As filed with the Securities and Exchange Commission
April 1, 1997
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
EDITEK, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-3863205
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1238 Anthony Road
Burlington, North Carolina 27215
(Address of Principal Executive Offices) (Zip Code)
EDITEK, INC.
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Peter J. Heath, Esq. Copy to:
Vice President of Finance Robert R. Ribeiro, Esq.
and Chief Financial Officer Popham, Haik Schnobrich &
1238 Anthony Road Kaufman, Ltd.
Burlington, North Carolina 27215 222 South Ninth Street
(Name and address of agent for service) Minneapolis, Minnesota 55402
(910) 226-6311
(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: from time to
time after the effective date of this Registration Statement.
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum Amount of
Title of securities Amount to offering price aggregate offering registration
to be registered be registered per share(l) price fee (2)
<S> <C> <C> <C> <C>
Common Stock, 350,000 $0.4375 $153,125 $100
$.15 par value
</TABLE>
(1) Pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Act"), based on the per share prices at which the options granted
under the Plan may be exercised.
(2) Pursuant to Section 6(b) of the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of EDITEK, Inc. ("EDITEK" or the "Company") which have
been filed with the Securities and Exchange Commission are hereby incorporated
by reference in this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(b) all other reports filed by Editek pursuant to Sections 13 or 15(d) of
the Exchange Act since December 31, 1996;
(c) the Company's Registration Statement on Form S-3, as amended, as filed
with the Securities Exchange Commission as Commission File No.
333-18547;
(d) the description of EDITEK's Common Stock and Common Stock Purchase
Rights contained in any Registration Statement of the Company filed
under the Exchange Act and any amendment or report filed for the
purpose of updating any such description.
All documents filed by the Company pursuant to Sections 13, 14 or 15(d) of the
Exchange Act subsequent to the date of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the respective dates of filing of such
documents. Any statement contained herein or in a document all or part of which
is incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
<PAGE>
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Bylaws of the Company provide that the Company shall indemnify the directors
and officers of the Company against liability (and expenses related thereto)
arising out of their status as directors and officers to the extent permitted by
law. Additionally certain mandatory indemnification rights are available under
the Delaware General Corporation Law ("DGCL") to officers and directors to the
extent they are successful in the defense of any proceeding to which they were a
party by virtue of their position as a director or officer.
Further, as permitted by the DGCL, the Certificate of Incorporation of the
Company includes a provision limiting the personal liability of its directors
for monetary damages for certain breaches of their duties as directors to the
extent permitted under the DGCL. The Company also maintains a directors' and
officers' liability policy which insures such person against claims arising form
certain acts or decisions by them in their capacities as directors and officers
of the Company, subject to certain exclusions and deductible and maximum
amounts.
In addition to such other rights of indemnification as they may have as
directors or as members of a committee of directors, the Company's Amended and
Restated Equity Compensation Plan and Amended and Restated Stock Option Plan for
Non-Employee Directors provide for indemnification for certain of the Company's
directors for liabilities arising in connection with their actions taken as
members of the committees administering such plans.
Such limitation of liability pursuant to state law does not affect liability, if
any, arising under the federal securities laws. Further, insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to contractual provisions or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore
unenforceable.
<PAGE>
EDITEK also maintains an insurance policy or policies to assist in funding
indemnification of directors and officers for certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
3.(ii) Bylaws of EDITEK, Inc., as amended to date.
4.1 Restated Certificate of Incorporation of EDITEK, Inc.,
as amended to date.
5.1 Opinion of Popham, Haik, Schnobrich & Kaufman, Ltd.
23.1 Consent of Popham, Haik, Schnobrich & Kaufman, Ltd (included
in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent public accountants.
ITEM 9. UNDERTAKINGS
A. Post-Effective Amendments
The Company hereby undertakes:
(l) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) under the Securities Act if,
in the aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate-offering price set forth in the
<PAGE>
"Calculation of Registration Fee" table in the effective Registration Statement;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change in the information set forth in the Registration
Statement;
PROVIDED, HOWEVER, that subparagraphs (i) and (ii) above do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
B. Subsequent Documents Incorporated by Reference
The Company hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Claims for Indemnification
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
<PAGE>
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Burlington, State of North Carolina, on April 1,
1997.
EDITEK, INC.
By /s/ Harry G. McCoy, Pharm. D.
Harry G. McCoy, Pharm. D.
President and Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
By /s/ Harry G. McCoy, Pharm. D. Dated: April 1, 1997
------------------------------
Harry G. McCoy, Pharm. D.
President and Chairman of the Board
By /s/ Richard J. Braun Dated: April 1, 1997
---------------------
Richard J. Braun
Chief Executive Officer
By /s/ Peter J. Heath Dated: April 1, 1997
------------------
Peter J. Heath
Vice President of Finance and C.F.O.
(principal accounting officer)
By /s/ Samuel C. Powell, Ph.D. Dated: April 1, 1997
---------------------------
Samuel C. Powell, Ph.D.
Director
By /s/ Louis Perlman Dated: April 1, 1997
-----------------
Louis Perlman
Director
<PAGE>
By Dated: April __, 1997
----------------------------------
Alex Bistricer
Director
By Dated: April __, 1997
-----------------------------------
David Bistricer
Director
By /s/ James W. Hansen Dated: April 1, 1997
James W. Hansen
Director
By /s/ Miles E. Efron Dated: April 1, 1997
Miles E. Efron
Director
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
3.(ii) Bylaws of EDITEK, Inc., as amended to date.
4.1 Certificate of Incorporation of EDITEK, Inc., as amended to
date.
5.1 Opinion of Popham, Haik, Schnobrich & Kaufman, Ltd.
23.1 Consent of Popham, Haik, Schnobrich & Kaufman, Ltd (included
in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent public accountants.
<PAGE>
This document constitutes part of a prospectus concerning
securities that have been registered under the Securities Act of 1933.
PROSPECTUS
EDITEK, INC.
350,000 Shares
Common Stock, $0.15 Par Value Per Share
Offered Under
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
OF
EDITEK, INC.
1238 ANTHONY ROAD
BURLINGTON, NORTH CAROLINA 27215
910-226-6311
THE SHARES OFFERED BY THIS PROSPECTUS WILL BE SOLD UNDER THE EDITEK, INC.
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN AS DESCRIBED HEREIN. PARTICIPATION IN THE
PLAN IS OFFERED AS SET FORTH HEREIN TO ELIGIBLE EMPLOYEES OF EDITEK, INC.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION. NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is April 1, 1997.
<PAGE>
TABLE OF CONTENTS
AVAILABLE INFORMATION.................................................... 3
INTRODUCTION............................................................... 5
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN..................................... 5
Description of Plan............................................... 5
Federal Income Tax Consequences................................... 9
Resale Restrictions............................................ 10
COMPANY INFORMATION........................................................ 11
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN EMPLOYEE INFORMATION
SHEET .................................................................. 13
RULES AND REGULATIONS OF THE ADMINISTRATION COMMITTEE...................... 17
<PAGE>
AVAILABLE INFORMATION
EDITEK, Inc. (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at its
Regional Offices located at 75 Park Place, New York, New York 10007, and the
John C. Kluczynski Federal Building, 230 South Dearborn Street, Chicago,
Illinois 60604. Copies of such material can be obtained from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 upon request and payment of the prescribed fee. The
Commission maintains a web site that contains reports, proxy and information
statements, and other information regarding issues that are filed electronically
with the Commission. The address of the web site is HTTP://WWW.SEC.GOV.
The Company's Common Stock is listed on the American Stock Exchange
(the "AMEX"), and reports, proxy statements and other information filed by the
Company can be inspected at such exchange, 86 Trinity Place, New York, NY 10006.
The Company has filed with the Commission in Washington, D.C., a
Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration of the securities offered
hereby. This Prospectus omits certain of the information contained in the
Registration Statement. Statements contained herein concerning the provisions of
any documents are not necessarily complete and, in each instance, reference is
made to the copy of such document filed as an exhibit to the Registration
Statement. Each such statement is qualified in its entirety by such reference.
Items of Information omitted from this Prospectus but contained in the
Registration Statement may be obtained from the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, upon request and payment of the
prescribed fee.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED BY THE COMPANY TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION
WITH THE OFFER MADE HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFERING IN ANY STATE IN WHICH
AN OFFER OR SOLICITATION IS NOT AUTHORIZED BY THE LAWS THEREOF. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALES MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
Statements and descriptions herein concerning agreements or other documents
filed as exhibits to the registration statement filed in connection with this
Prospectus are necessarily summaries of such documents and are qualified in
their entirety by reference to the complete text of the applicable document
filed with the Commission, which text is incorporated in this Prospectus by
references to such agreements or documents.
<PAGE>
INTRODUCTION
This document and the documents incorporated herein by reference
constitute the Prospectus for the 350,000 shares of Common Stock, $0.15 par
value per share (the "Stock") of EDITEK, Inc. (the "Company") registered with
the Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "Securities Act"), and are the remaining shares reserved
for issuance under the EDITEK, Inc. Qualified Employee Stock Purchase Plan (the
"Plan"). The Plan was originally adopted by the Board of Directors of the
Company on March 13, 1986, and was approved by the stockholders of the Company
and became effective on September 11, 1986. The Plan was amended by the Board of
Directors on July 30, 1993, subject to approval of the stockholders of the
Company, which approval was obtained at the 1993 annual meeting of the
stockholders held on October 26, 1993, and such amendments became effective as
of that date. The Plan was further amended by the Board of Directors to increase
the number of shares of Common Stock subject to the Plan from 150,000 to 500,000
shares, subject to approval of the Stockholders of the Company. The stockholders
approved the amendment at the Annual Meeting held on December 20, 1996, and the
amendment became effective as of that date.
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
Pursuant to the Qualified Employee Stock Purchase Plan (the "Plan"),
eligible employees of the Company are given an opportunity to acquire Common
Stock of the Company (the "Stock") up to a maximum amount per employee through
payroll deductions.
Description of Plan
The following description of the Plan is merely a summary of some of
the terms and provisions of the Plan, is not intended to be a complete
description of the Plan, and is qualified in its entirety by reference to the
full text of the Plan, a copy of which may be obtained by a participant, without
charge, upon written or oral request. Copies of the Plan, as well as additional
information about the Plan and the administrators of the Plan, may be obtained
by contacting the Chief Financial Officer's Department, EDITEK, Inc., 1238
Anthony Rd., Burlington, North Carolina 27215, telephone (919) 226-6311.
