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SCHEDULE 14C
(Rule 14c-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of the
Securities Exchange Act of 1934
Check the appropriate box(es):
Preliminary Information Statement
- ------
x Definitive Information Statement
- ------
Confidential, for Use of the Commission Only
- ------ (as permitted by Rule 14-c5(d)(2))
EDUDATA CORPORATION
-----------------------
(Name of Registrant as Specified in Charter)
Payment of filing fee (check the appropriate box):
$125 per Exchange Act Rule 0-11(c)(1)(ii) or 14c-5(g).
- ------
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:
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(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11:1 (Set forth the
amount on which the filing fee is calculated and state how it
was determined):
(4) Proposed Maximum Aggregate Value of Transaction:
(5) Total Fee Paid:
Fee paid previously with preliminary materials.
- ------
(1) Set forth amount on which the filing fee is calculated and
state how it was determined.
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:
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EDUDATA CORPORATION
200 NORTH WESTLAKE BOULEVARD, SUITE 202
WESTLAKE VILLAGE, CALIFORNIA 91362
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INFORMATION STATEMENT
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NOVEMBER 29, 1996
PURSUANT TO SECTION 14(C) OF THE SECURITIES EXCHANGE ACT OF 1934
AND REGULATION 14C AND SCHEDULE 14C THEREUNDER
This Information Statement has been filed with the Securities and Exchange
Commission and is being furnished, pursuant to Section 14(c) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), to the holders (the
"Stockholders") of the common stock, par value $.01 per share (the "Common
Stock"), of EDUDATA CORPORATION, a Delaware corporation (the "Corporation"), in
connection with the approval of an Amendment and Restatement (the "Amendment and
Restatement") of the Corporation's Certificate of Incorporation originally filed
with the Delaware Secretary of State on February 23, 1983, as previously amended
(the "Certificate of Incorporation").
The Board of Directors of the Corporation approved the Amendment and
Restatement at a meeting held on October 3, 1996. Holders of a majority of the
outstanding shares of the Common Stock approved the Amendment and Restatement by
written consent in lieu of a meeting, effective as of October 23, 1996, in
accordance with the provisions of Section 228 of the Delaware General
Corporation Law (the "DGCL"). Accordingly, your consent is not required and is
not being solicited in connection with the adoption of the Amendment and
Restatement.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND A
PROXY.
The Amendment and Restatement shall effect the following material changes
to the Certificate of Incorporation:
(a) change the Corporation's name to Dental/Medical Diagnostic
Systems, Inc.;
(b) increase the authorized Common Stock from 10,000,000 to 20,000,000
shares, and authorize a new class of 1,000,000 shares of Preferred
Stock, par value $.01 per share (the "Preferred Stock");
(c) effect a one-for-2.197317574 reverse stock split of the shares of
Common Stock which are issued and outstanding on the date that the
Amendment and Restatement is filed with the Delaware Secretary of
State (the "Effective Date"), and the shares of Common Stock
underlying outstanding options and other rights granted by the
Corporation on or prior to the Effective Date; and
(d) restate certain other provisions of the Certificate of
Incorporation, including, without limitation, the provisions
concerning the indemnification of officers and directors by the
Corporation.
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The entire cost of furnishing this Information Statement will be borne by
the Corporation. The Corporation will request brokerage houses, nominees,
custodians, fiduciaries and other like parties to forward this Information
Statement to the beneficial owners of the Common Stock held of record by them
and will reimburse such persons for their reasonable charges and expenses in
connection therewith. The Board of Directors has fixed the close of business on
October 2, 1996 as the record date (the "Record Date") for the determination of
Stockholders who are entitled to receive this Information Statement.
You are being provided with this Information Statement pursuant to Section
14(c) of the Exchange Act and Regulation 14C and Schedule 14C thereunder, and,
in accordance therewith, the Amendment and Restatement will not be filed with
the Secretary of State of the State of Delaware or become effective until at
least 20 calendar days after the mailing of this Information Statement.
This Information Statement is being mailed on or about November 29, 1996 to
all Stockholders of record as of the Record Date.
VOTING SECURITIES
As of the Record Date, the Corporation had 8,746,900 shares of Common Stock
issued and outstanding. Each share of outstanding Common Stock is generally
entitled to one vote on matters submitted for Stockholder approval.
