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SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. 1)
FILED BY THE REGISTRANT [X] FILED BY A PARTY OTHER THAN THE REGISTRANT [ ]
- --------------------------------------------------------------------------------
Check the appropriate box:
[ ] Preliminary Proxy Statement
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to sec.240.14a-11(c) or sec.240.14a-12
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
BIOSAFE INTERNATIONAL, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement)
PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is
calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
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BIOSAFE INTERNATIONAL, INC.
10 FAWCETT STREET
CAMBRIDGE, MASSACHUSETTS 02138
---------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON FRIDAY, FEBRUARY 14, 1997
---------------
You are cordially invited to attend a Special Meeting of Stockholders (the
"Special Meeting") of BioSafe International, Inc. (the "Company") which will be
held on Friday, February 14, 1997 at 10:00 a.m. at the offices of Goodwin,
Procter & Hoar LLP, 53 State Street, Boston, MA 02109, for the following
purposes:
1. To act upon a proposal to approve the change of the Company's state of
incorporation from Nevada to Delaware, including the change of the Company's
name to "Waste Systems International, Inc." as the name of the surviving
corporation, through a merger of the Company into a wholly-owned subsidiary, and
all effects thereof, including the conversion of each outstanding company
security into a corresponding security of the surviving corporation and certain
changes to the Company's Certificate of Incorporation and Bylaws.
2. To consider and take action upon such other matters as may properly
come before the meeting.
The Board of Directors has fixed the close of business on January 3, 1997
as the record date for determining the stockholders entitled to notice of and to
vote at the Special Meeting and at any adjournments or postponements thereof.
Only stockholders of record of the Company's common stock, $.001 par value per
share, at the close of business on that date will be entitled to notice of and
to vote at the Special Meeting and at any adjournments or postponements thereof.
Stockholders may be entitled to assert dissenters' rights under Nevada
Revised Statutes 78.471 to 78.502, inclusive, with respect to the proposal set
forth in item 1 above. A copy of said statutes is attached as Exhibit D to the
accompanying proxy statement.
You are requested to fill in and sign the enclosed Proxy Card, which is
being solicited by the Board of Directors, and to mail it promptly in the
enclosed postage-prepaid envelope. Any proxy may be revoked by delivery of a
later dated proxy. Stockholders of record who attend the Special Meeting may
vote in person, even if they have previously delivered a signed proxy.
By Order of the Board of Directors
Philip Strauss
President
Cambridge, MA
January 8, 1997
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE COMPLETE, SIGN, DATE
AND PROMPTLY RETURN THE ENCLOSED PROXY CARD IN THE POSTAGE-PREPAID ENVELOPE
PROVIDED. IF YOU ATTEND THE SPECIAL MEETING, YOU MAY VOTE IN PERSON IF YOU WISH,
EVEN IF YOU HAVE PREVIOUSLY RETURNED YOUR PROXY CARD.
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BIOSAFE INTERNATIONAL, INC.
10 FAWCETT STREET
CAMBRIDGE, MASSACHUSETTS 02138
---------------
PROXY STATEMENT
---------------
FOR SPECIAL MEETING OF STOCKHOLDERS
To Be Held on February 14, 1997
January 8, 1997
This Proxy Statement is furnished in connection with the solicitation of
proxies by the Board of Directors of BioSafe International, Inc. (the "Company")
for use at the Special Meeting of Stockholders of the Company to be held on
February 14, 1997, and at any adjournments or postponements thereof (the
"Special Meeting"). At the Special Meeting, stockholders will be asked to act
upon a proposal to change the state of the Company's incorporation from Nevada
to Delaware and to change the Company's name to "Waste Systems International,
Inc." The reincorporation will result from a merger of the Company into a
wholly-owned subsidiary, (the "Delaware Company") and all effects thereof,
including the conversion of each outstanding Company security into a
corresponding security of the surviving corporation and the adoption of the
Delaware Company's Certificate of Incorporation (the "Delaware Certificate")
and Bylaws (the "Delaware Bylaws," togethether with the Delaware Certificate,
the "Delaware Charter Documents"). Throughout the proxy statement, the term
"Merger" shall refer to the merger of the Company into the Delaware Company and
all effects thereof.
This Proxy Statement and the accompanying Notice of Special Meeting and
Proxy Card are first being sent to stockholders on or about January 15, 1997.
The Board of Directors has fixed the close of business on January 3, 1997 as
the record date for the determination of stockholders entitled to notice of and
to vote at the Special Meeting (the "Record Date"). Only stockholders of record
of the Company's common stock, par value $.001 per share (the "Common Stock"),
at the close of business on the Record Date will be entitled to notice of and
to vote at the Special Meeting. As of the Record Date, there were 16,802,571
shares of Common Stock outstanding and entitled to vote at the Special Meeting.
Holders of Common Stock outstanding as of the close of business on the Record
Date will be entitled to one vote for each share held by them.
The presence, in person or by proxy, of holders of at least one-third of
the total number of outstanding shares of Common Stock entitled to vote is
necessary to constitute a quorum for the transaction of business at the Special
Meeting. The affirmative vote of the holders of a majority of the outstanding
shares of Common Stock is required for the approval of the Merger.
STOCKHOLDERS OF THE COMPANY ARE REQUESTED TO COMPLETE, SIGN, DATE AND
PROMPTLY RETURN THE ACCOMPANYING PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID
ENVELOPE. SHARES REPRESENTED BY A PROPERLY EXECUTED PROXY RECEIVED PRIOR TO THE
VOTE AT THE SPECIAL MEETING AND NOT REVOKED WILL BE VOTED AT THE SPECIAL MEETING
AS DIRECTED ON THE PROXY CARD. IF A PROPERLY EXECUTED PROXY CARD IS SUBMITTED
AND NO INSTRUCTIONS ARE GIVEN, THE SHARES OF COMMON STOCK REPRESENTED BY THAT
PROXY WILL BE VOTED FOR APPROVAL OF THE MERGER. IT IS NOT ANTICIPATED THAT ANY
MATTERS OTHER THAN THOSE SET FORTH IN THIS PROXY STATEMENT WILL BE PRESENTED AT
THE SPECIAL MEETING. IF OTHER MATTERS ARE PRESENTED, PROXIES WILL BE VOTED IN
ACCORDANCE WITH THE DISCRETION OF THE PROXY HOLDERS.
A stockholder of record may revoke a proxy at any time before it has been
exercised by filing a written revocation with the Secretary of the Company at
the address of the Company set forth above, by filing a duly executed proxy
bearing a later date, or by appearing in person and voting by ballot at the
Special Meeting. Any stockholder of record as of the Record Date attending the
Special Meeting may vote in person whether or not
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a proxy has been previously given, but the presence (without further action) of
a stockholder at the Special Meeting will not constitute revocation of a
previously given proxy.
PROPOSAL 1
APPROVAL OF CHANGE IN COMPANY'S STATE OF INCORPORATION
FROM NEVADA TO DELAWARE INCLUDING CHANGE OF CORPORATE NAME
AND RELATED CHANGES TO THE
CERTIFICATE OF INCORPORATION AND BYLAWS
INTRODUCTION
For the reasons set forth below, the Board of Directors believes that the
best interests of the Company and its stockholders will be served by changing
the state of incorporation of the Company from Nevada to Delaware (the
"Reincorporation Proposal" or the "Proposed Reincorporation"). Stockholders are
urged to read carefully the following sections of this proxy statement,
including the exhibits, before voting on the Reincorporation Proposal.
Throughout the proxy statement, the terms the "Company" or "BioSafe" refer to
the existing Nevada corporation and the terms "Delaware Company" or "Waste
Systems International" refer to Waste Systems International, Inc., a Delaware
corporation and a wholly-owned subsidiary of BioSafe. The Delaware Company is
the proposed successor to BioSafe. References to exhibits shall refer to the
particular exhibits attached to this Proxy Statement. The use in this Proxy
Statement of the masculine pronoun shall be deemed to include the feminine or
neuter, as the context may require.
The Delaware Company, has not previously conducted any business. It will
assume and carry on the Company's business activities without change following
the Merger, and will also succeed to certain assets and contracts now held in
the name of BioSafe.
As discussed below, the principal reasons for the Proposed Reincorporation
are the greater flexibility of Delaware corporate law, the substantial body of
case law interpreting that law and the increased ability of the Company to
attract and retain qualified directors. The Company believes that its
stockholders will benefit from the well-established principles of corporate
governance that Delaware law affords. Except as further described herein, the
Delaware Company's Charter Documents are substantially similar to the Company's
Articles of Incorporation (the "Nevada Articles") and Bylaws (the "Nevada
Bylaws," together with the Nevada Articles, the "Nevada Charter Documents"). In
connection with the Proposed Reincorporation, the Company's name will be changed
to "Waste Systems International, Inc."
The Reincorporation Proposal will be effected by merging BioSafe into the
Delaware Company pursuant to the terms of an Agreement and Plan of Merger (the
"Merger Agreement"), a copy of which is EXHIBIT A. Upon completion of the
Merger, BioSafe will cease to exist, and the Delaware Company will own all of
the Company's assets and assume its liabilities and will continue to operate the
business of the Company under the name Waste Systems International, Inc.
Under Nevada law, the affirmative vote of a majority of the outstanding
shares of Common Stock is required for approval of the Merger Agreement and the
other terms of the Proposed Reincorporation. See "Vote Required for
Reincorporation Proposal." The Proposed Reincorporation has been unanimously
approved by BioSafe's Board of Directors. If approved by the stockholders, it
is anticipated that the Merger will become effective as soon as practicable
(the "Effective Date") following the Special Meeting. However, pursuant to the
Merger Agreement, the Merger may be abandoned or the Merger Agreement may be
amended by the Board of Directors (except that the principal terms may not be
amended without stockholder approval)
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either before or after stockholder approval has been obtained and prior to the
Effective Date of the Proposed Reincorporation if, in the opinion of the Board
of Directors of either BioSafe or the Delaware Company, circumstances arise
which make it inadvisable to proceed under the original terms of the Merger
Agreement.
EFFECT OF REINCORPORATION ON COMPANY
Capital Stock. Upon the Effective Date, each outstanding share of Common
Stock, shall automatically convert into one share of Delaware Company common
stock, $.001 par value ("Delaware Common Stock"); each outstanding convertible
debenture of BioSafe will automatically convert into a convertible debenture of
the Delaware Company, having the same face amount and identical terms and
convertible into the same number of shares of Delaware Common Stock as the
number of shares of Common Stock into which it was formerly convertible; and
each outstanding warrant or option to purchase a number of shares of Common
Stock will automatically convert into a warrant or option to purchase the same
number of shares of Delaware Common Stock. Each stock certificate representing
issued and outstanding shares of Common Stock will continue to represent the
same number of shares of Delaware Common Stock. Following completion of the
Merger, arrangements will be made for holders of BioSafe share certificates to
exchange their certificates for share certificates of Waste Systems
International. The Company's common stock is listed for trading on the Nasdaq
Small-Cap Market and its trading symbol is BSFE. After the Merger, the Delaware
Common Stock will be traded on the Nasdaq Small-Cap Market under the symbol
WSII. On January 9, 1997, the closing bid was .75 and the low closing offering
was .8125.
Management after the Reincorporation Merger. Immediately after the
Effective Date, members of the Board of Directors of the Delaware Company will
be composed of the then-current members of the Board of Directors of the
Company. The current members of the Board of Directors of the Company will
continue to hold office as directors of the Delaware Company for the terms and
subject to the provisions set forth in the Delaware Charter Documents. The
current officers of the Company will become the officers of the Delaware
Company.
Employee Benefit Plans. All of the Company's employee benefit, stock option
and rights plans will be continued, and each outstanding option or right to
purchase the Common Stock will automatically be converted into an option or
right to purchase the same number of shares of the Delaware Common Stock, at
the same price per share, upon the same terms and subject to the same
conditions. Approval of the Reincorporation Proposal will also constitute
approval of the assumption of all the Company's employee benefit, stock option
and rights plans by the Delaware Company.
Changes to Charter Documents; Possible Anti-takeover Effect. The Delaware
Charter Documents provide that any action required or permitted to be taken by
shareholders of the Company may be effected at a duly-called annual or special
meeting. If a shareholder wishes a proposal to be considered at an annual or
special meeting under the Delaware Bylaws, he must give timely advance notice to
the Company in accordance with the provisions of the Delaware Bylaws. The
Delaware Bylaws permit only the Company's Chairman of the Board, President, or a
majority of the members of the Company's Board of Directors to call a special
meeting of shareholders.
In addition, the Delaware Certificate provides that the Company's Board of
Directors is classified into three classes of directors serving staggered
three-year terms. Under the Delaware Charter Documents, a director may be
removed only for cause and by the affirmative vote of two-thirds of the
outstanding shares entitled to vote at an election of directors at a special
meeting called for that purpose.
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The Delaware Certificate authorizes the Board of Directors to issue up to
1,000,000 shares of preferred stock, $.001 par value (the "Delaware Preferred
Stock") and to determine the price, rights, preferences, privileges and
restrictions, including voting rights of those shares, without any further vote
or action by the Company's shareholders. The rights of the holders of Delaware
Common Stock will be subject to, and may be adversely affected by, the rights
of the holders of any Delaware Preferred Stock that may be issued in the
future. The issuance of Delaware Preferred Stock, while providing desirable
flexibility in connection with possible acquisitions and other corporate
purposes, could have the effect of making it more difficult for a third-party
to acquire a majority of the voting stock of the Company. To date, the Delaware
Company has not issued Delaware Preferred Stock and has no present plans to do
so in the future. Further, certain provisions of the Delaware Charter Documents
and Delaware law could delay or make difficult a merger, tender offer or proxy
contest involving the Company. In addition, the Company is subject to Section
203 of the Delaware General Corporation Law ("Section 203"), which places
certain restrictions on the ability of Delaware corporations to engage in
business combinations with interested shareholders.
