Item 13. Exhibits List and Reports on Form 8-K
(a) The following Exhibits are incorporated herein by reference or
are filed with this Report as indicated below.
2.1 Agreement of Stock Exchange dated June 19, 2000 (1)
2.2 Amendment to Agreement of Stock Exchange dated July 14, 2000.
3.1 Certificate of Incorporation (as amended)
3.2 By-Laws
4.1 Common Stock Certificate
10.1 Advanced Medical Products Inc. Amended and Restated Stock Option
Plan.
10.2 Amendment to Lease with T & L A Partnership dated March 15, 1999.
10.3 Focus Tech Consulting Agreement dated February 5, 2000
10.4 2000 Consulting Plan dated February 4, 2000 (2)
99.1 Plan of Reorganization dated March 23, 1999 (3)
99.2 Amendment to Plan of Reorganization dated June 15, 1999 (4)
99.3 Final Report in Chapter 11 Proceeding dated September 27, 1999(5)
99.4 Order Authorizing Modification of Confirmed Plan entered May 5,
2000
99.5 Order Granting Relief From Expense Provision of Order Authorizing
Modification of Confirmed Plan Entered on May 5, 2000.
(1) Filed as Exhibit 2 to the Registrant's Report on form 8-K
dated June 19, 2000, which is hereby incorporated by
reference.
(2) Filed as Exhibit 99 to the Registrant's Registration Statement on
Form S-8 filed March 17, 2000, which is hereby incorporated by
reference.
(3) Filed as Exhibit 1 to the Registrant's Report on Form 8-K
dated October 23, 1998, which is hereby incorporated by
reference.
(4) Filed as Exhibit 2 to the Registrant's Report on Form 8-K
dated October 23, 1998, which is hereby incorporated by
reference.
(5) Filed as Exhibit 3 to the Registrant's Report on Form 8-K
dated October 23, 1998, which is hereby incorporated by
reference.
(b) Reports on Form 8-K
Date Form 8K Was Filed Subject Matter
March 13, 2000 Certificate of Amendment to the
Certificate of Incorporation
regarding name change to ADVA
International Inc., a one share
for ten shares reverse stock
split, and authorization of
additional common and preferred
stock.
April 14, 2000 Letter of Intent of Stock Exchange
between ADVA International Inc. and
Global Information Group U.S.A.
Inc.
June 19, 2000 Definitive Agreement of Stock
Exchange between ADVA International
Inc. and Global Information Group,
U.S.A. Inc.
EXHIBIT 2.2
AMENDMENT
TO
AGREEMENT OF STOCK EXCHANGE
AMENDMENT ("Amendment"), dated as of July 14, 2000, to that
certain Agreement of Stock Exchange dated 15 June 2000 (the
"Agreement") by and among Anthony E. Mohr, Jolec Trading Limited, Hugo
Heerema, FOG Investments, Ltd., Equation Ventures N.V., Linares Capital
Limited, Heydael B.V., Henri B. G. Sijthoff, Charles Langereis, Jouke
V.J.P. Brada, Femia E. van Wulfften Palthe, Leonard van Hulst, Nicole
E.A.M. Aarts, Fiona N. van Hulst, Viewmont Holdings Limited, Moana Lake
Finance Corp., Sorensen's Securities Ltd. and Hacken Investments
Limited, (individually, a "Seller" and collectively, the "Sellers");
ADVA International Inc., a Delaware corporation ("Buyer"); Global
Information Group USA Inc., a Delaware corporation (the "Company") and
Biotel, Inc. ("Biotel").
RECITALS
WHEREAS, the parties to this Amendment are all of the parties to
the Agreement;
WHEREAS, Section 8.3 of the Agreement provides that the parties
have the right to amend the Agreement provided such amendment is
evidenced by an instrument in writing signed on behalf of each of the
parties.
WHEREAS, each of the parties desires to amend the Agreement as
set forth in this Amendment.
NOW THEREFORE, in consideration of the premises and the mutual
representations hereinafter set forth and intending to be legally bound
hereby, the parties hereto agree as follows:
1. All capitalized terms used but not defined herein
shall have the meanings given to them in the Agreement.
2. Clause 8.1.2 of the Agreement is amended to read as
follows:
"by Sellers, the Company or Buyer, (i) if the
Closing Date shall not have occurred on or
prior to August 31, 2000, unless the failure of
such occurrence shall be due to the failure of
the party seeking to terminate this Agreement
to perform or observe its agreements and
conditions set forth herein to be performed or
observed by such party at or before the Closing
date; or (ii) if it has become reasonably
certain that any condition specified in Article
6 of this Agreement will not be satisfied and
such condition has not been waived by the party
having the power to waive such condition. The
Closing Date may be extended by mutual
agreement of the parties hereto."
3. The Agreement, as amended by this Amendment, shall
remain in full force and effect in accordance with its terms.
4. This Amendment may be executed in several
counterparts, each of which shall constitute an original and all of
which, when taken together, shall constitute one agreement.
IN WITNESS WHEREOF, the parties to this Amendment have caused this
Amendment to be executed and delivered as of the date first set forth
above.
SELLERS:
/s/Anthony E. Mohr
ANTHONY E. MOHR
/s/Henk Smit, power-of-attorney for
Henri B. G. Sijthoff
HENRI B.G. SIJTHOFF
JOLEC TRADING LIMITED
/s/Intertrust (Curacao) N.V.
By: Intertrust (Curacao) N.V.,
Managing Director
/s/Henk Smit, power-of-attorney for
Charles Langereis
CHARLES LANGEREIS
/s/ Philip L. van Wijngaarden, power-
of-attorney for Hugo Heerema
HUGO HEEREMA
/s/Henk Smit, power-of-attorney for
Jouke V.J.P. Brada
JOUKE V.J.P. BRADA
FOG INVESTMENTS, LTD.
/s/Anthony E. Mohr
.
By: Anthony E. Mohr, power-of-
attorney for
Fog Investments, ltd.
VIEWMONT HOLDINGS, LTD.
/s/Intertrust (Curacao) N.V.
.
By: Intertrust (Curacao) N.V.,
Managing Director
EQUATION VENTURES N.V.
/s/Intertrust (Curacao) N.V.
By: Intertrust (Curacao) N.V.,
Managing Director
MOANA LAKE FINANCING CORP.
/s/Intertrust (Curacao) N.V.
By: Intertrust (Curacao) N.V.,
Managing Director
LINARES CAPITAL LIMITED
/s/Intertrust (Curacao) N.V.
By: Intertrust (Curacao) N.V.,
Managing Director
SORENSEN'S SECURITIES LTD.
/s/Intertrust (Curacao) N.V.
By: Intertrust (Curacao) N.V.,
Managing Director
HEYDAEL B.V.
/s/ Henk Smit
By: Henk Smit, power-of-attorney for
Heydael B.V.
HACKEN INVESTMENTS LIMITED
/s/Philip L. van Wijngaarden
By: Philip L. van Wijngaarden,
power-of-attorney for Hacken
Investments Limited
/s/ Philip L. van Wijngaarden, power-
of-attorney for Femia E. van Wulfften
Palthe
FEMIA E. VAN WULFFTEN PALTHE
/s/ Philip L. van Wijngaarden, power-
of-attorney for Leonard van Hulst
LEONARD VAN HULST
/s/ Philip L. van Wijngaarden, power-
of-attorney for Nicole E.A.M. Aarts
NICOLE E.A.M. AARTS
/s/ Philip L. van Wijngaarden, power-
of-attorney for Fiona N. Van Hulst
FIONA N. VAN HULST
BIOTEL, INC.
By: /s/Ronald G. Moyer_______________
Title: President
GLOBAL INFORMATION GROUP USA, INC. ADVA INTERNATIONAL INC.
(the "Company"): (the "Buyer")
By: /s/Anthony E. Mohr_________________ By: /s/George L. Down
Title: President Title: President
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
ADVA INTERNATIONAL, INC. (AS AMENDED)
1. The name of the corporation is:
ADVA INTERNATIONAL, INC.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle. The name of its registered agent
at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
4. The aggregate number of shares which the Company shall have
authority to issue is 20,010,000 shares, of which 20,000,000 shares
shall be common stock, all of which shall have a par value of $0.001,
amounting in the aggregate to $20,000, and 4,000 shares shall be Class
A Preferred Stock all of which shall have no par value, and 6,000
shares of Class B Preferred Stock all of which shall have no par value.
The designations and preferences, conversions and other rights, voting
powers, restrictions, limitations as to dividends, qualifications and
terms and conditions of redemption of the shares of stock are as
follows:
1. Dividends.
(a) The holders of Class A Preferred Stock shall be
entitled to receive, out of funds legally available for
that purpose, cash dividends at the rate of $50.00per annum
per share, and no more. Such dividends shall be cumulative
from the date of issuance of the Class A Preferred Stock
and shall be payable in arrears, when and as declared by
the board of directors, on December 31 of each year (each
such date being herein referred to as a Dividend Payment
Date), commencing December 31, 1992. The annual period
between consecutive Dividend Payment Dates shall
hereinafter be referred to as a Dividend Period. Dividends
accumulated in arrears for any past Dividend Periods may be
declared and paid at any time, without reference to any
Dividend Payment Date, to holders of record on such date,
not exceeding 50 days preceding the payment date thereof,
as may be fixed by the board of directors.