Effective as of October 23, 1996, the holders of 5,058,000 shares (or
approximately 58%) of the 8,746,900 shares of Common Stock then outstanding
executed and delivered to the Corporation written consents to the adoption of
the Amendment and Restatement. Since the Amendment and Restatement has been
approved by the holders of the required majority of Common Stock no proxies are
being solicited with this Information Statement.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth certain information, as of the Record Date,
with respect to the beneficial ownership of the Corporation's Common Stock by:
(i) each person or group that is known by the Corporation to be the beneficial
owner of more than 5% of its outstanding Common Stock ("5% Holders"), (ii) each
director or executive officer of the Corporation who beneficially owns such
shares and (iii) all directors and executive officers of the Corporation as a
group. Except as may be indicated in the footnotes to the table and subject to
applicable community property laws, each of such persons has the sole voting and
investment power with respect to the shares owned. Beneficial ownership has been
determined in accordance with Rule 13d-3 under the Exchange Act. Under this
Rule, certain shares may be deemed to be beneficially owned by more than one
person (such as where persons share voting power or investment power). In
addition, shares are deemed to be beneficially owned by a person if the person
has the right to acquire the shares (for example, upon exercise of an option)
within 60 days of the date as of which the information is provided; in computing
the percentage ownership of any person, the amount of shares outstanding is
deemed to include the amount of shares beneficially owned by such person (and
only such person) by reason of these acquisition rights. As a result, the
percentage of outstanding shares of any person as shown in the following table
does not necessarily reflect the person's actual voting power at any particular
date. Unless otherwise indicated, the address of each
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person listed below is c/o EDUDATA CORPORATION, 200 North Westlake Boulevard,
Westlake Village, California 91362.
<TABLE>
<CAPTION>
NUMBER OF PERCENT OF
NAME SHARES CLASS OWNED
------------------------------------------------------- --------------- -----------
<S> <C> <C>
DIRECTORS AND OFFICERS OF THE CORPORATION:
Robert H. Gurevitch (1)................................ 2,565,000 29.3%
Hiroki Umezaki (2)..................................... 1,615,000 18.4%
Marvin H. Kleinberg (3)................................ 15,000 *
Gerald K. Kitano (4)................................... 15,000 *
Ronald E. Wittman...................................... 0 *
Dewey Perrigo (5)...................................... 350,000 3.9%
Merle W. Roberts (6)................................... 50,000 *
All Officers and Directors as a Group.................. 4,610,000 51.5%
(7 Persons)(7)
OTHER 5% STOCKHOLDERS:
Richard M. Bliss....................................... 658,000 7.5%
Paul O. Koether (8).................................... 719,668 8.2%
211 Pennbrook Rd, Fox Hill, NJ 07931
G. Tyler Runnels (9)................................... 588,000 6.6%
T.R. Winston & Co., Inc., 1999 Avenue of the Stars,
Suite 1950, Los Angeles, California 90067
</TABLE>
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* Less than one percent.
(1) Includes 15,000 shares of Common Stock underlying options which were
exercisable on or which will become exercisable within 60 days of October 2,
1996.
(2) Includes 15,000 shares of Common Stock underlying options which were
exercisable on or which will become exercisable within 60 days of October 2,
1996.
(3) Includes 15,000 shares of Common Stock underlying options which were
exercisable on or which will become exercisable within 60 days of October 2,
1996.
(4) Includes 15,000 shares of Common Stock underlying options which were
exercisable on or which will become exercisable within 60 days of October 2,
1996.
(5) Includes 100,000 shares of Common Stock underlying options which were
exercisable on or which will become exercisable within 60 days of October 2,
1996.
(6) Includes 50,000 shares of Common Stock underlying options which were
exercisable on or which will become exercisable within 60 days of October 2,
1996.
(7) Includes 210,000 shares of Common Stock underlying options.
(8) Includes 488,114 shares of Common Stock held by affiliates of Mr. Koether
including 380,303 shares of Common Stock of which Mr. Koether disclaims
beneficial ownership.
(9) Includes 120,000 shares of Common Stock underlying options which were
exercisable in or which will become exercisable within 60 days of October 2,
1996.
INTEREST OF CERTAIN PERSONS IN OR
OPPOSITION TO MATTERS TO BE ACTED UPON
The Amendment and Restatement was unanimously approved by the Board of
Directors at a meeting on October 3, 1996. Effective as of October 23, 1996,
certain directors, officers, and 5% Holders of the Corporation, owning
approximately 58% of the Common Stock approved the Amendment and Restatement by
means of a written consent.