The Reincorporation Proposal will effect a change in the legal domicile of
the Company and other changes of a legal nature, certain of which are described
in this Proxy Statement. The discussion set forth below is qualified in its
entirety by reference to the Merger Agreement, the Delaware Certificate and the
Delaware By-Laws, copies of which are attached hereto as EXHIBIT A, EXHIBIT B
and EXHIBIT C respectively. Copies of the Nevada Articles and Nevada By-Laws
are available for inspection at the principal executive office of the Company
and copies will be sent to stockholders, without charge, upon written request
directed to: Robert Rivkin, BioSafe International, Inc., 10 Fawcett Street,
Cambridge, MA 02138 (telephone number (617) 497-4500).
THE BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE FOR THE
REINCORPORATION PROPOSAL.
VOTE REQUIRED FOR THE REINCORPORATION PROPOSAL
Approval of the Reincorporation Proposal, which will also constitute
approval of (i) the Merger Agreement and the Delaware Charter Documents and
(ii) the Delaware Company's assumption of BioSafe's employee benefit plans and
stock option plans, will require the affirmative vote of the holders of a
majority of the outstanding shares of Common Stock entitled to vote. Upon the
Effective Date of the Merger, the Company's name will change to Waste Systems
International, Inc.
DISSENTERS' RIGHTS
Stockholders of BioSafe will have dissenters' rights with respect to the
Merger under the Nevada Business Corporation Act ("NBCA") and will be entitled
to receive the "fair value" of their shares upon consummation of the Merger.
Under the applicable provisions of the NBCA, the "fair value" of the shares of
Common Stock will be equal to the value of the shares immediately before the
effectuation of the Merger, excluding any appreciation or depreciation in
anticipation of the Merger. Sections 300 through 500 of Chapter 92A of the NBCA
are reprinted in their entirety as EXHIBIT D. All references in the NBCA and in
this summary to a "stockholder" are to the record holder of the shares of Common
Stock as to which dissenters' rights are asserted. A person having a beneficial
interest in shares of Common Stock that are held of record in the name of
another person, such as a broker or nominee, must act promptly to cause the
record holder to follow the steps summarized below properly and in a timely
manner to perfect whatever dissenters' rights the beneficial owner may have.
The following discussion is not a complete statement of the law relating to
dissenters' rights and is qualified in its entirety by reference to EXHIBIT D.
ANY HOLDER WHO WISHES TO EXERCISE STATUTORY DISSENTERS' RIGHTS OR WHO WISHES TO
PRESERVE THE RIGHT TO DO SO SHOULD REVIEW CAREFULLY THIS DISCUSSION AND EXHIBIT
D.
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FAILURE TO COMPLY STRICTLY WITH THE PROCEDURES SET FORTH HEREIN AND IN EXHIBIT
D WILL RESULT IN THE LOSS OF DISSENTERS' RIGHTS.
Each stockholder electing to exercise his dissenters' rights and seek
payment for the fair value of his shares must deliver to the Company, before
the vote on the Merger at the Special Meeting, a written notice of his intent
to demand payment for his shares of Common Stock. Stockholders should send this
notice to Robert Rivkin, BioSafe International, Inc., 10 Fawcett separate from
any proxy or vote against the Merger. Voting against, abstaining from voting or
failing to vote on the Merger will not constitute a demand for dissenters'
rights and payment for shares of Common Stock within the meaning of the NBCA.
Any stockholder electing to demand dissenters' rights will not be granted
dissenters' rights under the NBCA if such stockholder has either voted in favor
of the Merger or consented thereto in writing (including by granting the proxy
solicited by this proxy statement or by returning a signed proxy without
specifying a vote against the Merger or a direction to abstain from such vote).
If the Reincorporation Proposal is approved at the Special Meeting, the
Company will send a notice within 10 days after effectuation of the Merger to
all of the stockholders who have satisfied the requirements to assert
dissenters' rights. This notice will state where the payment demand is to be
sent and where and when certificates for the shares of Common Stock must be
deposited. The Company will include in this notice a form for the dissenting
stockholder to complete which demands payment, a statement as to the date of the
first announcement to news media or the stockholders of the terms of the
Reincorporation Proposal and a requirement that the stockholder certify to the
Company that he acquired the shares of Common Stock before that date. In
addition, this notice will set a date by which the Company must receive the
completed form of payment demand from the dissenting stockholder; the date will
not be fewer than 30 days nor more than 60 days after the date of the Company's
notice. To obtain payment for his shares, a dissenting stockholder must complete
and return to the Company the completed form of payment demand included with the
Company's notice and deposit his shares in accordance with the Company's notice.
Within thirty (30) days after the Company receives the demand for payment,
the Company will pay each dissenter who has complied with the applicable
provisions of the NBCA the amount the Company estimates to be the fair value of
the dissenter's shares plus accrued interest. The Company will also send to the
dissenting stockholder along with such payment the following items: (i) the
Company's balance sheet for the year ended December 31, 1995; (ii) a statement
of income for that year; (iii) a statement of changes in the stockholders'
equity for that year, (iv) the latest interim financial statements, (v) a
statement of the Company's estimate of the fair value of the shares; (vi) an
explanation of how interest was calculated; (vii) a statement of the dissenter's
right to demand payment under the applicable provision of the NBCA; and (viii) a
copy of Sections 300 to 500 of the NBCA.
The NBCA provides that corporation may elect to withhold payment from a
dissenter unless the stockholder was the beneficial holder of the shares before
the date set forth in the Company's notice to dissenting stockholders as the
date of the first announcement to the news media or to the stockholders of the
terms of the Proposed Reincorporation. To the extent the Company elects to
withhold payment, the Company must estimate the fair value of the shares of
Common Stock owned by the dissenting stockholder plus accrued interest and will
offer this amount to each dissenter. The Company must also give the dissenter
an explanation of how the Company calculated the interest and a statement of
the dissenter's right to demand payment.
A dissenting stockholder may supply his own estimate of the fair value of
his shares of Common Stock plus interest and demand payment for such amount less
any amount he received from the Company or, to the extent applicable, reject
the Company's offer and demand
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payment. A dissenting stockholder will waive his dissenter's right to demand
payment if he fails to notify the Company of his dissatisfaction of the
Company's offer within 30 days after the Company has made or offered payment for
his shares.
If a demand for payment remains unsettled, the Company may commence a
judicial proceeding in the district court of the county in which the
corporator's registered office is located 60 days after receiving the payment
demand and petition the court to determine the fair value of the shares of
Common Stock and accrued interest owned by the dissenting stockholder. If the
Company does not commence a proceeding, the Company is obligated to pay to the
dissenting stockholders the amounts demanded by them. The Company will make all
dissenting stockholders parties to the proceeding. Each dissenter made a party
to the suit is entitled to judgment for either of the following: (a) the amount,
if any, by which the court finds the fair value of the dissenter's shares plus
interest exceeds the amount paid by the Company or (b) the fair value, plus
interest, of the dissenter's after-acquired shares for which the Company elected
to withhold payment. The court will assess court costs against the Company
except to the extent the court finds the dissenters acted arbitrarily,
vexatiously or not in good faith.
REINCORPORATION PROPOSAL
APPROVAL BY STOCKHOLDERS OF THE PROPOSED REINCORPORATION WILL CONSTITUTE
APPROVAL OF THE MERGER AGREEMENT, THE DELAWARE CERTIFICATE AND THE DELAWARE
BY LAWS.
Principal Reasons for the Proposed Reincorporation. As the Company plans
for the future, the Board of Directors and management believe that it is
essential to be able to draw upon well established principles of corporate
governance in making legal and business decisions. The prominence and
predictability of Delaware corporate law provide a reliable foundation on which
the Company's governance decisions can be based, and the Company believes that
stockholders will benefit from the responsiveness of Delaware corporate law to
their needs and to those of the corporation they own.
Prominence, Predictability and Flexibility of Delaware Law. For many years
Delaware has followed a policy of encouraging incorporation in that state and,
in furtherance of that policy, has been a leader in adopting, construing and
implementing comprehensive, flexible corporate laws responsive to the legal and
business needs of corporations organized under its laws. Many corporations have
chosen Delaware initially as a state of incorporation or have subsequently
changed corporate domicile to Delaware in a manner similar to that proposed by
the Company. Because of Delaware's prominence as the state of incorporation for
many major corporations, both the legislature and courts in Delaware have
demonstrated an ability and a willingness to act quickly and effectively to meet
changing business needs. The Delaware courts have developed considerable
expertise in dealing with corporate issues and a substantial body of case law
has developed construing Delaware law and establishing public policies with
respect to corporate legal affairs.
Increased Ability to Attract and Retain Qualified Directors. Both Nevada
and Delaware law permit a corporation to include a provision in its certificate
of incorporation which reduces or limits the monetary liability of directors for
breaches of fiduciary duty in certain circumstances. The Company believes that,
in general, Delaware case law regarding a corporation's ability to limit
director liability is more developed and provides more guidance than Nevada law.
The increasing frequency of claims and litigation directed against directors and
officers has greatly expanded the risks facing directors and officers of
corporations in exercising their respective duties. The amount of time and money
required to respond to such claims and to defend such litigation can be
substantial. It is the Company's desire to reduce these risks to its directors
and officers and to limit situations in which monetary damages can be recovered
against directors so that the Company may
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continue to attract and retain qualified directors who otherwise might be
unwilling to serve because of the risks involved.
Well Established Principles of Corporate Governance. There is substantial
judicial precedent in the Delaware courts as to the legal principles applicable
to measures that may be taken by a corporation and as to the conduct of the
Board of Directors under the business judgment rule. The Company believes that
its stockholders will benefit from the well established principles of corporate
governance that Delaware law affords.
New Name Reflective of the Company's Strategic Plan. In connection with the
Proposed Reincorporation, the Company will change its name from "BioSafe
International, Inc." to "Waste Systems International, Inc." The Board of
Directors believes that the new name will positively denote the Company's
revision of its business plan and strategies to include the provision of waste
management services on an integrated business.
No Change in Board Members, Business, Management, Employee Benefit Plans or
Location of Principal Facilities of the Company. The Reincorporation Proposal
will effect only a change in the name and legal domicile of the Company and
certain other changes of a legal nature, certain of which are described in this
proxy statement. The Proposed Reincorporation will NOT result in any change in
the business, management, fiscal year, assets or liabilities (except to the
extent of legal and other costs of effecting the reincorporation) or location of
the principal facilities of the Company.
Prior to the Effective Date, the Company will obtain any requisite
consents to the Merger from parties with whom it may have material contractual
arrangements (the "Material Agreements"). As a result, BioSafe's rights and
obligations under such Material Agreements will continue and be assumed by the
Delaware Company.
COMPARISON OF CORPORATION LAW OF DELAWARE AND NEVADA AND APPLICATION TO BIOSAFE
AND WASTE SYSTEMS INTERNATIONAL
BioSafe is incorporated under the laws of the State of Nevada, and the
Delaware Company is incorporated under the laws of the State of Delaware. The
Company stockholders, whose rights as stockholders are currently governed by
Nevada law and the Nevada Charter Documents, will become upon consummation of
the Merger, stockholders of the Delaware Company whose rights will be governed
by Delaware law and the Delaware Charter Documents. The following summary does
not purport to be a complete statement of the rights of BioSafe's stockholders
under applicable Nevada law and the Nevada Charter Documents as compared with
the rights of the Delaware stockholders under applicable Delaware law and the
Delaware Charter Documents. The summary is qualified in its entirety by the
Delaware General Corporation Law ("DGCL") and the NBCA to which stockholders are
referred. Generally, the provisions of the Delaware Charter Documents are
similar to those of the Nevada Charter Documents in many respects. The
discussion of the Delaware Charter Documents is qualified by reference to
EXHIBIT B AND EXHIBIT C.
Authorized Capital Stock. The Delaware Certificate currently authorizes the
Company to issue up to 100,000,000 shares of Common Stock, $.001 par value; and
1,000,000 shares of preferred stock, $0.001 par value (the "Preferred Stock").
There are currently no shares of Preferred Stock outstanding. The Delaware
Certificate provides that the Company is authorized to issue 100,000,000 shares
of Delaware Common Stock and 1,000,000 shares of Delaware Preferred Stock,
$.001 par value.
The Nevada Articles and the Delaware Certificate each provide that their
respective Boards of Directors are entitled to determine the powers, preferences
and rights and the qualifications, limitations or restrictions, of the
authorized and unissued preferred stock. Although they have no present intention
of doing so, the Board of Directors of either BioSafe or the Delaware Company,
without stockholder approval, could authorize the
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issuance of preferred stock in the future upon terms or with any rights,
preferences and privileges which could have the effect of delaying or preventing
a change in control of either company or modifying the effective rights of
holders of either company's common stock under applicable Nevada or Delaware
law. The Boards of Directors could also utilize such shares for further
financings, possible acquisitions and other uses.