(b) In the event full cash dividends are not paid
or made available to the holders of all outstanding shares
of Class A Preferred Stock, and funds available shall be
insufficient to permit payment in full in cash to all such
holders of the preferential amounts to which they are then
entitled, the entire amount available for payment of cash
dividends shall be distributed among the holders of the
Class A Preferred Stock ratably in proportion to the full
amount to which they would be otherwise be respectively
entitled, and any remainder not paid in cash to the holders
of the Class A Preferred Stock shall cumulate as provided
in subsection 1(c) below. In the event such dividends (and
interest thereon) are not paid for two consecutive Dividend
Payment Dates, the holders of the Class A Preferred Stock
shall be entitled, at its option exercised by written
notice to the corporation within 30 days from the second
consecutive Dividend Payment Date, to convert such unpaid
dividends (and interest thereon) to the date of exercise,
to shares of common stock at a conversion price equal to
the fair market value of the common stock. If the common
stock is listed on a national securities exchange or
exchanges, the fair market value shall be deemed to be the
highest closing price of common stock on the securities
exchange on which the common stock is principally traded on
the date of exercise or, if no sale of common stock has
been made on any securities exchange on that day, the fair
market value shall be determined by reference to such price
for the next preceding day on which a sale occurred. If
the common stock is not listed on any national securities
exchange, the fair market value shall be the mean between
the closing dealer bid and ask prices for the common stock
as quoted by NASDAQ for the date of exercise, and if no bid
and ask prices are quoted for the date of exercise, the
fair market value shall be determined by reference to such
prices on the next preceding day on which such prices were
quoted. If the common stock is not traded on a national
securities exchange, and no closing dealer bid and ask
prices are available, then the fair market value shall be
determined by the board of directors in good faith. Upon
receipt of notice of exercise, the corporation shall
promptly issue or cause to be issued to the holders of the
Class A Preferred Stock the shares of common stock to which
such holders are entitled pursuant to this subsection 1(b).
(c) If, on any Dividend Payment Date, the holders
of the Class A Preferred Stock shall not have received the
full dividends provided for in the other provisions of this
Section 1, then such dividends shall, together with
interest thereon accruing from such Dividend Payment Date
at a rate of 10% per annum, cumulate, whether or not earned
or declared, with additional dividends thereon for each
succeeding full Dividend Period during which such dividends
and interest shall remain unpaid. Unpaid dividends and
interest for any period less than a full Dividend Period
shall cumulate on a day-to-day basis and shall be computed
on the basis of a 360 day year.
(d) So long as any shares of Class A Preferred
Stock be outstanding, the corporation shall not declare or
pay on any common stock any dividend whatsoever, whether in
cash, property or otherwise (other than dividends payable
in shares of the class or series upon which such dividends
are declared or paid, or payable in shares of common stock,
together with cash in lieu of fractional shares), unless
all dividends to which the holders of Class A Preferred
Stock shall have been entitled for all previous Dividend
Periods shall have been paid.
2. No Voting Rights. The holders of the Class A
Preferred Stock shall have no vote, except as expressly set forth
in Section 5 hereof, on any action to be taken by the
shareholders of the corporation.
3. Conversion. Other than as set forth in Section 1(b)
above, the holders of the Class A Preferred Stock shall have no
conversion rights.
4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or
involuntary, the holders of Class A Preferred Stock shall
be entitled to receive, prior and in preference to any
distribution of any of the assets (whether capital or
surplus) of the corporation to the holders of the
corporations common stock by reason of their ownership
thereof, the amount of $1,000.00 per share for each share
of Class A Preferred Stock then held by them and, in
addition, the cumulative amount of all dividends (and
interest, if any, thereon) accrued but unpaid thereon to
the date of final distribution to such holders. If upon
the occurrence of such event, the assets thus distributed
among the holders of the Class A Preferred Stock shall be
insufficient to permit the payment to such holders of the
full aforesaid preferential amount, then the entire assets
of the corporation legally available for distribution shall
be distributed among the holders of the Class A Preferred
Stock in proportion to the shares of Class A Preferred
Stock then held by them.
(b) In the event of a liquidation, dissolution or
winding up of the corporation (whether voluntary or
involuntary) resulting in the availability of assets other
than cash for distribution to the holders of Class A
Preferred Stock, the amount deemed distributed to such
holders shall be the cash or the value of the property,
rights or securities distributed to such holders by the
corporation or the acquiring corporation. The value of
such property, rights or other securities shall be
determined by the board of directors of the corporation
acting in good faith and with due care.
5. Redemption.
(a) The corporation may redeem all but no less than
all of the Class A Preferred Stock at any time after
October 15, 1994, by delivering written notice of
redemption to the holders of the Class A Preferred Stock.
(b) A majority of the holders of the Class A
Preferred Stock may require the corporation to redeem the
Class A Preferred Stock by written notice to the
corporation at any time after the earlier of the expiration
of the Distribution Agreement by and between the
corporation and Nishimoto Sangyo Company Ltd. dated
September 8, 1992 or upon the termination of such Agreement
by reason of the default of the corporation thereunder, or
in the event of a change of control of the corporation of a
nature which would be required to be reported in response
to Item 6(e) of Schedule 14A promulgated under the
Securities Exchange Act of 1934, as amended, if the
corporation were then subject to such reporting
requirements.
(c) The corporation shall redeem all Class A
Preferred Stock not previously redeemed on October 15,
2002.
(d) The redemption price shall be $1,000.00 per
share plus the cumulative amount of all dividends (and
interest, if any, thereon) accruing but unpaid with respect
to Class A Preferred Stock as described in Section 1 above.
Such redemption price shall be paid on the date of
redemption in the event of (i) a redemption at the option
of the corporation or (ii) the mandatory redemption
pursuant to paragraph (c) of this Section 5, and shall be
paid in three equal annual installments, commencing on the
date of redemption and continuing on the first two
anniversaries thereof, in the event of redemption at the
option of a majority of the holders of the Class A
Preferred Stock.
6. Covenants. In addition to any other rights provided
by law, so long as any Class A Preferred Stock shall be
outstanding, the corporation shall not, without first obtaining
the affirmative vote or written consent of the holders of not
less than a majority of such outstanding shares of Class A
Preferred Stock, voting separately as a class:
(a) Authorize or issue shares of any class of stock
having any preference or priority superior to or on a
parity with any such preference or priority of the Class A
Preferred Stock, or authorize or issue shares of stock of
any class or any bonds, debentures, notes or other
obligations convertible into or exchangeable for, or having
option rights to purchase, any shares of stock of the
corporation having any preference or priority superior to
or on a parity with any such preference or priority of
Class A Preferred Stock; or
(b) Reclassify any common stock into shares having
any preference or priority superior to or on a parity with
any such preference or priority of the Class A Preferred
Stock; or
(c) Amend, directly or indirectly, this Certificate
of Incorporation in any manner that would alter or change
the powers, preferences or special rights of the Class A
Preferred Stock.
7. Residual Rights. All rights accruing to the
outstanding shares of the corporation not expressly provided for
to the contrary herein shall be vested in the common stock.
8. Class B Preferred Stock. All Class B Preferred Stock
shall be blank check preferred stock, issuable in one or more
series. The term blank check preferred stock refers to stock for
which the designations, preferences, conversion rights,
cumulative, relative, participating, optional or other rights,
including voting rights (subject to the limitations described
below), qualifications, limitations or restrictions thereof
(collectively, the "Designations") are determined by the board of
directors of a company. Under this amendment, the Board of
Directors can authorize the issuance, at any time or from time to
time, of one or more series of Preferred Stock (subject to
approval of the holders of a majority of the issued and
outstanding Class A Preferred stock, and further stockholder
approval if required by law). In addition, the Board of Directors
would determine all designations, relative rights, preferences
and limitations of such stock, including but not limited to the
following: designation of series and numbers of shares; dividend
rights; rights upon liquidation or distribution of assets of the
Company; conversion or exchange rights; redemption provisions;
sinking fund provisions and voting rights; provided that the
holders of shares of Preferred Stock will not be entitled to more
than the greater of (i) one vote per $100 of liquidation value or
(ii) one vote per share when voting as a class with holders of
shares of capital stock generally, and will not be entitled to
vote separately as a class except where such class or series of
Preferred Stock is adversely affected. No holder of shares of
the Company will have any preemptive rights to acquire any
securities of the Company.
The Board of Directors is expressly authorized at any time to
adopt resolutions providing for the issuance of, or providing for
a change in the number of, shares of any particular series of
Class B Preferred Stock and, if and to the extent from time to
time required by law, to file a Certificate of Designations which
is effective without stockholder action to increase or decrease
the number of shares included in each series of Class B Preferred
Stock (but not to decrease the number of shares in any series
below the number of shares then issued), and to set or change in
any one or more respects the designations, preferences,
conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, or terms and
conditions of redemption relating to the shares of each series.
Notwithstanding the broad grant of authority described above to
issue one or more series of Class B Preferred Stock without
further stockholder approval, if any series of Class B Preferred
Stock will enjoy any preference or priority superior to, or on
parity with, any such preference or priority of Class A Preferred
Stock, or would have rights upon conversion or exchange into any
other securities of the Corporation prior or superior to, or on
parity with, the Class A Preferred Stock, the Corporation shall
obtain the approval of a Majority of the issued and outstanding
shares of Class A Preferred Stock, either present at a
stockholder's meeting or by written consent in lieu of a meeting,
before issuing any shares of such series.
5. The name and mailing address of each incorporator is as
follows:
NAME MAILING ADDRESS
D. A. Hampton Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
J. A. Grodzicki Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
S. J. Queppet Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized to
make, alter or repeal the bylaws of the corporation.