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The Stockholders have no right under Delaware law or under the
Corporation's Certificate of Incorporation or By-Laws to dissent from any of the
provisions adopted in the Amendment and Restatement.
THE AMENDMENT AND RESTATEMENT
The following is a summary of the material terms of the Amendment and
Restatement. This summary is qualified in its entirety by reference to the
complete text of the Amendment and Restatement, which is attached hereto as
Exhibit A. Stockholders are urged to read the actual text of the Amendment and
Restatement in its entirety.
ARTICLE FIRST: CHANGE OF CORPORATE NAME
The DGCL provides that a corporation may amend its certificate of
incorporation to change its corporate name.
The Board has deemed it advisable and in the best interests of the
Corporation to amend and restate Article FIRST to effect a change in the name of
the Corporation from EDUDATA CORPORATION to Dental/Medical Diagnostic Systems,
Inc.
Although the Corporation was established in 1981, between 1988 and 1996 the
Corporation's operations were limited to exploring opportunities to acquire or
become an operating business. In March 1996, the Corporation acquired
Dental/Medical Diagnostic Systems, LLC, a manufacturer of intraoral dental
cameras ("DMD") and Bavarian Dental Instruments, Inc., a manufacturer of dental
burrs ("BDI"), and, since that time, has focused its business activities on the
development and marketing of devices used in the dental medical profession. In
July 1996, the Corporation determined to wind down the operations of BDI.
In the judgment of the Board of Directors, the change of the corporate name
to Dental/Medical Diagnostic Systems, Inc., is advisable and in the best
interests of the Corporation, both to more accurately identify the new business
to be conducted by the Corporation through DMD, and in view of the current
character and strategic focus of the business of the Corporation.
Stockholders will be required to exchange their outstanding stock
certificates for new certificates which reflect the Corporation's new name (see
Article Fifth: Deletion of Incorporator Information and Members of the Initial
Board of Directors and Effectuation of a Reverse Stock Split, below, for
information relating to the exchange of certificates).
The amendment and restatement of Article FIRST of the Certificate of
Incorporation will not change the rights of the Stockholders.
ARTICLE SECOND: AMENDMENT AND RESTATEMENT OF NAME AND ADDRESS OF REGISTERED
AGENT
The DGCL requires a corporation to set forth in its certificate of
incorporation the address of the corporation's registered office in the State of
Delaware, and the name of the registered agent at such address.
In the judgment of the Board of Directors, the amendment and restatement of
the name and address of the Corporation's registered agent to reflect the
Corporation's registered agent's new address, as listed in Article SECOND of the
Certificate of Incorporation, is necessary to conform with the requirements of
the DGCL.
The amendment and restatement of Article SECOND of the Certificate of
Incorporation will not change the rights of the Stockholders.
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ARTICLE THIRD: RESTATEMENT OF PURPOSE
The DGCL requires a corporation to set forth in its certificate of
incorporation the nature of the business or purposes for which it is to be
organized under the DGCL.
The Board of Directors has deemed it advisable to restate Article THIRD of
the Certificate of Incorporation to indicate that the Corporation may engage in
any lawful act or activity for which a corporation may now or hereafter be
organized under the DGCL.
The restatement of Article THIRD of the Certificate of Incorporation will
not change the rights of the Stockholders.
ARTICLE FOURTH: INCREASE IN AUTHORIZED COMMON STOCK AND AUTHORIZATION OF A NEW
CLASS OF PREFERRED STOCK
A. INCREASE IN AUTHORIZED COMMON STOCK
The DGCL provides that a corporation may amend its certificate of
incorporation to increase or decrease its authorized capital stock.
The Board of Directors believes that an amendment and restatement of
Article FOURTH of the Certificate of Incorporation to increase in the number of
authorized shares of Common Stock from 10,000,000 to 20,000,000 shares is in the
best interests of the Corporation and the Stockholders so as to have available
additional authorized but unissued shares of Common Stock in an amount adequate
to provide for the future needs of the Corporation. The additional shares will
be available for issuance from time to time by the Corporation at the discretion
of the Board of Directors, normally without further Stockholder action (except
as may be required for a particular transaction by applicable law, requirements
of regulatory agencies or by stock exchange rules), for any proper corporate
purpose including, among other things, future acquisitions of property or
securities of other corporations, stock dividends, stock splits, equity and
convertible debt financings. No Stockholder will have statutory preemptive
rights regarding any future issuance of any shares of Common Stock.