Amendment to Charter and Bylaws. Delaware and Nevada law require the
approval of the holders of a majority of all outstanding shares entitled to vote
(with, in each case, each stockholder being entitled to one vote for each share
so held) to approve proposed amendments to a corporation's charter. Neither
state requires stockholder approval for the board of directors of a corporation
to fix the voting powers, designation, preferences, limitations, restrictions
and rights of a class of stock provided that the corporation's charter documents
grant such power to its board of directors. The holders of the outstanding
shares of a particular class are entitled to vote as a class on a proposed
amendment if the amendment would alter or change the power, preferences or
special rights of one or more series of any class so to affect them adversely.
The number of authorized shares of any such class of stock may be increased or
decreased (but not below the number of shares then outstanding) by the
affirmative vote of the holders of a majority of the stock entitled to vote
thereon (without a class vote) if so provided in any amendment to the
certificate of incorporation or resolutions creating such class of stock.
The Delaware Certificate provides that the affirmative vote of not less
than 80% of the total votes eligible to be cast by holders of voting stock,
voting together as a single class, shall be required to amend or repeal any of
the provisions regarding the Directors or amendments to the Delaware
Certificate.
Business Combinations. The Delaware Company is subject to the provisions of
Section 203 of DGCL. That section provides, with certain exceptions, that a
Delaware corporation may not engage in any of a broad range of business
combinations with a person or affiliate, or associate of such person, who is an
"interested stockholder" for a period of three years from the date that such
person became an interested stockholder unless: (i) the transaction resulting in
a person becoming an interested stockholder, or the business combination, is
approved by the board of directions of the corporation before the person becomes
an interested stockholder; (ii) the interested stockholder acquires 85% or more
of the outstanding voting stock of the corporation in the same transaction that
makes it an interested stockholder (excluding shares owned by persons who are
both officers and directors of the corporation, and shares held by certain
employee stock ownership plans); or (iii) on or after the date the person
becomes an interested stockholder, the business combination is approved by the
corporation's board of directors and by the holders of at least 66% of the
corporation's outstanding voting stock at an annual or special meeting,
excluding shares owned by the interested stockholder. An "interested
stockholder" is defined as any person who is (i) the owner of 15% or more of
the outstanding voting stock of the corporation or (ii) an affiliate or
associate of the corporation and was the owner of 15% or more of the outstanding
voting stock of the corporation at any time within the three-year period
immediately prior to the date on which it is sought to be determined whether
such person is an interested stockholder. Section 203 further provides that
where it specifies a particular stockholder vote required to approve a matter,
no provision in the certificate of incorporation or bylaws may require a greater
vote.
Nevada law regulates combinations more stringently. First, an interested
stockholder is defined as a beneficial owner of 10% or more of the voting power.
Second, the three-year moratorium can be lifted only by advance approval by a
corporation's board of directors, as opposed to Delaware's provision that allows
interested stockholder combinations at the time of the transaction with
stockholder approval. Finally, after the three-year period, combinations remain
prohibited unless (i) they are approved by the board of directors, the
disinterested stockholders or a majority of the outstanding voting power not
beneficially owned by the interested party or (ii) the interested stockholders
satisfy certain fair value requirements. As in Delaware, a Nevada corporation
may opt-out of the statute and BioSafe has done so. The Nevada Articles
provides that BioSafe may engage in transactions with its directors or other
entity in which its directors or officers are financially
8
<PAGE> 11
interested provided that the fact of such relationship is disclosed to the Board
of Directors and stockholders entitled to vote and the transaction is fair and
reasonable to the company.
Classified Board of Directors. Delaware law permits any Delaware
corporation to classify its board of directors into as many as three classes
with staggered terms of office. The stockholders must elect only one class each
year and each class has a term of office at least one year but no longer than
three years. The Delaware Certificate contains provisions for a staggered board
with three classes of directors. The Delaware Certificate provides that all
current directors of BioSafe will continue as directors of the Delaware Company
until the 1997 Special Meeting of Stockholders of the Delaware Company. The
Directors elected at that 1997 Special Meeting will be divided into three
classes with terms expiring in 1998, 1999 and 2000, respectively.
Nevada law also permits corporations to classify boards of directors
provided that at least one-fourth of the directors is elected annually; however,
the Nevada Articles do not provide for a staggered board.
Cumulative Voting. Cumulative voting for directors entitles each
stockholder to cast a number of votes that is equal to (x) the number of voting
shares held by him multiplied by (y) the number of directors to be elected. The
stockholder may cast all such votes either for one nominee or distribute such
votes among up to as many candidates as there are positions to be filled.
Cumulative voting may enable a minority stockholder or group of stockholders to
elect at least one representative to the board of directors where such
stockholders would not otherwise be able to elect any directors.
Nevada law permits cumulative voting in the election of directors as long
as certain procedures are followed. Although Delaware law does not explicitly
grant cumulative voting, a Delaware corporation may provide for cumulative
voting in the corporation's certificate of incorporation. Neither the Nevada
Articles nor the Delaware Certificate provides for cumulative voting.
Vacancies. Subject to the rights, if any of any series of Delaware
Preferred Stock to elect directors and to fill vacancies on the Board of
Directors, vacancies during the year shall be filled by the affirmative vote of
a majority of the remaining directors then in office, even if less than a
quorum. Any director appointed shall hold office for the remainder of the fall
term of the class of directors in which the vacancy occurred.
Removal of Directors. Under Delaware law, the holders of a majority of
voting shares of each class entitled to vote at an election of directors may
vote to remove any director or the entire board without cause unless (i) the
board is a classified board in which case directors may be removed only for
cause, or (ii) the corporation has cumulative voting in which case if less than
the entire board is to be removed no director may be removed without cause if
the vote cast against his removal would be enough to elect him. Nevada law
requires at least two-thirds of the majority of voting shares or class entitled
to vote at an election of directors to remove a director. Furthermore, Nevada
law does not make a distinction between removals for cause and removals without
cause.
Under Delaware law, a director of a corporation that does not have a
classified board or permit cumulative voting may be removed, without cause, by
the affirmative vote of a majority of the outstanding shares entitled to vote at
an election of directors. Unless the certificate of incorporation otherwise
provides, stockholders of a Delaware company with a classified board may remove
a director only for cause. In addition, if the Delaware corporation has
cumulative voting, no director may be removed without cause (unless the entire
board is removed) if the number of shares voted against removal would be
sufficient to elect the director by cumulative voting.
Actions by Written Consent of Stockholders. Nevada law and Delaware law
each provide that any action required or permitted to be taken at a meeting of
the stockholders may be taken without a meeting if the holders
9
<PAGE> 12
of outstanding stock having at least the minimum number of votes that would be
necessary to authorize or take such action at a meeting consents to the action
in writing. In addition, Delaware law requires the corporation to give prompt
notice of the taking of corporate action without a meeting by less than
unanimous written consent to those stockholders who did not consent in writing.
The Delaware Certificate and the Nevada Articles, however, each provide that any
action by the stockholders of such class must be taken at an annual or special
meeting of stockholders and may not be taken by written consent.
Stockholder Vote for Mergers and Other Corporate Reorganizations. In
general, both jurisdictions require authorization by an absolute majority of
outstanding shares entitled to vote, as well as approval by the board of
directors with respect to the terms of a merger or a sale of substantially all
of the assets of the corporation. Neither Nevada law nor Delaware law requires
stockholder approval by the stockholders of a surviving corporation in a merger
or consolidation as long as the surviving corporation issues no more than 20% of
its voting stock in the transaction.
Dissenters' Rights. In both jurisdictions, dissenting stockholders of a
corporation engaged in certain major corporate transactions are entitled to
appraisal rights. Appraisal rights permit a stockholder to receive cash equal to
the fair market value of the stockholder's shares (as determined by agreement by
the parties or by court), in lieu of the consideration such stockholder would
otherwise receive in any such transaction.
Under Delaware law, appraisal rights are generally available for the shares
of any class or series of stock of the Delaware Company in a merger or
consolidation, provided that no appraisal rights are available for the shares of
any class or series of stock which, at the record date for the meeting held to
approve such transaction, were either (i) listed on a national security exchange
or designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. ("NASD") or (ii)
held of record by more than 2,000 stockholders. Even if the shares of any class
or series of stock meet the requirements of clause (i) or (ii) above, appraisal
rights are available for such class or series if the holders thereof receive in
the merger or consolidation anything except: (i) shares of stock of the
corporation surviving or resulting from such merger or consolidation; (ii)
shares of stock of any other corporation which at the effective date of the
merger or consolidation is either listed on a national securities exchange, or
designated as a national market system security on an interdealer quotation
system by the NASD or held of record by more than 2,000 stockholders; (iii) cash
in lieu of fractional shares; or (iv) any combination of the foregoing. No
appraisal rights are available to stockholders of the surviving corporation if
the merger did not require their approval.
Under Nevada law, a stockholder is entitled to dissent from, and obtain
payment for the fair value of his shares in the event of consummation of, a plan
of merger or plan of exchange in which the corporation is a party and any
corporate action taken pursuant to a vote of the stockholders to the extent that
the articles of incorporation, bylaws or a resolution of the board of directors
provides that voting or nonvoting stockholders are entitled to dissent and
obtain payment for their shares. As with Delaware law, Nevada law provides an
exception to dissenters' rights. Holders (i) of securities listed on a national
securities exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities Dealers,
Inc. or (ii) of securities held by 2,000 stockholders of record are generally
not entitled to dissenters' rights. See "Dissenters' Rights."
Stockholder Inspection Rights. Delaware law grants any stockholder the
right to inspect and to copy for any proper purpose the corporation's stock
ledger, a list of its stockholders, and its other records. A proper purpose is
one reasonably related to such person's interest as a stockholder. Directors
also have the right to examine the corporation's stock ledger, a list of its
stockholders and its other records for a purpose reasonably related to their
positions as directors.
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<PAGE> 13
Nevada law provides that any person who has been a stockholder of record of
a corporation for at least six months immediately preceding his demand, or any
person who owns or has been authorized by the holders of at least 5% of all of
its outstanding shares, is entitled to inspect and copy the stock ledger.
Furthermore, any person who has been a stockholder of record of any corporation
and owns or has been authorized by the holders of at least 15% of all of its
outstanding shares, is entitled to inspect and copy other corporate records.
Derivative Suits. Under Delaware and Nevada law, a stockholder may bring a
derivative action on behalf of the corporation only if the stockholder was a
stockholder of the corporation at the time of the transaction in question or the
stockholder acquired the stock thereafter by operation of law.
Dividends and Distributions. Nevada law prohibits distributions to
stockholders when the distributions would (i) render the corporation unable to
pay its debts as they become due in the usual course of business; and (ii)
render the corporation's total assets less than the sum of its total liabilities
plus the amount that would be needed to satisfy the preferential rights upon
dissolution of stockholders whose preferential rights are superior to those
receiving the distribution.
Delaware law permits a corporation to pay dividends out of either (i)
surplus or (ii) in case there is no surplus, out of its net profits for the
fiscal year in which the dividend is declared and/or the preceding fiscal year,
except when the capital is diminished to an amount less than the aggregate
amount of the capital represented by issued and outstanding stock having a
preference on the distribution of assets. Delaware law defines surplus as the
excess, at any time, of the net assets of a corporation (determined on a fair
market value, as opposed to historical cost, basis) over its stated capital.
To date, neither the BioSafe nor the Delaware Company has paid dividends on
its common stock. The payment of dividends, if any, is within the discretion of
the Board of Directors of the Delaware Company and will depend upon the Delaware
Company's earnings, its capital requirements and financial condition, and other
relevant factors. The Board of Directors of the Delaware Company does not intend
to declare any dividends in the foreseeable future, but instead intends to
retain all earnings, if any, for use in the Delaware Company's business
operations.
Limitation of Liability and Indemnification Matters. Nevada law and
Delaware law each permit corporations to adopt provisions in their charter
documents that eliminate or limit the personal liability of directors to the
corporation or their stockholders for monetary damages for breach of a
director's fiduciary duty, subject to the differences discussed below.
In suits that are not brought by or in the right of the corporation, both
jurisdictions permit a corporation to indemnify directors, officers, employees
and agents for attorney's fees and other expenses, judgments and amounts paid in
settlement. The person seeking indemnity may recover as long as he acted in good
faith and believed his actions were either in the best interests of or not
opposed to the best interests of the corporation. Similarly, the person seeking
indemnification must not have had any reason to believe his conduct was
unlawful.
In derivative suits, a corporation in either jurisdiction may indemnify its
agents for expenses that the person actually and reasonably incurred. A
corporation may not indemnify a person if the person was adjudged to be liable
to the corporation unless a court otherwise orders. Delaware law does not permit
corporations to indemnify parties for amounts paid in derivative actions without
court approval.
No corporation may indemnify a party unless it makes a determination that
indemnification is proper. In Delaware, the corporation through its
stockholders, directors or independent legal counsel will determine that the
conduct of the person seeking indemnity conformed with the statutory provisions
governing indemnity. In
11
<PAGE> 14
Nevada, the corporation through its stockholders, directors or independent
counsel must only determine that the indemnification is proper.
Delaware law provides that a corporation may advance attorney's fees to a
director, officer or employee upon receipt of an undertaking to repay the
corporation if the person seeking the advance is ultimately found not to be
entitled to indemnification. Nevada law does not require employees to give the
undertaking. Both jurisdictions preclude liability limitation for acts or
omissions not in good faith or involving intentional misconduct and for paying
dividends or repurchasing stock out of other than lawfully available funds.
