Corporation Law (the
"DGCL"), but which required remedy by the Company. In February 1997, the Company
was organized as a "close corporation" under the DGCL. A close corporation is a
corporation which elects, under Section 342 of the DGCL, among other things, to:
be managed by its shareholders, and not by a board of directors; restrict the
transfer of its stock; and restrict the ownership of its stock to no more than
thirty stockholder. In the second quarter of 1999 the Company took action,
including the issuance of shares of Common Stock to more than thirty holders of
record, which revoked its status as a close corporation. Upon revocation of its
close corporation status the Company became a "regular" corporation under the
DGCL managed by its Board of Directors, however, the Company did not amend its
Certificate of Incorporation and By-laws at that time. Accordingly, on the
Effective Date, the Company will amend and restate its Certificate of
Incorporation and By-laws and ratify the election of its current Board of
Directors, all as more fully described herein. Pursuant to the provisions of the
DGCL and other applicable law such actions may be approved by the written
consent of the holders of at least a majority of the outstanding Common Stock
entitled to vote, followed by prompt notice to the other shareholders.
Pursuant to the rules and regulations promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), an Information Statement must be sent to
the Company's stockholders at least twenty (20) days prior to the Effective Date
of the proposed actions to be taken as described in this Information Statement.
Accordingly, this Information Statement is being sent to all stockholders of
record on June 30, 2000 and is intended to serve as notice under the DGCL.
VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF
As of the date hereof, there are 4,313,827 shares of Common Stock, par
value $.001 of the Company issued and outstanding, each share having one vote.
The Record Date for the actions set forth herein was determined to be the date
on which it was most practicable to obtain shareholder record ownership status
from the Company's transfer agent nearest to the date of filing this Information
Statement.
Security Ownership of Certain Beneficial Owners, Directors and Management
Set forth below is a table showing, as of the date hereof, the number of
shares of Common Stock owned beneficially by (i) each person owning more than 5%
of the outstanding shares of Common Stock, (ii) each director of the Company,
(iii) each officer and key management personnel of the Company, and (iv) all
officers and directors as a group.
PERCENT OF
NAME AND ADDRESS OF AMOUNT AND CLASS
BENEFICIAL OWNER NATURE OF OWNER (4,313,827)
------------------------- ----------------------- -------------
------------------------- ----------------------- -------------
Ken Peters 953,450 22.10%
11269 NW 15th Place
Pembroke Pines, FL 33026
Barry Peters 952,640(1) 22.09%
680 Harbor Street
Venice, CA 90291
MediaVest, Inc. 249,640(2)
10801 National Blvd 5.79%
Suite 600
Los Angeles, CA 90064
Peters Family Trust 703,000(3) 16.30%
680 Harbor Street
Suite 600
Los Angeles, CA 90064
Trevor Campbell 15,000 *
6163 NW 182nd Terrace
Miami, FL 33015
Kenneth Lambley 2,500 *
6489 Hunters Green Court
Indianapolis, IN 46276
Martin Muy 25,000(4) *
7489 Fairway Dr., Apt
#403
Miami Lakes, FL 33014
*
Michael Kondracki 10,700
Deutche Bank Securities
Argentine Pouch - 9th Floor
31 West 52nd Street
New York, NY 10019
Richard P. Humbert 10,000(5) *
818-3010 Beach Street
Venice, CA 90291
Orna L. Shulman 50,000 (6) *
c/o Intertech Corporation
1500 Broadway
New York, NY 10036
Paul R. Kamps 10,000 *
7389 Fairway Drive, #149
Miami Lakes, FL 33014
Robert C. Mendes 10,000 *
1315 SW 99th Court
Miami, FL 33174
All Officers, Directors 2,039,290(7) 47.27%
and Management as a
group (10 Persons)
--------------------
(1) Of the 952,640 shares beneficially owned by Barry Peters, 249,640 are
held by MediaVest, Inc., a Delaware corporation wholly owned by the
Peters Family Trust, and 703,000 are held by the Peters Family Trust,
of which Barry Peters is a trustee.
(2) Shares of MediaVest, Inc. are included as beneficially owned by Barry
Peters.
(3) Shares of the Peter Family Trust are included as beneficially owned by
Barry Peters.
(4) Includes 10,000 shares of Common Stock issuable upon exercise of
options to purchase 10,000 shares of Common Stock on or before April
2002.
(5) Includes 10,000 shares of Common Stock issuable upon exercise of
warrants to be issued to Mr. Humbert exercisable through June 2003.
(6) Includes 50,000 shares of Common Stock issuable upon exercise of
warrants to be issued to Ms. Shulman exercisable through June 2003.
(7) Without duplication of the 952,640 shares shown as beneficially owned
by Barry Peters.
* Less than 2%
<PAGE>
DIRECTORS AND EXECUTIVE OFFICERS
Directors, Executive Officers, Promoters and Control Persons
The names, ages and positions of all directors, executive officers and key
management employees of the Company as of June 30, 2000 are listed below,
followed by a brief account of their business experience during the past five
years.
NAME AGE POSITION
---------------------- ------------ ---------------------------
---------------------- ------------ ---------------------------
Ken M. Peters 52 President, Chief
Executive Officer and
Director
Barry Peters 59 Chairman, Treasurer and
Director
Paul R. Kamps 36 Vice President - Finance
and Administration
Kenneth Lambley 60 Vice President - Sales
and Marketing
Martin Muy, Ph.D. 40 Vice President -
Technical Affairs
Maureen Besson 36 Vice President -
Operations and Secretary
Robert C. Mendes 32 Director of Information
Technology
Trevor Campbell, MT, 54 Director
FMT
Michael Kondracki 39 Director
Richard P. Humbert 56 Director
Orna L. Shulman 41 Director
---------------------- ------------ ---------------------------
---------------------- ------------ ---------------------------
Ken Peters, Kenneth Lambley, Martin Muy and Trevor Campbell were elected
to their positions as officers and directors of the Company in February 1998;
Maureen Besson was elected Secretary in February 1998 and Vice President -
Operations in October 1999; Barry Peters was elected Chairman of the Board in
October 1998; Michael Kondracki was elected as a director in November 1998;
Richard P. Humbert was elected as a director in May 2000; Robert Mendes was
appointed Director of Information Technology in May 2000; Paul R. Kamps was
elected Vice President - Finance and Administration in June 2000; and Orna L.
Shulman was elected as a director in June 2000.
KEN M. PETERS is President, Chief Executive Officer and founder of World
Diagnostics, Inc. From September 1995 to August 1996 Mr. Peters was an
independent consultant specializing in health care and biotechnology. From
September 1996 to January 1998 Mr. Peters was Vice President of Sales and
Marketing for Biodiagnostica, Inc. From 1984 to 1994 Mr. Peters held senior
international marketing positions with Pharmacia, AG, American Monitor Corp. and
Flow Laboratories, Inc. Mr. Peters has extensive experience spanning a
twenty-five year period in sales and marketing of diagnostic products,
particularly in the international marketplace. From 1979 to 1982, Mr. Peters was
the General Manager of Abbott Diagnostics, a division of Abbott Laboratories,
Inc., for the Caribbean, Central and South America. Mr. Peters was instrumental
in assisting the launch of several start-up ventures in the biotech industry,
including Genus Diagnostics, Inc. and BioAssay Systems Corp. Ken Peters has
received numerous awards from the Biomedical Marketing Association, and he has
been recognized for outstanding achievements by Who's Who in American Health
Care Marketing. Mr. Peters has published several articles in national journals
concerning technology, healthcare and marketing, and he has been quoted in
national periodicals, such as the Wall Street Journal, Clinical Chemistry
Systems and others. He has spent numerous years traveling throughout South
America and Europe speaks Spanish fluently. Mr. Peters received a M.A. in
Economics from the University of New Mexico in 1972 and received his B.A. in
Business and Economics from the City University of New York in 1969. Mr. Ken
Peters, President of the Company and Mr. Barry Peters, Chairman, are brothers.