The existence of authorized but unissued and unreserved Common Stock may
enable the Board of Directors to issue shares to persons friendly to current
management which would render more difficult or discourage an attempt to obtain
control of the Corporation by means of a proxy contest, tender offer, merger or
otherwise, and thereby protect the continuity of the Corporation's management.
Although the Board of Directors has no present intention of doing so, the
Corporation's authorized but unissued Common Stock could be issued in one or
more transactions that would make more difficult or costly, and less likely, a
takeover of the Corporation. This increase is not being effected in response to
any specific effort of which the Corporation is aware to obtain control of the
Corporation, nor is the Board of Directors currently proposing to the
Stockholders any anti-takeover measures.
B. AUTHORIZATION OF A NEW CLASS OF PREFERRED STOCK
The DGCL provides that a corporation may amend its certificate of
incorporation to create new classes of stock having rights and preferences
either prior and superior or subordinate and inferior to the stock of any class
then authorized, whether issued or unissued.
The Board of Directors believes that an amendment to Article FOURTH of the
Certificate of Incorporation to authorize a new class of 1,000,000 shares of
Preferred Stock, par value $.01 per share, is in the best interests of the
Corporation and the Stockholders, and believes that it is advisable to authorize
such shares and have them available in connection with possible future
transactions, such as equity or convertible debt financings, strategic
alliances, corporate mergers, acquisitions, possible funding of new product
programs or businesses and other uses not presently determinable and as may be
deemed to be feasible and in the best interests of the Corporation. In addition,
the Board of Directors believes that it is desirable that the
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Corporation have the flexibility to issue shares of Preferred Stock without
further Stockholder action, except as otherwise provided by law.
The Preferred Stock will have such designations, preferences, conversion
rights, cumulative, relative, participating, optional or other rights, including
voting rights, qualifications, limitations or restrictions thereof as are
determined by the Board of Directors. Thus, the Board of Directors will be
entitled to authorize the creation and issuance of up to 1,000,000 shares of
Preferred Stock, in one or more series, with such limitations and restrictions
as may be determined in the Board's sole discretion, without further
authorization by the Stockholders. The Stockholders will not have statutory
preemptive rights to subscribe for shares of Preferred Stock.
The issuance of Preferred Stock with special voting rights or conversion
rights may adversely affect the voting power of the Common Stock, including the
loss of voting control by the current holders of the Common Stock. It is not
possible to determine the actual effect of the Preferred Stock on the rights of
the Stockholders of the Corporation until the Board of Directors determines the
rights of the holders of a series of Preferred Stock. However, such effects
might include (i) restrictions on the payment of dividends to holders of the
Common Stock; (ii) dilution of the voting power to the extent that the holders
of shares of Preferred Stock are given voting rights; (iii) dilution of the
equity interests and voting power if the Preferred Stock is convertible to
Common Stock; and (iv) restrictions upon any distribution of assets to the
holders of the Common Stock upon liquidation or dissolution, and until the
satisfaction of any liquidation preference granted to the holders of Preferred
Stock.
The Board of Directors is required by the DGCL to make any determination to
issue shares of Preferred Stock based upon its judgment as to the best interests
of the Stockholders and the Corporation. Although the Board of Directors has no
present intention of doing so, it could issue shares of Preferred Stock (within
the limits imposed by applicable law) and could, depending on the terms of such
series, make more difficult or discourage an attempt to obtain control of the
Corporation by means of a merger, tender offer, proxy contest or other means.
For example, the issuance of new shares could be used to dilute the stock
ownership of a person or entity seeking to obtain control of the Corporation
should the Board of Directors consider the action of such entity or person not
to be in the best interests of the Stockholders and the Corporation. Any such
issuance of Preferred Stock could also have the effect of diluting the earnings
per share and book value per share of the Common Stock held by the holders of
the Common Stock. The authorization of the Preferred Stock is not being effected
in response to any specific effort of which the Corporation is aware to obtain
control of the Corporation, nor is the Board of Directors currently proposing to
the Stockholders any anti-takeover measures.