Nevada law does not expressly preclude a corporation from limiting liability for
a director's breach of the duty of loyalty or preclude a corporation from
limiting liability for any transaction from which a director derives an improper
personal benefit.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The Proposed Reincorporation is intended to be a tax free organization
under Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended.
Accordingly, no gain or loss will be recognized by the holders of Common Stock
of the Company as a result of the Proposed Reincorporation, and no gain or loss
will be recognized by the Company or the Delaware Company. Each former holder of
Common Stock of the Company will have the same basis in the Delaware Common
Stock received as such holder has in the Common Stock of the Company held on the
Effective Time of the Proposed Reincorporation. Each stockholder's holding
period with respect to the Delaware Common Stock will include the period during
which such holder held the corresponding Common Stock of the Company, provided
the latter is held as a capital asset on the Effective Date.
Although the Company believes that the foregoing summary describes the
material federal income tax consequences of the Proposed Reincorporation, there
can be no assurance that the actual tax consequences will not be different.
Stockholders should be advised that the Company has not obtained, and does not
intend to request, either a ruling from the Internal Revenue Service or an
opinion of counsel regarding any of such tax consequences. Furthermore, the
foregoing is only a summary of the federal income tax consequences of the
Proposed Reincorporation, and does not deal with all the tax consequences that
may be relevant to particular stockholders, such as stockholders who are dealers
in securities, foreign persons or stockholders who acquired their Common Stock
upon the exercise of stock options or in other compensatory transactions. In
view of the individual nature of tax consequences, stockholders are urged to
consult their own tax advisers as to the specific tax consequences to them of
the Proposed Reincorporation, including the applicability of federal, state,
local and foreign tax laws.
SOLICITATION OF PROXIES
The cost of solicitation of proxies in the form enclosed herewith will be
borne by the Company. In addition to the solicitation of proxies by mail, the
directors, officers and employees of the Company may also solicit proxies
personally or by telephone without additional compensation for such activities.
The Company will also request persons, firms and corporations holding shares in
their names or in the names of their nominees, which are beneficially owned by
others, to send proxy materials to and obtain proxies from such beneficial
owners. The Company will reimburse such holders for their reasonable expenses.
STOCKHOLDER PROPOSALS
A stockholder proposal submitted pursuant to Exchange Act Rule 14a-8 for
inclusion in the Company's proxy statement and form of proxy for the annual
meeting of stockholders must be received by the Company
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<PAGE> 15
by January 24, 1997. Such a proposal must also comply with the requirements as
to form and substance established by the Securities and Exchange Commission for
such a proposal to be included in the proxy statement and form of proxy. Any
such proposal should be mailed to: Robert Rivkin, BioSafe International, Inc.,
10 Fawcett Street, Cambridge, Massachusetts 02138.
OTHER MATTERS
The Board of Directors does not know of any matters other than those
described in this Proxy Statement that will be presented for action at the
Special Meeting. If other matters are presented, proxies will be voted in
accordance with the best judgment of the proxy holders.
REGARDLESS OF THE NUMBER OF SHARES YOU OWN, YOUR VOTE IS IMPORTANT TO THE
COMPANY. PLEASE COMPLETE, SIGN, DATE AND PROMPTLY RETURN THE ENCLOSED
PROXY CARD TODAY.
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
OF BIOSAFE INTERNATIONAL, INC.
INTO WASTE SYSTEMS INTERNATIONAL, INC.
AGREEMENT AND PLAN OF MERGER made this ___ day of December, 1996, by and
between BioSafe International, Inc., a corporation organized in and governed by
the laws of the State of Nevada (the "Nevada Company") and Waste Systems
International, Inc. (the "Delaware Company"), a corporation organized in and
governed by the laws of the State of Delaware, each with principal executive
offices at 10 Fawcett Street, Cambridge, MA 02138.
WHEREAS, the Board of Directors of the Nevada Company and the Delaware
Company, respectively, deem it advisable and generally to the advantage and
welfare of the two corporate parties and the shareholders of each of the parties
that the Nevada Company merge with the Delaware Company under and pursuant to
the provisions of the Business Corporation Law of State of Nevada and of the
General Corporation Law of the State of Delaware.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. MERGER. The Nevada Company shall be and it hereby is merged into the
Delaware Company.
2. EFFECTIVE DATE. This Agreement and Plan of Merger shall become effective
immediately upon compliance with the laws of the States of Nevada and Delaware,
the time of such effectiveness being hereinafter called the Effective Date.
3. SURVIVING CORPORATION. The Delaware Company shall survive the merger
herein contemplated and shall continue to be governed by the laws of the State
of Delaware and the separate corporate existence of the Nevada Company shall
cease forthwith upon the Effective Date.
4. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of the
Delaware Company as it exists on the Effective Date shall be the Certificate of
Incorporation of the Delaware Company following the Effective Date (the
"Certificate") unless and until the same shall be amended or repealed in
accordance with the provisions thereof. Such Certificate shall constitute the
Certificate of Incorporation of the Delaware Company separate and apart from
this Agreement of Merger and may be separately certified as the Certificate of
Incorporation of the Delaware Company.
5. BYLAWS. The Bylaws of the Delaware Company as they exist on the
Effective Date shall be the Bylaws of the Delaware Company following the
Effective Date unless and until the same shall be amended or repealed in
accordance with the provisions thereof.
<PAGE> 17
6. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of Directors
and the officers of the Delaware Company immediately after the Effective Date
shall be those persons who were the members of the Board of Directors and the
officers, respectively, of the Delaware Company on the Effective Date, and such
persons shall serve in such offices, respectively, for the terms provided by
law, in the Bylaws, in the Certificate or until their respective successors are
elected and qualified.
7. CANCELLATION OF SECURITIES. The securities of the Delaware Company in
existence on the Effective Date all of which are held beneficially and of record
by the Nevada Company, shall be canceled and shall cease to be issued and
outstanding shares on and after the Effective Date.
8. CONVERSION OF OUTSTANDING SECURITIES OF THE NEVADA COMPANY. Upon the
Effective Date, each outstanding share of common stock, $.001 par value, of the
Nevada Company ("Nevada Common Stock"), will be automatically converted, without
necessity of further action on the part of any person, into one share of the
Nevada Company common stock, $.001 par value, of the Delaware Company ("Delaware
Common Stock"); each outstanding convertible debenture of the Nevada Company
will automatically convert into a convertible debenture of the Delaware Company,
having the same face amount and identical terms and convertible into the same
number of shares of Delaware Common Stock as the number of shares of Nevada
Common Stock into which it was formerly convertible; and each outstanding
warrant or option of the Nevada Company to purchase a number of shares of Nevada
Common Stock will automatically convert into a warrant or option of the Delaware
Company to purchase the same number of shares of Delaware Common Stock. Each
stock certificate representing theretofore issued and outstanding shares of
Nevada Common Stock will represent the same number of shares of Delaware Common
Stock and shall be exchangeable for a stock certificate of the Delaware Company
representing such number of shares of Delaware Common Stock in accordance with
such procedures as may be established by the Delaware Company.
9. RIGHTS AND LIABILITIES OF DELAWARE COMPANY. At and after the Effective
Date, the Delaware Company shall succeed to and possess, without further act or
deed, all of the estate, rights, privileges, powers, and franchises, both public
and private, and all of the property, real, personal, and mixed, of each of the
parties hereto; all debts due to the Nevada Company shall be vested in the
Delaware Company; all claims, demands, property, rights, privileges, powers and
franchises and every other interest of either of the parties hereto shall be as
effectively the property of the Delaware Company as they were of the respective
parties hereto; the title to any real estate vested by deed or otherwise in the
Nevada Company shall not revert or be in any way impaired by reason of the
merger, but shall be vested in the Nevada Company; all rights of creditors and
all liens upon any property of either of the parties hereto shall be preserved
unimpaired, limited in lien to the property affected by such lien at the
Effective Date; all debts, liabilities, and duties of the respective parties
hereto shall thenceforth attach to the Delaware Company and may be enforced
against it to the same extent
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as if such debts, liabilities, and duties had been incurred or contracted by it;
and the Delaware Company shall indemnify and hold harmless the officers and
directors of each of the parties hereto against all such debts, liabilities and
duties and against all claims and demands arising out of the merger.
10. AMENDMENT AND ABANDONMENT. Subject to applicable law, at any time prior
to the Effective Date, the directors of the Nevada Company and the directors of
the Delaware Company may amend or abandon this Agreement; provided however, that
the principal terms may not be amended without stockholder approval.
IN WITNESS WHEREOF, each of the corporate parties hereto has caused this
Agreement and Plan of Merger to be executed.
WASTE SYSTEMS INTERNATIONAL, INC.
By: /s/ Philip Strauss
------------------------------------
Philip Strauss
President, Chief Executive Officer
and Treasurer
BIOSAFE INTERNATIONAL, INC.
By: /s/ Philip Strauss
------------------------------------
Philip Strauss
President, Chief Executive Officer
and Treasurer
3
<PAGE> 19
EXHIBIT B
CERTIFICATE OF INCORPORATION
OF
WASTE SYSTEMS INTERNATIONAL, INC.
THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "General Corporation Law"), hereby
certifies as follows:
ARTICLE I
NAME
----
The name of the Corporation is Waste Systems International, Inc.
ARTICLE II
REGISTERED OFFICE
-----------------
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
PURPOSES
--------
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
-------------
The total number of shares of capital stock which the Corporation shall
have the authority to issue is One Hundred One Million (101,000,000) shares of
which (i) One Hundred
<PAGE> 20
Million (100,000,000) shares shall be common stock, par value $.01 per share
(the "Common Stock"), and (ii) One Million (1,000,000) shares shall be preferred
stock, par value $.01 per share (the "Preferred Stock").
A. PREFERRED STOCK
---------------
As set forth in this Article IV, the Board of Directors or any authorized
committee thereof is authorized from time to time to establish and designate one
or more series of Preferred Stock, to fix and determine the variations in the
relative rights and preferences as between the different series of Preferred
Stock in the manner hereinafter set forth in this Article IV, and to fix or
alter the number of shares comprising any such series and the designation
thereof to the extent permitted by law.
The number of authorized shares of the class of Preferred Stock may be
increased or decreased (but not below the number of shares outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a
vote of the holders of the Preferred Stock.
The designations, powers, preferences and rights of, and the
qualifications, limitations and restrictions upon, each class or series of stock
shall be determined in accordance with, or as set forth below.
Subject to any limitations prescribed by law, the Board of Directors or
any authorized committee thereof is expressly authorized to provide for the
issuance of the shares of Preferred Stock in one or more series of such stock,
and by filing a certificate pursuant to applicable law of the State of Delaware,
to establish or change from time to time the number of shares to be included in
each such series, and to fix the designations, powers, preferences and the
relative, participating, optional or other special rights of the shares of each
series and any qualifications, limitations and restrictions thereof. Any action
by the Board of Directors or any authorized committee thereof under this Article
IV to fix the designations, powers, preferences and the relative, participating,
optional or other special rights of the shares of a series of Preferred Stock
and any qualifications, limitations and restrictions thereof shall require the
affirmative vote of a majority of the Directors then in office or a majority of
the members of such committee. The Board of Directors or any authorized
committee thereof shall have the right to determine or fix one or more of the
following with respect to each series of Preferred Stock to the extent permitted
by law:
(a) The distinctive serial designation and the number of shares
constituting such series;
(b) The rights in respect of dividends or the amount of dividends to
be paid on the shares of such series, whether dividends shall be cumulative and,
if so, from which date
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<PAGE> 21
or dates, the payment date or dates for dividends, and the participating and
other rights, if any, with respect to dividends;
(c) The voting powers, full or limited, if any, of the shares of
such series;
(d) Whether the shares of such series shall be redeemable and, if
so, the price or prices at which, and the terms and conditions on which, such
shares may be redeemed;
(e) The amount or amounts payable upon the shares of such series and
any preferences applicable thereto in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(f) Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and the
manner of its application, including the price or prices at which such shares
may be redeemed or purchased through the application of such fund;
(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of
the same or any other class or classes of stock of the Corporation and, if so
convertible or exchangeable, the conversion price or prices, or the rate or
rates of exchange, and the adjustments thereof, if any, at which such conversion
or exchange may be made, and any other terms and conditions of such conversion
or exchange;
(h) The price or other consideration for which the shares of such
series shall be issued;
(i) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued shares of Preferred
Stock (or series thereof) and whether such shares may be reissued as shares of
the same or any other class or series of stock; and
(j) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Directors or any authorized
committee thereof may deem advisable.
B. COMMON STOCK
------------
1. VOTING. Each holder of record shall be entitled to one vote for each
share of Common Stock standing in his name on the books of the Corporation.
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<PAGE> 22
2. DIVIDENDS. Subject to applicable law, the holders of Common Stock shall
be entitled to receive dividends out of funds legally available therefor at such
times and in such amounts as the Board of Directors may determine in its sole
discretion, with each share of Common Stock sharing equally, share for share, in
such dividends.
3. LIQUIDATION. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary (a "Liquidation Event"), after the
payment or provision for payment of all debts and liabilities of the Corporation
and all preferential amounts to which the holders of Preferred Stock are
entitled with respect to the distribution of assets in liquidation, the holders
of Common Stock shall be entitled to share ratably in the remaining assets of
the Corporation available for distribution.