BARRY PETERS has served as the Chairman of the Board of the Company since
October 1998. Since 1997 he has also served as the Chief Executive Officer of
MediaVest, Inc., a private-investment firm. From 1995 to 1997 Mr. Peters was
Chairman and Chief Executive Officer of All-Comm Media Corporation. Mr. Peters
has over 25 years experience in corporate development, management and finance.
He is Chairman of the Board of Appian Graphics, Inc., a company specializing in
multi-monitor computer displays. He is the founder and former Chairman and Chief
Executive Officer of All-Comm Media Corporation (Nasdaq), a direct marketing and
Internet marketing services company (now Marketing Services Group, Inc.).
Previously, Mr. Peters was instrumental in sponsoring management buyouts and
providing early stage financing for companies that included: Metpath, Inc.,
Integrated Resources, Inc., ESB Ray-O-Vac Corp., Aydin Corporation, Exide
Corporation, Avco/Embassy Pictures Corp., Time/Warner, ITT Corporation, Allied
Signal Companies, Inc., Borg-Warner Corporation and F. Schumacher & Co., Inc.
Mr. Peters began his career as a Staff Financial Analyst for RCA Corporation.
Mr. Peters received a MBA in Finance from the Baruch School of Business in 1969,
and his BA in Economics from Hofstra University in 1968, graduating magna cum
laude. Mr. Peters is the brother of Ken Peters, President of the Company.
PAUL R. KAMPS joined the Company as Vice President - Finance and
Administration in June 2000. Mr. Kamps is a CPA and Chartered Accountant, with
over 13 years of financial and operating experience at small and mid sized
companies, with particular emphasis in the international arena. From March 1999
to May 2000 Mr. Kamps was employed by E-Z Serve Convenience Stores as an
independent financial consultant. From October 1998 to February 1999 he was
employed by LKQ Corporation as Controller. From November 1996 to September 1998
he was employed by Proven Edge, Inc. as Controller, and from July 1995 to
October 1996 Mr. Kamps was employed by Medical Resources, Inc. as an Accounting
Manager. Mr. Kamps received his Bachelor of Accounting Science, with honors in
1989, from the University of South Africa, Johannesburg, South Africa, and his
Bachelor of Commerce in 1987 from the University of Witwatersrand, Johannesburg,
South Africa.
ROBERT C. MENDES joined the Company as Director of Information Technology
in March 2000. Prior to joining the Company, Mr. Mendes was employed by Blue
Cross & Blue Shield of Florida since 1989. Mr. Mendes graduated from Barry
University in 1989 with a Bachelor's degree in Computer Data Processing before
working for Blue Cross & Blue Shield of Florida, where he began as a
Hardware/Software Support Specialist and later as Senior Systems Analyst upon
his departure. In 1997 he was certified as a Microsoft Certified Systems
Engineer, and as of January, 2000, became a Microsoft Certified Trainer.
KENNETH LAMBLEY has served as the Vice President-Sales and Marketing of
the Company since December 1998. Prior to joining the Company Mr. Lambley was
employed by Seradyn Diagnostics, Inc. from January 1968 to December 1998 in
various executive capacities. At Seradyn, Mr. Lambley was employed in various
positions beginning in sales, through marketing to a position as international
sales director for Seradyn Diagnostics a subdivision of Dow Chemical which was
later acquired by Mitsubishi. During his thirty-year career, his
responsibilities included sales and marketing management for both diagnostic and
pharmaceutical products that included direct sales to regional management of the
sales force and to distribution management, including International. Mr. Lambley
received his undergraduate diploma from Nottingham College, in the United
Kingdom in 1963 and received his graduate degree in international marketing in
1965; he studied pharmacy in the Royal Army Medical Corps from 1963 through
1966.
MARTIN MUY, PH.D. has served as the Vice President-Technical Affairs of
the Company since April 1999. Dr. Muy has over eight years experience in
developing genetically engineered diagnostic research and health technology
products concerning microbiology and immunology, and immunology assays. From
June 1998 until 1999 Dr. Muy was employed as Senior Product Development Manager
for PharmaCorp (USA and Mexico), where he worked on commercialization of various
technologies. From September 1995 to June 19987 Dr. Muy was a post-doctoral
student of the University of Massachusetts and Oregon Health Sciences
University. Dr. Muy was also employed as Senior Product Development Manager for
PharmaCorp (USA and Mexico), where he worked on commercialization of various
technologies. In addition, Dr. Muy has been engaged by such companies BPL (UK),
Schering Plough (USA), Ortman Biomedics (Switzerland) and Epitope (USA). Dr. Muy
also has been employed at various Research Centers performing work, including:
Earles A. Chiles Institute Providence Medical Center; The Department of
Infectious Diseases at the University of Massachusetts Medical Center and Oregon
Health Sciences University. Dr. Muy received his Ph.D. in Biologic Sciences from
Mexico University in 1989, and his B.S. in 1985. Dr. Muy completed three
post-doctoral programs at the University of Oregon from 1991 through 1997.
MAUREEN BESSON has served as Vice President - Operations and Secretary
since June 1998. Ms. Besson has over ten years experience in operations
management commencing with the Intercontinental Hotel chain in Caracas Venezuela
from 1987 until 1992. From 1992 to 1994 Ms. Besson was occupied full time with
her family in Caracas. From 1994 to 1997 Ms. Besson was in charge of asset
management for export products to South and Central America for Bio Diagnostica
Inc. Ms. Besson was first employed by the Company as Administrative Assistant to
the President in February 1997. Ms. Besson attended preparatory school in
Syracuse New York and completed her studies in business management abroad at the
University of Nuevas Profesiones in Venezuela in 1987.
TREVOR CAMPBELL has served as a director of the Company since February
1997. Since 1983 Mr. Campbell has been the owner and been President of Microlabs
Inc., Jamaica's largest private reference laboratory, which has 14 independent
laboratories in Jamaica. From 1981 to 1982 Mr. Campbell served as the President
of CASMET, the Caribbean Society of Medical Technologists. From 1977 to 1982,
Mr. Campbell was the sales liaison for Abbott Diagnostics Jamaican distribution
business in Jamaica. Mr. Campbell received a diploma in Medical Technology in
June 1967 at the Public Health Service for Jamaica. Subsequently, he studied
business administration at the University of the West Indies, followed by a
two-year fellowship at the World Trade Institute in New York as a US AID Fellow
studying International Marketing.
MICHAEL G.S. KONDRACKI has served as a director of the Company since
November 1998. Mr. Kondracki is a Director in Deutsche Bank Alex Brown, the
Investment Banking Unit of Deutsche Bank AG. He has been with Deutsche since
1996, and currently is based in Buenos Aires, Argentina where he is responsible
for originating and executing structured and project financings for oil, gas,
power, mining, infrastructure and telecommunications companies throughout the
MercoSur. Prior to joining Deutsche, Mr. Kondracki was a Vice President at
Prudential Securities Incorporated where he originated and executed investment
banking transactions for North and South American emerging growth companies.
From 1984 to 1990, Mr. Kondracki held various positions at Citibank and
Manufacturers Hanover and he was also a Consultant to the Inter-American
Development Bank. He continues to serve as a Consultant to the U.S. Department
of State. Mr. Kondracki graduated from the University of Scranton magna cum
laude in 1982, completed a Fulbright Scholarship in Peru in 1983 and received
his MBA from the Stern School of Business at New York University in 1991. Mr.
Kondracki is fluent in Spanish and conversant in Portuguese.