8. Elections of directors need not be by written ballot unless
the bylaws of the corporation shall so provide.
9. Meetings of stockholders may be held within or without the
State of Delaware, as the bylaws may provide.
10. The books of the corporation may be kept (subject to any
provision contained in the statutes) outside the State of Delaware at
such place or places as may be designated from time to time by the
board of directors or in the bylaws of the corporation.
11. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a
director of this corporation shall not be liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director.
12. The corporation reserves the right to amend, alter, change
or repeal any provision contained in this certificate of incorporation,
in the manner now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this
reservation.
The foregoing is certified to be a true and correct copy of the
Certificate of Incorporation of ADVA International, Inc., as amended,
as of October 17, 2000.
/s/Deborah Riente
Secretary
EXHIBIT 3.2
ADVA International Inc.
B Y - L A W S
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other
places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF
STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Columbia, State of South
Carolina, at such place as may be fixed from time to time by the board
of directors, or at such other place either within or without the State
of Delaware as shall be designated from time to time by the board of
directors and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and place,
within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the
year 1987, shall be held on the third Tuesday in September (May, 1987
Amendment)if not a legal holiday, and if a legal holiday, then on the
next secular day following, at 10:00 A. M., or at such other date and
time as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty
days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the
name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The
list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose
or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the president and shall
be called by the president or secretary at the request in writing of a
majority of the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of
the corporation issued and outstanding and entitled to vote. Such
request shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than sixty
days before the date of the meeting, to each stockholder entitled to
vote at such meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise
provided by statute or by the certificate of incorporation. If,
however, such quorum shall not be present or represented at any meeting
of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought before
such meeting, unless the question is one upon which by express
provision of the statutes or of the certificate of incorporation, a
different vote is required in which case such express provision shall
govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each
share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its
date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special
meeting of stockholders of the corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed
by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the
whole board shall be not less than three nor more than nine. The first
board shall consist of three directors. Thereafter, within the limits
above specified, the number of directors shall be determined by
resolution of the board of directors or by the stockholders at the
annual meeting. The directors shall be elected at the annual meeting of
the stockholders, except as provided in Section 2 of this Article, and
each director elected shall hold office until his successor is elected
and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen
shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced.
If there are no directors in office, then an election of directors may
be held in the manner provided by statute. If, at the time of filling
any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the
time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the
directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all
such power s of the corporation and do all such lawful acts and things
as are not by statute or by the certificate of incorporation or by
these by-laws directed or required to be exercised or done by the
stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State
of Delaware.
Section 5. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the
vote of the stockholders at the annual meeting and no notice of such
meeting shall be necessary to the newly elected directors in order
legally to constitute the meeting, provided a quorum shall be present.
In the event of the failure of the stockholders to fix the time or
place of such first meeting of the newly elected board of directors, or
in the event such meeting is not held at the time and place so fixed by
the stockholders, the meeting may be held at such time and place
as-shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in
a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to
time be determined by the board.
Section 7. Special meetings of the board may be called by the
president on two days' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the president
or secretary in like manner and on like notice on the written request
of two directors unless the board consists of only one director; in
which case special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of
the sole director.
Section 8. At all meetings of the board a majority of the
directors shall constitute a quorum for the transaction of business and
the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the certificate
of incorporation. If a quorum shall not be present at any meeting of
the board of directors the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be
taken at any meeting of the board of directors or of any committee
thereof may be taken without a meeting, if all members of the board or
committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the
board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or
any committee designated by the board of directors, may participate in
a meeting of the board of directors, or any committee, by means of
conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
such participation in a meeting shall constitute presence in person at
the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of
the board of directors, shall have and may exercise all the powers and
authority of the board of directors in the management of the business
and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to
amending the certificate of incorporation,(except that a committee may,
to the extent authorized in the resolution or resolutions providing for
the issuance of shares of stock adopted by the board of directors as
provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution
of assets of the corporation or the conversion into, or the exchange of
such shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the
corporation) adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the
corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance
of stock or to adopt a certificate of ownership and merger. Such
ccmmittee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of
directors.
Section 12. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the
authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the board
of directors and may be paid a fixed sum for attendance at each meeting
of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors
may be removed, with or without cause, by the holders of a majority of
shares entitled to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of
the certificate of incorporation or of these by-laws, notice is
required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his
address as it appears on the records of the corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice
to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of
these by-laws a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a
secretary and a treasurer. The board of directors may also choose
additional vice-presidents, and one or more assistant secretaries and
assistant treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws
otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers
and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office
until their successors are chosen and qualify. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the board of directors. Any vacancy
occurring in any office of the corporation shall be filled by the board
of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of
the corporation, shall preside at all meetings of the stockholders and
the board of directors, shall have general and active management of the
business of the corporation and shall see that all orders and
resolutions of the board of directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly
delegated by the board of directors to some other officer or agent of
the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there
be more than one vice-president, the vice-presidents in the order
designated by the directors, or in the absence of any designation, then
in the order of their election) shall perform the duties of the
president, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. The vice-presidents
shall perform such other duties and have such other powers as the board
of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board
of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of
directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or
cause to be given, notice of all meetings of the stockholders and
special meetings of the board of directors, and shall perform such
other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody
of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature
or by the signature of such assistant secretary. The board of directors
may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than
one, the assistant secretaries in the order determined by the board of
directors (or if there be no such determination, then in the order of
their election) shall, in the absence of the secretary or in the event
of his inability or refusal to act, perform the duties and exercise the
powers of the secretary and shall perform such other duties and have
such other powers as the board of directors may from time to time
prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to
the credit of the corporation in such depositories as may be designated
by the board of directors.
Section 12. He shall disburse the funds of the corporation as may
be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of
directors, at its regular meetings, or when the board of directors so
requires, an account of all his transactions as treasurer and of the
financial condition of the corporation.
Section 13. If required by the board of directors, he shall give
the corporation a bond (which shall be renewed every six years) in such
sum and with such surety or sureties as shall be satisfactory to the
board of directors for the faithful performance of the duties of his
office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the board
of directors (or if there be no such determination, then in the order
of their election) shall, in the absence of the treasurer or in the
event of his inability or refusal to act, perform the duties and
exercise the powers of the treasurer and shall perform such other
duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
a certificate or shall be uncertificated. Certificates shall be signed
by, or in the name of the corporation by, the chairman or vice-chairman
of the board of directors, or the president or a vice-president and the
treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered
owner thereof a written notice containing the information required to
be set forth or stated on certificates pursuant to Sections 151, 156,
202(a) or 218(a) or a statement that the corporation will furnish
without charge to each stockholder who so requests the powers,
designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any
certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock
to be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates or uncertificated shares, the board of
directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority
to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its books. Upon receipt of proper
transfer instructions from the registered owner of uncertificated
shares such uncertificated shares shall be cancelled and issuance of
new equivalent uncertificated shares or certificated shares shall be
made to the person entitled thereto and the transaction shall be
recorded upon the books of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other
action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting: provided, however, that the board of directors may fix
a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of
shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of
any other person, 'whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any,
may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property,
or in shares of the capital stock, subject to the provisions of the
certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside
out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of
the corporation, or for such other purpose as the directors shall think
conducive to the interest of the corporation, and the directors may
modify or abolish any such reserve in the manner in which it was
created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business
and condition of the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other
person or persons as the board of directors may from time to time
designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or
otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers,
directors, employees and agents to the extent permitted by the General
Corporation Law of Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or
new by-laws may be adopted by the stockholders or by the board of
directors, when such power is conferred upon the board of directors by
the certificate of incorporation at any regular meeting of the
stockholders or of the board of directors or at any special meeting of
the stockholders or of the board of directors if notice of such
alteration, amendment, repeal or adoption of new by-laws be contained
in the notice of such special meeting. If the power to adopt, amend or
repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of
the stockholders to adopt, amend or repeal by-laws.
EXHIBIT 4.1
(Front)
ADVA International Inc.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
NUMBER SHARES
AD
COMMON STOCK
CUSIP 00100W 10 8
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS
CERTIFIES
THAT
is the
owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF THE PAR VALUE
OF $.001 EACH OF
=======================ADVA International Inc.======================
transferable on the books of the Corporation by the holder hereof in
person or by duly authorized attorney upon surrender of the Certificate
properly endorsed. This Certificate and the shares represented hereby
are issued and shall be subject to all the provisions of the Articles
of Incorporation of the Corporation, as now or hereafter amended, to
all of which the holder hereof by acceptance hereof assents. This
Certificate is not valid unless countersigned by the Transfer Agent.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
DATED:
COUNTERSIGNED BY:
VALLEY FORGE SOFTWARE CORP.
TRANSFER AGENT
ADVA International Inc.
CORPORATE SEAL
1986 AUTHORIZED SIGNATURE
DELAWARE
SECRETARY PRESIDENT
(Back)
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - .....Custodian.....
(Cust) (Minor)
under Uniform Gifts to Minors
Act........
(State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
shares
of the capital stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint
Attorney to transfer the said stock on the
books of the within named Corporation with full power of substitution
in the premises.
Dated:
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
EXHIBIT 10.1
ADVANCED MEDICAL PRODUCTS INC.