The Plan is not generally subject to the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), except for the
application of certain simplified reporting and disclosure requirements under
ERISA. The Plan is not a qualified plan under Section 401 of the Internal
Revenue Code of 1986, as amended (the "Code").
Nature and Purpose. The Plan allows eligible employees to purchase
shares of the Common Stock of the Company through payroll deductions at a price
equal to 85% of the lesser of the fair market value of the stock on the date of
the Company's receipt of the subscription or the date of the employee's exercise
of the right to purchase such shares. The maximum number of shares that each
eligible employee may subscribe for under the Plan shall be subject to such
limitations as from time to time are established by the Administration
Committee, which limitations shall apply equally to all participants. The
receipt of an approved subscription form by the Company from an eligible
employee shall be treated as the grant of a right to purchase the shares
subscribed for, and the accrual of a sufficient amount in such employee's
<PAGE>
account to acquire a minimum of 100 shares of stock at the subscription price
shall be treated as the exercise of such purchase right.
The Plan is designed to attract and retain competent personnel, to
allow the Company to compete with other companies with respect to compensation,
to motivate Company employees to use their best efforts for the benefit of the
Company, and to provide employees an opportunity to acquire a proprietary
interest in the Company, thereby encouraging the promotion of the Company's best
interests and giving the employees an opportunity to share in future growth of
the Company.
Administration. The Plan is administered by a committee (the
"Administration Committee") appointed by the Board of Directors of the Company,
who serve at the discretion of the Board. The Administration Committee is
comprised of two or more non-employee directors. The members of the Stock Option
Committee are deemed to be the members of the Administration Committee until
otherwise designated by the Board. The members of the Administration Committee
shall serve until their successors have been appointed by the Board. The
Administration Committee has the exclusive right to interpret, prescribe rules
and regulations for, and administer the Plan. In the event there is no market
for the Stock, the Administration Committee may determine the fair market value
of the Stock for purposes of the Plan. Also, the committee shall be entitled to
reduce employee's subscriptions in excess of prescribed amounts under certain
circumstances. The Plan grants the Administration Committee authority to
establish procedures and limitations regarding such provisions.
Eligibility. The Plan provides that all eligible employees of the
Company, and of any subsidiaries designated by the Administration Committee, may
subscribe to acquire a maximum number of shares under the Plan as determined by
the Administration Committee. All regularly scheduled employees of the Company
who work for more than twenty hours per week and five months per calendar year
are eligible to participate. Thus, executive officers of the Company meeting
such requirements are eligible to participate under the Plan. The Plan provides
that all employees granted subscriptions under the Plan shall have the same
rights and privileges thereunder, subject to the provisions of state and federal
securities laws which may affect any employee considered to be an insider of the
Company. The Plan allows for broad-based employee participation and does not
discriminate in favor of highly compensated employees.
Securities to be Offered. The Company is authorized to issue 500,000
shares of Stock under the Qualified Plan. The Stock subject to an award under
the Plan will be made available from the authorized and unissued Stock of the
Company.
Subscription Count. The Plan provides that each employee shall be
entitled to purchase during his lifetime a maximum number of shares pursuant to
the Plan. The Administration Committee shall establish from time to time the
maximum number of shares that may be acquired by any employee under the Plan,
and such maximum shall apply equally to all eligible employees. The Plan allows
an employee to subscribe for less than the maximum number of shares and
subsequently subscribe for additional shares until he has subscribed for the
maximum number of shares permitted. Each new subscription shall be treated for
all purposes under the Plan as a separate grant of a right to purchase the
number of shares indicated on the subscription form. However, in order to be
able to subscribe for additional shares, an employee must wait at least six
months from the date of the employee's last subscription, or three months from
<PAGE>
the date of the withdrawal of a prior subscription, or until all subscriptions
outstanding to acquire shares under the Plan have been paid in full.
Subscription Price/Purchase Price. The subscription price for Stock
acquired under the Plan is 85% of the fair market value of the Stock on the day
the executed subscription form is received by the Company. The purchase price
for shares of Stock is the lesser of the subscription price or 85% of the fair
market value on the day the right to purchase is exercised. Thus, the purchase
price may be different for each 100 share unit purchased pursuant to the same
subscription form. The fair market value of the Stock on a given date is based
upon various possible markets for the Stock. The Plan includes methods for
determining the fair market value of the Stock if it is traded on a national
securities exchange, quoted on the National Association of Securities Dealer
Automated Quotation ("Nasdaq") System or otherwise in the over-the-counter
market, or if it is not traded or quoted at such time. Generally, the fair
market value shall be based upon the last sales price of the Stock on a given
date if a minimum of 100 shares are sold on such date, or if no shares are sold
on such date, based upon the average of the high bid and low asked prices on
such date, or if no prices are available on such date, based upon the last sales
price of the Stock on the last prior date on which a minimum of 100 shares were
sold. If the Stock is not traded on an exchange or quoted by Nasdaq or in the
over-the-counter market, then the Administration Committee is permitted to
determine in good faith the fair market value by any appropriate method.
Limitations on Subscriptions. Employees who own stock possessing 5% or
more of the total combined voting power or value of all classes of stock of the
Company are not eligible to subscribe for Stock under the Plan. Further, no
employee may subscribe to purchase Stock under all stock purchase plans of the
Company at a rate which exceeds $25,000 of fair market value of such stock for
any calendar year in which such subscription is outstanding under the Plan. The
Plan provides that, in the event that an employee's subscription rate exceeds
$25,000 as provided above, the Administration Committee shall be entitled to
reduce the subscription amount so that the employee's rights under the Plan do
not accrue at a rate which exceeds $25,000 per calendar year.
Payroll Deductions. The subscription price under the Plan must be paid
by payroll deduction from the employee's compensation. The Plan allows the
Administration Committee to establish procedures and limitations regarding
payroll deductions; provided, however, that no payment period may be structured
so that the date of exercise of the purchase rights exceeds more than
twenty-seven (27) months from the date of grant of the purchase rights. Payroll
deductions shall begin when specified by the employee in the subscription form
or as soon as practicable thereafter but in no event later than two months after
the date specified by the employee.
Issuance of Stock. The Stock will only be issued by the Company when
the employee has completed paying for at least 100 shares (or any lesser amount
of shares under subscription) at the subscription price. If the purchase price
is less than the subscription price, the employee shall not be entitled to
acquire more shares than that number for which he subscribed. Any excess amount
shall be applied to the purchase of additional shares under subscription or
returned if no additional shares are then under subscription. The employee shall
not be deemed to own the stock subscribed for until issuance of the stock
certificate representing such shares. The employee has no rights as a
shareholder with respect to such shares until such issuance.
<PAGE>
Withdrawal of Subscription. An employee may withdraw his subscription
at any time for any shares for which the right to purchase has not yet been
exercised and receive a refund of the balance in his account. An employee who
withdraws a subscription, however, shall not be entitled to subscribe for
additional shares until at least three (3) months after the last such
withdrawal.
Termination of Employment. Upon termination of a participating
employee's services because of death, permanent disability or retirement at age
55 or thereafter, the employee (or his estate) may prepay any subscription for
Stock within three (3) months thereafter in the case of permanent disability or
retirement, or within twelve (12) months thereafter in the case of death. If the
participating employee's services are terminated for any other reason, the
employee will not be entitled to prepay the subscription for Stock but will only
be entitled to receive back the balance of his subscription account.
Transferability. Neither the right of an employee to purchase shares
under the Plan, nor the employee's account balance, may be transferred by the
employee by way of assignment, pledge or otherwise, except that, in the event of
death of the employee, such rights may be transferred by will or the laws of
descent and distribution.
Termination of Plan. The Plan became effective on September 11, 1986,
following its approval by the stockholders of the Company, and the Plan was
amended effective October 26, 1993. The Plan is perpetual in nature but the
Board may terminate the Plan at any time and may amend the Plan from time to
time, subject to any approval of the stockholders of the Company that may be
required in order that the Plan shall continue to qualify under Section 423 of
the Code. Upon termination of the Plan, participating employees shall, at the
discretion of the Board, either be permitted to complete unpaid subscriptions in
a manner determined by the Administration Committee or shall be entitled to
receive the balance in their subscription account in satisfaction of all rights
under the Plan.
Reports of Account Status. Upon request of the participant, the Company
shall provide a report of the amount in and status of the participant's
subscription account.
Interpretation of Plan. The Plan is intended, and shall be interpreted,
to meet and comply with all the requirements of Section 423 of the Code, and
related provisions.
Federal Income Tax Consequences
The Plan is intended to provide employees with the opportunity to
receive the special tax treatment afforded by Section 423 of the Internal
Revenue Code. The following discussion of the federal income tax consequences of
the Plan is intended only as a summary of the federal income tax treatment of
Section 423 stock as of the date of this Prospectus. The federal income tax laws
pertaining to the Plan are highly technical, and such laws are subject to change
at any time. Some variations on the federal income tax effects of Plan
participation described below may occur with respect to participation by persons
subject to Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange
Act"). Participants under the Plan are urged to consult with their own tax
advisors with respect to the tax consequences (including those under state and
local tax laws) associated with participation under the Plan.
<PAGE>
Under existing law, the following description summarizes the principal
Federal Income Tax Consequences of the purchase and disposition of shares of
Stock under the Plan.
Purchase of Shares. An employee does not realize, and does not have to
report any income for the year in which he subscribes for, or for the year in
which he pays for Stock under the Plan, even though the purchase price is the
lesser of 85% of the fair market value of the Stock on the date the employee
subscribes, or on the date the right to purchase is exercised.
Disposition of Shares. Section 423 of the Internal Revenue Code
establishes a holding period that is important in determining how any gain on
disposition of shares acquired under the Plan is to be taxed. The term
"disposition" generally includes every sale, exchange, gift or transfer of legal
title except transfers made as the result of an employee's death. The holding
period provided under Section 423 is the later of two (2) years after the date
the employee subscribed or twelve (12) months after the date the shares are
transferred to him. An employee may have a different holding period for each
100-share unit of Stock acquired under the Plan.
The issuance of shares of Stock in the joint names of an employee and
another person is not considered a disposition. Similarly, the issue of shares
in an employee's name and the subsequent transfer of such shares into the joint
names of the employee and another person does not constitute a disposition.
Sale After End of Holding Period. When an employee sells shares after
the specified holding period, the employee is required to report the following
on the Federal Income Tax Return for the year in which the sale occurs:
Ordinary Income: The employee must report ordinary income in the amount of
the lesser of:
(1) 15% of the fair market value of the Stock on the date of the
subscription, or on the date of purchase, whichever is lower, or
(2) any excess of the fair market value of the Stock on the date of sale
over the purchase price.