4. NOTICES. In the event that the Corporation provides any notice, report
or statement to any holder of Common Stock, the Corporation shall at the same
time provide a copy of any such notice, report or statement to each holder of
outstanding Common Stock.
ARTICLE V
STOCKHOLDER ACTION
------------------
Any action required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders and
may not be taken or effected by a written consent of stockholders in lieu
thereof. Except as otherwise required by law and subject to the rights of the
holders of any series of preferred stock, special meetings of the stockholders
of the Corporation may be called only by (i) the Board of Directors pursuant to
a resolution approved by the affirmative vote of a majority of the Directors
then in office, (ii) the Chairman of the Board, if one is elected, or (iii) the
President. Only those matters set forth in the notice of the special meeting may
be considered or acted upon at a special meeting of stockholders of the
Corporation, unless otherwise provided by law. Advance notice of any matters or
nominations which stockholder intend to propose for action at an annual meeting
shall be given in the manner provided in the By-laws.
ARTICLE VI
DIRECTORS
---------
Section 1. General.
-------------------
The business and affairs of the Corporation shall be managed by or under
the direction
4
<PAGE> 23
of the Board of Directors except as otherwise provided herein or required by
law.
Section 2. Election of Directors.
---------------------------------
Election of Directors need not be by written ballot unless the By-laws of
the Corporation shall so provide.
Section 3. Terms of Directors.
------------------------------
The number of Directors of the Corporation shall be fixed by resolution
duly adopted from time to time by the Board of Directors. The Directors of the
Corporation serving at the date of filing of this Amended and Restated
Certificate of Incorporation, shall serve for terms expiring at the 1997 Annual
Meeting of Stockholders.
Commencing upon the 1997 Annual Meeting of Stockholders, the Directors,
other than those who may be elected by the holders of any series of preferred
stock, shall be classified, with respect to the term for which they severally
hold office, into three classes, as nearly equal in number as possible. Once
class of Directors shall be initially elected for a term expiring at the annual
meeting of stockholders to be held in 1988, another class shall be initially
elected for a term expiring at the annual meeting of stockholders to be held in
1999, and another class shall be initially elected for a term expiring at the
annual meeting of stockholders to be held in 2000. Members of each class shall
hold office until their successors are elected and qualified or until their
earlier resignation or removal. At each succeeding annual meeting of the
Stockholders of the Corporation, the successors of the class of Directors whose
term expires at that meeting shall be elected by a plurality vote of all votes
cast at such meeting to hold office for a term expiring at the annual meeting of
stockholders held in the third year following their election.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article IV of this Amended and Restated Certificate of Incorporation, the
holders of any one or more series of Preferred Stock shall have the right,
voting separately as a series or together with holders of other such series, to
elect Directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Amended and Restated Certificate of
Incorporation and any certificate of designations applicable thereto, and such
Directors so elected shall not be divided into classes pursuant to this Section
3.
During any period when the holders of any series of Preferred Stock have
the right to elect additional Directors as provided for or fixed pursuant to the
provisions of Article IV hereof, then upon commencement and for the duration of
the period during which such right continues: (i) the then otherwise total
authorized number of Directors of the Corporation shall automatically be
increased by such specified number of Directors, and the holders of such
Preferred Stock shall be entitled to elect the additional Directors so provided
for or fixed
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<PAGE> 24
pursuant to said provisions, and (ii) each such additional Director shall serve
until such Director's successor shall have been duly elected and qualified, or
until such Director's right to hold such office terminates pursuant to said
provisions, whichever occurs earlier, subject to such Director's earlier death,
disqualification, resignation or removal. Except as otherwise provided by the
Board in the resolution or resolutions establishing such series, whenever the
holders of any series of Preferred Stock having such right to elect additional
Directors are divested of such right pursuant to the provisions of such stock,
the terms of office of all such additional Directors elected by the holders of
such stock, or elected to fill any vacancies resulting from the death,
resignation, disqualification or removal of such additional Directors, shall
forthwith terminate and the total and authorized number of Directors of the
Corporation shall be reduced accordingly.
Section 4. Stockholder Nominations of Director Candidates.
----------------------------------------------------------
Advance notice of nominations for the election of Directors, other than by
the Board of Directors of a committee thereof, shall be given in the manner
provided in the By-laws.
Section 5. Vacancies.
---------------------
Subject to the rights, if any, of the holders of any series of Preferred
Stock to elect Directors and to fill vacancies in the Board of Directors
relating thereto, any and all vacancies in the Board of Directors, however
occurring, including, without limitation, by reason of an increase in size of
the Board of Directors, or the death, resignation, disqualification or removal
of a Director, shall be filled solely by the affirmative vote of a majority of
the remaining Directors then in office, even if less than a quorum of the Board
of Directors. Any Director appointed in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of Directors
in which the new directorship was created or the vacancy occurred and until such
Director's successor shall have been duly elected and qualified or until his or
her earlier resignation or removal. Subject to the rights, if any, of the
holders of any series of Preferred Stock to elect Directors, when the number of
Directors is increased or decreased, the Board of Directors shall determine the
class or classes to which the increased or decreased number of Directors shall
be apportioned; provided, however, that no decrease in the number of Directors
shall shorten the term of any incumbent Director. In the event of a vacancy in
the Board of Directors, the remaining Directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy is
filled.
Section 6. Removal.
-------------------
Subject to the rights, if any, of any series of Preferred Stock to elect
Directors and to remove any Director whom the holders of any such stock have the
right to elect, any Director (including persons elected by Directors to fill
vacancies in the Board of Directors) may be removed from office (i) only with
cause and (ii) only by the affirmative vote of at least
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<PAGE> 25
two-thirds of the total votes which would be eligible to be cast by stockholders
in the election of such Director. At least 30 days prior to any meeting of
stockholders at which it is proposed that any Director be removed from office,
written notice of such proposed removal shall be sent to the Director whose
removal will be considered at the meeting. For purposes of this Amended and
Restated Certificate of Incorporation, "cause," with respect to the removal of
any Director shall include (i) conviction of a felony, (ii) declaration of
unsound mind by order of court, (iii) gross dereliction of duty, (iv) commission
of any action involving moral turpitude, or (v) commission of an action which
constitutes intentional misconduct or a knowing violation of law if such action
in either event results both in an improper substantial personal benefit and a
material injury to the Corporation.
ARTICLE VII
LIMITATION OF LIABILITY
-----------------------
A director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that the elimination or limitation of
liability is not permitted under the Delaware General Corporation Law as in
effect when such liability is determined. No amendment or repeal of this
provision shall deprive a director of the benefits hereof with respect to any
act or omission occurring prior to such amendment or repeal.
Any repeal or modification of this Article VII by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal or
modification with respect to any acts or omissions occurring before such repeal
or modification of a person serving as a Director at the time of such repeal or
modification.
ARTICLE VIII
AMENDMENT OF BY-LAWS
--------------------
Section 1. Amendment by Directors
---------------------------------
Except as otherwise provided by law, the By-laws of the Corporation may be
amended or repealed by the Board of Directors.
Section 2. Amendment by Stockholders
------------------------------------
The By-laws of the Corporation may be amended or repealed at any annual
meeting of stockholders, or special meeting of stockholders called for such
purpose, by the affirmative
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<PAGE> 26
vote of at least two-thirds of the total votes eligible to be cast on such
amendment or repeal by holders of voting stock, voting together as a single
class; provided, however, that if the Board of Directors recommends that
stockholders approve such amendment or repeal at such meeting of stockholders,
such amendment or repeal shall only require the affirmative vote of a majority
of the total votes eligible to be cast on such amendment or repeal by holders of
voting stock, voting together as a single class.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
-----------------------------------------
The Corporation reserves the right to amend or repeal this Amended and
Restated Certificate of Incorporation in the manner now or hereafter prescribed
by statute and this Amended and Restated Certificate of Incorporation, and all
rights conferred upon stockholders herein are granted subject to this
reservation. No amendment or repeal of this Amended and Restated Certificate of
Incorporation shall be made unless the same is first approved by the Board of
Directors pursuant to a resolution adopted by the Board of Directors in
accordance with Section 242 of the DGCL, and, except as otherwise provided by
law, thereafter approved by the stockholders. Whenever any vote of the holders
of voting stock is required to amend or repeal any provision of this Amended and
Restated Certificate of Incorporation, and in addition to any other vote of
holders of voting stock that is required by this Amended and Restated
Certificate of Incorporation, or by law, the affirmative vote of a majority of
the total votes eligible to be cast by holders of voting stock with respect to
such amendment or repeal, voting together a single class, at a duly constituted
meeting of stockholders called expressly for such purpose shall be required to
amend or repeal any provisions of this Amended and Restated Certificate of
Incorporation; provided, however, that the affirmative vote of not less than 80%
of the total votes eligible to be cast by holders of voting stock, voting
together as a single class, shall be required to amend or repeal any of the
provisions of Article VI or Article IX of this Amended and Restated Certificate
of Incorporation.
ARTICLE X
INDEMNIFICATION
---------------
The Corporation shall, to the fullest extent permitted by the Delaware
General Corporation Law, as amended from time to time, indemnify each person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, administrative or
investigative, by reason of the fact that such person is or was, or has agreed
to become, a director or officer of the corporation, or is or was serving, or
has agreed to serve, at the request of the Corporation, as a director, officer
or trustee of, or in a similar capacity with, another corporation, as a
director, officer or trustee
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<PAGE> 27
of, or in a similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise, from and against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person or on his or her behalf in connection with
such action, suit or proceeding and any appeal therefrom.
Indemnification may include payment by the Corporation of expenses in
defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt of any undertaking by the person indemnified
to repay such payment if it is ultimately determined that such person in not
entitled to indemnification under this Article, which undertaking may be
accepted without reference to the financial ability of such person to make such
payments.
The Corporation shall not indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person unless the initiation thereof was approved by the Board of Directors
of the Corporation.
The indemnification rights provided in this Article XII (i) shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any law, agreement or vote of stockholders or disinterested directors or
otherwise, and (ii) shall inure to the benefit of the heirs, executors and
administrators of such persons. The Corporation may, to the extent authorized
from time to time by its Board of Directors, grant indemnification rights to
other employees or agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or less than, those
set forth in this Article.
Any person seeking indemnification under this Article shall be deemed to
have met the standard of conduct required for such indemnification unless the
contrary shall be established.
Any amendment or repeal of the provisions of this Article shall not
adversely affect any right or protection of a director or officer of the
Corporation with respect to any act or omission of such director or officer
occurring prior to such amendment or repeal.
ARTICLE XI
BOOKS
-----
The books of this Corporation may (subject to any statutory requirements)
be kept outside the State of Delaware as may be designated by the Board of
Directors or in the Bylaws.
[Remainder of page left intentionally blank]
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<PAGE> 28
I, Philip Strauss, President, Chief Executive Officer and Treasurer of the
Corporation, for the purpose of amending and restating the Corporation's
Certificate of Incorporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that this is my act and deed on behalf of the Corporation this ___ day of
_________, 1997.
/s/ Philip Strauss
------------------------------------------
Philip Strauss, President, Chief Executive
Officer and Treasurer
10
<PAGE> 29
EXHIBIT C
BYLAWS
OF
WASTE SYSTEMS INTERNATIONAL, INC.
ARTICLE I
---------
Stockholders
------------
SECTION 1. ANNUAL MEETING. The annual meeting of stockholders shall be
held at the hour, date and place within or without the United States which is
fixed by the majority of the Board of Directors, the Chairman of the Board, if
one is elected, or the President, which time, date and place may subsequently be
changed at any time by vote of the Board of Directors. If no annual meeting has
been held for a period of thirteen months after the Corporation's last annual
meeting of stockholders, a special meeting in lieu thereof may be held, and such
special meeting shall have, for the purposes of these Bylaws or otherwise, all
the force and effect of an annual meeting. Any and all references hereafter in
these Bylaws to an annual meeting or annual meetings also shall be deemed to
refer to any special meeting(s) in lieu thereof.
SECTION 2. MATTERS TO BE CONSIDERED AT ANNUAL MEETINGS. At any annual
meeting of stockholders or any special meeting in lieu of annual meeting of
stockholders (the "Annual Meeting"), only such business shall be conducted, and
only such proposals shall be acted upon, as shall have been properly brought
before such Annual Meeting. To be considered as properly brought before an
Annual Meeting, business must be: (a) specified in the notice of meeting, (b)
otherwise properly brought before the meeting by, or at the direction of, the
Board of Directors, or (c) otherwise properly brought before the meeting by any
holder of record (both as of the time notice of such proposal is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of capital stock of the Corporation entitled to vote
at such Annual Meeting who complies with the requirements set forth in this
Section 2.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder of record of any
shares of capital stock entitled to vote at such Annual Meeting, such
stockholder shall: (i) give timely notice as required by this Section 2 to the
Secretary of the Corporation and (ii) be present at such meeting, either in
person or by a representative. For all Annual Meetings, a stockholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its principal executive office not less than 75 days nor more than 120 days
prior to the anniversary date of the immediately preceding Annual Meeting (the
"Anniversary Date"); provided, however, that in the event the Annual Meeting is
scheduled to be held on a date more than 30 days before the Anniversary
<PAGE> 30
Date or more than 60 days after the Anniversary Date, a stockholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its principal executive office not later than the close of business on the
later of (A) the 75th day prior to the scheduled date of such Annual Meeting or
(B) the 15th day following the day on which public announcement of the date of
such Annual Meeting is first made by the Corporation.