AMENDED AND RESTATED
STOCK OPTION PLAN
1. PURPOSE OF THE PLAN
The purpose of the Advanced Medical Products Inc. Stock Option
Plan is to provide a method by which those directors and employees of
the Company who are largely responsible for the management, growth and
protection of the Company's business, and who are making and can
continue to make substantial contributions to the success of such
business, may be encouraged to acquire a larger stock ownership in the
Company, thus increasing their proprietary interest in the Company,
increasing their incentive to continue their service to and employment
with the Company, and promoting the interests of the Company and all
its stockholders. Accordingly, the Company will from time to time
during the term of the Plan grant to such employees as may be selected
in the manner provided in the Plan Options to purchase shares of Common
Stock of the Company subject to the conditions hereinafter provided.
2. DEFINITIONS
Unless the context clearly indicates otherwise, the following
terms have the meanings set forth below.
"Board of Directors" or "Board" means the Board of Directors of
Advanced Medical Products Inc..
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Stock Option Committee of the Board of
Directors.
"Common Stock" means the common stock of Advanced Medical
Products Inc., $ .01 par value.
"Company" means Advanced Medical Products Inc.
"Director" means a member of the Board of Directors of Advanced
Medical Products Inc.
"Grant Date" as used with respect to a particular Option, means
the date as of which such Option is granted by the Committee pursuant
to the Plan.
"Incentive Stock Option" means an Option that qualifies as an
Incentive Stock Option as described in Section 422 of the Code.
"Nonqualified Stock Option" means any Option other than an
Incentive Stock Option.
"Option" means the right, granted by the Committee pursuant to
Section 5 below, to purchase shares of Common Stock. An Option shall
be designated as either an "Incentive Stock Option" or a "Nonqualified
Stock Option."
"Optionee" means an individual to whom an Option is granted by
the Committee pursuant to the Plan.
"Plan" means this Advanced Medical Products Inc. Stock Option
Plan as it may be amended from time to time.
"Total and Permanent Disability" as applied to an Optionee, means
that the Optionee: (i) has established to the satisfaction of the
Committee that the Optionee is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less
than 12 months (all within the meaning of Section 22(e)(3) of the
Code); and (ii) has satisfied any other requirement imposed by the
Committee.
3. ADMINISTRATION OF THE PLAN
The Plan shall be administered by a Committee composed of two or
more members who are appointed by the Board of Directors from its
membership. No director shall be appointed as a member of the
Committee who has, within the twelve months preceeding such
appointment, been granted an option pursuant to the Plan or any other
employee benefit plan of the Company. The Board may from time to time
remove members from, or add members to, the Committee. Vacancies on
the Committee, however caused, shall be filled by the Board. The Board
shall select one of the Committee's members as Chairman. The Committee
shall hold meetings at such times and places it may determine, subject
to such rules as to procedures not inconsistent with the provisions of
the Plan as are prescribed by the Board, set out in the By-Laws of the
Company, or prescribed by the Committee itself. A majority of the
number of members of the Committee then serving shall constitute a
quorum for the transaction of business. Acts reduced to or approved in
writing by a majority of the members of the Committee then serving
shall be the valid acts of the Committee. A member of the Committee
shall be eligible to be granted Options only under Section 5(b) of this
Plan while a member of the Committee.
The Committee shall be vested with full authority to make such rules
and regulations as it deems necessary or desirable to administer the
Plan and to interpret its provisions. Any determination, decision or
action of the Committee in connection with the construction,
interpretation, administration or application of the Plan shall be
final, conclusive and binding upon all Optionees and any person
claiming under or through an Optionee, unless otherwise determined by
the Board.
Any determination, decision or action of the Committee provided
for in the Plan may be made or taken by action of the Board if it so
determines, with the same force and effect as if such determination,
decision or action had been made or taken by the Committee. No member
of the Committee or of the Board shall be liable for any determination,
decision or action made in good faith with respect to the Plan or any
Option. The fact that a Director shall at the time be, or shall
theretofore have been or thereafter may be, a person who has received
or is eligible to receive an Option shall not disqualify such person
from taking part in and voting at any time as a member of the Board in
favor of or against any amendment or repeal of the Plan.
4. STOCK SUBJECT TO THE PLAN
(a) The stock to be issued upon exercise of Options shall be
the Company's Common Stock, which shall be made available, at the
discretion of the Board, either from authorized but unissued Common
Stock or from Common Stock reacquired by the Company, including shares
purchased in the open market. The aggregate number of shares of Common
Stock which may issued under or subject to Options granted under this
Plan shall not exceed 750,000 shares. The limitation established by
the preceding sentence shall be subject to adjustment as provided in
Section 16 below.
(b) In the event that any outstanding Option or portion thereof
under the Plan for any reason expires or is terminated, the shares of
Common Stock allocable to the unexercised portion of such Option may
again be made subject to Option under the Plan.
5. GRANT OF OPTIONS
(a) The Committee may from time to time, subject to the
provisions of the Plan, grant Options to employees of the Company
chosen by the Committee to purchase shares of Common Stock allotted in
accordance with Section 4 above. The Committee may designate any such
Option as either an Incentive Stock Option or a Nonqualified Stock
Option, or the Committee may designate a portion of such Option as an
Incentive Stock Option and the remaining portion as a Nonqualified
Stock Option. No member of the Committee shall be eligible to be
granted Options under this Section 5(a) while a member of the
Committee.
(d) An Option for 150,000 shares of Common Stock
shall be
granted to Clarence P. Groff, the President of the Company and an
Option for 75,000 shares of Common Stock shall be granted to James H.
Brown, the Vice President of the Company at a meeting of the Committee
to be held on December 18, 1992. Such Options shall be exercisable
based upon the following revenue growth formula: for every one percent
of growth in the gross revenues of the Company above ten percent from
the previous fiscal year of the Company, options for 1,000 shares shall
become exercisable by Mr. Groff, and options for 500 shares shall
become exercisable by Mr. Brown, up to a maximum of options for 30,000
shares exercisable by Mr. Groff and 15,000 shares exercisable for Mr.
Brown in the event of revenue growth of forty percent or more. Such
options shall become exercisable upon the publication of the Company's
audited financial statements for the applicable fiscal year, and shall
be subject to the termination provisions of Sections 10, II and 12 of
the Plan.
6. OPTION PRICE
The purchase price per share of each share of Common Stock which
is subject to an Option shall be not less than 100 percent of the fair
market value (as determined below) of a share of Common Stock on the
Grant Date, except that the purchase price per share shall be not less
than 110 percent of such fair market value in the case of an Incentive
Stock Option granted to an individual described in Section 7(b) of the
Plan. For purposes of the Plan, the fair market value of a share of
Common Stock shall be equal to the fair market value of a share of
Stock as reported for trading on the national securities exchange on
which the Common Stock may be principally traded) on the Grant Date.
The market value shall be the highest closing price of Common Stock on
such stock exchange or exchanges on the Grant Date or, in the event
that no sale of Common Stock has been made on any stock exchange on
that day, the fair market value shall be determined by reference to
such price for the next preceding day on which a sale occurred. During
such time as Common Stock is not listed on a national securities
exchange, fair market value per share shall be the mean between the
closing dealer "bid" and "ask" prices for Common Stock, as quoted by
NASDAQ for the Grant Date, and if no "bid" and "ask" prices are quoted
for the Grant Date, the fair market value shall be determined by
reference to such prices on the next preceding day on which such prices
were quoted. In the event that Common Stock is not traded on a
national securities stock exchange, and no closing dealer "bid" and
"ask" prices are available, then the fair market value of one share of
Common Stock on the Grant Date shall be determined by the Committee in
good faith. The purchase price shall be subject to adjustment only as
provided in Section 16 below.
7. ELIGIBILITY OF OPTIONEES: JURISDICTION OF COMMITTEE
(a) Options shall be granted only to persons who are employees
of the Company, as selected by the Committee and subject to the
provisions of the Plan.
(b) Any other provision of the Plan notwithstanding, an
individual who owns more than ten percent of the total combined voting
power of all classes of outstanding stock of the Company shall not be
eligible for the grant of an Incentive Stock Option unless the special
requirements set forth in Sections 6 and 10(a) of the Plan are
satisfied. For purposes of this Section 7(b), in determining stock
ownership, an individual shall be considered as owning the stock owned,
directly or indirectly, by or for such individual's brothers and
sisters (including half brothers and half sisters), spouse, ancestors
and lineal descendants. Stock owned, directly or indirectly, by or for
a corporation, partnership, estate or trust shall be considered as
being owned proportionately by or for its shareholders, partners or
beneficiaries. Stock with respect to which such individual holds an
option shall not be counted. "Outstanding stock" shall include all
stock actually issued and outstanding immediately after the grant of
the Incentive Stock Option. "Outstanding stock" shall not include
shares authorized for issue under outstanding options held by the
Optionee or by any other person.
(c) Subject to the terms, provisions and conditions of the Plan
and subject to review by the Board, the Committee shall have exclusive
jurisdiction (i) to select the individuals to be granted Options (it
being understood that more than one Option may be granted to the same
individual), (ii) to determine the number of shares subject to each
Option, (iii) to determine the Grant Date or Dates, (iv) to determine
the purchase price of the shares of Common Stock subject to each Option
in accordance with Section 6 of the Plan, (v) to determine the date or
dates when each Option may be exercised within the term of the Option
specified pursuant to Section 10 of the Plan, (vi) to determine whether
or not an Option constitutes an Incentive Stock Option and (vii) to
prescribe the form of the documents evidencing any Options, which
documents may include provisions imposing additional restrictions or
limitations on the rights of Optionees but which shall be consistent
with the Plan.