If the employee's purchase price exceeds the fair market value on the date of
sale, no amount is reported as ordinary income.
Capital Gain or Loss: If the fair market value of the Stock on the date
of sale exceeds the lesser of the fair market value on the date of subscription
or the date of purchase, the employee must report the amount of such excess as
long-term capital gain. On the other hand, if the purchase price exceeds the
fair market value on the date of sale, such excess is a long-term capital loss.
Sale Before End of Holding Period. When an employee sells shares prior
to the end of the specified holding period, the employee is required to report
the following on the Federal Income Tax Return for the year in which the sale
occurs:
<PAGE>
Ordinary Income: The employee must report the excess of the fair market
value of the Stock on the date of exercise over the employee's purchase price as
ordinary income. The "date of exercise" is the date when an employee's account
is credited with sufficient funds to purchase 100 shares of Stock (or such
lesser number as remain under a subscription agreement). Consequently, the
employee will normally have a different date of exercise for each 100-share unit
of Stock issued under the Plan.
Capital Gain or Loss: If the fair market value of the Stock on the date
of sale exceeds the fair market value on the date the employee exercised the
right to receive such shares, the employee must report such excess as capital
gain. On the other hand, if the fair market value on the date of exercise
exceeds the fair market value on the date of sale, the employee may report the
amount of such excess as capital loss. Any such capital gain or loss will be
long-term capital gain or loss if the Stock is sold more than six (6) months
after the date of exercise, but will be short-term capital gain or loss if the
Stock is sold within six (6) months after the date of exercise.
In the case of a disposition before the end of the holding period, the
Company receives a tax deduction equal to the amount of ordinary income
recognized by the employee.
THE FOREGOING DESCRIPTION OF TAX CONSEQUENCES IS PROVIDED SOLELY FOR
THE INFORMATION OF PERSONS WHO ARE ELIGIBLE TO PARTICIPATE IN THE PLAN AND IS
NOT INTENDED TO BE A COMPLETE DESCRIPTION OF ALL POSSIBLE TAX CONSEQUENCES
ARISING OUT OF THE PLAN. FURTHERMORE, THE FOREGOING DISCUSSION IS LIMITED TO THE
IMPACT OF THE INTERNAL REVENUE CODE AS IN EFFECT ON THE DATE OF THIS PROSPECTUS
UPON U.S. CITIZENS RESIDING IN THE UNITED STATES. ANY PERSON WHO HAS ANY
QUESTION AS TO THE FEDERAL, STATE, AND OTHER TAX CONSEQUENCES OF PARTICIPATION
IN THE PLAN SHOULD CONSULT LEGAL COUNSEL.
Resale Restrictions
Participants under the Plan may be restricted under certain
circumstances in their ability to resell shares of Stock purchased or awarded
under the Plan. These resale restrictions may be imposed by virtue of the
provisions of the Plan and the applicable award agreement and/or by application
of the federal and state securities laws.
Plan Restrictions. Although a participant may not transfer the right to
purchase shares under the Plan nor the account balance, transfer of the shares
of Stock acquired under the Plan is not restricted by the Plan itself. However,
a transfer before expiration of the applicable holding period will invalidate
the special tax treatment afforded by Section 423 of the Code.
Securities Law Restrictions. In addition to resale restrictions imposed
by the Code, additional resale restrictions may be imposed by virtue of the
applicable securities laws. The following discussion of securities law
restrictions placed upon resale of shares of Stock acquired pursuant to the Plan
assumes that any applicable resale restrictions imposed pursuant to the Code
have lapsed, expired, or have been satisfied.
Participants under the Plan and their transferees who are not
"affiliates" of the Company, as defined in Rule 405 under the Securities Act,
may from time to time sell the Stock acquired pursuant to a stock award under
<PAGE>
the Plan or purchased pursuant to the exercise of stock options granted under
the Plan. Such sales shall be at prices prevailing at the time of sale, with the
participants or their transferees paying brokerage commissions and applicable
transfer taxes or such shares may be sold in negotiated transactions or
otherwise.
The Securities Act imposes certain restrictions on the reoffer and
resale of the Stock acquired pursuant to the Plan by "affiliates" of the
Company. "Affiliates" of the Company generally include the directors and certain
officers of the company and any holder of more than 10% of the Stock. This
Prospectus is not available for reoffers or resales of the Stock acquired
hereunder by persons deemed to be "affiliates" of the Company, and such reoffers
or resales may be made only pursuant to a Registration Statement under the
Securities Act or pursuant to Rule 144 promulgated under the Securities Act or
another exemption from registration thereunder.
The directors and certain officers of the Company and any holder of
more than 10% of the Stock may also be liable to the Company, pursuant to
Section 16(b) of the Exchange Act, for amounts realized upon the purchase and
sale or sale and purchase of any shares of the Stock within any period of less
than six months. The grant of the right to purchase Stock under the Plan is
deemed the "purchase" of the Stock for purchases of Section 16(b) liability, and
this "purchase" will be exempt from Section 16(b) liability, and this "purchase"
will be exempt from Section 16(b) liability to the extent the transaction
satisfies the requirements of Rule 16b-3 at the time. Persons subject to Section
16(b) should consult counsel for advice regarding these limitations on their
purchase and sale of shares of Stock.
COMPANY INFORMATION
A participant may obtain, without charge, upon written or oral request,
a copy of the following documents, which are incorporated by reference in this
Prospectus:
(1) the Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 1996 filed with the SEC pursuant to Section 13 of the Exchange Act.
(2) All other reports filed by the Company pursuant to Sections 13 or 15(d)
of the Exchange Act since December 31, 1996.
(3) The description of the Company's Common Stock contained in the
Company's Registration Statement filed with the SEC under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
(4) All other documents subsequently filed by the Company pursuant to
Sections 13, 14, and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold.
Any statement contained in a statement incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
<PAGE>
incorporated by reference herein modified or superseded such statement. Any such
statement so modified or superseded shall not be deemed to constitute a part of
this Prospectus, except as so modified or superseded.
A participant may also obtain, without charge, upon written or oral
request, a copy of the following documents:
(1) Any document prepared by the Company to update the information
included in this Prospectus or incorporated herein by reference.
(2) Any document constituting a part of this Prospectus.
(3) The Company's latest annual report to shareholders containing the
information required by Rule 14a-3(b) under the Exchange Act for its latest
fiscal year.
(4) All reports, proxy statements, and other communications distributed by
the Company to its shareholders generally.
(5) All other documents required to be delivered by the Company to
participants pursuant to Rule 428(b) under the Securities Act.
Copies of all documents referenced above (other than exhibits to such
documents that are not specifically incorporated by reference in such documents)
may be obtained by contacting the Chief Financial Officer's Department, EDITEK,
Inc., 1238 Anthony Rd., Burlington, North Carolina 27215, telephone (910)
226-6311.
<PAGE>
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
EMPLOYEE INFORMATION SHEET
Under the Qualified Employee Stock Purchases Plan (the "Stock Purchase
Plan"). you can purchase EDITEK stock through convenient paycheck deductions at
a 15% employee discount.
The Stock Purchase Plan gives you the opportunity to enjoy ownership of
the Company's securities by purchasing EDITEK common stock at a discount price.
The Stock Purchase Plan can be used either as a long-term investment for your
future or a shorter-term savings device with a potential for earnings. You may
contribute a percentage of your pay through payroll deductions to purchase stock
at the lower of 85% of the market price on either the date you subscribe or the
date the shares are purchased. Participation is voluntary, and you may subscribe
to purchase stock on your first workday or any day thereafter. Contact the
Company for a subscription/subscription change form.
Advantages of the Stock Purchase Plan.
- By purchasing EDITEK stock through the Stock Purchase Plan,
you have the following advantages:
- The convenience of regular payroll deductions.
- A discount price.
- The lower of your subscription price or the price on your
purchase date.
- A guaranteed subscription price for 24 months.
- Certain tax advantages.
- The elimination of any brokers' commissions which might
otherwise be applied to the stock purchase.
Details of some of these advantages appear on the following pages.
The benefits and risks of owning stock.
As you consider investing in the stock market, you should be aware that
the purchase and ownership of stock do have risks. The price of a share of stock
may go up or down, and there is no guarantee that you will be able to sell the
stock for more than, or even the same price as, you paid for it. On the other
hand, you may be willing to accept the risks associated with investment in the
stock market as one method of accumulating assets over the long term.
<PAGE>
How to buy EDITEK stock.
You may purchase EDITEK stock under the Stock Purchase Plan through
payroll deductions only and not by cash or check. A percentage of your earnings
is deducted from your regular paycheck over a period of time. Signing up to buy
stock is referred to as "subscribing" for stock. Before deciding on the amount
of your subscription, you must consider the price of the stock at the time you
are subscribing and how much of your annual salary you wish to initially commit
to this investment.
With the subscription/subscription change form available from the
Company, you have the option of listing the stock either in your name only or
with a joint tenant, which essentially means that you assign equal ownership to
another person. On the death of one joint owner, the survivor becomes the owner.
Please note that if you designate a joint tenant who is a minor, it may be
impossible for you to trade, sell or transfer that stock until the minor is of
legal age or a court order is obtained.
Determining your employee subscription price.
Your subscription price is determined by taking the closing price of
EDITEK stock on the American Stock Exchange as on the day you subscribe, and
then determining 85% of that price to account for your discount. This amount is
recorded as your subscription price.
Example:
Closing price of stock $1.00
Discount x 85%
Your subscription price
per share (employee price) $0.85
Choosing a payroll deduction and/or number of shares.
You may choose any level of payroll deductions, ranging from one
percent to twelve percent (in whole percentage increments) of your total annual
salary including commissions but excluding bonuses, to be deducted per pay
period. Each subscription must be completed within 24 months. The Stock Purchase
Plan operates primarily on the number of shares you indicate on your
subscription form with a corresponding payroll deduction.
Determining your final purchase price.
Your actual purchase price may be different from your original
subscription price but will never exceed it. The purchase price is determined by
taking 85% of whichever is the lowest of the following:
- the closing price of the stock on your subscription date (the
"subscription price"), or
<PAGE>
- the closing price of the stock on the payday you actually have
enough money in your account to purchase a 100-share unit of
stock (or such lesser amount under subscription) at your
original subscription price (the "purchase price").