For purposes of these Bylaws, "public announcement" shall mean: (i)
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service, (ii) a report or other document filed
publicly with the Securities and Exchange Commission (including, without
limitation, a Form 8-K), or (iii) a letter or report sent to stockholders of
record of the Corporation at the time of the mailing of such letter or report.
A stockholder's notice to the Secretary shall set forth as to each matter
proposed to be brought before an Annual Meeting: (i) a brief description of the
business the stockholder desires to bring before such Annual Meeting and the
reasons for conducting such business at such Annual Meeting, (ii) the name and
address, as they appear on the Corporation's stock transfer books, of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation's capital stock beneficially owned by the stockholder proposing such
business, (iv) the names and addresses of the beneficial owners, if any, of any
capital stock of the Corporation registered in such stockholder's name on such
books, and the class and number of shares of the Corporation's capital stock
beneficially owned by such beneficial owners, (v) the names and addresses of
other stockholders known by the stockholder proposing such business to support
such proposal, and the class and number of shares of the Corporation's capital
stock beneficially owned by such other stockholders, and (vi) any material
interest of the stockholder proposing to bring such business before such meeting
(or any other stockholders known to be supporting such proposal) in such
proposal.
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 2 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 2 in any material respect, such proposal shall not be presented for
action at the Annual Meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the Annual
Meeting shall determine whether the stockholder proposal was made in accordance
with the terms of this Section 2. If the presiding officer determines that any
stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 2 or that the information provided in a stockholder's
notice does not satisfy the information requirements of this Section 2 in any
material respect, such proposal shall not be presented for action at the Annual
Meeting in question. If the Board of Directors, a designated committee thereof
or the presiding officer determines that a stockholder proposal was made in
accordance with the requirements of this
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<PAGE> 31
Section 2, the presiding officer shall so declare at the Annual Meeting and
ballots shall be provided for use at the meeting with respect to such proposal.
Notwithstanding the foregoing provisions of this Bylaw, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder with respect to the matters set forth in this By-Law, and nothing in
this By-Law shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
SECTION 3. SPECIAL MEETINGS. Except as otherwise required by law and
subject to the rights, if any, of the holders of any series of Preferred Stock
of the Corporation, special meetings of the stockholders of the Corporation may
be called only by the Board of Directors pursuant to a resolution approved by
the affirmative vote of a majority of the Directors then in office.
SECTION 4. MATTERS TO BE CONSIDERED AT SPECIAL MEETINGS. Only those
matters set forth in the notice of the special meeting may be considered or
acted upon at a special meeting of stockholders of the Corporation, unless
otherwise provided by law.
SECTION 5. NOTICE OF MEETINGS; ADJOURNMENTS. A written notice of all
Annual Meetings stating the hour, date and place of such Annual Meetings shall
be given by the Secretary or an Assistant Secretary (or other person authorized
by these Bylaws or by law) not less than 10 days nor more than 60 days before
the Annual Meeting, to each stockholder entitled to vote thereat and to each
stockholder who, by law or under the Amended and Restated Certificate of
Incorporation of the Corporation (as the same may hereafter be amended and/or
restated, the "Certificate") or under these Bylaws, is entitled to such notice,
by delivering such notice to him or by mailing it, postage prepaid, addressed to
such stockholder at the address of such stockholder as it appears on the
Corporation's stock transfer books. Such notice shall be deemed to be delivered
when hand delivered to such address or deposited in the mail so addressed, with
postage prepaid.
Notice of all special meetings of stockholders shall be given in the same
manner as provided for Annual Meetings, except that the written notice of all
special meetings shall state the purpose or purposes for which the meeting has
been called.
Notice of an Annual Meeting or special meeting of stockholders need not be
given to a stockholder if a written waiver of notice is signed before or after
such meeting by such stockholder or if such stockholder attends such meeting,
unless such attendance was for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting was not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any Annual Meeting or special meeting of stockholders need be
specified in any written waiver of notice.
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<PAGE> 32
The Board of Directors may postpone and reschedule any previously
scheduled Annual Meeting or special meeting of stockholders and any record date
with respect thereto, regardless of whether any notice or public disclosure with
respect to any such meeting has been sent or made pursuant to Section 2 of this
Article I or Section 3 of Article II hereof or otherwise. In no event shall the
public announcement of an adjournment, postponement or rescheduling of any
previously scheduled meeting of stockholders commence a new time period for the
giving of a stockholder's notice under Section 2 of Article I and Section 3 of
Article II of these Bylaws.
When any meeting is convened, the presiding officer may adjourn the
meeting if (a) no quorum is present for the transaction of business, (b) the
Board of Directors determines that adjournment is necessary or appropriate to
enable the stockholders to consider fully information which the Board of
Directors determines has not been made sufficiently or timely available to
stockholders, or (c) the Board of Directors determines that adjournment is
otherwise in the best interests of the Corporation. When any Annual Meeting or
special meeting of stockholders is adjourned to another hour, date or place,
notice need not be given of the adjourned meeting other than an announcement at
the meeting at which the adjournment is taken of the hour, date and place to
which the meeting is adjourned; provided, however, that if the adjournment is
for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote thereat and each stockholder who, by
law or under the Certificate or these Bylaws, is entitled to such notice.
SECTION 6. QUORUM. The holders of shares of voting stock representing a
majority of the voting power of the outstanding shares of voting stock issued,
outstanding and entitled to vote at a meeting of stockholders, represented in
person or by proxy at such meeting, shall constitute a quorum; but if less than
a quorum is present at a meeting, the holders of voting stock representing a
majority of the voting power present at the meeting or the presiding officer may
adjourn the meeting from time to time, and the meeting may be held as adjourned
without further notice, except as provided in Section 5 of this Article I. At
such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The stockholders present at a duly constituted meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 7. VOTING AND PROXIES. Stockholders shall have one vote for each
share of stock entitled to vote owned by them of record according to the books
of the Corporation, unless otherwise provided by law or by the Certificate.
Stockholders may vote either in person or by written proxy, but no proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. Proxies shall be filed with the Secretary of the
meeting before being voted. Except as otherwise limited therein or as otherwise
provided by law, proxies shall entitle the persons authorized thereby to vote at
any adjournment of such meeting, but they shall not be valid after final
adjournment of such
4
<PAGE> 33
meeting. A proxy with respect to stock held in the name of two or more persons
shall be valid if executed by or on behalf of any one of them unless at or prior
to the exercise of the proxy the Corporation receives a specific written notice
to the contrary from any one of them. A proxy purporting to be executed by or on
behalf of a stockholder shall be deemed valid, and the burden of proving
invalidity shall rest on the challenger.
SECTION 8. ACTION AT MEETING. When a quorum is present, any matter before
any meeting of stockholders shall be decided by the vote of a majority of the
voting power of shares of voting stock, present in person or represented by
proxy at such meeting and entitled to vote on such matter, except where a larger
vote is required by law, by the Certificate or by these Bylaws. Any election by
stockholders shall be determined by a plurality of the votes cast, except where
a larger vote is required by law, by the Certificate or by these Bylaws. The
Corporation shall not directly or indirectly vote any shares of its own stock;
provided, however, that the Corporation may vote shares which it holds in a
fiduciary capacity to the extent permitted by law.
SECTION 9. ACTION BY CONSENT. Any action required or permitted to be taken
by the Stockholders of the Corporation at any annual or special meeting of
stockholders of the Corporation must be effected at a duly-called Annual or
Special Meeting of Stockholders and may not be taken or effected by a written
consent of stockholders in lieu thereof.
SECTION 10. STOCKHOLDER LISTS. The Secretary or an Assistant Secretary (or
the Corporation's transfer agent or other person authorized by these Bylaws or
by law) shall prepare and make, at least 10 days before every Annual Meeting or
special 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 10 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 hour, date and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 11. PRESIDING OFFICER. The Chairman of the Board, if one is
elected, or if not elected or in his or her absence, the President, shall
preside at all Annual Meetings or special meetings of stockholders and shall
have the power, among other things, to adjourn such meeting at any time and from
time to time, subject to Sections 5 and 6 of this Article I. The order of
business and all other matters of procedure at any meeting of the stockholders
shall be determined by the presiding officer.
5
<PAGE> 34
SECTION 12. VOTING PROCEDURES AND INSPECTORS OF ELECTIONS. The Corporation
shall, in advance of any meeting of stockholders, appoint one or more inspectors
to act at the meeting and make a written report thereof. The Corporation may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the presiding officer shall appoint one or more inspectors to act
at the meeting. Any inspector may, but need not, be an officer, employee or
agent of the Corporation. Each inspector, before entering upon the discharge of
his or her duties, shall take and sign an oath faithfully to execute the duties
of inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall perform such duties as are required by the General
Corporation Law of the State of Delaware, as amended from time to time (the
"DGCL"), including the counting of all votes and ballots. The inspectors may
appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of the inspectors. The presiding officer may review
all determinations made by the inspector(s), and in so doing the presiding
officer shall be entitled to exercise his or her sole judgment and discretion
and he or she shall not be bound by any determinations made by the inspector(s).
All determinations by the inspector(s) and, if applicable, the presiding officer
shall be subject to further review by any court of competent jurisdiction.
ARTICLE II
----------
Directors
---------
SECTION 1. POWERS. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors except as otherwise
provided by the Certificate or required by law.
SECTION 2. NUMBER AND TERMS. The number of Directors of the Corporation
shall be fixed by resolution duly adopted from time to time by the Board of
Directors. The Directors shall hold office in the manner provided in the
Certificate.
SECTION 3. DIRECTOR NOMINATIONS. Nominations of candidates for election as
directors of the Corporation at any Annual Meeting may be made only (a) by, or
at the direction of, a majority of the Board of Directors or (b) by any holder
of record (both as of the time notice of such nomination is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of the capital stock of the Corporation entitled to
vote at such Annual Meeting who complies with the timing, informational and
other requirements set forth in this Section 3. Any stockholder who has complied
with the timing, informational and other requirements set forth in this Section
3 and who seeks to make such a nomination, or his, her or its representative,
must be present in person at the Annual Meeting. Only persons nominated in
accordance with the procedures set forth in this Section 3 shall be eligible for
election as directors at an Annual Meeting.
6
<PAGE> 35
Nominations, other than those made by, or at the direction of, the Board
of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 3. For the first
Annual Meeting following the initial public offering of common stock of the
Corporation, a stockholder's notice shall be timely if delivered to, or mailed
to and received by, the Corporation at its principal executive office not later
than the close of business on the later of (A) the 75th day prior to the
scheduled date of such Annual Meeting or (B) the 15th day following the day on
which public announcement of the date of such Annual Meeting is first made by
the Corporation. For all subsequent Annual Meetings, a stockholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its principal executive office not less than 75 days nor more than 120 days
prior to the Anniversary Date; provided, however, that in the event the Annual
Meeting is scheduled to be held on a date more than 30 days before the
Anniversary Date or more than 60 days after the Anniversary Date, a
stockholder's notice shall be timely if delivered to, or mailed and received by,
the Corporation at its principal executive office not later than the close of
business on the later of (i) the 75th day prior to the scheduled date of such
Annual Meeting or (ii) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
A stockholder's notice to the Secretary shall set forth as to each person
whom the stockholder proposes to nominate for election or re-election as a
director: (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation's capital stock which are
beneficially owned by such person on the date of such stockholder notice, and
(iv) the consent of each nominee to serve as a director if elected. A
stockholder's notice to the Secretary shall further set forth as to the
stockholder giving such notice: (i) the name and address, as they appear on the
Corporation's stock transfer books, of such stockholder and of the beneficial
owners (if any) of the Corporation's capital stock registered in such
stockholder's name and the name and address of other stockholders known by such
stockholder to be supporting such nominee(s), (ii) the class and number of
shares of the Corporation's capital stock which are held of record, beneficially
owned or represented by proxy by such stockholder and by any other stockholders
known by such stockholder to be supporting such nominee(s) on the record date
for the Annual Meeting in question (if such date shall then have been made
publicly available) and on the date of such stockholder's notice, and (iii) a
description of all arrangements or understandings between such stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by such
stockholder.
If the Board of Directors or a designated committee thereof determines
that any stockholder nomination was not made in accordance with the terms of
this Section 3 or that the information provided in a stockholder's notice does
not satisfy the informational requirements of this Section 3 in any material
respect, then such nomination shall not be considered at the Annual Meeting in
question. If neither the Board of Directors nor such committee makes a
determination as to whether a nomination was made in accordance with the
provisions of this
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Section 3, the presiding officer of the Annual Meeting shall determine whether a
nomination was made in accordance with such provisions. If the presiding officer
determines that any stockholder nomination was not made in accordance with the
terms of this Section 3 or that the information provided in a stockholder's
notice does not satisfy the informational requirements of this Section 3 in any
material respect, then such nomination shall not be considered at the Annual
Meeting in question. If the Board of Directors, a designated committee thereof
or the presiding officer determines that a nomination was made in accordance
with the terms of this Section 3, the presiding officer shall so declare at the
Annual Meeting and ballots shall be provided for use at the meeting with respect
to such nominee.
Notwithstanding anything to the contrary in the second sentence of the
second paragraph of this Section 3, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and there
is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least 75
days prior to the Anniversary Date, a stockholder's notice required by this
Section 3 shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if such notice shall be delivered
to, or mailed to and received by, the Corporation at its principal executive
office not later than the close of business on the 15th day following the day on
which such public announcement is first made by the Corporation.