8. NO RIGHT TO CONTINUE AS EMPLOYEE
Neither anything contained in the Plan or in any document under
the Plan nor the grant of any Option under the Plan shall confer upon
any Optionee any right to continue as a director or employee of the
Company or limit in any respect the right of the Company's
stockholders, Directors or management to terminate the Optionee's
directorship or employment at any time and for any reason.
9. NON-TRANSFERABILITY OF OPTIONS
No Option shall be assignable or transferable by the Optionee
other than by will or the laws of descent and distribution. During the
lifetime of an Optionee the Option shall be exercisable only by such
Optionee.
10. TERM AND EXERCISE OF OPTIONS
(a) Each Option shall terminate on the date determined by the
Committee; provided, however, that each Incentive Stock Option granted
to an individual described in Section 7(b) of the Plan shall terminate
not later than five years after its Grant Date, and each other Option
shall terminate not later than ten years after its Grant Date. The
Committee at its discretion may provide further limitations on the
exercisability of Options. An Option may be exercised only during the
continuance of the Optionee's employment, except as provided in
Sections 11 and 12 of the Plan.
(b) A person electing to exercise an Option shall give written
notice to the Company of such election and of the number of shares of
Common Stock such person has elected to purchase, in such forms as the
Committee shall have prescribed or approved, and shall at the time of
exercise tender the full purchase price of such shares which such
person has elected to purchase. The purchase price shall be paid in
full in cash upon the exercise of the Option; provided, however, that
in lieu of cash, with the approval of the Committee at or prior to
exercise, a person exercising an Option may exercise such Option by
tendering to the Company shares of Common Stock owned by such person
and having a fair market value equal to the cash exercise price
applicable to the Option being exercised, with the then fair market
value of such stock to be determined in the same manner as provided in
Section 6 above with respect to the determination of the fair market
value of Common Stock on the Grant Date.
(c) Neither any Optionee nor any person claiming under or
through an Optionee shall have any rights as a stockholder with respect
to any shares covered by such Option until the date the stock
certificate is issued evidencing ownership of the shares. No
adjustments shall be made for dividends (ordinary or extraordinary),
whether in cash, securities or other property, or distributions or
other rights, for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 15 below.
(d) A person may, in accordance with the other provisions of
the Plan, elect to exercise Options in any order, notwithstanding the
fact that Options granted to such person prior to the grant of Options
selected for exercise are unexpired.
(e) The aggregate fair market value (determined on the Grant
Date) of the stock with respect to which Incentive Stock Options are
exercisable for the first time by an Optionee during any calendar year
shall not exceed $100,000.
11. TERMINATION OF EMPLOYMENT
If an Optionee's employment with the Company ceases for any
reason, any Option granted to such Optionee under the Plan shall
terminate, and all rights under the Option shall cease, in accordance
with rules adopted by the Committee. In any event:
(a) In the case of an Incentive Stock Option held by an
Optionee who is not permanently and totally disabled (within the
meaning of Section 22(e)(3) of the Code), such Incentive Stock Option
shall, except as provided in Section 12 below, terminate no more than
three months after the termination of employment.
(b) In the case of an Incentive Stock Option held by an
Optionee who is permanently and totally disabled (within the meaning of
Section 22(e)(3) of the Code), such Incentive Stock Option shall
terminate twelve months after the termination of employment.
(c) In the case of a Nonqualified Stock Option, if the
Committee has not adopted an applicable rule concerning such
termination, such Nonqualified Stock Options shall terminate on the
termination of employment.
(d) The foregoing notwithstanding, no Option shall be
exercisable after its expiration date.
(e) All Options shall provide that in the case of the exercise
of an Option, the Common Stock so purchased shall be redeemable by the
Company at the option price thereof in the event of the termination of
employment of such Optionee/purchaser for any reason within one year
after the exercise of such Option.
Whether an unauthorized leave of absence or an absence for
military or governmental service shall constitute termination of
employment, for the purposes of the Plan, shall be determined by the
Committee, which determination shall be final, conclusive and binding
on the affected Optionee and any other person claiming under or through
such Optionee.
12. DEATH OF OPTIONEE
If an Optionee dies while in the employ of the Company or after
cessation of such employment but within the period during which such
Optionee could have exercised an Option under Section 10 above, then
such Option may be exercised by the executors or administrators of the
Optionee's estate, or by any person or persons who have acquired the
Option directly from the Optionee by bequest or inheritance, within a
period prescribed by the Committee after the Optionee's death, at the
end of which period such Option shall terminate, except that no Option
shall be exercisable after its expiration date.
13. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS
Subject to the terms and conditions and within the limitations of the
Plan, the Committee may modify, extend or renew outstanding Options or
accept the surrender of outstanding Options (to the extent not
theretofore exercised) and grant new Options in substitution therefor.
Without limiting the generality of the foregoing, the Committee may
grant to an Optionee, if such Optionee is otherwise eligible and
consents thereto, a new or modified Option in lieu of an outstanding
Option for a number of shares, at an exercise price and for a term
which are greater or lesser than under the earlier Option, or may do so
by cancellation and regrant, amendment, substitution or otherwise,
subject only to the general limitations and conditions of the Plan.
The foregoing notwithstanding, no modification of an Option shall,
without the consent of the Optionee, alter or impair any rights or
obligations under any Option theretofore granted under the Plan.
14. PERIOD IN WHICH OPTIONS MAY BE GRANTED
Options may be granted pursuant to the Plan at any time on or before
the tenth anniversary of the effective date of the Plan.
15. AMENDMENT OR TERMINATION OF THE PLAN
The Board may at any time terminate, amend, modify or suspend the
Plan; provided, however, that:
(a) Without the approval of the stockholders of the Company, no
amendment or modification shall be made by the Board which (i)
increases the maximum number of shares as to which Options may be
granted under the Plan, (ii) alters the method by which the option
price is determined, (iii) extends any Option for a period longer than
10 years after its Grant Date, (iv) materially modifies the
requirements as to eligibility for participation in the Plan, or (v)
alters this Section 15 so as to defeat its purpose;
(b) Neither Section 5(b) of the Plan, establishing a formula
plan for the grant of Options to officers and directors of the Company,
nor other sections of the Plan referenced therein, shall be amended at
intervals more frequent than once every six months except to the extent
necessary to comport with changes in the Code, the Employee Retirement
Income Security Act, or the rules thereunder, or except as permitted
(without invalidating such formula plan) by, and as may be required to
comply with, Rule 16b-3 as adopted from time to time by the Securities
and Exchange Commission;
(c) No amendment, modification, suspension or termination of
the Plan shall in any manner affect any Option theretofore granted
under the Plan without the consent of the Optionee or any person
validly claiming under or through the Optionee.
16. CHANGES IN CAPITALIZATION
(a) In the event that the shares of Common Stock, as presently
constituted, shall be changed into or exchanged for a different number
or kind of shares of stock or other securities of the Company or of
another corporation (whether by reason of merger, consolidation,
recapitalization, reclassification, stock dividend, stock split,
combination of shares or otherwise) or if the number of such shares of
Common Stock shall be increased through the payment of a stock
dividend, then, subject to the provisions of Section 16(c) below, there
shall be substituted for or added to each share of Common Stock which
was theretofore appropriated, or which thereafter may become subject to
an Option under the Plan, the number and kind of shares of stock or
other securities into which each outstanding share of the Common Stock
shall be exchanged or for which each such share shall be exchanged or
to which each such share shall be entitled, as the case may be.
Outstanding Options shall also be appropriately amended as to price and
other terms, as may be necessary to reflect the foregoing events.
(b) If there shall be any other change in the number or kind of
the outstanding shares of the Common Stock, or of any stock or other
securities into which such Common Stock shall have been changed, or for
which it shall have been changed, and if the Board or the Committee (as
the case may be), shall in its sole discretion, determine that such
change equitably requires an adjustment in any Option which was
theretofore granted or which may thereafter be granted under the Plan,
then such adjustment shall be made in accordance with such
determination.
(c) A merger or consolidation in which the Company is not the
surviving corporation shall entitle the Committee or the surviving
corporation to assume and continue any or all Options or substitute its
own options for any or all outstanding Options. In either event, the
Board or the Committee shall have the right to accelerate the time
within which the Option may be exercised.
(d) Fractional shares resulting from any adjustment in Options
pursuant to this Section 16 may be settled as the Board or the
Committee (as the case may be) shall determine.
(e) To the extent that the foregoing adjustments relate to
stock or securities of the Company such adjustments shall be made by
the Committee, whose determination in that respect shall be final,
binding and conclusive. Notice of any adjustment shall be given by the
Company to each holder of an Option which shall have been so adjusted.
(f) The grant of an Option shall not affect in any way the
right or power of the Company to make adjustments, reclassification,
reorganizations or changes of its capital or business structure, to
merge, to consolidate, to dissolve, to liquidate or to sell or transfer
all or any part of its business or assets.
17. LISTING AND REGISTRATION OF SHARES
(a) No Option shall be exercisable in whole or in part if at
any time the Board or the Committee shall determine in its discretion
that the listing, registration or qualification of the shares of Common
Stock subject to such Option on any securities exchange or under any
applicable law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such Option or the issue of shares
thereunder, unless such listing, registration, qualification, consent
or approval shall have been effected or obtained free of any conditions
not acceptable to the Board.