Therefore, the price at which you purchase shares will not necessarily be the
price at which you subscribed, although it never will be higher. You must wait
until you have enough money in your account to purchase a 100-share unit of
stock (or such lesser amount under subscription) at your original subscription
price, even though a lower market price currently may exist.
For example, if your subscription price was $1.00 and the stock price
has declined since your subscription day, your account still must reach $100.00
($1.00 times 100 shares) before any shares are purchased. The excess of the
subscription price over the purchase price will be applied to purchase as many
additional shares as possible on such purchase date at the lower price. In this
manner, the subscription will be completed sooner, but the number of shares
purchased pursuant to the subscription will not increase. By the same token, if
on the Purchase date the stock price is higher than your subscription price, you
still will purchase the stock at the lower subscription price. Money left over
in your account as a result of receiving a lower purchase price will be credited
to your account and applied toward the purchase of your remaining shares, or
refunded to you upon completion of your subscription.
Stock issuance.
Since the purchase price is not determined until a sufficient amount is
accumulated to purchase a 100-share unit (or such lesser amount under
subscription), your account is not charged and shares are not purchased until
such time. The payday on which this occurs is called your "purchase date."
However, it may be several weeks later before you actually receive a stock
certificate.
Multiple subscriptions.
You may subscribe for additional shares as long as you comply with the
maximum number of shares limitation, the maximum payroll deduction percentage
and the applicable waiting period. If you currently have an outstanding
subscription, you may subscribe for additional shares on the earlier of:
- Immediately when you have completed paying for your
existing subscription;
- Six months after the date your existing subscription
was received by the Company; or
- Three months after you cancel a prior subscription.
By signing up for fewer than the maximum number of shares or for a payroll
deduction of less than the maximum percentage, you may make multiple
subscriptions.
How to cancel a subscription.
You may cancel any or all of your subscriptions at any time by filling
out the proper sections of a withdrawal form available from the Company.
<PAGE>
If you cancel your subscription(s), you must wait three months before
you are eligible to resubscribe for additional stock. However, you may
resubscribe one day and cancel a prior subscription the next day (or any day
thereafter), thereby making both transactions possible. This can be done only if
you are eligible to resubscribe.
If you withdraw all of your subscriptions from the Stock Purchase Plan,
you should receive a check for the full amount of your account within 30 days
after receipt of your withdrawal form.
What happens in case.
If you are temporarily away from work or if you retire. become disabled
or die. your stock subscription may be continued as follows:
If you go on a leave of absence, temporary layoff or temporary
disability, you may make regular payments to EDITEK for up to three months in
the same amount as your stock purchase payroll deduction to continue your
subscription. If you choose not to make such payments, or if you do not return
to work after three months, you will receive a check for the balance of your
subscription account.
If you leave the Company because of retirement (on or after age 55),
permanent disability or death, you or your survivors have the right to buy out
and complete your subscriptions within three months after retirement or
disability, and within 12 months in the case of death. You or your survivors may
choose, on the other hand, to buy only a portion of those shares outstanding
from your subscriptions, or to receive only the stock already purchased and a
check for the balance.
If you leave for other reasons before your subscription is fully paid.
you will be entitled to receive only a cash refund of the balance in your
account.
PLEASE REFER TO THE RULES AND REGULATIONS OF THE ADMINISTRATION COMMITTEE FOR
MORE INFORMATION ABOUT THE OPERATION OF THE STOCK PURCHASE PLAN.
<PAGE>
RULES AND REGULATIONS
OF THE ADMINISTRATION COMMITTEE
FOR THE EDITEK. INC.
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
The following rules and regulations are applicable to transactions in
the EDITEK, Inc. Qualified Employee Stock Purchase Plan (the "Stock Purchase
Plan"):
1. Maximum Number of Shares. Pursuant to Section 4.B. of the Qualified
Plan, the Administration Committee hereby establishes that the maximum number of
shares of Common Stock of EDITEK, Inc. (the "Company") that each employee may
subscribe for in his or her lifetime may not exceed 5,000 shares, which number
automatically shall be adjusted, as appropriate, in the event of any stock split
or stock dividend. This limitation shall apply to all participants in the Stock
Purchase Plan without regard to salary levels. If a subscription form received
from a participant indicates a number of shares in excess of the maximum number
of shares then-permitted to be subscribed for by such participant, the
subscription form shall automatically be adjusted to the maximum number of
shares such participant may acquire. The Administration Committee shall notify
the participant of the change.
Any shares purchased (i.e., fully paid for) on or before December 31,
1993, shall not be included in determining whether the participant has
previously subscribed for the maximum number of shares. If a participant
withdraws a subscription form, or the number of shares under subscription is
otherwise reduced as provided herein, before the shares are purchased (i.e.,
fully paid for), the participant may resubscribe to purchase the shares
withdrawn or reduced and such shares shall only be counted once in determining
whether the participant has previously subscribed for the maximum number of
shares. If any participant ceases to be employed by the Company for any reason
and is later reemployed by the Company, all shares previously purchased (i.e.,
fully paid for) by such participant on or after January 1, 1994, shall be
included in determining whether the participant has previously subscribed for
the maximum number of shares.
The Administration Committee reserves the right to increase or decrease
the maximum number of shares at any time as it deems necessary. Unless otherwise
provided by the Administration Committee, in the event that the maximum number
of shares is decreased, any participant may continue to purchase shares pursuant
to a subscription form which has already been received by the Company, even
though such purchases would result in the participant purchasing an amount of
shares greater than the new maximum number of shares.
2. Statutory Subscription Limitation. As provided in Section 4.D. of
the Qualified Plan, the Administration Committee may reduce any subscription to
the extent that any participant has subscribed to purchase shares at a rate
which exceeds $25,000 of fair market value of the Common Stock (determined on
the date the subscription form is received by the Company) in any calendar year
that the subscription is outstanding. This limitation is determined by
aggregating all outstanding subscriptions of the participant under the Stock
Purchase Plan and any other stock purchase plan of the Company. In the event
that it becomes necessary for the Administration Committee to reduce a
subscription, the Administration Committee will first reduce the percentage of
the participant's salary which is being deducted to acquire the shares and
<PAGE>
extend the period of withholding as necessary to permit the acquisition of the
same number of shares for which the participant originally subscribed; provided,
however, that no subscription period may be extended longer than 24 months from
the date the Company received the subscription form. In the event that the
Administration Committee is unable to maintain the number of shares originally
subscribed for by reducing the withholding percentage and extending the period
of withholding, the Administration Committee shall reduce the number of shares
under subscription accordingly. The Administration Committee shall notify the
participant of any changes.
3. Payroll Deductions. Pursuant to Section 5.A. of the Qualified Plan,
the Administration Committee is authorized to establish appropriate procedures
and limitations for payroll deductions to pay the subscription price. The
Administration Committee hereby determines that each participant may withhold
from his or her salary for purposes of purchasing Common Stock pursuant to the
Qualified Plan an amount equal to any percentage in whole percentage increments
within the range between one percent and twelve percent inclusive. For purposes
of this paragraph, salary shall mean base compensation (whether salaried or
hourly) plus any commissions but excluding bonuses. In order to subscribe, the
participant must complete a subscription form indicating the number of shares
subscribed for and the percentage of his or her payroll to be withheld to pay
for the shares. Payroll withholding shall begin as soon as practicable after the
subscription form is received by the Chief Financial Officer of the Company. The
aggregate amount withheld by the participant at any time pursuant to one or more
subscription forms may not exceed the maximum end of the range.
The Administration Committee reserves the right to change the range of
percentages at any time as it deems necessary. Unless otherwise provided by the
Administration Committee, a change in the range of percentages shall not affect
any subscription form which has already been received by the Chief Financial
Officer.
The participant may increase or decrease the percentage withheld at any
time without increasing or decreasing the number of shares for which the
participant has subscribed by submitting a subscription change form. Changes in
withholding percentages shall be implemented as soon as practicable after
receipt of the subscription change form by the Chief Financial Officer. If the
participant desires to decrease the number of shares subscribed for, he or she
should submit a withdrawal form (see 4 below). If the participant desires to
increase the number of shares subscribed for, he or she should submit an
additional subscription form.
Based upon the percentage of salary selected to be withheld by the
participant, the Chief Financial Officer shall determine, using the
participant's salary as of the date of receipt of the original or changed
subscription form, the appropriate number of pay periods necessary to withhold
an amount sufficient to acquire the number of shares for which the participant
has subscribed and whether the statutory subscription limit has been exceeded.
In the event that the number of necessary pay periods exceeds 24 months from the
date of receipt of the original subscription form, the participant shall be
notified and asked whether he or she prefers to increase the percentage to be
withheld (subject to the maximum percentage then-permitted by the Administration
Committee), or whether he or she would prefer to reduce the number of shares
subscribed for on the subscription form.
If the participant desires to subscribe for additional shares while a
previous subscription(s) is (are) still outstanding, the participant must
complete an additional subscription form. In the additional subscription form,
<PAGE>
the participant must indicate the percentage of his or her salary which he or
she would like withheld to purchase the additional shares subscribed for by the
participant on that subscription form. The receipt of each subscription form is
considered to be a separate grant of a right to acquire the number of shares
subscribed for therein. Each subscription form shall be independent of any other
subscription form, and the withholding percentage on each form must be increased
or decreased independently with separate subscription change forms. If at any
time the participant has multiple subscriptions outstanding, the Company shall
maintain sub-accounts in the participant's account to ensure that payroll
deductions are attributed to the appropriate subscriptions to determine when the
shares are purchased.
The Administrative Committee hereby adopts the
subscription/subscription change forms attached hereto as Exhibit A for use with
the Qualified Plan.
4. Withdrawals. Pursuant to Section 8 of the Qualified Plan,
participants are permitted to withdraw subscriptions for shares not yet
purchased under the Qualified Plan. Subscription forms may be withdrawn
individually, in whole or in part, or all at the same time. Complete withdrawals
of subscriptions shall be effective upon receipt of the withdrawal form by the
Chief Financial Officer unless a later date is specified by the participant in
the withdrawal form. If the withdrawal is a complete withdrawal of a
subscription form, the balance in the participant's sub-account for that
subscription will be returned, and to the extent that amounts are withheld from
the participant's payroll for such subscription after the date the notice is
received by the Chief Financial Officer, such amounts will be returned to the
participant.