RICHARD P. HUMBERT has served as a director of the Company since May 2000.
Mr. Humbert has 20 years experience in computer technology and information
systems. Mr. Humbert has been the Director of Information Technologies for
Panavision, the world's largest supplier of movie cameras and cinematography
equipment since July 1997. From August 1995 to June 1997 he was Director of MIS
for All-Comm Media Corporation. Prior thereto, he was President of MicroSystems,
Inc., a Washington D.C. based computer software engineering and consulting
company. Mr. Humbert attended Cornell University and subsequently, after serving
in the United States Marine Corps, received a B.A. degree in English from the
University of Maryland.
ORNA L. SHULMAN has served as a director of the Company since June 2000.
Ms. Shulman has been the Chief Operation Officer of Intertech Corporation, an
international private investment firm, based in New York City, overseeing
investments in real estate, manufacturing and for emerging technology and
biotechnology companies in the United States and Israel, since 1989. Ms. Shulman
serves on the Board of Directors of the Times Square B.I.D.; Women's Leadership
Board of the John F. Kennedy School of Government, Harvard University; member of
the Advisory Board, Real Estate Center, the Wharton School, University of
Pennsylvania. She is also Trustee of the Washington Institute for Near East
Policy, and is a Board member of the Association of Foreign Investors in Real
Estate. Ms. Shulman holds a J.D. degree from Washington University School of
Law, the American University, and a Bachelors degree, cum laude, from Tufts
University.
All directors hold office until the next annual meeting of shareholders of
the Company and until there successors are elected and qualified. Officers hold
office until the first meeting of directors following the annual meeting of
shareholders and until their successors are elected and qualified, subject to
earlier removal by the Board.
Certain Relationships and Related Transactions
In May 1998, the Company entered into a $150,000 senior secured promissory
note (the "Note") with MediaVest, Inc., a Delaware corporation ("MediaVest"),
controlled by Barry Peters who is Chairman of the Board of the Company, and
other lenders under the Note. MediaVest participated in $50,000 of the $150,000
loan to the Company. The Note bore interest at 10% per annum and had a maturity
date of August 24, 1998. The Company repaid $17,500 of the Note in December 1998
through the issuance of 29,237 shares of Common Stock, with a fair value of
$2.88 per share, discounted by 25% as a result of the restrictions on transfer
of such shares. MediaVest and the participant lenders extended repayment of the
Note until February 24, 1999 and forgave all interest through that date, in
exchange for which the Company issued 200,000 shares of Common Stock at $.125
per share to be allocated among the lenders under the Note. In April 1999, the
Company paid the outstanding balance of the Note through the issuance of 101,090
shares of Common Stock and payment of $45,000. The fair market value of the
Common Stock was $7.00 per share at the date of extinguishment. The restricted
Common Stock cannot be sold for a 12 month period from the date of issuance and
after that can only be sold in accordance with Rule 144 or other applicable
exemption. Due to these restrictions, the Company discounted the fair value of
the Common Stock at the date of extinguishment by 25%. During the fiscal year
ended March 31, 1999 ("Fiscal Year 1999"), MediaVest made short-term non
interest bearing loans to the Company in the aggregate of $75,000, all of which
were repaid in November 1999.
During the fiscal year ended March 31, 2000 ("Fiscal Year 2000") and
Fiscal Year 1999, one of the Company's largest customers was Microlabs, Inc., of
which Trevor Campbell, a director of the Company, is President and owner.
Microlabs, Inc.'s purchases represented approximately 14% of the Company's gross
revenues for Fiscal Year 2000 and 21% of the Company's gross revenues for Fiscal
Year 1999.
There are no other material transactions between the Company and any of
its affiliates except as set forth herein.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires the Company's executive
officers, directors and persons who beneficially own more than 10% of a
registered class of the Company's equity securities to file with the Commission
initial reports of ownership and reports of changes in ownership of Common Stock
and other equity securities of the Company. Such persons are required by
Commission regulations to furnish the Company with copies of all Section 16(a)
forms they filed.
To the Company's knowledge, based solely on the Company's review of Forms
3 (Initial Statement of Beneficial Ownership of Securities), Forms 4 (Statement
of Changes in Beneficial Ownership) and Forms 5 (Annual Statement of Changes in
Beneficial Ownership) furnished to the Company, all persons filed such forms in
a timely manner.
Committees and Meetings of the Board of Directors
The Company currently does not have a standing audit committee, nominating
committee or compensation committee of its Board of Directors or other
committees performing similar functions. On the Effective Date, the Company will
establish, by resolutions of the Board of Directors, a standing audit committee,
compensation committee and nominating committee.
During Fiscal Year 2000, the Company's Board of Directors held meetings or
took action by unanimous written consent of the Board of Directors eleven times.
No member of the Board of Directors attended or participated in fewer than 75%
of the aggregate of the total number of meetings and actions of the Board of
Directors during Fiscal Year 2000.
COMPENSATION OF DIRECTORS AND EXECUTIVE OFFICERS
Ken Peters, the President and Chief Executive Officer of the Company,
received a salary of $58,000 and a bonus of $10,000 in Fiscal Year 2000, and a
salary of $58,000 and a bonus of $5,000 in Fiscal Year 1999. The Company
maintains a $2 million keyman life insurance policy on Mr. Peters under which
the Company is the beneficiary. No other person received compensation in excess
of $100,000 per annum for Fiscal Year 2000 or Fiscal Year 1999.
The Company compensates its directors $1,500 annually to attend board
meetings and, from time to time, grants directors warrants to purchase shares of
the Company's Common Stock.
In May 2000, as an inducement to join the Board of Directors of the
Company, the Company granted Richard P. Humbert the right to purchase for Five
Hundred Dollars ($500.00) warrants to purchase Ten Thousand (10,000) shares of
Common Stock at an exercise price of $3.50 per share. The warrants will be
exercisable for a period of three (3) years. The shares issued upon exercise of
the warrants may not be transferred without the written consent of the Company.
The $3.50 warrant price per share is subject to adjustment to be equal to the
lowest price of any equity securities issued by the Company during the period
firm May 2000 through September 5, 2000. The warrant shares will be restricted
securities under Rule 144 of the Exchange Act.
In June 2000, as an inducement to join the Board of Directors of the
Company, the Company granted Orna L. Shulman the right to purchase for
Twenty-Five Hundred Dollars ($2,500.00) warrants to purchase Fifty Thousand
(50,000) shares of Common Stock at an exercise price of $3.50 per share. The
warrants will be exercisable for a period of three (3) years. The shares issued
upon exercise of the warrants may not be transferred without the written consent
of the Company. The $3.50 warrant price per share is subject to adjustment to be
equal to the lowest price of any equity securities issued by the Company during
the period from June 2000 through October 4, 2000. The warrant shares will be
restricted securities under Rule 144 of the Exchange Act.
THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION AND
AMENDED AND RESTATED BY-LAWS
The following summary of certain provisions of the Company's Amended and
Restated Certificate of Incorporation and Amended and Restated By-laws is
qualified in all respects to terms and provisions of the Amended and Restated
Certificate of Incorporation and the Amended and Restated By-laws, copies of
which are annexed to this Information Statement as Annex I and Annex II,
respectively.
The Amended and Restated Certificate of Incorporation
Presently, the Company's Certificate of Incorporation does not comport
with the Company's election not to be a "close corporation" and provides, among
other things, that (i) the Company's capital stock, exclusive of treasury
shares, shall not be held of record by more than thirty persons, (ii) all of the
issued capital stock of the Company shall be subject to restrictions on transfer
as such may be permitted under Section 202 of the DGCL, and (iii) the Company
shall not make an offer of any of its capital stock which would constitute a
"public offering" within the meaning of the Securities Act of 1933.