(b) If a registration statement under the Securities Act of
1933 with respect to the shares issuable upon exercise of any Option is
not in effect at the time of exercise, as a condition of the issuance
of the shares the person exercising such Option shall give the
Committee a written statement, satisfactory in form and substance to
the Committee, that he or she is acquiring the shares for such person's
own account for investment and not with a view to their disposition.
The Company may place upon any stock certificate for shares issuable
upon exercise of such Option the following legend or such legend as the
Committee may prescribe to prevent disposition of the shares in
violation of the Securities Act 1933 or other applicable law:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 ("ACT") AND MAY NOT
BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT WITH RESPECT TO THEM UNDER THE ACT OR A WRITTEN OPINION
OF COUNSEL FOR ADVANCED MEDICAL PRODUCTS INC. THAT REGISTRATION
IS NOT REQUIRED.
18. PLAN EFFECTIVE DATE
This Plan was originally adopted by the Board of Directors and
approved by the stockholders of the Company on January 26, 1987, and
was subsequently amended and became effective as amended upon the
approval of the stockholders of the Company, on April 9, 1987. This
Amended and Restated Plan was adopted by the Board of Directors on
November 6, 1992, and was approved by the Company's stockholders at the
Annual Meeting of Stockholders held on December 16, 1992. The
effective date of the Plan is November 6, 1992.
Unless sooner terminated by the Board, the Plan will terminate
ten years from its effective date and no Options may be granted under
the Plan after such termination date.
EXHIBIT 10.2
AMENDMENT TO LEASE
BETWEEN T& LA PARTNERSHIP (T&L) AND
ADVANCED MEDICAL PRODUCTS (AMP), INC.
This Amendment to the original Lease Agreement, signed by T & L
and AMP on August 24, 1996, is an agreement for AMP to pay one-half the
agreed upon monthly rental fee for a period not to exceed six (6)
months, beginning with the February 1999 payment and terminating with
the July 1999 payment. All other terms and conditions of the Lease
remain in effect, except as modified as follows:
It is mutually agreed between T & L and AMP that the conditions
of this one-half monthly rental payment will be:
A. AMP is responsible for payment of the monthly rental payments
which wilin arrears (hereinafter referred to as "Back Rent"). There
will be no penalties or interest accrued or due of the Back Rent as
long as agre4 upon terms are met.
B. AMP agrees that all Back Rent (being the difference between
the monthly rental fee schedule as shown on Exhibit "B", Item 3, of the
original lease agreement and the one-half monthly rental agreed upon
with this Amendment will be due and payable, at the option of AMP, in
one of the follows manners:
B. 1. On 31 July 1999, or
B.2. Twelve equal monthly installments, beginning August 1999 and
terminating with the July 2000 payment.
C. AMP agrees that their right to pay one half of the monthly
lease payment ends with the July 1999 payment and that beginning August
1999 the full amount of the lease payment is due and owing in
accordance with the terms and conditions of the original Lease
Agreement unless an additional Amendment to Lease had been approved by
both T & LA Partnership and AMP prior to August 1, 1999.
D. As a condition of this Amendment to Lease, AMP agrees that
until August 1, 1999 (or such other later date as both parties agree
to) T & L has the right enter into a separate Lease Agreement with a
third party to lease substantially all of the upper floor of the
building, (not including the kitchen and two room adjacent to the
kitchen), to another tenant who will pay monthly rent directly to T &
L. AMP has a "right of refusal" based on suitability of the tenant,
which shall not be unreasonably exercised by AMP, prior to T & L
signing such Lease Agreement with a third party. Any amount received by
T & L from such Lease Agreement with a third party shall reduce the
monthly rental obligations of AMP dollar for dollar until expiration of
the original Lease Agreement. Should T & L lease the upper floor to a
tenant requiring leasehold improvements to the building, including but
not limited to building access or building security, such leasehold
improvements shall be the sole responsibility of T & L and the new
tenant. If AMP requires leasehold improvements to make its remaining
portion more suitable, AMP shall have the right to make such
improvements at its own expense.
If in the process of seeking a tenant for the upper floor of the
building, T & L secures an agreement to lease the entire building for a
period that exceed the remaining time on AMP's Lease Agreement, AMP
agrees to diligently seek other suitable space and vacate 6 Woodcross
Dr. as soon as practicable following notice of a signed Lease Agreement
with a new tenant.
E. As an additional condition of this Amendment to Lease, AMP
agrees that T& L has the right to offer the building at 6 Woodcross
Drive for sale, and to transfer the original Lease Agreement and the
Amendment to Lease to a financial purchaser. In the event the purchaser
occupies the building and requires occupancy of the ground floor as a
condition of the purchase, AMP agrees to negotiate a termination of the
Lease Agreement as long as at least ninety (90) days notice is provided
for AMP to relocate. AMP will be responsible for monthly rental fees
until the building has been vacated by AMP.
T & LA PARTNERSHIP
By: /s/Gary Traywick
Gary Traywick, President
ADVANCED MEDICAL PRODUCTS, INC.
By: /s/George L. Down
George L. Down, President
EXHIBIT 10.3
Focus Tech Investments, Inc.
CONSULTING AGREEMENT
FEBRUARY 5, 2000
THIS CONSULTING AGREEMENT (this "Agreement") is entered into
as of February 5, 2000 by and between Advanced Medical Products, Inc.,
a Delaware corporation, ("ADVA" or the "Company"), Ronald G. Moyer,
George L. Down, Roger Griffis, and L. John Ankney, (the Committee) and
Focus Tech Investments, Inc. (FTII).
RECITALS:
A. ADVA is a public company whose Common Stock, with a par value
of $.001 per share, is quoted on the OTC Bulletin Board.
Advanced Medical Products Inc. ("Advanced Medical", the
"Registrant" or the "Company"),
B. ADVA requires expertise in corporate restructuring, mergers,
and acquisitions to support the Company's pursuit of
opportunities to merge a private company into Advanced Medical
Products, Inc., a Bulletin Board traded public shell, and wishes
to engage FTII on a nonexclusive basis as independent contractors
to provide advisory services.
C. The Parties wish to set forth the terms of their relationship
pursuant to the terms of this Agreement - specifically, to
establish a Company Consulting relationship for purposes of state
and federal law;
NOW, THEREFORE, it is mutually agreed by and between the
parties as follows:
1. ENGAGEMENT. ADVA hereby retains and engages FTII to consult with and
advise ADVA with respect to the activities described in more detail in
Section 2 below (the "Consulting Services"), and FTII agrees to perform
the Consulting Services subject to the terms and conditions of this
Agreement. FTII agrees to work for ADVA as a consultant and not as an
employee, as that term is understood for federal and state law
purposes. Accordingly, FTII understands it is responsible for payment
of all taxes arising out of these activities, including, but not
limited to, federal and state income tax, Social Security tax,
unemployment insurance taxes and any other business license fees as
required. FTII is also responsible for any workers' compensation
arrangements and payments required by applicable law.
2. CONSULTING SERVICES. The consulting services contemplated by this
Agreement (the "Consulting Services") shall consist of FTII providing
advice and counsel regarding ADVA's Board's decision that it is in the
best interest of all of the stockholders of ADVA to pursue
opportunities to merge a private company into ADVA, a Bulletin Board
traded public shell, to negotiate a suitable transaction with
interested parties, and to make certain changes in the corporate
structure to accommodate such a "reverse merger". FTII shall consult
with the "Committee" appointed for the purpose of seeking potential
reverse merger candidates or technology or business partners, reviewing
available information, negotiating terms of a stock sale and merger, or
terms of a stock sale, and presenting recommendations to the Board for
approval; in addition, FTII will seek opportunities and pursue
negotiations with potential alliances and partners, merger/acquisition
candidates, joint ventures, corporate partners, technology partners,
and others, excluding financial and financially related transactions
and any activities related to capital formation.
3. BEST EFFORTS. FTII shall devote such time and best efforts to the
affairs of ADVA as is reasonable and adequate to render the consulting
services contemplated by this agreement. FTII is not responsible for
the performance of any services which may be rendered hereunder without
ADVA providing the necessary information in writing prior thereto, nor
shall FTII include any services that constitute the rendering of any
legal opinions or performance of work that is in the ordinary purview
of a Certified Public Accountant or an attorney. It is understood that
a portion of the compensation to be paid hereunder is being paid by
ADVA to have FTII remain available to assist with transactions on an
as-needed basis.
4. DUTIES EXPRESSLY EXCLUDED. This Agreement expressly excludes FTII
from providing any and all capital formation and/or public relations
services to the Company inclusive of, but not limited to: (i) direct or
indirect promotion of, or maintaining of a market in, the Company's
securities; (ii) assistance in obtaining debt and/or equity financing
or any other capital-raising transactions; or (iii) investor relations
or shareholder communications services.
5. FEES. FTII has agreed to accept all compensation earned in the
consulting agreement in common stock of ADVA. FTII considered the
following in determining its fees: the limited cash resources of the
Company, the estimated time required to diligently perform the services
agreed during the term of this agreement, the limited trading activity
of the Company's common stock, the average trading price and volume of
the common stock during the last 6 months, the risk that ADVA may be
unable to attract a viable merger partner, the negative disclosure
requirements required because of the Company's recent Chapter 11
reorganization, and the "going concern value" as stated by the
Company's auditors. FTII has agreed to bill its estimated time and
expense at the rate of $250.00 per hour, billed at the estimated value
of ADVA's common stock. The principals of FTII have extensive
experience in dealing with micro-cap public companies and estimate the
value for compensation purposes of ADVA common stock to be $0.65 per
share. ADVA and FTII agree that for compensation purposes the
estimated value of the services performed by FTII in this agreement
will be $39,000. In consideration of the performance by FTII of the
Consulting Services, ADVA and FTII agree to 60,000 shares of ADVA's
Common Stock (the "Shares"). The Shares will be issued as soon as
practicable following execution of this Agreement and the filing of a
registration statement under the Securities Act of 1933, as amended, on
Form S-8 covering the original issuance of such Shares.