If the withdrawal represents only a decrease in the number of shares
subscribed for on a particular subscription form, the balance in the
participant's sub-account will not be returned to the participant but shall be
applied to the shares remaining under that subscription, and the percentage
withheld from the participant's payroll shall not change unless the participant
so indicates on the withdrawal form. If the percentage is not decreased, such
subscription will be completed earlier than originally scheduled. If the
percentage is decreased, the Chief Financial Officer shall determine the
appropriate number of pay periods necessary to withhold an amount sufficient to
acquire the reduced number of shares for which the participant has subscribed.
In the event that the number of necessary pay periods exceeds 24 months from the
date of receipt of the original subscription form, the participant shall be
notified and asked whether he or she prefers to increase the percentage to be
withheld (subject to the maximum percentage then-permitted by the Administration
Committee), or whether he or she would prefer to further reduce the number of
shares subscribed for on the subscription form. Any changes in the withholding
percentage shall be implemented as soon as practicable after receipt of the
withdrawal form by the Chief Financial Officer.
The Administrative Committee hereby adopts the withdrawal forms
attached hereto as Exhibit B for use with the Qualified Plan.
5. Subscription Account Balances. If a balance remains in a
participant's sub-account after all of the shares subscribed for in the related
subscription form have been paid for in full, the balance automatically will be
returned to the participant if he or she has no other subscriptions then
outstanding. If the participant has at least one other subscription outstanding,
the balance in the sub-account shall be transferred to the subaccount related to
the oldest subscription form outstanding unless the participant requests a
refund of the balance in the sub-account in writing within seven days after the
last stock certificate for the shares acquired pursuant to the completed
subscription agreement is received by the participant. At least once each year
the Company will provide each participant an accounting of the participant's
accounts and sub-accounts, if any.
<PAGE>
6. Temporary Absence from Work. If a participant is temporarily not
receiving pay checks from the Company, whether due to a short-term leave of
absence, temporary layoff or temporary disability or other reason as approved by
the Administration Committee, the participant may make regular payments to the
Company to continue his or her subscription. Such payments must be in the same
amount as was being deducted from the participant's pay check prior to such
temporary absence and must be received on or before the Company's normal payday.
Payments may be made for a period of up to three months after the effective date
of such temporary absence. If the participant elects not to make such payments,
the participant's outstanding subscriptions will be terminated, and the balance
of the participant's subscription account shall be refunded by the Company. If
the participant elects to make such payments and stops making such payments
before returning to work or fails to return to work within three months, the
participant's outstanding subscriptions will be terminated after receipt of the
last payment, and the balance of the participant's subscription account shall be
refunded by the Company. If the participant returns to work within three months,
payroll deductions automatically shall be resumed for all subscriptions.
7. Amendments: Delegation of Duties. These rules and regulations may be
amended from time to time by the Administration Committee in its sole
discretion. The Administration Committee may delegate any of its duties or
responsibilities under these rules and regulations, other than amending such
rules and regulations from time to time, to an appropriate officer or employee
of the Company.
<PAGE>
To be completed by Company only:
Subscription Date __________
Subscription Change Effective Date __________
IRREVOCABLE SUBSCRIPTION/SUBSCRIPTION CHANGE FORM
EDITEK, INC. QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
Name: ____________________________ Social Security Number:
Address: __________________________ Date of Birth:
__________________________________ Telephone Number:
Subscription:
I hereby subscribe to purchase ______ shares (the "Shares") of the
common stock, $0.15 par value per share (the "Common Stock"), of EDITEK, Inc.
(the "Company") pursuant to the EDITEK, Inc. qualified Employee Stock Purchase
Plan (the "Plan"), the terms of which are incorporated herein by reference. I
hereby waive my right to increase, decrease or cease payroll deductions except
pursuant to another irrevocable election six months in advance of the effective
date of any such election. Beginning with the first pay period on or after
______________, or as soon as administratively practicable thereafter, the
Company is authorized to withhold ________ percent of my salary, or $________
per pay period, to pay for the Shares at the "subscription price" until the
Shares are fully paid for or until I otherwise change or cancel this
subscription by another irrevocable election. The "subscription price" for the
Shares will be equal to 85% of the fair market value of the Common Stock of the
Company on the date of receipt of this form by the Company. Notwithstanding the
accumulation of a sufficient amount in my subscription account to acquire a
100-share unit as provided in the Plan, please defer the initial purchase date
of any of the Shares until the first pay period occurring six months and one day
after the date of receipt of this subscription form. If joint owner information
is provided below, I hereby request that the Shares be issued in the names of
such joint owner and myself, as joint tenants with rights of survivorship.
(Signature of Participant) (Signature of Joint Owner)
(Date) (Print Name)
Subscription Change:
Effective as of the first pay period occurring six months and one day
after the date of receipt of this subscription change form, I hereby irrevocably
change the percentage of my salary to be withheld to purchase the Shares
subscribed for by me on or about to ___ percent of my salary, or $______ per pay
period. I understand that all the terms and conditions evidenced by my prior
subscription form, other than the amount to be withheld from my pay, shall
remain unchanged.
(Signature)
(Date)
To be completed by Company only:
Date of receipt of subscription/subscription change ACCEPTED AND AGREED TO:
form:
Closing price of Common Stock on subscription date: EDITEK, Inc.
Aggregate number of shares of Common Stock subscribed By:
for by participant (including this subscription) as of
subscription date: Title:
Estimated number of pay periods to complete Date:
subscription (may not exceed 24 months from
date of receipt of original subscription form):
Aggregate percentage of salary withheld by participant (including this
subscription) as of subscription or subscription change date:
Aggregate dollar amount of shares of Common Stock subscribed for by participant
(based on subscription date fair market value; may not exceed $25,000):
If number of shares subscribed for is decreased, revised number of pay periods
to complete subscription (may not exceed 24 months from date of receipt of
related subscription form):
<PAGE>
To be completed by Company only:
Subscription Date __________
Subscription Change Effective Date
IRREVOCABLE WITHDRAWAL FORM
EDITEK, INC. QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
Name: ____________________________ Social Security Number:
Address: __________________________ Date of Birth:
__________________________________ Telephone Number:
Decrease/Withdraw Prior Subscription:
With regard to my subscription dated ____________ to purchase the
Common Stock of EDITEK, Inc. pursuant to the Qualified Employee Stock Purchase
Plan (the "Plan"), I hereby:
____ Decrease the number of shares subscribed for to ____________
shares; or
____ Withdraw the entire unpaid subscription.
If I am decreasing the number of shares subscribed for, the percentage
of my salary withheld to pay for the reduced number of shares will not change
unless a new percentage is specified by me herein. New percentage: _______
This decrease/withdrawal shall be irrevocable and shall be effective as
of the first pay period occurring six months and one day after receipt of the
withdrawal form by the Company.
PARTICIPANT:
(Signature)
(Date)
Withdraw All Prior Subscriptions:
I hereby withdraw all of my outstanding subscriptions under the Plan
effective as of the first pay period occurring six months and one day after
receipt of the withdrawal form by the Company.
PARTICIPANT:
(Signature)
(Date)
To be completed by Company only:
Date of receipt of withdrawal form:
Date of receipt of related subscription form(s):
Number of shares originally subscribed for:
If number of shares subscribed for is decreased, revised number of pay periods
to complete subscription (may not exceed 24 months from date of receipt of
related subscription form):
Exhibit 3.(ii)
BYLAWS
of
ENVIRONMENTAL DIAGNOSTICS, INC.
(a Delaware corporation)
ARTICLE I
Offices
1. The principal office of the corporation shall be at 229 South State
Street, in the City of Dover, County of Kent, State of Delaware, and the name of
the resident agent in charge thereof is The Prentice-Hall Corporation System,
Inc.
2. The corporation may also have an office or offices at such other
place or places, within or without the State of Delaware, as the Board of
Directors may from time to time designate or the business of the corporation may
require.
ARTICLE II
Stockholders' Meeting
1. The annual meeting of the stockholders of the corporation shall be
held at the offices of the corporation in the City of Burlington and State of
North Carolina, or at such other place within or without the State of North
Carolina as may be determined by the Board of Directors and as shall be
designated in the notice of said meeting, for the purpose of electing directors
and for the transaction of such other business as may properly be brought before
the meeting. The annual meeting of stockholders shall be held on the 15th day of
June of each year (or if said day be a legal holiday, then on the next
succeeding day not a legal holiday) at 1:30 o'clock P.M. or on such other date
or time as may be determined by the Board of Directors.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation not less than 60 days nor more
than 90 days prior to the meeting; provided, however, that, in the event that
less than 70 days' notice is given of the date of the meeting, either by mailing
<PAGE>
such notice to stockholders or by prior public disclosure, notice by the
stockholder, to be timely, must be so received not later than the close of
business on the 10th day following the earlier of (i) the day on which such
notice of the date of the annual meeting was mailed or (ii) the day on which
such public disclosure was made. A stockholder's notice to the Secretary shall
set forth, as to each matter the stockholder proposes to bring before the annual
meeting, (a) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the stockholder proposing such business, (c) the class and number of shares of
the corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. Notwithstanding anything
in the Bylaws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 1.
The Chairman of an annual meeting shall, if the facts warrant, determine and
declare to the meeting that business was not brought before the meeting properly
and in accordance with the provisions of this Section 1; and if he should so
determine and declare, any such business not properly brought before the meeting
shall not be transacted.
Only persons who are nominated in accordance with the procedures set
forth in this Section 1 shall be eligible for election as Directors. Nominations
of persons for election to the Board of Directors of the corporation may be made
at a meeting of stockholders by or at the direction of the Board of Directors or
by any stockholder of the corporation entitled to vote for the election of
Directors at the meeting who complies with the notice procedures set forth in
this Section 1. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice, in writing
to the Secretary of the corporation. To be timely, a stockholder's notice shall
be delivered to or mailed and received at the principal executive offices of the
corporation not less than 60 nor more than 90 days prior to the meeting;
provided, however, that, in the event that less than 70 days' notice is given of
the date of the meeting, either by mailing such notice to stockholders or by
prior public disclosure, notice by the stockholder, to be timely must be so
received not later than the close of business on the 10th day following the
earlier (i) of the day on which such notice of the date of the meeting was
mailed or (ii) the day on which such public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a Director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares of
the corporation, if any, which are beneficially owned by such person, and (iv)
any other information relating to such person that is required to be disclosed
in solicitations of proxies for election of Directors, or is otherwise required,
in each case, pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended, (including, without limitation, such person's written consent
to being named in the proxy statement as a nominee and to serving as a Director
if elected), and (b) as to the stockholder giving the notice, (i) the name and
address as they appear on the corporation's books, of such stockholder and (ii)
the class and number of shares of the corporation which are beneficially owned
by such stockholders. At the request of the Board of Directors, any person
<PAGE>
nominated by the Board of Directors, for election as a Director shall furnish to
the Secretary of the corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a Director of the corporation unless nominated
in accordance with the procedures set forth in this Section 1. The Chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed by
the Bylaws; and, if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded. [Amended effective July 12,
1988.]