While the Corporation may consider effecting an equity offering of
Preferred Stock in the future for the purposes of raising additional working
capital or otherwise, the Corporation, as of the date hereof, has no agreements
or understandings with any third party to effect any such offering of Preferred
Stock and no assurances are given that any offering will in fact be effected at
any time in the future.
ARTICLE FIFTH: DELETION OF INCORPORATOR INFORMATION
AND MEMBERS OF THE INITIAL BOARD OF DIRECTORS AND EFFECTUATION
OF A REVERSE STOCK SPLIT
A. DELETION OF INCORPORATOR INFORMATION AND MEMBERS OF THE INITIAL BOARD OF
DIRECTORS
The DGCL provides that a corporation need not restate the name of its
incorporator or the members of its initial board of directors in any restatement
of its certificate of incorporation.
The Board of Directors has determined that it is unnecessary to restate to
provisions of Article FIFTH of the Certificate of Incorporation.
The deletion of Article FIFTH of the Certificate of Incorporation will not
change the rights of the Stockholders.
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B. EFFECTUATION OF A REVERSE STOCK SPLIT
The DGCL provides that a corporation may amend its certificate of
incorporation to change the number of outstanding shares of its common stock.
The Board of Directors has declared it advisable and in the best interests
of the Corporation to effect a one-for-2.197317574 reverse split (the "Reverse
Split") of the shares of Common Stock issued and outstanding on the Effective
Date, and the shares of Common Stock underlying outstanding options and other
rights granted by the Corporation on or prior to the Effective Date, and has
elected to provide for such Reverse Split in a new Article FIFTH of the
Amendment and Restatement.
Purposes of the Reverse Split
The Board of Directors believes that the Reverse Split is in the best
interests of the Corporation and the Stockholders for several reasons. The Board
of Directors believes that the Reverse Split is necessary in order to secure
certain contemplated financing in the aggregate amount of $1.6 million. The
Board of Directors also believes that the Reverse Split may enhance the
acceptability of the Common Stock by the financial community and the investing
public. The Corporation hopes that the reduction in the number of issued and
outstanding shares of Common Stock caused by the Reverse Split will result in an
increase in the market price of the Common Stock. The Board of Directors also
hopes that the proposed Reverse Split will result in a broader market for the
Common Stock than that which already exists. A variety of brokerage house
policies and practices tend to discourage individual brokers within those firms
from dealing with lower priced stocks. Some of those policies and practices
pertain to the payment of broker's commissions and to time consuming procedures
that function to make the handling of lower priced stock economically
unattractive to brokers. In addition, the structure of trading commissions also
tends to have an adverse impact upon the holders of lower priced stock because
the brokerage commission on a sale of lower priced stock generally represents a
higher percentage of the sales price than the commission on a relatively higher
priced issue. The Reverse Split may result in a price level for the Common Stock
that will reduce to some extent, the effect of the above-referenced policies and
practices of brokerage firms and diminish the adverse impact of trading
commissions on the market for the Common Stock. The expected increased price
level may also encourage interest and trading in the Common Stock and possibly
promote greater liquidity for the Stockholders.
However, there can be no assurance that any or all of these effects will
occur; including, without limitation, that the Corporation will secure the
contemplated $1.6 million financing, or that such price will either exceed or
remain in excess of the current market price. Further, there is no assurance
that the market for the Common Stock will be improved. Stockholders should note
that the Board of Directors cannot predict what effect the Reverse Split will
have on the market for the Common Stock.
Implementation of the Reverse Stock Split
The effect of the Reverse Split upon each holder of the Common Stock or
options or other rights to acquire the Common Stock will be that, effective as
of the Effective Date, the shares of Common Stock that are issued and
outstanding to such holder on the Effective Date, and the aggregate number of
shares of Common Stock underlying outstanding options and other rights granted
by the Corporation to such holder on or prior to the Effective Date, will be
automatically converted into that number of whole shares of Common Stock which
are equal to the number of shares of Common Stock owned by such holder or
underlying options or rights held by such holder immediately prior to the
Reverse Split divided by 2.197317574, and the Stockholder's percentage ownership
interest in the Corporation and proportional voting power will remain unchanged,
except for minor differences resulting from adjustments for fractional shares.
The rights and privileges of the holders of shares of the Common Stock will be
substantially unaffected by the Reverse Split. The DGCL provides that if a
corporation does not issue fractional shares it may elect to pay in cash the
fair value of fractions of a share determined as of the time when those entitled
to receive such fractions are determined. No fractional shares of the Common
Stock will be issued to the Stockholders as a consequence of the Reverse Split.