No person shall be elected by the stockholders as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. Election of Directors at the annual meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such annual meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as Directors at
the annual meeting in accordance with the procedures set forth in this Section
shall be provided for use at the annual meeting.
SECTION 4. QUALIFICATION. No Director need be a stockholder of the
Corporation.
SECTION 5. VACANCIES. Subject to the rights, if any, of the holders of any
series of Preferred Stock of the Corporation to elect Directors and to fill
vacancies in the Board of Directors relating thereto, any and all vacancies in
the Board of Directors, however occurring, including, without limitation, by
reason of an increase in size of the Board of Directors, or the death,
resignation, disqualification or removal of a Director, shall be filled solely
by the affirmative vote of a majority of the remaining Directors then in office,
even if less than a quorum of the Board of Directors. Any Director appointed in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until such Director's successor shall have
been duly elected and qualified or until his or her earlier resignation or
removal. Subject to the rights, if any, of the holders of any series of
Preferred Stock of the Corporation to elect Directors, when the number of
Directors is increased or decreased, the Board of
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Directors shall determine the class or classes to which the increased or
decreased number of Directors shall be apportioned; provided, however, that no
decrease in the number of Directors shall shorten the term of any incumbent
Director. In the event of a vacancy in the Board of Directors, the remaining
Directors, except as otherwise provided by law, may exercise the powers of the
full Board of Directors until the vacancy is filled.
SECTION 6. REMOVAL. Directors may be removed from office in the manner
provided in the Certificate.
SECTION 7. RESIGNATION. A Director may resign at any time by giving
written notice to the Chairman of the Board, if one is elected, the President or
the Secretary. A resignation shall be effective upon receipt, unless the
resignation otherwise provides.
SECTION 8. REGULAR MEETINGS. The regular annual meeting of the Board of
Directors shall be held, without notice other than this By-Law, on the same date
and at the same place as the Annual Meeting following the close of such Annual
Meeting of Stockholders. Other regular meetings of the Board of Directors may be
held at such hour, date and place as the Board of Directors may by resolution
from time to time determine without notice other than such resolution.
SECTION 9. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called, orally or in writing, by or at the request of a majority of the
Directors, the Chairman of the Board, if one is elected, or the President. The
person calling any such special meeting of the Board of Directors may fix the
hour, date and place thereof.
SECTION 10. NOTICE OF MEETINGS. Notice of the hour, date and place of all
special meetings of the Board of Directors shall be given to each Director by
the Secretary or an Assistant Secretary, or in case of the death, absence,
incapacity or refusal of such persons, by the Chairman of the Board, if one is
elected, or the President or such other officer designated by the Chairman of
the Board, if one is elected, or the President. Notice of any special meeting of
the Board of Directors shall be given to each Director in person, by telephone,
or by telex, telecopy, telegram, or other written form of electronic
communication, sent to his or her business or home address, at least 24 hours in
advance of the meeting, or by written notice mailed to his or her business or
home address, at least 48 hours in advance of the meeting. Such notice shall be
deemed to be delivered when hand delivered to such address, read to such
Director by telephone, deposited in the mail so addressed, with postage thereon
prepaid if mailed, dispatched or transmitted if telexed or telecopied, or when
delivered to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for 30 days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. It shall not be necessary to give any notice
of the hour, date or place of any meeting adjourned for less than 30 days or of
the business to be transacted thereat, other than an
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announcement at the meeting at which such adjournment is taken of the hour, date
and place to which the meeting is adjourned.
A written waiver of notice signed before or after a meeting by a Director
and filed with the records of the meeting shall be deemed to be equivalent to
notice of the meeting. The attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting, except where a Director attends a
meeting for the express purpose of objecting at the beginning of the meeting to
the transaction of any business because such meeting is not lawfully called or
convened. Except as otherwise required by law, by the Certificate or by these
Bylaws, neither the business to be transacted at, nor the purpose of, any
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
SECTION 11. QUORUM. At any meeting of the Board of Directors, a majority
of the Directors then in office shall constitute a quorum for the transaction of
business, but if less than a quorum is present at a meeting, a majority of the
Directors present may adjourn the meeting from time to time, and the meeting may
be held as adjourned without further notice, except as provided in Section 10 of
this Article II. Any business which might have been transacted at the meeting as
originally noticed may be transacted at such adjourned meeting at which a quorum
is present.
SECTION 12. ACTION AT MEETING. At any meeting of the Board of Directors at
which a quorum is present, a majority of the Directors present may take any
action on behalf of the Board of Directors, unless otherwise required by law, by
the Certificate or by these Bylaws.
SECTION 13. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing. Such written
consent shall be filed with the records of the meetings of the Board of
Directors and shall be treated for all purposes as a vote at a meeting of the
Board of Directors.
SECTION 14. MANNER OF PARTICIPATION. Directors may participate in meetings
of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all Directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these Bylaws.
SECTION 15. COMMITTEES. The Board of Directors, by vote of a majority of
the Directors then in office, may elect from its number one or more committees,
including, without limitation, an Executive Committee, a Compensation Committee,
a Stock Option Committee and an Audit Committee, and may delegate thereto some
or all of its powers except those which by law, by the Certificate or by these
Bylaws may not be delegated. Except as the Board of Directors may otherwise
determine, any such committee may make rules for the conduct of its business,
but unless otherwise provided by the Board of Directors or in such
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<PAGE> 39
rules, its business shall be conducted so far as possible in the same manner as
is provided by these Bylaws for the Board of Directors. All members of such
committees shall hold such offices at the pleasure of the Board of Directors.
The Board of Directors may abolish any such committee at any time. Any committee
to which the Board of Directors delegates any of its powers or duties shall keep
records of its meetings and shall report its action to the Board of Directors.
The Board of Directors shall have power to rescind any action of any committee,
to the extent permitted by law, but no such rescission shall have retroactive
effect.
SECTION 16. COMPENSATION OF DIRECTORS. Directors shall receive such
compensation for their services as shall be determined by a majority of the
Board of Directors provided that Directors who are serving the Corporation as
employees and who receive compensation for their services as such, shall not
receive any salary or other compensation for their services as Directors of the
Corporation.
ARTICLE III
-----------
Officers
--------
SECTION 1. ENUMERATION. The officers of the Corporation shall consist of a
President, a Treasurer, a Secretary and such other officers, including, without
limitation, a Chairman of the Board of Directors and one or more Vice Presidents
(including Executive Vice Presidents or Senior Vice Presidents), Assistant Vice
Presidents, Assistant Treasurers and Assistant Secretaries, as the Board of
Directors may determine.
SECTION 2. ELECTION. At the regular annual meeting of the Board following
the annual meeting of stockholders, the Board of Directors shall elect the
President, the Treasurer and the Secretary. Other officers may be elected by the
Board of Directors at such regular annual meeting of the Board of Directors or
at any other regular or special meeting.
SECTION 3. QUALIFICATION. No officer need be a stockholder or a Director.
Any person may occupy more than one office of the Corporation at any time. Any
officer may be required by the Board of Directors to give bond for the faithful
performance of his or her duties in such amount and with such sureties as the
Board of Directors may determine.
SECTION 4. TENURE. Except as otherwise provided by the Certificate or by
these Bylaws, each of the officers of the Corporation shall hold office until
the regular annual meeting of the Board of Directors following the next annual
meeting of stockholders and until his or her successor is elected and qualified
or until his or her earlier resignation or removal.
SECTION 5. RESIGNATION. Any officer may resign by delivering his or her
written resignation to the Corporation addressed to the President or the
Secretary, and such
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resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other event.
SECTION 6. REMOVAL. Except as otherwise provided by law, the Board of
Directors may remove any officer with or without cause by the affirmative vote
of a majority of the Directors then in office.
SECTION 7. ABSENCE OR DISABILITY. In the event of the absence or
disability of any officer, the Board of Directors may designate another officer
to act temporarily in place of such absent or disabled officer.
SECTION 8. VACANCIES. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
SECTION 9. PRESIDENT. Unless otherwise provided by the Board of Directors
or the Certificate, the President shall be the Chief Executive Officer of the
Corporation and shall, subject to the direction of the Board of Directors, have
general supervision and control of the Corporation's business. If there is no
Chairman of the Board or if he or she is absent, the President shall preside,
when present, at all meetings of stockholders and of the Board of Directors. The
President shall have such other powers and perform such other duties as the
Board of Directors may from time to time designate.
SECTION 10. CHAIRMAN OF THE BOARD. The Chairman of the Board, if one is
elected, shall preside, when present, at all meetings of the stockholders and of
the Board of Directors. The Chairman of the Board shall have such other powers
and shall perform such other duties as the Board of Directors may from time to
time designate.
SECTION 11. VICE PRESIDENTS AND ASSISTANT VICE PRESIDENTS. Any Vice
President (including any Executive Vice President or Senior Vice President) and
any Assistant Vice President shall have such powers and shall perform such
duties as the Board of Directors or the Chief Executive Officer may from time to
time designate.
SECTION 12. TREASURER AND ASSISTANT TREASURERS. The Treasurer shall,
subject to the direction of the Board of Directors and except as the Board of
Directors or the Chief Executive Officer may otherwise provide, have general
charge of the financial affairs of the Corporation and shall cause to be kept
accurate books of account. The Treasurer shall have custody of all funds,
securities, and valuable documents of the Corporation. He or she shall have such
other duties and powers as may be designated from time to time by the Board of
Directors or the Chief Executive Officer.
Any Assistant Treasurer shall have such powers and perform such duties as
the Board of Directors or the Chief Executive Officer may from time to time
designate.
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SECTION 13. SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall
record all the proceedings of the meetings of the stockholders and the Board of
Directors (including committees of the Board) in books kept for that purpose. In
his or her absence from any such meeting, a temporary secretary chosen at the
meeting shall record the proceedings thereof. The Secretary shall have charge of
the stock ledger (which may, however, be kept by any transfer or other agent of
the Corporation). The Secretary shall have custody of the seal of the
Corporation, and the Secretary, or an Assistant Secretary, shall have authority
to affix it to any instrument requiring it, and, when so affixed, the seal may
be attested by his or her signature or that of an Assistant Secretary. The
Secretary shall have such other duties and powers as may be designated from time
to time by the Board of Directors or the Chief Executive Officer. In the absence
of the Secretary, any Assistant Secretary may perform his or her duties and
responsibilities.
Any Assistant Secretary shall have such powers and perform such duties as
the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 14. OTHER POWERS AND DUTIES. Subject to these Bylaws and to such
limitations as the Board of Directors may from time to time prescribe, the
officers of the Corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the Board of Directors or the Chief Executive
Officer.
ARTICLE IV
----------
Capital Stock
-------------
SECTION 1. CERTIFICATES OF STOCK. Each stockholder shall be entitled to a
certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall be
signed by the Chairman of the Board of Directors, the President or a Vice
President and by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary. The Corporation seal and the signatures by Corporation
officers, the transfer agent or the registrar may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed on such 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 or she were such officer,
transfer agent or registrar at the time of its issue. Every certificate for
shares of stock which are subject to any restriction on transfer and every
certificate issued when the Corporation is authorized to issue more than one
class or series of stock shall contain such legend with respect thereto as is
required by law.
SECTION 2. TRANSFERS. Subject to any restrictions on transfer and unless
otherwise provided by the Board of Directors, shares of stock may be transferred
only on the books of
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the Corporation by the surrender to the Corporation or its transfer agent of the
certificate theretofore properly endorsed or accompanied by a written assignment
or power of attorney properly executed, with transfer stamps (if necessary)
affixed, and with such proof of the authenticity of signature as the Corporation
or its transfer agent may reasonably require.
SECTION 3. RECORD HOLDERS. Except as may otherwise be required by law, by
the Certificate or by these Bylaws, the Corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to vote with
respect thereto, regardless of any transfer, pledge or other disposition of such
stock, until the shares have been transferred on the books of the Corporation in
accordance with the requirements of these Bylaws.
It shall be the duty of each stockholder to notify the Corporation of his
or her post office address and any changes thereto.
SECTION 4. RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof or 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 a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders,
shall, unless otherwise required by law, not be more than sixty nor less than
ten days before the date of such meeting and (2) in the case of any other
action, shall not be more than sixty days prior to such other action. If no
record date is fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held and (2) the record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
SECTION 5. REPLACEMENT OF CERTIFICATES. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
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ARTICLE V
---------
Indemnification
---------------
SECTION 1. DEFINITIONS. For purposes of this Article: (a) "Officer" means
any person who serves or has served as a Director or officer of the Corporation
or in any other office filled by election or appointment by the stockholders or
the Board of Directors of the Corporation and any heirs, executors,
administrators or personal representatives of such person; (b) "Non-Officer
Employee" means any person who serves or has served as an employee of the
Corporation, but who is not or was not an Officer, and any heirs, executors,
administrators or personal representatives of such person; (c) "Proceeding"
means any threatened, pending, or completed action, suit or proceeding (or part
thereof), whether civil, criminal, administrative, arbitrative or investigative,
any appeal of such an action, suit or proceeding, and any inquiry or
investigation which could lead to such an action, suit, or proceeding; and (d)
"Expenses" means any liability fixed by a judgment, order, decree or award in a
Proceeding, any amount reasonably paid in settlement of a Proceeding and any
professional fees and other expenses and disbursements reasonably incurred in a
Proceeding or in settlement of a Proceeding, including fines, taxes and
penalties relating thereto.