On the Effective Date, (i) the restrictions set forth in the preceding
paragraph will no longer apply to the Company, (ii) the Company's Amended and
Restate Certificate of Incorporation will conform to the Company's election not
to be a close corporation, and (iii) the number of shares of stock which the
Company is authorized to issue will be increased from 10,000,000 to 15,000,000;
10,000,000 shares of which will be Common Stock and 5,000,000 shares of which
will be undesignated preferred stock. In addition, the Amended and Restate
Certificate of Incorporation will generally provide, among other things, as
follows:
Name - The name of the Company will remain World Diagnostics, Inc.
Address - The address of the registered office of the corporation in the
State of Delaware will remain at 1313 N. Morliet Street, Wilmington, DE
19801-11511. The name and address of the corporation's registered agent in the
State of Delaware will continue to be The Company Corporation, 1313 N. Morliet
Street, Wilmington, DE 19801-11511.
Purpose - The purpose of the corporation will continue to be to engage in
any lawful act or activity for which corporations may be organized under the
DGCL.
Meetings of Stockholders - Meetings of stockholders may be held within or
without the State of Delaware, as the By-laws may provide. The books of the
corporation may be kept (subject to any provision contained in statutes) outside
the State of Delaware at such place or places as may be designated from time to
time by the Board or in the By-laws of the corporation.
Stock - The total number of shares of stock which the corporation shall
have authority to issue will be increased to Fifteen Million (15,000,000), of
which Ten Million (10,000,000) shares shall be common stock, par value $.001 per
share, and Five Million (5,000,000) shares shall be preferred stock, par value
$0.001 per share (the "Preferred Stock"). The number of authorized shares of
Common Stock and Preferred Stock may be increased or decreased (but not below
the number of shares of Common Stock or Preferred Stock then outstanding) by the
affirmative vote of the holders of a majority of the stockholders of the
Corporation.
Rights and Powers of Common Stock
Voting Rights and Powers - Except as otherwise provided in the Amended and
Restated Certificate of Incorporation or in the DGCL, the holders of the
outstanding shares of Common Stock shall vote together with the holders of all
other classes and series of voting capital stock with respect to all matters
upon which stockholders are entitled to vote or to which stockholders are
entitled to give consent. Holders of Common Stock shall be entitled to cast one
vote in person or by proxy for each share of Common Stock standing in his, her
or its name as of the record date for determining stockholders entitled to vote
upon or consent to the matter under consideration.
Dividends and Distributions - Subject to the rights of the holders of
shares of Preferred Stock of any class then outstanding, holders of shares of
Common Stock shall be entitled to such dividends and other distributions in
cash, stock or property of the corporation as may be declared thereon by the
Board of Directors out of assets or funds of the corporation legally available
therefore.
Preferred Stock
Authority will be granted to the Board from time to time to issue the
Preferred Stock in one or more series and in connection with the creation of any
such series to fix by the resolution or resolutions providing for the issue of
shares thereof the designation, voting powers, preferences and relative,
participating, optional or other special rights of such series, and the
qualifications, limitations, or restrictions thereof. Such authority of the
Board with respect to each such series shall include, but not be limited to, the
determination of the following: (i) the distinctive designation of, and the
number of shares comprising, such series, which number may be increased (except
where otherwise provided by the Board in creating such series) or decreased (but
not below the number of shares thereof then outstanding) from time to time by
like action of the Board, (ii) the dividend rate or amount for such series, the
conditions and dates upon which such dividends shall be payable, the relation
which such dividends shall bear to the dividends payable on any other class or
classes or any other series of any class or classes of stock, and whether such
dividends shall be cumulative, and if so, from which date or dates for such
series, (iii) whether or not the shares of such series shall be subject to
redemption by the corporation and the times, prices and other terms and
conditions of such redemption, (iv) whether or not the shares of such series
shall be subject to the operation of a sinking fund or purchase fund to be
applied to the redemption or purchase of such shares and if such a fund be
established, the amount thereof and the terms and provisions relative to the
application thereof, (v) whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other class or classes, or of
any other series of any class or classes, of stock of the corporation and if
provision be made for conversion or exchange, the times, prices, rates,
adjustments and other terms and conditions of such conversion or exchange, (vi)
whether or not the shares of such series shall have voting rights, in addition
to the voting rights provided by law, and if they are to have such additional
voting rights, the extent thereof, (vii) the rights of the shares of such series
in the event of any liquidation, dissolution or winding up of the corporation or
upon any distribution of its assets, and (viii) any other powers, preferences
and relative, participating, optional or other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof, to the
full extent now or hereafter permitted by law and not inconsistent with the
provisions of the Amended and Restated Certificate of Incorporation.
Amendment to By-laws - The Board of Directors is expressly authorized to
make, alter and repeal the By-laws of the corporation, subject to the power of
the stockholders of the corporation to alter or repeal any By-law whether
adopted by them or otherwise.
Liability of Directors - No person who is or was a director of the
corporation will be personally liable to the corporation for monetary damages
for breach of fiduciary duty as a director unless, and only to the extent that,
such director is liable (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 DGCL or any amendment thereto or successor
provision thereto, or (iv) for any transaction from which the director derived
an improper personal benefit. No amendment to, repeal or adoption of any
provision of the Amended and Restated Certificate of Incorporation inconsistent
with this provision shall apply to or have any effect on the liability of any
director of the corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment, repeal or adoption of any
inconsistent provision. If the DGCL is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the DGCL as so amended.
Indemnification - The corporation will 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 the corporation), by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the 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 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 the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
proceeding by judgment, order, settlement or otherwise, will not, of itself,
create a presumption that the person seeking indemnification 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 the corporation and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
The corporation will 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 the 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
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and 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 the corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action 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 or such other court
shall deem proper.
To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
Any indemnification (unless ordered by a court) will be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct. Such
determination shall be made (i) by the Board by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
(ii) if such a quorum is not obtainable or even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders of the corporation.
Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon 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 by the corporation as
authorized in these provisions. Such expenses (including attorneys' fees)
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board deems appropriate.
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership 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 the corporation
would have the power to indemnify him against such liability under the
provisions of Section 145 of the DGCL
The indemnification and advancement of expenses provided by the
corporation will, unless otherwise provided when authorized or ratified,
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.
Amendments to Certificate of Incorporation - The corporation may amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation, in a manner now or hereafter prescribed by the laws of the State
of Delaware at the time in force, and all rights, preferences and privileges
conferred upon stockholders, directors or any other persons by and pursuant to
the Certificate of Incorporation are subject to the rights of the corporation to
amend its Certificate of incorporation as a future date.
The Amended and Restated By-laws
Presently, the Company's By-laws do not reflect that the Company is
managed by its Board of Directors in accordance with the Company's election not
to be a "close corporation." On the Effective Date, the Company's Amended and
Restated By-laws will conform to the Company's election not to be a close
corporation and generally provide, among other things, as follows:
Offices and Branches - The corporation will maintain a registered office
in the State of Delaware and may have such other offices in or about the State
of Delaware as the Board of Directors determines.
Meetings of Stockholders - Annual meetings of stockholders for the
election of directors and the transaction of other business will be held as the
Board of Directors determines each year. Special meetings of stockholders may be
called by the Chairman, President or Secretary or by the directors. Unless
otherwise required by applicable law, no annual meetings of stockholders need by
held if all actions required by the DGCL to be taken at such meeting are taken
by written consent in lieu of meeting.
Voting - Each stockholder shall be entitled to one vote in person or by
proxy for each share of stock entitled to vote which is registered in the name
on the record date for meetings of stockholders. Elections for directors and all
other matters shall be decided by majority vote, except as otherwise required by
the Certificate of Incorporation or by law. Except as otherwise required by law,
the holders of a majority of the stock of the corporation entitled to vote in
present, in person or by proxy, will constitute a quorum at all meeting of the
stockholders.