The Corporation will pay in cash the fair value as of the Effective Date of
fractions of a share to holders of shares of Common Stock entitled to fractions
of a share on the Effective Date in lieu of issuing fractional shares.
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The Reverse Split may result in some of the Stockholders owning "odd-lots"
of less than 100 shares of the Common Stock. Brokerage commissions and other
costs of transactions in odd-lots are generally somewhat higher than the costs
of transactions in "round-lots" of even multiples of 100 shares.
As soon as practicable after the Effective Date, the Stockholders will be
notified and required to exchange their stock certificates for new certificates
representing the shares of new Common Stock. Stockholders will be furnished with
the necessary materials and instructions for the surrender and exchange of stock
certificates at the appropriate time by the Corporation's transfer agent.
Stockholders will not be required to pay a transfer or other fee in connection
with the exchange of certificates. THE STOCKHOLDER SHOULD NOT SUBMIT ANY
CERTIFICATES UNTIL REQUESTED TO DO SO.
Federal Income Tax Consequences
The following description of federal income tax consequences is based upon
present federal tax laws and does not purport to be a complete discussion of
such consequences. ACCORDINGLY, STOCKHOLDERS ARE ADVISED TO CONSULT THEIR OWN
TAX ADVISORS FOR MORE DETAILED INFORMATION REGARDING THE EFFECT OF THE REVERSE
SPLIT ON THEIR INDIVIDUAL TAX STATUS.
The exchange of shares of pre-Reverse Split Common Stock for shares of
post-Reverse Split Common Stock will not result in recognition of gain or loss.
The holding period of the shares of post-Reverse Split Common Stock will include
the Stockholder's holding period for the shares of pre-Reverse Split Common
Stock exchanged therefor, provided that the shares of pre-Reverse Split Common
Stock were held as a capital asset. The adjusted basis of the shares of
post-Reverse Split Common Stock will be the same as the adjusted basis of the
shares of pre-Reverse Split Common Stock exchanged therefor.
ARTICLE SIXTH: RESTATEMENT OF ELECTION TO ELIMINATE
REQUIREMENT OF WRITTEN BALLOT FOR ELECTION OF DIRECTORS
The DGCL provides that a corporation may elect to not require a written
ballot for the election of its directors, but requires that the corporation
specifically state any such election in its certificate of incorporation.
Article SIXTH of the Certificate of Incorporation states the Corporation's
election to not require a written ballot for the election of directors. The
Amendment and Restatement does not change this election.
The restatement of Article SIXTH of the Certificate of Incorporation will
not change the rights of the Stockholders.
ARTICLE SEVENTH: RESTATEMENT OF AUTHORIZATION OF DIRECTORS
TO ADOPT, REPEAL AND AMEND CORPORATION'S BY-LAWS
The DGCL provides that a corporation may elect to permit its directors to
adopt, repeal and amend its by-laws, but that such election must be specifically
stated in its certificate of incorporation.
Article SEVENTH of the Certificate of Incorporation sets forth the
Corporation's election to permit the Corporation's directors to adopt, repeal
and amend the Corporation's By-Laws. The Amendment and Restatement does not
change this election.
The restatement of Article SEVENTH of the Certificate of Incorporation will
not change the rights of the Stockholders.
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ARTICLE EIGHTH: AMENDMENT AND RESTATEMENT OF INDEMNIFICATION OF
OFFICERS AND DIRECTORS
The DGCL provides that a corporation may elect to indemnify its officers,
directors, employees and agents under certain circumstances.
Article EIGHTH of the Certificate of Incorporation, and Article ELEVENTH of
that certain Certificate of Amendment of Certificate of Incorporation, filed as
of July 22, 1987 with the Delaware Secretary of State (the "Certificate of
Amendment") set forth provisions regarding the indemnification of officers,
directors, employees and agents by the Corporation (the "Original
Indemnification Provisions").
The Board of Directors has deemed it advisable to amend and restate the
Original Indemnification Provisions in Article EIGHTH of the Amendment and
Restatement.