6. EXPENSES. FTII shall bear it's own out-of-pocket costs and expenses
incident to performing the Consulting Services, without a right of
reimbursement by ADVA.
7. TERM. The term of this Agreement is one year, commencing on the date
hereof, and shall continue for one year unless terminated sooner, by
either party, upon giving to the other party five (5) days written
notice, after which time this Agreement is terminated.
8. COMPANY'S LIABILITY. FTII agrees to defend, indemnify, and hold the
Company and its officers, directors, employees and shareholders
harmless from and against any and all reasonable costs, expenses and
liability (including reasonable attorneys' fees paid in defense of the
Company and/or its officers, directors, employees and/or shareholders)
which may in any way result pursuant to his gross negligence or willful
misconduct or in any connection with any actions taken or omissions or
statements made without the prior approval or authorization of the
Company or which are otherwise in violation of applicable law.
9. FTII's REPRESENTATIONS. FTII make the following representations:
a. The Consultants have no prior or existing legally binding
obligations that are in conflict with their entering into this
Agreement;
b. FTII shall not offer or make payment of any consideration to
brokers, dealers, or others for purposes of inducing the purchase,
making of a market or recommendation for the purchase of the
Company's securities;
c. FTII's activities and operations fully comply with now and will
comply with in the future all applicable state and federal
securities laws and regulations;
d. FTII understands that, as a result of their services, they may come
to possess material non-public information about the Company, and
they will take steps to reasonably insure that neither they nor any
of their affiliates trade in the securities of the Company while in
possession of material non-public information.
10. COMPANY REPRESENTATIONS. The Company makes the following
representations:
a. The Company is in good standing in under the laws of the State of
Delaware.
b. The issuance of the Shares has been authorized by ADVA's Board of
Directors and, when issued, will be fully paid and non-assessable.
11. ENTIRETY OF AGREEMENT. This Agreement sets forth the entire
understanding of the parties with respect to the matters contemplated
hereby. Any and all previous agreements and understandings between or
among the parties of any kind, whether written or oral, are superseded
by this Agreement. This Agreement shall not be amended or modified
except by written instrument duly executed by each of the parties.
Agreed:
_/s/Ronald G. Moyer______ /s/Michael Fearnow_________
Ron Moyer (CEO) Michael Fearnow, (President)
Advanced Medical Products, Inc. Focus Tech Investments, Inc.
6 Woodcross Drive 179 Ruskin Dr.
Columbia, SC 29212 Montgomery, TX 77356
EXHIBIT 99.4
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF SOUTH CAROLINA
In re: )
) Case No. 99-02548-W
Advanced Medical Products, Inc., )
) Chapter 11
Debtor. )
)
ORDER AUTHORIZING MODIFICATION OF CONFIRMED PLAN
This matter came before the Court upon the Motion to Revise
Certain Language of Confirmed Plan and to Modify Confirmed Plan to
Delete Dissolution and Cancellation of Stock Language; and Motion for
an Expedited Hearing on this Matter ("Motion") filed on April 20, 2000
by Advanced Medical Products, Inc. ("AMP"), now known as ADVA
International, Inc. ("ADVA"), the debtor-in-possession in this case.
In the Motion, ADVA seeks authorization to modify its confirmed plan to
delete language stating that AMP will be dissolved and the stock of its
shareholders extinguished, and to insert provisions stating that the
corporation shall continue is existence, and that the shares of its
stock shall remain valid. ADVA states that this modification of the
confirmed plan is necessary to enable ADVA to enter into a transaction
which will result in a substantial payment to unsecured creditors who
otherwise would receive no payment. Following notice to the creditors,
shareholders and parties in interests in this case, the Court conducted
a hearing on the Motion on May 2, 2000.
This case was previously closed by the entry of the Final Decree
Closing Case ("Final Decree") on November 10, 1999. ADVA filed a
motion to reopen the case on April 14, 2000, for the purpose of seeking
modification of the plan of reorganization confirmed by the Order of
Confirmation entered on June 29, 1999 (the "confirmed plan"), as set
forth in the Motion. The Court entered its Order on April 18, 2000
granting the motion to reopen the case, and on April 20, 2000, the
Court entered an Order granting ADVA an expedited hearing on Motion,
based upon ADVA's representations in the Motion, and in the motion to
reopen the case, that an expedited hearing was necessary to avoid the
loss of a proposed transaction which will generate value for the
creditors and shareholders.
ADVA proposes to enter into a transaction with Global Information
Group, Inc. ("GIG"), by which ADVA will acquire 100% of the
outstanding shares of stock of GIG, pursuant to a stock purchase
agreement. ADVA is registered with the Securities Exchange Commission
("SEC"), and the shares of its stock are publicly traded. GIG is
interested in acquiring the advantages of ADVA's publicly traded
corporate structure. The GIG transaction provides that all shares of
GIG stock will be exchanged for 94.57% of all outstanding shares of
ADVA; ADVA's present shareholders collectively will own 5.43% of ADVA
following its acquisition of GIG. Biotel, Inc. ("Biotel"), ADVA's
largest and controlling shareholder, would receive a $300,000
transaction fee from GIG upon the closing of the transaction; however,
Biotel has agreed to assign the fee to ADVA for payment of ADVA's
expenses associated with the transaction, and then for payment to
ADVA's unsecured creditors. It appears that, by and through this
transaction, GIG expects to obtain the benefits of a publicly traded
corporate structure within a shorter time and for less cost than would
be necessary if it were to proceed with a new SEC registered public
offering. The transaction benefits ADVA, by providing a source of
payment to creditors who otherwise would receive no payment, and by
preserving shareholder interests that otherwise would be extinguished.
The GIG transaction will result in a $300,000 payment to ADVA,
which will be used to pay, first, the expenses associated with closing
the transaction, which expenses ADVA stipulates will not exceed
$25,000; second, unsecured priority claims, which ADVA estimates to be
no more than $39,000, and possibly in an amount as low as $27,000; and,
then, to unsecured non-priority creditors, which ADVA estimates total
$295,000, on a pro rata basis. Based upon these numbers, ADVA projects
a distribution to the unsecured non-priority creditors of 75% or more
of their claims. Absent the GIG transaction, these creditors would
receive no payment. The existing shareholders, whose interests
otherwise would be extinguished, will retain shareholder interests in
the corporation.
The proposed transaction with GIG cannot proceed, however,
unless that language in the confirmed plan is modified. The existing
language in the confirmed plan stating that AMP will be dissolved and
the shares of stock extinguished would prevent the transaction. It is
the existing corporate structure, with its authorized publicly traded
stock, that GIG wishes to obtain. ADVA states that the provisions of
the confirmed plan did not contemplate a transaction such as the GIG
transaction. ADVA seeks to modify the confirmed plan to enable the
transaction.
ADVA asserts that the proposed modification of the confirmed
plan's provisions is proper and should be authorized pursuant to 11
U.S.C. 1142(b) and 1127(b). The Court may direct ADVA and any other
necessary party to execute or deliver any instrument required to effect
the transfer of property dealt with by the confirmed plan, and to
perform any other act necessary for the consummation of the confirmed
plan. 11 U.S.C. 1142(b). In this case, the modification of the
confirmed plan provisions to delete the corporate dissolution and the
extinguishment of the stock, and to provide that ADVA will continue its
corporate existence and that the existing shares of stock will remain
valid, is in furtherance of the central purposes of the confirmed plan.
Although the confirmed plan includes the provisions for the corporate
dissolution and extinguishment of the stock, these provisions are not
central or important to the substantive provisions of the confirmed
plan. The substantive provisions of the confirmed plan provide for
the liquidation of assets to create as much value as possible for
distribution to creditors. The dissolution of the corporation is in
the nature of a "winding up" matter. The modified provisions will
enable the realization of value of an asset, which will be used to
increase the payment to creditors. As such, the modification is
consistent with the substantive provisions of the confirmed plan.
Pursuant to 1127(b), the plan proponent or the reorganized debtor
may modify the confirmed plan at any time before substantial
consummation of the confirmed plan. As a prerequisite for closing the
case, on September 27, 1999, AMP filed its Report of Substantial
Consummation and Application for Final Decree ("Report of Substantial
Consummation") and its Final Report in Chapter 11 Proceeding. In this
regard, ADVA states that the Report of Substantial Consummation was
mistakenly in error. ADVA states that it was not aware of the
possibility of a transaction such as the GIG transaction; that the
value created by the GIG transaction constitutes the major asset for
unsecured creditors of the bankruptcy estate; and that the confirmed
plan cannot have been consummated, or substantially consummated, until
this major asset has been realized and the proceeds of it distributed
in accordance with the confirmed plan. This case presents an unusual
situation. The Court finds and concludes that the confirmed plan has
not been substantially consummated, and the modification of its
provisions is proper.
Moreover, modification of the confirmed plan also would be
appropriate under Fed. R. Civ. P. 60(b), as a form of equitable relief
from the provisions of the confirmed plan. See In re Midlands Utility,
Inc., Case No. 94-72521-W (Bankr. D.S.C. May ___, 2000) (Fed. R. Civ.