Stockholders List - A complete list of stockholders entitled to vote at
any meeting of stockholders showing the address of each stockholder and the
number of shares registered in his name will be open to examination by any
stockholder for any purpose germane to the stockholders' meeting.
Action Without Meeting - Any action required or permitted to be taken at
any annual or special meeting of stockholders, including without limitation,
election of directors, may be taken without a meeting. If a consent in writing
is signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to take such action at a meeting at
which all shares entitled to vote were present and voted. Prompt notice of the
taking of such action without a meeting by less than unanimous written consent
will be given to all stockholders who did not consent in writing to such action.
Directors - The Board of Directors of the corporation will consist of not
more than nine nor less than one member as determined from time to time by
resolution of the stockholders or the Board of Directors. Each director shall be
elected to serve until the next annual meeting of the stockholders until their
respective successors have been fairly elected and qualified. The number of
directors may be increased or decreased from time to time by amendment to the
By-laws made by a majority of the Board of Directors or by the shareholders. The
directors shall exercise all of the powers of the corporation except as are
conferred by the Certificate of Incorporation, the By-laws or laws reserved to
the stockholders.
Vacancies - Subject to the rights of he holders of a series of any
preferred stock, newly created directorships or if the office of any director or
member of a committee or officer becomes vacant for any reason, the remaining
directors (although less than a quorum) by a majority of vote may elect a
successor who shall hold office for such person's unexpired term.
Removal - Any director may be removed with or without cause at any time by
the affirmative vote of the holders of the majority of all the shares of stock
outstanding and entitled to vote.
Meetings - Regular meetings of the Board of Directors will be held as
established from time to time by the Board of Directors. The Chairman, President
or the Secretary may call, and at the request of any three directors, must call,
a meeting of the Board of Directors of the corporation. Members of the Board of
Directors may participate in any meeting by means of a conference telephone that
enables all persons participating in the meeting to hear each other. Actions by
a majority of the directors present at a meeting at which a quorum is present
will constitute the act of the Board of Directors. A majority of the directors
shall constitute a quorum for the transaction of business. Any action required
or permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if written consent is signed by all members of the Board of
Directors.
Compensation - Directors may receive such compensation (including
reimbursement of expenses) for their services as directors as the Board of
Directors shall, from time to time, determine by resolution. Receipt of such
compensation will not preclude any director form serving the corporation in any
other capacity and receiving compensation therefore.
Committees of the Board of Directors - The Board of Directors, by a vote
of the majority of the whole Board, may from time to time designate committees
of the Board with such lawfully delegated powers and duties as the Board confers
upon such committee to serve at the pleasure of the Board, provided, however,
that no such committee shall have such power or authority to amend the
Certificate of Incorporation, adopt an agreement of merger or consolidation
under Section 251 or 252 of the DGCL, recommend to the stockholders the sale,
lease or exchange of all or substantially all the corporation's property and
assets, recommend to the stockholders a dissolution of the corporation or the
revocation of a dissolution, or amend the By-laws.
Officers - The officers of the corporation shall be the President, one or
more Vice Presidents, a Treasurer, a Secretary and one or more Assistant
Secretaries, all of whom shall be elected by the Board of Directors. Each
officer shall hold office until his successor is elected and qualified or until
his earlier resignation or removal. None of the officers of the corporation need
be directors. Two or more offices may be held by the same person and any officer
may be removed at any time, with or without cause by the Board of Directors. The
Board of Directors may elect a Chairman of the Board of Directors and such other
officers or agents as it deems advisable.
Stock - Certificates of stock signed by the President or Vice President,
and by the Treasurer or Assistant Treasurer, or the Secretary or an Assistant
Secretary, shall be issued to each stockholder, certifying the number of shares
owned by him in the corporation. Any of, or all of, the signatures on the
certificates may be facsimiles. A new certificate of stock may be issued in the
place of any certificate previously issued by the corporation alleged to have
been lost, stolen or destroyed, and the Directors may, in their discretion,
require the owner of the lost, stolen or destroyed certificate to give the
corporation a bond in such sum as they may direct to indemnify the corporation
against any damages on account of the alleged loss, theft or destructions.
Stock Ledger - A stock ledger will be kept by the Secretary, in which
shall be recorded the name and address of each person, firm or corporation
owning the shares evidenced by each certificate evidencing shares issued by the
corporation, the number of shares evidenced by each such certificate, the date
of issuance thereof and, in the case of cancellation, the date of cancellation.
Except as otherwise expressly required by law, the person in whose name shares
stand on the stock ledger of the corporation shall be deemed the owner and
recordholder thereof for all purposes.
Transfers of Stock - Transfers of stock shall be made only upon the
transfer books of the corporation kept in an office of the corporation or by the
transfer agents designated to transfer shares of the stock of the corporation.
Upon surrender to the corporation or its transfer agent of the certificate for
shares duly endorsed or accompanied by proper evidence of succession, the
corporation shall issue or cause its transfer agent to issue a new certificate
to the person entitled thereto, cancel the old certificate and cancel the
transaction upon its books.
Addresses of Stockholders - Each stockholder is required to designate to
the Secretary an address at which notices of meetings and all other corporate
notices may be served or mailed to such stockholder, and, if any stockholder
shall fail to designate such an address, corporate notices may be served upon
such stockholder by mail directed to the mailing address, if any, as the same
appears in the stock ledger of the corporation or at the last known mailing
address of such stockholder.
Stockholders Record Date - 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 change, conversion or exchange of stock or for the purpose 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. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Regulations - The Board may make such other rules and regulations as it
may deem expedient, not inconsistent with the By-laws, concerning the issue,
transfer and registration of certificates evidencing shares.
Notice and Waiver of Notice - Whenever any notice is required to be given,
personal notice shall not be necessary unless expressly so stated, and any
notice so required shall be deemed to be sufficient if given by depositing the
same in the United States mail, first class mail (air-mail if to an address
outside of the United States), postage prepaid, addressed to the person entitled
thereto at his address as it appears on the records of the corporation, in which
case such notice shall be deemed given on the day of such mailing, unless it is
notice of a directors' meeting, in which case such notice shall be deemed given
five (5) days after the date of such mailing. Notice may also be given
personally, against receipt, or by telegram, telex or similar communication and
notice so given shall be deemed given when so delivered personally or when
delivered for transmission. Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings except as otherwise provided by
statute.
Whenever any notice whatsoever is required or permitted to be given under
the provisions of any law, or under the provisions of the Certificate of
Incorporation or the By-laws, a waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the time such notice
is required to be given, shall be deemed equivalent thereto. A telegram, telex
or similar communication waiving any such notice sent by a person entitled to
notice shall be deemed equivalent to a waiver in writing signed by such person.
Neither the business nor the purpose of any meeting need be specified in any
waiver.
Amendments to By-laws by Shareholders - The By-laws may be amended at any
shareholders' meeting by vote of the shareholders holding a majority (unless the
Certificate of Incorporation requires a larger vote) of the outstanding stock
having voting power, present either in person or by proxy, provided notice of
the amendment is included in the notice or waiver of notice of such meeting.
Amendments to By-laws by Directors - The Board of Directors may also amend
these By-laws at any regular or special meeting of the Board by a majority vote
(unless the Certificate of Incorporation requires a larger vote) of the entire
Board, but any By-laws so made by the Board of Directors may be altered or
repealed by the shareholders.