The Amendment and Restatement expands the indemnification available to the
Corporation's officers and directors to the fullest extent permitted under the
DGCL. While the Original Indemnification Provisions mandate the basic protection
for such individuals that is available under the DGCL, the Board of Directors
believes it to be desirable to include a fuller statement of the rights of
officers and directors of the Corporation to indemnification by the Corporation
in certain circumstances. The Board of Directors believes that the proposed
amendments are desirable so that the Corporation can continue to attract and
retain responsible individuals to serve as its officers and directors. The
Amendment and Restatement retains certain limitations on the Corporation's
officers' and directors' right of indemnification, such as in connection with a
breach of the duty of loyalty to the Corporation and for actions not taken in
good faith.
The Amendment and Restatement also amends the Original Indemnification
Provisions to expressly provide that the Corporation may procure insurance,
create a trust fund, grant a security interest, enter into indemnification
agreements or make other similar arrangements, to the fullest extent authorized
or permitted by law, to ensure the payment of any obligations of the Corporation
which may arise out of Article EIGHTH thereof.
The amendment and restatement of the Original Indemnification Provisions
will not materially change the rights of the Stockholders.
ARTICLE NINTH: COMPROMISE OR ARRANGEMENT BETWEEN THE
CORPORATION AND CREDITORS OR STOCKHOLDERS
Article TENTH of the Certificate of Incorporation is fully restated in
Article NINTH of the Amendment and Restatement. This Article provides that, in
the event of an application for appointment of a receiver for, or for
dissolution of, the Corporation, any compromise or arrangement between the
Corporation and its creditors or the Stockholders, if approved by the majority
of such creditors or the Stockholders, shall be binding on all creditors or the
Stockholders, provided that a court of equitable jurisdiction in Delaware has
approved such compromise or arrangement.
Section 302 of the DGCL provides that the inclusion of such language in an
original certificate of incorporation, as provided in Section 102 of the DGCL,
shall subject all creditors and stockholders of a corporation to such provision
and bind any such parties as of the date of the original certificate of
incorporation.
The Board of Directors has deemed it advisable to restate Article TENTH of
the Certificate of Incorporation as Article NINTH of the Amendment and
Restatement to ensure the continuation of the protection that such provision
affords the Corporation.
The restatement of Article TENTH of the Certificate of Incorporation will
not change the rights of the Stockholders.
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AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Exchange Act and, in accordance therewith, files reports, proxy statements,
information statements and other information with the Securities and Exchange
Commission (the "Commission"). Such information filed by the Corporation can be
inspected at the public reference facilities maintained by the Commission at
Room 1025, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's Regional Offices located at Seven World Trade Center, 13th Floor,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies may also be obtained at prescribed rates
from the Public Reference Section of the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549.
EFFECTIVE DATE OF AMENDMENT AND RESTATEMENT
Pursuant to Rule 14(c)-2 under the Exchange Act, the filing of the
Amendment and Restatement with the Delaware Secretary of State, or the effective
date of such filing, shall not occur until a date at least twenty (20) days
after the date on which this Information Statement has been mailed to the
Stockholders. The Corporation anticipates that the actions contemplated hereby
will be effected on or about the close of business on December 19, 1996.
By Order of the Board of Directors
/s/ ROBERT H. GUREVITCH
--------------------------------------
Robert H. Gurevitch
Chairman of the Board of Directors and
Chief Executive Officer of
the Corporation
Westlake Village, California
November 29, 1996
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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EDUDATA CORPORATION
A DELAWARE CORPORATION
Robert H. Gurevitch and Marvin H. Kleinberg each certifies that:
1. Robert H. Gurevitch is the duly elected and acting Chairman of the
Board, Chief Executive Officer and President, and Marvin H. Kleinberg is the
duly elected and acting Assistant Secretary, of the corporation named above.
2. The Certificate of Incorporation of the corporation, filed with the
Secretary of State of the State of Delaware, on February 23, 1983, and as
previously amended on July 22, 1987, shall be further amended and restated to
read in full as follows:
FIRST: The name of the corporation is DENTAL/MEDICAL DIAGNOSTIC
SYSTEMS, INC. (the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may now or hereafter be organized under
the General Corporation Law of the State of Delaware as set forth in Title
8 to the Delaware Code (the "GCL").
FOURTH: (a) The total number of shares which the Corporation shall
have authority to issue is 20,000,000 shares of common stock, par value
$0.01 per share (the "Common Stock") and 1,000,000 shares of Preferred
Stock, par value $0.01 per share (the "Preferred Stock").