P. 60(b) may allow modification of a substantially consummated
confirmed plan, in limited circumstances). See also United States v.
Bullion Hollow Enterprises, Inc. (In re Bullion Hollow Enterprises,
Inc.), 185 B. R. 726, 729-30 (W.D.Va. 1995) (The modification of a
substantially consummated plan can be approved if it was filed in good
faith and as a result of unforeseen changed circumstances; but, in
order for a debtor to rely on changed circumstances, such circumstances
must have been unknown at the time of the substantial consummation of
the prior plan.). The GIG transaction was unknown to exist at the time
AMP filed the Report of Substantial Consummation. The transaction has
significant value for the creditors and shareholders in this case, and
equitable relief under Fed. R. Civ. P. 60(b) is appropriate to allow
modification of the confirmed plan, and thereby enable realization of
the value of the GIG transaction. Only one objection was filed or
made to the Motion. Manufacturers and Traders Trust Company ("M&T
Trust") filed an objection to the Motion, but it withdrew the
objection upon obtaining information about the GIG transaction and the
distribution of proceeds to be made from it. M&T Trust holds a claim
secured by certain personality of ADVA, which appears to have little
value; M&T Trust has elected to waive its secured interest, and to
receive payment as an unsecured non-priority creditor of the estate.
There being no objection to the Motion, and it appearing that
ADVA's proposed modification of the confirmed plan is proper and should
be authorized pursuant to 11 U.S.C. 1142(b) and 1127(b) and Fed. R.
Civ. P. 60(b), it is therefore
ORDERED, ADJUDGED AND DECREED that ADVA (formerly AMP) is hereby
authorized to modify the confirmed to delete the provisions for the
dissolution of the corporation and the extinguishment of the shares of
stock of ADVA, and to insert new provisions stating that ADVA will
continue its corporate existence and that the existing shares of stock
remain valid.
The Honorable John E. Waites
United States Bankruptcy Court
Columbia, South Carolina
May 5, 2000
EXHIBIT 99.5
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF SOUTH CAROLINA
In re: )
) Case No. 99-02548-W
Advanced Medical Products, Inc., )
) Chapter 11
Debtor. )
)
ORDER GRANTING RELIEF FROM EXPENSE PROVISION
OF ORDER AUTHORIZING MODIFICATION OF CONFIRMED
PLAN ENTERED ON MAY 5, 2000
This matter came before the Court for hearing on September 26,
2000 upon the Motion of Advanced Medical Products, Inc. ("AMP"), now
known as ADVA International, Inc. ("ADVA"), the debtor-in-possession
in this case, under Rule 60(b)(2) and (6) of the Federal Rules of Civil
Procedure ("Rule 60(b)"), made applicable herein by Rule 9024 of the
Federal Rules of Bankruptcy Procedure, and pursuant to 11 U.S.C.
105(a), for relief from a provision in the Order Authorizing
Modification of Confirmed Plan ("Order") entered on May 5, 2000, to
enable payment of the expenses necessary to close the transaction for
which the relief in the Order was granted. Specifically, the Order
states ADVA's stipulation that the expenses associated with closing the
transaction will not exceed $25,000.00; ADVA now states that, as a
result of unforeseen developments subsequent to entry of the Order, the
actual expenses incurred for the transaction, which must be paid for
the transaction to close, will be in the amount of $60,000 to $70,000.
ADVA states that, even with these increased expenses, the transaction
still will generate a substantial payment to unsecured creditors who
otherwise will receive no payment. ADVA requests that the Court grant
relief to allow ADVA to pay its actual and necessary expenses to close
the transaction, not to exceed $70,000.
The Order granted ADVA's motion for authorization to modify
ADVA's confirmed plan to delete language stating that AMP will be
dissolved and the stock of its shareholders extinguished, and to insert
provisions stating that the corporation will continue its existence,
and that the shares of its stock will remain valid. This plan
modification was necessary to enable ADVA to enter into a transaction
which will generate substantial payment to unsecured creditors who
otherwise will receive no payment. The transaction is with Global
Information Group, Inc. ("GIG"), and provides that ADVA will acquire
100% of the outstanding shares of stock of GIG, pursuant to a stock
purchase agreement. ADVA is registered with the United States
Securities and Exchange Commission ("SEC"), and the shares of its
stock are publicly traded. GIG is interested in acquiring the
advantages of ADVA's publicly traded corporate structure. The GIG
transaction provides that all shares of GIG stock will be exchanged for
94.57% of all outstanding shares of ADVA; ADVA's present shareholders
collectively will own 5.43% of ADVA following its acquisition of GIG.
Biotel, Inc. ("Biotel"), ADVA's largest and controlling shareholder,
would receive a $300,000.00 transaction fee from GIG upon the closing
of the transaction; however, Biotel has agreed to assign the fee to
ADVA for payment of ADVA's expenses associated with the transaction,
and then for payment of ADVA's unsecured creditors. It appears that,
by and through this transaction, GIG expects to obtain the benefits of
a publicly traded corporate structure within a shorter time and for
less costs than would be necessary if it were to proceed with a new SEC
registered public offering. The transaction benefits ADVA by providing
a source of payment to creditors who otherwise would receive no
payment, and by preserving shareholder interests that otherwise would
be extinguished. In seeking authorization to modify its confirmed plan
to enable the GIG transaction, ADVA stated that it projected its
expenses associated with the closing of the transaction would not
exceed $25,000.00, and stipulated to this amount. ADVA now advises the
Court that, as the parties moved forward to close the GIG transaction,
numerous matters arose and several developments occurred which delayed
the transaction closing, and significantly increased expenses.
ADVA states that the complications and problems concerning the
closing of the GIG transaction relate primarily to securities issues.
It appears ADVA's securities counsel has had to spend substantially
more time than originally expected in this matter; ADVA has incurred
fees and costs associated with stock registration matters; and ADVA's
bankruptcy counsel has incurred additional fees and expenses. In
addition, administrative fees, such as those due to the United States
Trustee and payments required to stock registrars, have been necessary.
ADVA cites, as an example of the matters that caused an increase in
expenses, the occurrence whereby the person who put ADVA and GIG into
contact with one another became the subject of an SEC investigation
concerning whether he was acting as a securities broker without a
license. ADVA states that this individual did not act as a broker in
this transaction, and the investigation did not center on this
transaction. Nonetheless, ADVA states that additional costs were
incurred by ADVA and GIG in verifying that their transaction is not
tainted by the SEC investigation of that person.
ADVA states that, notwithstanding the significant increase in
expenses, the GIG transaction still will provide a substantial payment
to unsecured creditors (excluding all insiders). It is projected that
the unsecured creditors will receive payment equal to 60% to 65% of
their claim amounts. As discussed in the Order, these creditors
otherwise would receive no payment. Accordingly, even with the
increased expenses associated with closing the GIG transaction, the
transaction is of great benefit to the unsecured creditors. The
transaction should go forward.
Rule 60(b) provides that the Court may grant a party relief from
a final judgment or order for, "(2) newly discovered evidence which
by due diligence could not have been discovered in time to move for a
new trial under Rule 59(b); . . . or (6) any other reason justifying
relief from the operation of the judgment." In this case, relief is
proper under both Rule 60(b)(2) and Rule 60(b)(6). It appears that the
securities issues - particularly the SEC investigation of the person
who placed ADVA and GIG into contact with one another - were not
foreseen, and could not reasonably have been foreseen by ADVA. By the
time these matters developed, more than ten days had elapsed after
entry of the Order. It appears that ADVA did not learn of the
substantially increased expenses that it would incur associated with
closing the GIG transaction within time to file a motion under Rule
59(e) of the Federal Rules of Civil Procedure. Furthermore, Rule
60(b)(6) is intended to allow the Court flexibility so as to grant
relief when circumstances warrant relief. Such circumstances exist in
this case.
Finally, 11 U.S.C. 105(a) provides that, "The court may issue
any order, process, or judgment that is necessary or appropriate to
carry out the provisions of this title." The GIG transaction is in
furtherance of ADVA's confirmed plan. As such, it is appropriate that
the Court exercise it equitable powers to enter an Order relieving ADVA
from the provision of the Order in which ADVA stipulated that its
expenses to close the transaction would not exceed $25,000.00.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that ADVA is
hereby granted relief from the provision of the Order that precludes
ADVA from paying expenses to close the GIG transaction in excess of
$25,000.00, and ADVA is hereby authorized to pay expenses associated
with closing the GIG transaction not to exceed $70,000.00.
AND IT IS SO ORDERED.
JOHN E. WAITES
UNITED STATES BANKRUPTCY JUDGE
September 28, 2000
Columbia, South Carolina
ADVA and AMP are one and the same corporation. AMP renamed itself earlier this
year. The corporation is hereinbelow referrred to as "AMP" in matters
predating the name change, and it is referred to as "ADVA" for matters occuring
after the name change. Insider and related entity claims are excluded from the
distribution that will be made from the proceeds of the GIG transaction.
Pursuant to the terms of the Order Authorizing Sale of Assets Free and Clear
of All Liens, Encumbances, and Interests, Pursuant to 11 U.S.C.
363(b)(1) and (f) ("Sale Order") on May 10, 1999, and pursuant to the terms
that the confirmed plan, the claims of insiders and AMP related companies were
voluntarily withdrawn by such claimants, and are excluded from the distribution.
6
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