RATIFICATION OF ELECTION OF DIRECTORS
On the Effective Date, the following persons' status as members of the
Board of Directors of the Company will be ratified:
NAME AGE POSITION
---------------------- ------------ ---------------------------
Ken M. Peters 52 President, Chief
Executive Officer and
Director
Barry Peters 59 Chairman, Treasurer and
Director
Trevor Campbell, MT, 54 Director
FMT
Michael Kondracki 39 Director
Richard P. Humbert 56 Director
Orna L. Shulman 41 Director
---------------------- ------------ ---------------------------
All directors will continue to hold office until the next annual meeting
of shareholders of the Company and until their successors are elected and
qualify.
SEE "VOTING SECURITES AND PRINCIPAL HOLDERS THEREOF," "DIRECTORS AND
EXECUTIVE OFFICERS" AND "COMPENSATION OF DIRECTORS AND EXECUTIVE OFFICERS"
<PAGE>
ANNEX I
AMENDED AND
RESTATED
CERTIFICATE OF INCORPORATION
OF
WORLD DIAGNOSTICS, INC.
World Diagnostics, Inc. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "DGCL"), does hereby certify that:
1. The date of filing of the Corporation's original Certificate of
Incorporation with the Secretary of State of the State of Delaware was February
3, 1997.
2. A Certificate of Amendment to the Corporation's Certification of
Incorporation was filed with the Secretary of State of the State of Delaware on
June 15, 1998.
3. This Amended and Restated Certificate of Incorporation (the
"Certificate") has been adopted pursuant to Sections 242 and 245 of the DGCL and
restates and amends the provisions of the Certificate of Incorporation of the
Corporation.
4. The Board of Directors of the Corporation (the "Board") adopted
resolutions dated July 30, 2000 proposing and declaring advisable the amendment
and restatement of the Certificate of Incorporation, that such amendment and
restatement of the Certificate of Incorporation was approved by written consent
of a majority of the stockholders of the Corporation dated as of July 31, 2000
pursuant to Section 228 of the GCL, and that such resolutions so approved by the
Board and a majority of the stockholders of the Corporation read as follows:
RESOLVED, that the text of the Certificate of Incorporation be amended and
restated to read in its entirety as follows:
FIRST: The name of the corporation is World Diagnostics, Inc. (the
"Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 1313 N. Morliet Street, Wilmington, DE 19801-11511,
County of New Castle. The name and address of the Corporation's registered agent
in the State of Delaware is The Company Corporation, 1313 N. Morliet Street,
Wilmington, DE 19801-11511.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is Fifteen Million (15,000,000), of which Ten
Million (10,000,000) shares shall be designated common stock, par value $.001
per share ("Common Stock"), and Five Million (5,000,000) shall be preferred
Stock, par value $0.001 per share ("Preferred Stock").
The number of authorized shares of Common Stock and Preferred Stock
may be increased or decreased (but not below the number of shares of Common
Stock or Preferred Stock then outstanding) by the affirmative vote of the
holders of a majority of the stock of the Corporation.
A. Rights and Powers of Common Stock.
1. Voting Rights and Powers. Except as otherwise provided in this
Amended and Restated Certificate of Incorporation or in the DGCL, the holders of
the outstanding shares of Common Stock shall vote together with the holders of
all other classes and series of voting capital stock with respect to all matters
upon which stockholders are entitled to vote or to which stockholders are
entitled to give consent. Holders of Common Stock shall be entitled to cast one
vote in person or by proxy for each share of Common Stock standing in his, her
or its name as of the record date for determining stockholders entitled to vote
upon or consent to the matter under consideration.
2. Dividends and Distributions. Subject to the rights of the holders
of shares of Preferred Stock of any class then outstanding, holders of shares of
Common Stock shall be entitled to such dividends and other distributions in
cash, stock or property of this Corporation as may be declared thereon by the
Board of Directors (the "Board") out of assets or funds of this Corporation
legally available therefore.
B. Preferred Stock.
Authority is hereby expressly granted to the Board from time to time
to issue the Preferred Stock in one or more series and in connection with the
creation of any such series to fix by the resolution or resolutions providing
for the issue of shares thereof the designation, voting powers, preferences and
relative, participating, optional or other special rights of such series, and
the qualifications, limitations, or restrictions thereof. Such authority of the
Board with respect to each such series shall include, but not be limited to, the
determination of the following:
1. the distinctive designation of, and the number of shares
comprising, such series, which number may be increased (except where otherwise
provided by the Board in creating such series) or decreased (but not below the
number of shares thereof then outstanding) from time to time by like action of
the Board;
2. the dividend rate or amount for such series, the conditions and
dates upon which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or classes or
any other series of any class or classes of stock, and whether such dividends
shall be cumulative, and if so, from which date or dates for such series;
3. whether or not the shares of such series shall be subject
to redemption by the Corporation and the times, prices and other terms and
conditions of such redemption;
4. whether or not the shares of such series shall be subject to the
operation of a sinking fund or purchase fund to be applied to the redemption or
purchase of such shares and if such a fund be established, the amount thereof
and the terms and provisions relative to the application thereof;
5. whether or not the shares of such series shall be convertible
into or exchangeable for shares of any other class or classes, or of any other
series of any class or classes, of stock of the Corporation and if provision be
made for conversion or exchange, the times, prices, rates, adjustments and other
terms and conditions of such conversion or exchange;
6. whether or not the shares of such series shall have voting
rights, in addition to the voting rights provided by law, and if they are to
have such additional voting rights, the extent thereof;
7. the rights of the shares of such series in the event of any
liquidation, dissolution or winding up of the Corporation or upon any
distribution of its assets; and
8. any other powers, preferences and relative, participating,
optional or other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof, to the full extent now or
hereafter permitted by law and not inconsistent with the provisions hereof.
FIFTH: Unless and except to the extent that the By-laws of the
Corporation shall so require, the election of directors of the Corporation
need not be by written ballot.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors is expressly
authorized to make, alter and repeal the By-laws of the Corporation, subject to
the power of the stockholders of the Corporation to alter or repeal any By-law
whether adopted by them or otherwise.
SEVENTH: No person who is or was a director of the Corporation shall
be personally liable to the Corporation for monetary damages for breach of
fiduciary duty as a director unless, and only to the extent that, such director
is liable (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 GCL of the State of Delaware or any amendment thereto or
successor provision thereto, or (iv) for any transaction from which the director
derived an improper personal benefit. No amendment to, repeal or adoption of any
provision of the certificate of incorporation inconsistent with this article
shall apply to or have any effect on the liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment, repeal, or adoption of any inconsistent
provision. If the Delaware GCL is amended after approval by the stockholders of
this Article to authorize corporate action further eliminating or limiting the
personal liability of directors then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware GCL as so amended.
The Corporation is authorized to provide indemnification of agents (as
defined in Section 145 of the GCL) for any breach of duty to the Corporation and
its stockholders through Bylaw provisions, through agreements with the agents,
and/or through stockholder resolutions, or otherwise, in excess of the
indemnification otherwise permitted by Section 145 of the GCL, subject to the
limitations on such excess indemnification set forth in Section 102 of the GCL.
EIGHTH: The Corporation reserves the right at any time, and from
time to time, to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, in a manner now or hereafter prescribed by the
laws of the State of Delaware at the time in force; and all rights, preferences
and privileges of whatsoever nature conferred upon stockholders, directors or
any other persons whomsoever by and pursuant to this Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the rights reserved in this Article VIII.
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be signed by _______________, its ___________, this day of
September, 2000.
By:
------------------------------
<PAGE>
ANNEX II
BY - LAWS
OF
WORLD DIAGNOSTICS, INC.
ARTICLE I
OFFICES AND BRANCHES
SECTION 1. REGISTERED OFFICE. The registered office of the
Corporation in the State of Delaware shall be located at the principal place
of business in said state of the corporation or individual acting as the
Corporation's registered agent.
SECTION 2. OTHER OFFICES. The Corporation may have other
offices, either within or without the State of Delaware, at such place or
places as the Board of Directors may from time to time select.