(b) The holders of the issued and outstanding shares of Common Stock
shall be entitled to one vote per share of Common Stock held by them on all
matters voted upon by stockholders of the Corporation, including, but not
limited to, the election of directors.
(c) The Preferred Stock may be divided into such number of series as
the Board of Directors of the Corporation may determine. The Board of
Directors of the Corporation is authorized to determine and alter the
rights, preferences, privileges and restrictions granted to and imposed
upon the Preferred Stock or any series thereof with respect to any wholly
unissued class or series of Preferred Stock, and to fix the number of
shares of any series of Preferred Stock and the designation of any such
series of Preferred Stock. The Board of Directors of the Corporation,
within the limits and restrictions stated in any resolution or resolutions
of the Board of Directors of the Corporation originally fixing the number
of shares constituting any series, may increase or decrease (but not below
the number of shares of such series then outstanding) the number of shares
of any series subsequent to the issue of that series.
FIFTH: Effective upon the filing of this Amended and Restated
Certificate of Incorporation every 2.197317574 then issued and outstanding
shares of Common Stock are reconstituted and converted into one (1) share
of Common Stock and every then issued and outstanding option or other right
to purchase shares of Common Stock is reconstituted and converted into an
option or other right to purchase one (1) share of Common Stock for each
2.197317574 shares of Common Stock underlying such outstanding options and
rights. The Corporation shall not issue any fractional shares in connection
with the foregoing, but shall instead be authorized to pay in cash the fair
value of fractions of a share to holders entitled to issuance of fractions
of a share as of the date of the filing of this Amended Restated
Certificate of Incorporation.
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SIXTH: Election of directors at an annual or special meeting of
stockholders need not be by written ballot unless the Bylaws of the
Corporation shall otherwise provide.
SEVENTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors of the Corporation is expressly
authorized to adopt, repeal, alter, amend or rescind the Bylaws of the
Corporation.
EIGHTH: (a) The Corporation shall indemnify to the fullest extent
authorized or permitted by law (as now or hereafter in effect) any person
made, or threatened to be made, a defendant or witness to any action, suit
or proceeding (whether civil or criminal or otherwise) by reason of the
fact that he, his testator or intestate, is or was a director or officer of
the Corporation or by reason of the fact that such director or officer at
the request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or enterprise, in
any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law. No amendment or repeal of this Section (a) of Article
EIGHTH shall apply to or have any effect on any right to indemnification
provided hereunder with respect to any acts or omissions occurring prior to
such amendment or repeal.
(b) No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director. Notwithstanding the
foregoing sentence, a director shall be liable to the extent provided by
applicable law (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) pursuant to Section 174 of the GCL, or (iv) for any transaction
from which such director derived an improper personal benefit. No amendment
to or repeal of this Section (b) of Article EIGHTH shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
(c) In furtherance and not in limitation of the powers conferred by
statute:
(i) 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 serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan 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 against such
liability under the provisions of law; and
(ii) the Corporation may create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters
of credit, surety bonds and/or other similar arrangements), as well as
enter into contracts providing indemnification to the fullest extent
authorized or permitted by law and including as part thereof provisions
with respect to any or all of the foregoing to ensure the payment of
such amounts as may become necessary to effect indemnification as
provided therein, or elsewhere.
NINTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or Stockholder
thereof, or on the application of any receiver or receivers appointed for
the Corporation under the provisions of Section 291 of the GCL 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
GCL, order a meeting of the creditors or class of creditors, and/or of the
Stockholders or class of Stockholders of the Corporation, as the case may
be, agree to any compromise or arrangement and to any reorganization of the
Corporation as a 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
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been made, be binding on all the creditors or class of creditors, and/or on all
the Stockholders or class of Stockholders, of the Corporation, as the case may
be, and also in the Corporation.
3. The foregoing Amended and Restated Certificate of Incorporation has been
duly approved by the Board of Directors of the Corporation in accordance with
Section 245 of the GCL.
4. The foregoing Amended and Restated Certificate of Incorporation has been
duly approved, pursuant to resolutions of the Board of Directors of the
Corporation, and in accordance with Section 228 of the GCL, by the written
consent of the holders of a majority of the shares of Common Stock outstanding.
IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated
Certificate of Incorporation as of the 23rd day of October, 1996.
By:
--------------------------------------
Robert H. Gurevitch
President
By:
--------------------------------------
Marvin H. Kleinberg
Assistant Secretary
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