2. Special meetings of the stockholders shall be held at the principal
office of the corporation in the State of Delaware, or at such other place
within or without the State of Delaware as may be designated in the notice of
said meetings, upon call of the Board of Directors. [Amended effective July 12,
1988.]
3. Notice of the purpose or purposes and of the time and place within
or without the State of Delaware of every meeting of stockholders shall be given
by the Chairman of the Board or the President or the Secretary or an Assistant
Secretary either personally or by mail or by telegraph or by any other lawful
means of communication not less than ten nor more than fifty days before the
meeting, to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be directed to each stockholder at his address as it
appears on the stock book unless he shall have filed with the Secretary of the
corporation a written request that notices intended for him be mailed to some
other address, in which case it shall be mailed or transmitted to the address
designated in such request. Such further notice shall be given as may be
required by law. Except as otherwise expressly provided by statute, no
publication of any notice of meeting of stockholders shall be required to be
given any stockholder who shall attend such meeting in person or by proxy, or
who shall, in person or by attorney thereunto authorized, waive notice in
writing or by telegraph, cable, radio, or wireless either before or after such
meeting. Except where otherwise required by law, notice of any adjourned meeting
of the stockholders of the corporation shall not be required to be given.
4. A quorum at all meetings of stockholders shall consist of the
holders of record of a majority of the shares of stock of the corporation,
issued and outstanding, entitled to vote at the meeting, present in person or by
proxy, except as otherwise provided by statute or the Certificate of
Incorporation. In the absence of a quorum at any meeting or any adjournment
thereof, a majority of those present in person or by proxy and entitled to vote
may adjourn such meeting from time to time. At any such adjourned meeting at
which a quorum is present any business may be transacted which might have been
transacted at the meeting as originally called.
5. Meetings of the stockholders shall be presided over by the Chairman
of the Board. If there shall be no Chairman of the Board or if he is not
present, meetings of stockholders shall be presided over by the President. If
either of such officers are not present, meetings of the stockholders shall be
presided over by a chairman to be chosen by a majority of the stockholders
entitled to vote who are present in person or by proxy at the meeting. The
<PAGE>
Secretary of the corporation, or in his absence, an Assistant Secretary, shall
act as secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present, the meeting shall choose any person present to act as
secretary of the meeting.
6. Except as otherwise provided in the Bylaws, the Certificate of
Incorporation, or in the laws of the State of Delaware, at every meeting of the
stockholders, each stockholder of the corporation entitled to vote at such
meeting shall have one vote in person or by proxy for each share of stock having
voting rights held by him and registered in his name on the books of the
corporation at the time of such meeting. Any vote on shares of stock of the
corporation may be given by the stockholder entitled thereto in person or by his
proxy appointed by an instrument in writing, subscribed by such stockholder or
by his attorney thereunto authorized and delivered to the secretary of the
meeting. Except as otherwise required by statute, by the Certificate of
Incorporation or these Bylaws, all matters coming before any meeting of the
stockholders, including the election of directors, shall be decided by a
majority vote of the stockholders of the corporation present in person or by
proxy at such meetings and entitled to vote thereat, a quorum being present. At
all elections of directors the voting may but need not be by ballot. [Amended
effective July 12, 1988.]
7. A complete list of the stockholders entitled to vote at the ensuing
election of directors, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder shall be prepared by the Secretary or other officer of the
corporation having charge of the stock ledger. Such list shall be open to the
examination of any stockholder during ordinary business hours, for a period of
at least ten days prior to the election, either at a place within the city, town
or village where the election is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at a place where said
meeting is to be held, and the list shall be produced and kept at the time and
place of election during the whole time thereof, and subject to the inspection
of any stockholder who may be present.
8. At all elections of directors, or in any other case in which
inspectors may act, two inspectors of election shall be appointed by the
chairman of the meeting, except as otherwise provided by law. The inspectors of
election shall take and subscribe an oath faithfully to execute the duties of
inspectors at such meeting with strict impartiality, and according to the best
of their ability and shall take charge of the polls and after the vote shall
have been taken shall make a certificate of the result thereof. If there be a
failure to appoint inspectors or if any inspector appointed be absent or refuse
to act, or if his office becomes vacant, the stockholders present at the
meeting, by a per capita vote, may choose temporary inspectors of the number
required.
<PAGE>
ARTICLE III
Directors
1. The property, affairs and business of the corporation shall be
managed by its Board of Directors consisting of not less than three (3) nor more
than twelve (12) persons. The exact number of directors within the maximum and
minimum limitations specified shall be fixed from time to time by resolution of
the Board of Directors. Except as hereinafter provided, directors shall be
elected at the annual meeting of the stockholders by plurality vote and each
director shall be elected to serve for one year and until his successor shall be
elected and shall qualify. Directors need not be stockholders.
2. Meetings of the Board of Directors shall be held at such place
within or outside the State of Delaware as may from time to time be fixed by
resolution of the Board of Directors, or as may be specified in the notice of
the meeting. Regular meetings of the Board of Directors shall be held at such
times as may from time to time be fixed by resolution of the Board of Directors,
and special meetings may be held at any time upon the call of the Chairman of
the Board or the President or a majority of the directors by oral, telegraphic
or written notice duly served on or sent or mailed to each director not less
than one day before such meeting. A meeting of the Board of Directors may be
held without notice immediately after the annual meeting of the stockholders.
Notice need not be given of regular meetings of the Board of Directors. Meetings
may be held at any time without prior notice if all of the directors are
present, or if at any time before or after the meeting those not present waive
notice of the meeting in writing.
3. A majority of the members of the Board of Directors then acting, but
in no event less than three (3) directors, acting at a meeting duly assembled,
shall constitute a quorum for the transaction of business, but if at any meeting
of the Board of Directors there shall be less than a quorum present, a majority
of those present may adjourn the meeting, without further notice, from time to
time until a quorum shall have been obtained.
4. In case one or more vacancies shall occur in the Board of Directors
by reason of death, resignation, increase in the number of directors or
otherwise except insofar as otherwise provided in these Bylaws, the remaining
directors, although less than a quorum, may, by a majority vote, elect a
successor or successors for the unexpired term or terms.
5. At any special meeting of the stockholders, duly called as provided
in these Bylaws, any director or directors may by the affirmative vote of the
holders of a majority of all the shares of stock outstanding and entitled to
vote for election of directors be removed from office, either with or without
cause, and his successor or their successors may be elected at such meeting; or
the remaining directors may, to the extent vacancies are not filled by such
election, fill any vacancy or vacancies created by such removal.
<PAGE>
6. The corporation shall indemnify any person made a party to an action
by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he, his testator or intestate, is or was a director or
officer of the corporation, against expenses, including attorneys' fees,
actually and necessarily incurred by him in connection with the defense of such
action or in connection with an appeal therein, except in relation to matters as
to which such director or officer is adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation except as otherwise
provided by law or in the Certificate of Incorporation of the corporation. The
corporation shall indemnify any person made or threatened to be made a party to
an action or proceeding other than one of the type referred to in the foregoing,
whether civil or criminal, including, without limitation, an action by or in the
right of any other corporation which any director or officer of the corporation
served in any capacity at the request of the corporation, by reason of the fact
that he, his testator or intestate was a director or officer of the corporation
or served such other corporation in any capacity, against judgments, fines,
amounts paid in settlement and expenses, including attorneys' fees, actually and
necessarily incurred as a result of such action or proceeding or any appeal
therein, if such director or officer acted, in good faith, for a purpose which
he reasonably believed to be in the best interests of the corporation and, in
criminal actions or proceedings, in addition, had no reasonable cause to believe
that his conduct was unlawful. The termination of any such civil criminal action
or proceeding by judgment, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not in itself create a presumption that any
such director or officer did not act in good faith for a purpose which he
reasonably believed to be in the best interest of the corporation or that he had
reasonable cause to believe that his conduct was unlawful. Expenses incurred in
defending a civil or criminal action or proceeding may be paid by the
corporation in advance of the final disposition of such action or proceeding.
The foregoing right of indemnification shall not be deemed exclusive of any
other rights to which those indemnified may be entitled as a matter of law or
any Bylaw, agreement, vote of stockholders, provision of the Certificate of
Incorporation or otherwise.
7. Any action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting if
prior to such action a written consent thereto is signed by all members of the
of Directors or of the committee, as the case may be, and written consent is
filed with the minutes of proceedings of Board of Directors or the committee.
8. Directors may, by resolution of the Board of Directors, be allowed a
fixed sum and expenses of attendance for attendance at regular or special
meetings of the Board of Directors; provided that nothing herein contained shall
be construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees, and others who attend pursuant to direction, may, by vote of the
Board of Directors, be allowed a like fixed sum and expenses of attendance for
attending committee meetings.
<PAGE>
ARTICLE IV
Officers
l. The officers of the corporation shall be chosen by the Board of
Directors at its first meeting after the election of the directors by the
stockholders and shall be a Chairman of the Board, a President, one or more Vice
Presidents, a Secretary and a Treasurer. From time to time the Board of
Directors may appoint such Assistant Secretaries, Assistant Treasurers and such
other officers, agents and employees as it may deem proper. Any number of
offices, except the offices of President and Secretary, may be held by the same
person. The Chairman of the Board, if such officer exists, and the President
shall be chosen from among the directors.
2. The term of office of all officers shall be one year and until their
respective successors are elected and qualify, but any officer may be removed
from office, either with or without cause, at any time by the affirmative vote
of a majority of the members of the Board of Directors then in office. A vacancy
in any office arising from any cause may be filled for the unexpired portion of
the term by the Board of Directors.
3. Unless otherwise ordered by the Board of Directors, the President
shall have full power and authority on behalf of the corporation to attend and
to act and to vote at any meeting of security holders of the corporations in
which the corporation may hold securities, and at such meeting shall possess and
may exercise any and all rights and powers incident to the ownership of such
securities, in which as the owner thereof the corporation might have possessed
and exercised, if present. The Board of Directors by resolution from time to
time may confer like power upon any other person or persons.
ARTICLE V
Duties of Officers
l. The Chairman of the Board shall chair the meetings of the Board of
Directors and shall have such other duties and powers as may be assigned to him
from time to time by the Board of Directors and shall preside at all meetings of
the stockholders and Board of Directors.