SECTION 3. FOREIGN OFFICES AND BRANCHES. The Corporation shall have the
authority to establish and operate branches and offices and otherwise legally
qualify to do business, carry on business operations, and create, manage and
participate in subsidiaries, investments, partnerships, funds joint ventures or
any other form of business operation, and to purchase lease, sell, own and
operate property of every description, in any and all foreign countries outside
of the United States.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. An annual meeting of stockholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting, shall be held at such date, time and place,
either within or without the State of Delaware, as the Board of Directors shall
determine each year; provided, however, that unless required by applicable law,
no annual meeting of stockholders need be held if all actions, including the
election of Directors, required by the DGCL to be taken at such annual meeting
are taken by written consent in lieu of meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders for any
purpose may be called by the Chairman, President or the Secretary or by the
directors, and may be held at any date, time and place, within or without the
State of Delaware, as shall be stated in the notice of meeting.
SECTION 3. NOTICE OF MEETINGS. Written notice of each annual or special
meeting of the stockholders, stating the place, date and time of the meeting,
and in the case of a special meeting the purpose of such meeting, shall be
given, not less than ten (10) nor more than sixty (60) days before the date of
the meeting, to each stockholder entitled to vote at such meeting, at such
address as appears on the records of the Corporation
SECTION 4. VOTING. Each stockholder shall be entitled to one vote, in
person or by proxy, for each share of stock entitled to vote which is registered
in name on the record date for the meeting. Elections for directors and all
other matters shall be decided by majority vote except as otherwise required by
the certificate of incorporation or by law.
SECTION 5. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express, in writing, consent to or dissent from any action of
stockholders without a meeting may authorize another person or persons to act
for such stockholder by proxy. Such proxy shall be filed with the Secretary
before such meeting of stockholders or such action of Stockholders without a
meeting, at such time as the Board may require. No proxy shall be voted or acted
upon more than three (3) years from its date, unless the proxy provides for a
longer period.
SECTION 6. QUORUM. Except as otherwise required by law, the holders of a
majority of the stock of the corporation entitled to vote, present in person or
by proxy, shall constitute a quorum at all meetings of the stockholders. If a
quorum shall not be present at any meeting, the chairman of the meeting or a
majority of the holders of the stock of the Corporation entitled to vote who are
present at such meeting, in person or by proxy, shall have the power to adjourn
the meeting to another place, date, or time, without notice other than
announcement at the meeting; provided, however, that if the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting. At any
adjourned meeting any business may be transacted which might have been
transacted at the original meeting.
SECTION 7. STOCKHOLDERS LIST. A complete list of stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number
of shares registered in his name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the place where the
meeting is to be held. The stockholders list shall also be kept at the place of
the meeting during the whole time thereof and shall be open to the examination
of any such stockholder who is present. This list shall presumptively determine
the identity of the stockholders entitled to vote at the meeting and the number
of shares held by each of them.
SECTION 8. ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any annual or special meeting of stockholders, including, without
limitation, election of directors, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM. The number of directors constituting the
entire Board shall be not more than nine (9) nor less than one (1) member, as
fixed from time to time by resolution of the stockholders or the Board of
Directors. The directors shall be elected to serve until the next annual meeting
of the stockholders and until their respective successors shall have been
elected and qualified. The number of directors may be increased or decreased
from time to time by amendment to these By-Laws made by a majority of the Board
of Directors or by the shareholders.
Whenever the authorized number of directors is
increased between annual meetings of the stockholders, a majority of the
directors then in office shall have the power to elect such new directors for
the balance of a term and until their successors are elected and qualified. Any
decrease in the authorized number of directors shall not become effective until
the expiration of the term of the directors then in office unless, at the time
of such decrease, there shall be vacancies on the Board which are being
eliminated by the decrease.
SECTION 2. RESIGNATIONS. Any director, member of a committee or officer
may resign at any time. Such resignation shall be made in writing, and shall
take effect at the time specified therein, and if no time be specified, at the
time of its receipt by the Chairman, President or the Secretary. The acceptance
of a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. Subject to the rights of the holders of a series of
any preferred stock with respect to such series of preferred stock, newly
created directorships resulting from any increase in the authorized number of
Directors or if the office of any director, member of a committee or officer
becomes vacant for any reason, the remaining directors in office, though less
than a quorum, by a majority vote, may elect a successor who shall hold office
for the unexpired term and until his successor shall be elected and qualified.
SECTION 4. REMOVAL. Any director or directors may be removed with or
without cause at any time by the affirmative vote of the holders of a majority
of all the shares of stock outstanding and entitled to vote.
SECTION 5. POWERS. The Board of Directors shall exercise all of the powers
of the Corporation except such as are by law, or by the certificate of
incorporation or by these By-laws conferred upon or reserved to the
stockholders.
SECTION 6. MEETINGS. Regular meetings of the Board of Directors may be
held without notice at such dates, times and places as shall be established from
time to time by the Board of Directors and publicized among all directors. The
Chairman, President or the Secretary may call, and at the request of any three
(3) directors must call, on at least twenty-four hours' prior written notice of
the date, time and place thereof given to each director. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at a
special meeting.
Members of the Board of Directors, or any committee
designated by the Board of Directors, may participate in a meeting of such Board
or committee, by means of a conference telephone or similar communications
equipment that enables all persons participating in the meeting to hear each
other, and such participation in a meeting shall constitute presence in person
at the meeting.
Action by a majority of the directors present at a
meeting at which a quorum is present shall constitute the act of the Board of
Directors.
SECTION 7. QUORUM. A majority of the directors shall constitute a quorum
for the transaction of business. If a quorum shall not be present at any meeting
of the Board of Directors, a majority of those present may adjourn the meeting
to another place, date or time, without further notice (other than announcement
at the meeting) or waiver thereof.
SECTION 8. COMPENSATION. Directors may receive such compensation for their
services as directors as the Board of Directors shall from time to time
determine by resolution. In addition, as determined by the Board, directors may
be reimbursed by the Corporation for their expenses, if any, in the performance
of their duties as Directors. No such compensation or reimbursement shall
preclude any Director from serving the Corporation in any other capacity and
receiving compensation therefore.
SECTION 9. ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors, or of any committee thereof, may
be taken without a meeting, if a written consent thereto is signed by all
members of the Board of Directors, or of such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board of
Directors or such committee.
<PAGE>
SECTION 10. COMMITTEES OF THE BOARD OF DIRECTORS. The Board of Directors,
by a vote of a majority of the whole Board, may from time to time designate
committees of the Board, with such lawfully delegable powers and duties as it
thereby confers, to serve at the pleasure of the Board, and shall elect a
director or directors to serve as the member or members of those committees,
designating, if it desires, other directors as alternative members who may
replace any absent or disqualified member at any meeting of the committee.
Subject to the terms and provisions of the Certificate of Incorporation, any
committee of the Board, to the extent provided in the resolution of the Board
designating such committee, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; provided, however, that no such committee shall
have such power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation under Section
251 or 252 of the DGCL, recommending to the stockholders the sale, lease or
exchange of all or substantially all the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or the
revocation of a dissolution, or amending these By-laws; and provided further,
however, that, unless expressly so provided in the resolution of the Board
designating such committee, and subject to the terms and provisions of the
Certificate of Incorporation, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the DGCL. Each
committee of the Board shall keep regular minutes of its proceedings and report
the same to the Board when so requested by the Board.
.
ARTICLE IV
OFFICERS
SECTION 1. GENERALLY. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Treasurer, a Secretary and one or more
Assistant Secretaries, all of whom shall be elected by the Board of Directors.
Each officer shall hold office until his successor is elected and qualified or
until his earlier resignation or removal. The Board of Directors may elect a
Chairman of the Board of Directors and such other officers and agents as it may
deem advisable, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the Board of Directors. None of the officers of the Corporation need be
directors. Two or more offices may be held by the same person. Any officer may
be removed at any time, with or without cause, by the Board of Directors.
SECTION 2. CHAIRMAN. The Chairman shall have such powers and shall perform
such duties as shall from time to time be designated by the Board of Directors.
The Chairman shall preside at all meetings of the stockholders and of the Board
of Directors.
SECTION 3. PRESIDENT. The President shall be the Chief Executive Officer
and the Chief Operating Officer of the Corporation. Subject to the provisions of
these By-laws and to the direction of the Board of Directors, he shall have the
responsibility for the general management and control of the affairs and
business of the Corporation and shall perform all duties and have all powers
which are commonly incident to the offices of Chief Executive Officer and Chief
Operating Officer or which from time to time are delegated to him by the Board
of Directors. The President shall have power to sign, in the name of the
Corporation, all authorized stock certificates, contracts, documents, tax
returns, instruments, checks and bonds or other obligations of the Corporation
and shall have general supervision and direction of all of the other officers
and agents of the Corporation.
SECTION 4. VICE-PRESIDENTS. Each Vice-President shall have such powers and
shall perform such duties as shall from time to time be designated by the Board
of Directors.
SECTION 5. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors or the President, taking
proper vouchers for such disbursements. He shall render to the President and
Board of Directors at the regular meetings of the Board of Directors, or
whenever they may request it, an account of all his transactions as Treasurer
and of the financial condition of the Corporation. If required by the Board of
Directors, he shall give the Corporation a bond for the faithful discharge of
his duties in such amount and with such surety as the Board of Directors shall
prescribe.
SECTION 6. SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these By-laws, and in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the President, directors, or stockholders, upon whose requisition the meeting
is called as provided in the By-laws. He shall record all the proceedings of the
meetings of the Corporation and of the directors in a book to be kept for that
purpose, and shall perform such other duties as may be assigned to him by the
directors or the President. He shall have the custody of the seal of the
Corporation and shall affix the same to all instruments requiring it, when
authorized by the directors or the President, and attest the same.
SECTION 7. ASSISTANT SECRETARIES. Each Assistant Secretary shall have such
powers and shall perform such duties as shall from time to time be designated by
the Board of Directors.
SECTION 8. ADDITIONAL POWERS OF OFFICERS. In addition to the powers
specifically provided in these By-laws, each officer (including officers other
than those referred to in these By-laws) shall have such other or additional
authority and perform such duties as the Board of Directors may from time to
time determine.
SECTION 9. ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS. Unless
otherwise directed by the Board of Directors, the President shall have the power
to vote and otherwise act on behalf of the Corporation, in person or by proxy,
at any meeting of stockholders of or with respect to any action of stockholders
of any other corporation in which this Corporation may hold securities and
otherwise to exercise any and all rights and powers which this Corporation may
possess by reason of its ownership of securities in such other Corporation.
ARTICLE V
STOCK
SECTION 1. CERTIFICATES OF STOCK. Certificates of stock, signed by the
President or a Vice-President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, shall be issued to each stockholder,
certifying the number of shares owned by him in the Corporation. Any of or all
the signatures on the certificates may be facsimiles. In the event any such
officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to hold such office or to be employed by the
Corporation before such certificate is issued, such certificate may be issued by
the Corporation with the same effect as if such officer had held such office on
the date of issue
SECTION 2. STOCK LEDGER. A stock ledger in one or more counterparts shall
be kept by the Secretary, in which shall be recorded the name and address of
each person, firm or corporation owning the shares evidenced by each certificate
evidencing shares issued by the Corporation, the number of shares evidenced by
each such certificate, the date of issuance thereof and, in the case of
cancellation, the date of cancellation. Except as otherwise expressly required
by law, the person in whose name Shares stand on the stock ledger of the
Corporation shall be deemed the owner and recordholder thereof for all purposes.
SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES. A new certificate of
stock may be issued in the place of any certificate theretofore issued by the
Corporation, alleged to have been lost, stolen or destroyed, and the directors
may, in their discretion, require the owner of the lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond, in
such sum as they may direct, to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss, theft, or destruction of
any such certificate or the issuance of any such new certificate.
SECTION 4. ADDRESSES OF STOCKHOLDERS. Each stockholder shall designate to
the Secretary an address at which notices of meetings and all other corporate
notices may be served or mailed to such stockholder, and, if any stockholder
shall fail to so designate such an address, corporate notices may be served upon
such stockholder by mail directed to the mailing address, if any, as the same
appears in the stock ledger of the Corporation or at the last known mailing
address of such stockholder.
SECTION 5. TRANSFER OF SHARES. Transfers of stock shall be made only upon
the transfer books of the Corporation kept at an office of the Corporation or by
transfer agents designated to transfer shares of the stock of the Corporation.
Upon surrender to the Corporation or its transfer agent of a certificate for
shares duly indorsed or accompanied by proper evidence of succession, assignment
or authority to transfer, the Corporation shall issue or cause its transfer
agent to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
<PAGE>
SECTION 6. STOCKHOLDERS RECORD DATE. 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 change, conversion or exchange of stock or
for the purpose 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. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 7. REGULATIONS. The Board may make such other rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates evidencing
shares
ARTICLE VI
MISCELLANEOUS
SECTION 1. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend, there may be set apart out of any funds of the Corporation available
for dividends such sum as the directors from time to time in their discretion
deem proper for working capital or as a reserve fund to meet contingencies or
for equalizing dividends or for such other purposes as the directors shall deem
conducive to the interests of the Corporation.
SECTION 2. SEAL. The corporate seal shall be circular in form and shall
contain the name of the Corporation the year of its creation and the words
"CORPORATE SEAL" and "DELAWARE." Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation
shall be determined by the Board of Directors.
SECTION 4. CHECKS. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or agents of the
Corporation, and in such manner as shall be determined from time to time by the
Board of Directors.
SECTION 5. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required to
be given, personal notice shall not be necessary unless expressly so stated, and
any notice so required shall be deemed to be sufficient if given by depositing
the same in the United States mail, first class mail (air-mail if to an address
outside of the United States), postage prepaid, addressed to the person entitled
thereto at his address as it appears on the records of the Corporation, in which
case such notice shall be deemed given on the day of such mailing, unless it is
notice of a directors' meeting, in which case such notice shall be deemed given
five (5) days after the date of such mailing. Notice may also be given
personally, against receipt, or by telegram, telex or similar communication and
notice so given shall be deemed given when so delivered personally or when
delivered for transmission.
Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings except as otherwise provided by
statute.
Whenever any notice whatsoever is required or
permitted to be given under the provisions of any law, or under the provisions
of the Certificate of Incorporation or these By-laws, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time such notice is required to be given, shall be deemed
equivalent thereto. A telegram, telex or similar communication waiving any such
notice sent by a person entitled to notice shall be deemed equivalent to a
waiver in writing signed by such person. Neither the business nor the purpose of
any meeting need be specified in any waiver.
ARTICLE VII
AMENDMENTS
SECTION 1. BY SHAREHOLDERS. These By-Laws may be amended at any
shareholders' meeting by vote of the shareholders holding a majority (unless the
Certificate of Incorporation requires a larger vote) of the outstanding stock
having voting power, present either in person or by proxy, provided notice of
the amendment is included in the notice or waiver of notice of such meeting.
SECTION 2. BY DIRECTORS. - The Board of Directors may also amend these
By-Laws at any regular or special meeting of the Board by a majority vote
(unless the Certificate of Incorporation requires a larger vote) of the entire
Board, but any By-Laws so made by the Board of Directors may be altered or
repealed by the shareholders.