2. The President shall be chief executive officer of the corporation
and as such shall have general and active direction of the management and
supervision of the business operations of the corporation subject to any
limitations imposed by the Board of Directors. He shall have such other duties
and powers as may be assigned to him from time to time by the Board of Directors
and shall, in the absence of the Chairman of the Board, preside at all meetings
of the stockholders and Board of Directors.
3. During the absence or disability of the President, the Vice
Presidents, in the order designated by the Board of Directors, shall exercise
all the functions of the President. Each Vice President shall have such powers
<PAGE>
and discharge such duties as may be assigned to him from time to time by the
Board of Directors.
4. The Treasurer shall have the custody of all the funds and securities
of the corporation. When necessary or proper he shall endorse on behalf of the
corporation, for collection, checks, notes and other obligations and shall
deposit the same to the credit of the corporation in such bank, or banks, or
depositories as may be designated by the Board of Directors, or by any officer
acting under authority conferred by the Board of Directors. He shall enter
regularly in books to be kept for purpose a full and accurate account of all
monies received and paid by him on account of the corporation. Whenever required
by the Board of Directors, he shall render an account of all his transactions as
Treasurer and of the financial condition of the corporation. He shall at all
reasonable times exhibit his books and accounts to any director of the
corporation upon application at the office of the corporation during business
hours and he shall perform all things incident to the position of Treasurer,
subject to the control of the Board of Directors. He shall give bond for the
faithful discharge of his duties if the Board of Directors so require. He shall
do and perform such other duties as may be assigned to him from time to time by
the Board of Directors.
5. The Assistant Treasurers, in the order of their seniority, shall, in
the absence of or disability of the Treasurer, perform the duties and exercise
the powers of the treasurer and shall perform such other duties as the Board of
Directors shall prescribe.
6. The Secretary shall attend all meetings of the stockholders and all
meetings of the Board of Directors, and record all votes and the minutes of all
proceedings in a book to be kept for that purpose; and shall perform like duties
for other committees when so required. He shall give, or cause to be given,
notice of all meetings of stockholders and the Board of Directors and of
committees and shall perform such other duties as may be prescribed by the Board
of Directors. He shall keep in safe custody the seal of the corporation and
affix the same to any instrument whose execution has been authorized. He shall
be sworn to the faithful discharge of his duties. He shall do and perform such
other duties as may be assigned to him from time to time by the Board of
Directors.
7. The Assistant Secretaries, in the order of their seniority, shall,
in the absence of or disability of the Secretary, perform the duties and
exercise the powers of the Secretary and shall perform such other duties as the
Board or Directors shall prescribe.
8. In the case of absence or inability to act of any officer of the
corporation and of any person herein authorized to act in his place, the Board
of Directors may from time to time delegate the powers and duties of such
officer to any other officer or any director or any other person whom it may
select.
<PAGE>
ARTICLE VI
Certificates of Stock
1. The interest of each stockholder of the corporation shall be
evidenced by certificates for shares of stock certifying the number of shares
represented thereby and in such form not inconsistent with the Certificate of
Incorporation as the Board may from time to time prescribe.
Except as otherwise required by law, transfers of shares of stock of
the corporation shall be made only on the books of the corporation by the
registered holder thereof, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the corporation, or with
a transfer clerk or a transfer agent appointed as in Section 4 of this Article
provided, and on surrender of the certificate or certificates for such shares
properly endorsed and the payment of all taxes thereon. The person in whose name
shares of stock stand on the books of the corporation shall be deemed the owner
thereof for all purposes as regards the corporation. The Board may, from time to
time, make such additional rules and regulations as it may deem expedient, not
inconsistent with these Bylaws, concerning the issue, transfer, and registration
of certificates for shares of the capital stock of the corporation.
The certificates of stock shall be signed by the Chairman of the Board
or the President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, and sealed with the seal
of the corporation. Such seal may be a facsimile, engraved or printed. Where any
such certificate is signed by a transfer agent other than the corporation or its
employee, or by a registrar other than the corporation or its employee, the
signatures of the Chairman of the Board, President, Vice President, Secretary,
Assistant Secretary, Treasurer or Assistant Treasurer upon such certificate may
be facsimiles, engraved or printed. In case any such officer who has signed or
whose facsimile signature has been placed upon such certificate shall have
ceased to be such before such certificate is issued, it may be issued by the
corporation with the same effect as if such officer had not ceased to be such at
the time of its issue.
2. 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 (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action.
If no record date is fixed:
<PAGE>
The record date for determining stockholders entitled to notice of or
to vote at a meeting or stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held.
The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
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
adjournment meeting.
3. No certificate for shares of stock of the corporation shall be
issued in place of any certificate alleged to have been lost, destroyed or
stolen, except on production of such evidence of such loss, destruction or theft
and on delivery to the corporation, if the Board of Directors shall so require,
of a bond of indemnity in such amount (not exceeding twice the value of the
shares represented by such certificate), upon such terms and secured by such
surety as the Board of Directors may in its discretion require.
4. The Board of Directors may appoint one or more transfer clerks or
one or more transfer agents and one or more registrars, and may require all
certificates for shares of stock to bear the signature or signatures of any of
them.
5. The books, accounts and records of the corporation, except as may
otherwise be required by statute, may be kept outside of the State of Delaware,
at such place or places as the Board of Directors may from time to time appoint.
The Board of Directors shall determine whether and to what extent the books,
accounts and records of the corporation, or any of them, other than the stock
ledger, shall be open to the inspection of stockholders, and no stockholder
shall have any right to inspect any book, account of record of the corporation
except as conferred by statute or by resolution of the Board of Directors.
ARTICLE VII
Corporate Seal
The corporate seal of the corporation shall consist of two concentric
circles, between which shall be the name of the corporation, and its state of
incorporation, and in the center shall be inscribed the words, "Corporate Seal".
<PAGE>
ARTICLE VIII
Amendments
The Bylaws of the corporation shall be subject to alteration, amendment
or repeal, and new Bylaws not inconsistent with any provision of the Certificate
of Incorporation or statute, may be made, either by the affirmative vote of the
holders of a majority in interest of the stockholders of the corporation present
in person or by proxy at any annual or special meeting of the stockholders and
entitled to vote thereat a quorum being present, provided that notice of such
proposed action shall have been given in the call for the meeting, or by the
affirmative vote of a majority of the whole Board, given at any regular or
special meeting of the Board of Directors.
ARTICLE IX
Fiscal Year
The fiscal year of the corporation shall end on the last day of
December in each year.
Exhibit 4.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
EDITEK, INC.
Editek, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), does hereby
certify that:
The amendment to the Corporation's Certificate of Incorporation set
forth in the following resolution approved by the Corporation's Board of
Directors and stockholders was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware:
"RESOLVED, that the Certificate of Incorporation of the corporation be
amended by striking Article FOURTH in its entirety and replacing therefor:
'FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is SIXTY-ONE MILLION (61,000,000) shares, SIXTY
MILLION of which shall be of a class designated as Common Stock with a par value
of FIFTEEN CENTS ($0.15) per share and ONE MILLION of which shall be of a class
designated as Preferred Stock with a par value of ONE DOLLAR ($1.00) per share.
All or any part of the authorized capital stock of the Corporation may be issued
and sold, from time to time by the corporation, without further action by
stockholders, for such consideration (but not less than the par value thereof)
and to such persons and on such terms and conditions as may, from time to time,
be fixed or determined by the Board of Directors. The voting powers,
designations, preferences and relative, participating, optional or other special
rights and the qualifications, limitations or restrictions thereof, of the
classes of stock of the corporation which are fixed by this Certificate of
Incorporation, and the authority vested in the Board of Directors to fix by
resolution or resolution providing for the issue of Preferred Stock the voting
powers, designations, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
the shares of Preferred Stock which are not fixed by the Certificate of
Incorporation, are as follows:
1. The Preferred Stock may be issued from time to time in one
or more series, each such series to have such distinctive designation
or title as may be fixed by the Board of Directors prior to the
issuance of any shares thereof. Each such series may differ from every
other series already outstanding as may be determined from time to time
by the Board of Directors prior to the issuance of any shares thereof,
in any or all of the following, but in other, respects:
<PAGE>
(a) The rate of dividend which the Preferred Stock of
any such series shall be entitled to receive, whether the
dividends of such series shall be cumulative or non-cumulative
and, if such dividends shall be cumulative, the date from
which they shall be cumulative.
(b) The right or obligation, if any, of the
corporation to redeem shares of Preferred Stock of any series
and the amount per share which the Preferred Stock of any such
series shall be entitled to receive in case of the redemption
thereof, and the right of the corporation, if any, to reissue
any such shares after the same shall have been redeemed.
(c) The amount per share which the Preferred Stock of
any such series shall be entitled to receive in case of the
voluntary liquidation, distribution or sale of assets,
dissolution or winding up of the corporation, or in case of
the involuntary liquidation, distribution or sale of assets,
dissolution or winding up of the corporation.
(d) The right, if any, of the holders of Preferred
Stock of any such series to convert the same into other
classes of stock, and the terms and conditions of such
conversion.
(e) The voting power, if any, of the holders of
Preferred Stock of any series, and the terms and conditions
under which they may exercise such voting power.
(f) The terms of the sinking fund or fund of similar
nature, if any, to be provided for the Preferred Stock of any
such series.
The description of terms of the Preferred Stock of
each series in respect of the foregoing particulars shall be
fixed and determined by the Board of Directors by appropriate
resolution at or prior to the time of the authorization of the
issue of the original shares of each such series.
2. In case the stated dividends and the amounts payable on liquidation,
distribution or sale of assets, dissolution or winding up of the corporation are
not paid in full, the stockholders of all series of the Preferred Stock shall
share ratably in the payment of dividends, including accumulations, if any, in
accordance with the same which would be payable on such shares if all dividends
were declared and paid in full and in any distribution of assets other than by
way of dividends, in accordance with the sums which would be payable on such
distribution if all sums payable were discharged and paid in full.
3. The holders of the Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of funds
legally available therefor, preferential dividends in cash at, but not
exceeding the annual rate fixed for each particular series. The holders
of the Preferred Stock shall not be entitled to receive any dividends
thereon other than dividends referred to in this Subdivision 3.
4. So long as any of the Preferred Stock remains outstanding,
in no event shall any dividend whatever, whether in cash or other
property (other than shares of Common Stock), be paid or declared or
any distribution be made on the Common Stock, nor shall any shares of
the Common Stock be purchased, retired or otherwise
<PAGE>
acquired for a consideration by the corporation unless (a) the full dividends of
the Preferred Stock for all past dividend periods from the respective date or
then current quarter-yearly dividend period shall have been paid or declared and
a sum set apart sufficient for the payment thereof, and (b) if at any time the
corporation is obligated to retire shares of any series of the Preferred Stock
pursuant to a sinking fund or a fund of a similar nature, all arrears, if any,
in respect of the retirement of the Preferred Stock of all such series shall
have been made good. Subject to the foregoing provisions and not otherwise, such
dividends (payable in cash, stock or otherwise) as may be determined by the
Board of Directors may be declared and paid on the Common Stock from time to
time out of the remaining funds of the corporation legally available therefor,
and the Preferred Stock shall not be entitled to participate in any such
dividend, whether payable in cash, stock or otherwise.
5. In the event of any liquidation, distribution or sale of
assets, dissolution or winding up of the corporation, whether voluntary
or involuntary, before any distribution or payment shall be made to the
holders of Common Stock, the holders of the Preferred Stock of each
series shall be entitled to be paid in cash the applicable liquidation
price per share fixed at the time of the original authorization of
issuance of shares of such respective series, together with a sum in
the case of each share of the Preferred Stock, computed at the annual
dividend on such share became cumulative to the date fixed for such
distribution or payment date paid thereon. If such payment shall have
been made in full to the holders of the Preferred Stock, the remaining
assets and funds of the corporation shall be distributed among the
holders of the Common Stock according to their respective shares.
6. Subject to the powers, preferences and rights and the
qualification, limitations and restrictions thereof, with respect to
each class of capital stock of the corporation having any preference or
priority over the Common Stock, the holders of the Common Stock shall
have and possess all rights appertaining to capital stock of the
corporation. Holders of Common Stock may not act by written consent
without a meeting.' "
IN WITNESS WHEREOF, Editek, Inc. has caused this Certificate to be signed
and attested by its duly authorized officers this 20th day of December, 1996.
EDITEK, Inc.
By: /s/ Harry G. McCoy
Harry G. McCoy, President
ATTEST:
/s/ Peter J. Heath
Peter J. Heath, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
EDITEK, INC.
The undersigned, a corporation organized and existing under the laws of
the State of Delaware, does hereby certify as follows:
1. The name of the corporation is EDITEK, Inc.
2. The Certificate of Incorporation of the corporation is hereby amended
by deleting Article FOURTH in its entirety and substituting the
following in lieu thereof:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is THIRTY-ONE MILLION
(31,000,000) shares, THIRTY MILLION of which shall be of a class
designated as Common Stock with a par value of FIFTEEN CENTS ($0.15)
per share and ONE MILLION of which shall be a class designated as
Preferred Stock with a par value of ONE DOLLAR ($1.00) per share. All
or any part of the authorized capital stock of the Corporation may be
issued and sold, from time to time by the corporation, without further
action by stockholders, for such consideration (but not less than the
par value thereof) and to such persons and on such terms and conditions
as may, from time to time, be fixed or determined by the Board of
Directors. The voting powers, designations, preferences and relative,
participating, optional or other special rights and the qualifications,
limitations or restrictions thereof, of the classes of stock of the
corporation which are fixed by this Certificate of Incorporation, and
the authority vested in the Board of Directors to fix by resolution or
resolutions providing for the issuance of Preferred Stock the voting
powers, designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of Preferred Stock which are not
fixed by the Certificate of Incorporation, are as follows:
1. The Preferred Stock may be issued from time to
time in one or more series, each such series to have such
distinctive designation or title as may be fixed by the Board
of Directors prior to the issuance of any shares thereof. Each
such series may differ from every other series already
outstanding as may be determined from time to time by the
Board of Directors prior to the issuance of any shares
thereof, in any or all of the following, but in no other,
respects:
(a) The rate of dividend which the Preferred
Stock of any such series shall be entitled to
<PAGE>
receive, whether the dividends of such series shall
be cumulative or non-cumulative and, if such
dividends shall be cumulative, the date from which
they shall be cumulative.
(b) The right or obligation, if any, of the
corporation to redeem shares of Preferred Stock of
any series and the amount per share which the
Preferred Stock of any such series shall be entitled
to receive in case of the redemption thereof, and the
right of the corporation, if any, to reissue any such
shares after the same shall have been redeemed.
(c) The amount per share which the Preferred
Stock of any such series shall be entitled to receive
in case of the voluntary liquidation, distribution or
sale of assets, dissolution or winding up of the
corporation, or in case of the involuntary
liquidation, distribution or sale of assets,
dissolution or winding up of the corporation.
(d) The right, if any, of the holders of
Preferred Stock of any such series to convert the
same into other classes of stock, and the terms and
conditions of such conversion.
(e) The voting power, if any, of the holders
of Preferred Stock of any series, and the terms and
conditions under which they may exercise such voting
power.
(f) The terms of the sinking fund or fund of
similar nature, if any, to be provided for the
Preferred Stock of any such series.
The description of terms of the Preferred Stock of each Series in
respect of the foregoing particulars shall be fixed and determined by the Board
of Directors by appropriate resolution or resolutions at or prior to the time of
the authorization of the issuance of the original shares of each such series.
2. In case the stated dividends and the amounts
payable on liquidation, distribution or sale of assets,
dissolution or winding up of the corporation are not paid in
full, the stockholders of all series of the Preferred Stock
shall share ratably in the payment of dividends, including
accumulations, if any, in accordance with the sums which would
be payable on such shares if all dividends were declared and
paid in full and in any distribution of assets other than by
way of dividends, in accordance with the sums which would be
payable on such distribution if all sums payable were
discharged and paid in full.
3. The holders of the Preferred Stock shall be
entitled to receive, when and as declared by the Board of
Directors, out of funds legally available therefor,
preferential dividends in cash at, but not exceeding the
<PAGE>
annual rate fixed for each particular series. The holders of
the Preferred Stock shall not be entitled to receive any
dividends thereon other than dividends referred to in this
Subdivision 3.
4. So long as any of the Preferred Stock remains
outstanding, in no event shall any dividend whatsoever,
whether in cash or other property (other than shares of Common
Stock), be paid or declared or any distribution be made on the
Common Stock, nor shall any shares of the Common Stock be
purchased, retired or otherwise acquired for a consideration
by the corporation unless (a) the full dividends of the
Preferred Stock for all past dividend periods from the
respective date or then current quarter-yearly dividend period
shall have been paid or declared and a sum set apart
sufficient for the payment thereof, and (b) if at any time the
corporation is obligated to retire shares of any series of the
Preferred Stock pursuant to a sinking fund or a fund of a
similar nature, all arrears, if any, in respect of the
retirement of the Preferred Stock of all such series shall
have been made good. Subject to the foregoing provisions and
not otherwise, such dividends (payable in cash, stock or
otherwise) as may be determined by the Board of Directors may
be declared and paid on the Common Stock from time to time out
of the remaining funds of the corporation legally available
therefor, and the Preferred Stock shall not be entitled to
participate in any such dividend, whether payable in cash,
stock or otherwise.
5. In the event of any liquidation, distribution or
sale of assets, dissolution or winding up of the corporation,
whether voluntary or involuntary, before any distribution or
payment shall be made to the holders of Common Stock, the
holders of the Preferred Stock of each series shall be
entitled to be paid in cash the applicable liquidation price
per share fixed at the time of the original authorization of
issuance of shares of such respective series, together with a
sum, in the case of each share of the Preferred Stock,
computed at the annual dividend rate for the series of which
the particular share is a part from the date on which
dividends on such share became cumulative to the date fixed
for such distribution or payment less the aggregate amount of
all dividends theretofore and on distribution or payment date
paid thereon. If such payment shall have been made in full to
the holders of the Preferred Stock, the remaining assets and
of the corporation shall be distributed among the holder of
the Common Stock according to their respective shares.
6. Subject to the powers, preferences and right and
the qualifications, limitations and restrictions thereof, with
respect to each class of capital stock of the corporation
having any preference or priority over the Common Stock, the
holders of the Common Stock shall have and possess all rights
appertaining to capital stock of the corporation. Holders of
Common Stock may not act by written consent without a
meeting."
<PAGE>
3. The foregoing amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State
of Delaware by the affirmative vote of a majority of the outstanding
shares of capital stock entitled to vote with respect to such amendment
and a majority of the outstanding shares of each class entitled to vote
thereon as a class.
IN WITNESS WHEREOF, the corporation has caused this Certificate of
Amendment to be executed on its behalf by James D. Skinner, its President, and
Peter J. Heath, its Secretary, this 13th day of November, 1995, hereby declaring
and certifying that this is the act and deed of the corporation and that the
facts stated herein are true.
EDITEK, INC.
[CORPORATE SEAL]
By: /s/ James D. Skinner
James D. Skinner, President
ATTEST:
/s/ Peter J. Heath
Peter J. Heath, Secretary
Exhibit 5.1
Popham, Haik, Schnobrich & Kaufman, Ltd. Letterhead
March 26, 1997
EDITEK, Inc.
1238 Anthony Road
Burlington, North Carolina 27215
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8 that you intend to
file with the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended, for the purpose of registering 350,000 shares of Common
Stock, $.15 par value (the "Shares") of EDITEK, Inc., a Delaware corporation
(the "Company"), initially issuable upon the exercise of stock options granted
pursuant to the EDITEK Qualified Employee Stock Purchase Plan adopted March 13,
1986 (the "Plan"), as amended in 1996.
We have examined such documents and have reviewed such questions of law as we
have considered necessary and appropriate for the purposes of the opinion set
forth below.
In rendering our opinion set forth below, we have assumed the authenticity of
all documents submitted to us as originals, the genuineness of all signatures
and the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such Parties. As to questions of
fact material to our opinions, we have relied upon certificates of officers of
the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been duly
authorized and, upon issuance, delivery and payment therefor in accordance with
the terms of the Plan, will be validly issued, fully paid and nonassessable.
<PAGE>
Our opinion expressed above is limited to the business corporation laws of the
State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Popham, Haik, Schnobrich & Kaufman, Ltd.
By: /s/ Robert R. Ribeiro
Robert R. Ribeiro
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Editek, Inc. Qualified Employee Stock Purchase Plan of
our report dated February 21, 1997 with respect to the consolidated financial
statements and schedule of Editek, Inc. included in its annual Report (Form
10-K) for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
March 31, 1997