SECTION 2. OFFICERS. Except as provided in Section 4 of this Article V,
each Officer of the Corporation shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader rights
than said law permitted the Corporation to provide prior to such amendment)
against any and all Expenses incurred by such Officer in connection with any
Proceeding in which such Officer is involved as a result of serving or having
served (a) as an Officer or employee of the Corporation, (b) as a director,
officer or employee of any subsidiary of the Corporation, or (c) in any capacity
with any other corporation, organization, partnership, joint venture, trust or
other entity at the written request or direction of the Corporation, including
service with respect to employee or other benefit plans, and shall continue as
to an Officer after he or she has ceased to be an Officer and shall inure to the
benefit of his or her heirs, executors, administrators and personal
representatives; provided, however, that the Corporation shall indemnify any
such Officer seeking indemnification in connection with a Proceeding initiated
by such Officer only if such Proceeding was authorized by the Board of Directors
of the Corporation.
SECTION 3. NON-OFFICER EMPLOYEES. Except as provided in Section 4 of this
Article V, each Non-Officer Employee of the Corporation may, in the discretion
of the Board of Directors, be indemnified by the Corporation to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader rights than said law permitted the
Corporation to provide prior to such amendment) against any or all
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Expenses incurred by such Non-Officer Employee in connection with any Proceeding
in which such Non-Officer Employee is involved as a result of serving or having
served (a) as a Non- Officer Employee of the Corporation, (b) as a director,
officer or employee of any subsidiary of the Corporation, or (c) in any capacity
with any other corporation, organization, partnership, joint venture, trust or
other entity at the request or direction of the Corporation, including service
with respect to employee or other benefit plans, and shall continue as to a
Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and
shall inure to the benefit of his or her heirs, personal representatives,
executors and administrators; provided, however, that the Corporation may
indemnify any such Non-Officer Employee seeking indemnification in connection
with a Proceeding initiated by such Non-Officer Employee only if such Proceeding
was authorized by the Board of Directors of the Corporation.
SECTION 4. GOOD FAITH. No indemnification shall be provided pursuant to
this Article V to an Officer or to a Non-Officer Employee with respect to a
matter as to which such person shall have been finally adjudicated in any
Proceeding not to have acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal Proceeding, had no reasonable cause to believe
his or her conduct was unlawful. In the event that a Proceeding is compromised
or settled prior to final adjudication so as to impose any liability or
obligation upon an Officer or Non-Officer Employee, no indemnification shall be
provided pursuant to this Article V to said Officer or Non-Officer Employee with
respect to a matter if there be a determination that with respect to such matter
such person did not act in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal Proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The determination contemplated by the preceding
sentence shall be made by (i) a majority vote of those Directors who are not
involved in such Proceeding (the "Disinterested Directors"); (ii) by the
stockholders; or (iii) if directed by a majority of Disinterested Directors, by
independent legal counsel in a written opinion. However, if more than half of
the Directors are not Disinterested Directors, the determination shall be made
by (i) a majority vote of a committee of one or more disinterested Director(s)
chosen by the Disinterested Director(s) at a regular or special meeting; (ii) by
the stockholders; or (iii) by independent legal counsel chosen by the Board of
Directors in a written opinion.
SECTION 5. PRIOR TO FINAL DISPOSITION. Unless otherwise determined by (i)
the Board of Directors, (ii) if more than half of the Directors are involved in
a Proceeding by a majority vote of a committee of one or more Disinterested
Director(s) chosen in accordance with the procedures specified in Section 4 of
this Article or (iii) if directed by the Board of Directors, by independent
legal counsel in a written opinion, any indemnification extended to an Officer
or Non-Officer Employee pursuant to this Article V shall include payment by the
Corporation or a subsidiary of the Corporation of Expenses as the same are
incurred in defending a Proceeding in advance of the final disposition of such
Proceeding upon receipt of an
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undertaking by such Officer or Non-Officer Employee seeking indemnification to
repay such payment if such Officer or Non-Officer Employee shall be adjudicated
or determined not to be entitled to indemnification under this Article V.
SECTION 6. CONTRACTUAL NATURE OF RIGHTS. The foregoing provisions of this
Article V shall be deemed to be a contract between the Corporation and each
Officer and Non-Officer Employee who serves in such capacity at any time while
this Article V is in effect, and any repeal or modification thereof shall not
affect any rights or obligations then existing with respect to any state of
facts then or theretofore existing or any Proceeding theretofore or thereafter
brought based in whole or in part upon any such state of facts. If a claim for
indemnification or advancement of expenses hereunder by an Officer or
Non-Officer Employee is not paid in full by the Corporation within 60 days after
a written claim for indemnification or documentation of expenses has been
received by the Corporation, such Officer or Non-Officer Employee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim, and if successful in whole or in part, such Officer or Non-Officer
Employee shall also be entitled to be paid the expenses of prosecuting such
claim. The failure of the Corporation (including its Board of Directors or any
committee thereof, independent legal counsel, or stockholders) to make a
determination concerning the permissibility of such indemnification or
advancement of expenses under this Article V shall not be a defense to the
action and shall not create a presumption that such indemnification or
advancement is not permissible
SECTION 7. NON-EXCLUSIVITY OF RIGHTS. The provisions in respect of
indemnification and the payment of expenses incurred in defending a Proceeding
in advance of its final disposition set forth in this Article V shall not be
exclusive of any right which any person may have or hereafter acquire under any
statute, provision of the Certificate or these Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise; PROVIDED, HOWEVER, that in
the event the provisions of this Article V in any respect conflict with the
terms of any agreement between the Corporation or any of its subsidiaries and
any person entitled to indemnification under this Article V, then the provision
which is more favorable to the relevant individual shall govern.
SECTION 8. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any Officer or Non-Officer Employee against any
liability of any character asserted against or incurred by the Corporation or
any such Officer or Non-Officer Employee, or arising out of any such status,
whether or not the Corporation would have the power to indemnify such person
against such liability under the DGCL or the provisions of this Article V.
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ARTICLE VI
----------
Miscellaneous Provisions
-------------------------
SECTION 1. FISCAL YEAR. Except as otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall end on the last day of
September of each year.
SECTION 2. SEAL. The Board of Directors shall have power to adopt and
alter the seal of the Corporation.
SECTION 3. EXECUTION OF INSTRUMENTS. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without Director action may
be executed on behalf of the Corporation by the Chairman of the Board, if one is
elected, the President or the Treasurer or any other officer, employee or agent
of the Corporation as the Board of Directors or Executive Committee may
authorize.
SECTION 4. VOTING OF SECURITIES. Unless the Board of Directors otherwise
provides, the Chairman of the Board, if one is elected, the President or the
Treasurer may waive notice of and act on behalf of this Corporation, or appoint
another person or persons to act as proxy or attorney in fact for this
Corporation with or without discretionary power and/or power of substitution, at
any meeting of stockholders or shareholders of any other corporation or
organization, any of whose securities are held by this Corporation.
SECTION 5. RESIDENT AGENT. The Board of Directors may appoint a resident
agent upon whom legal process may be served in any action or proceeding against
the Corporation.
SECTION 6. CORPORATE RECORDS. The original or attested copies of the
Certificate, Bylaws and records of all meetings of the incorporators,
stockholders and the Board of Directors and the stock transfer books, which
shall contain the names of all stockholders, their record addresses and the
amount of stock held by each, may be kept outside the State of Delaware and
shall be kept at the principal office of the Corporation, at the office of its
counsel or at an office of its transfer agent or at such other place or places
as may be designated from time to time by the Board of Directors.
SECTION 7. CERTIFICATE. All references in these Bylaws to the Certificate
shall be deemed to refer to the Amended and Restated Certificate of
Incorporation of the Corporation, as amended and in effect from time to time.
18
<PAGE> 47
SECTION 8. Amendment of Bylaws.
--------------------
(a) AMENDMENT BY DIRECTORS. Except as provided otherwise by law, these
Bylaws may be amended or repealed by the Board of Directors.
(b) AMENDMENT BY STOCKHOLDERS. These Bylaws may be amended or repealed
at any annual meeting of stockholders, or special meeting of stockholders called
for such purpose, by the affirmative vote of at least two-thirds of the total
votes eligible to be cast on such amendment or repeal by holders of voting
stock, voting together as a single class; provided, however, that if the Board
of Directors recommends that stockholders approve such amendment or repeal at
such meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of a majority of the total votes eligible to be cast on such
amendment or repeal by holders of voting stock, voting together as a single
class.
Adopted ____________, 1995 and effective as of ____________, 1996.
19
<PAGE> 48
EXHIBIT D
NEVADA REVISED STATUTES
TITLE 7. BUSINESS ASSOCIATIONS; SECURITIES; COMMODITIES
92A.300. Definitions.
As used in NRS 92A.300 to 92A.500, inclusive, unless the context otherwise
requires, the words and terms defined in NRS 92A.305 to 92A.335, inclusive, have
the meanings ascribed to them in those sections.
92A.305. "Beneficial stockholder" defined.
"Beneficial stockholder" means a person who is a beneficial owner of shares
held in a voting trust or by a nominee as the stockholder of record.
92A.310. "Corporate action" defined.
"Corporate action" means the action of a domestic corporation.
92A.315. "Dissenter" defined.
"Dissenter" means a stockholder who is entitled to dissent from a domestic
corporation's action under NRS 92A.380 and who exercises that right when and in
the manner required by NRS 92A.410 to 92A.480, inclusive.
92A.320. "Fair value" defined.
"Fair value," with respect to a dissenter's shares, means the value of the
shares immediately before the effectuation of the corporate action to which he
objects, excluding any appreciation or depreciation in anticipation of the
corporate action unless exclusion would be inequitable.
92A.325. "Stockholder" defined.
"Stockholder" means a stockholder of record or a beneficial stockholder of
a domestic corporation.
92A.330. "Stockholder of record" defined.
"Stockholder of record" means the person in whose name shares are
registered in the records of a domestic corporation or the beneficial owner of
shares to the extent of the rights granted by a nominee's certificate on file
with the domestic corporation.
92A.335. "Subject corporation" defined.
"Subject corporation" means the domestic corporation which is the issuer of
the shares held by a dissenter before the corporate action creating the
dissenter's rights becomes effective or the surviving or acquiring entity of
that issuer after the corporate action becomes effective.
92A.340. Computation of interest.
Interest payable pursuant to NRS 92A.300 to 92A.500, inclusive, must be
computed from the effective date of the action until the date of payment, at the
average rate currently paid by the entity on its principal bank loans or, if it
has no bank loans, at a rate that is fair and equitable under all of the
circumstances.
92A.350. Rights of dissenting partner of domestic limited partnership.
A partnership agreement of a domestic limited partnership or, unless
otherwise provided in the partnership agreement, an agreement of merger or
exchange, may provide that contractual rights with respect to the partnership
interest of a dissenting general or limited partner of a domestic limited
partnership are available for any class or group of partnership interests in
connection with any merger or exchange in which the domestic limited partnership
is a constituent entity.
92A.360. Rights of dissenting member of domestic limited-liability company.
The articles of organization or operating agreement of a domestic
limited-liability company or, unless otherwise provided in the articles of
organization or operating agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the interest of a dissenting
member are available in connection with any merger or exchange in which the
domestic limited-liability company is a constituent entity.
92A.370. Rights of dissenting member of domestic nonprofit corporation.
1. Except as otherwise provided in subsection 2, and unless otherwise
provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice,
but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his resignation
and is thereby entitled to those rights, if any, which would have existed if
there had been no merger and the membership had been terminated or the member
had been expelled.
2. Unless otherwise provided in its articles of incorporation or bylaws, no
member of a domestic nonprofit corporation, including, but not limited to, a
cooperative corporation, which supplies services described in chapter 704 of NRS
to its members only, and no person who is a member of a domestic nonprofit
corporation as a condition of or by reason of the ownership of an interest in
real property, may resign and dissent pursuant to subsection 1.
92A.380. Right of stockholder to dissent from certain corporate actions and to
obtain payment for shares.
1. Except as otherwise provided in NRS 92A.370 and 92A.390, a stockholder
is entitled to dissent from, and obtain payment of the fair value of his shares
in the event of any of the following corporate actions:
(a) Consummation of a plan of merger to which the domestic corporation is a
party:
(1) If approval by the stockholders is required for the merger by NRS
92A.120 to 92A.160, inclusive, or the articles of incorporation and he is
entitled to vote on the merger; or
(2) If the domestic corporation is a subsidiary and is merged with its
parent under NRS 92A.180.
(b) Consummation of a plan of exchange to which the domestic corporation is
a party as the corporation whose subject owner's interests will be acquired, if
he is entitled to vote on the plan.
(c) Any corporate action taken pursuant to a vote of the stockholders to
the event that the articles of incorporation, bylaws or a resolution of the
board of directors provides that voting or nonvoting stockholders are entitled
to dissent and obtain payment for their shares.
2. A stockholder who is entitled to dissent and obtain payment under NRS
92A.300 to 92A.500, inclusive, may not challenge the corporate action creating
his entitlement unless the action is unlawful or fraudulent with respect to him
or the domestic corporation.
92A.390. Limitations on right of dissent: Stockholders of certain classes or
series; action of stockholders not required for plan of merger.
1. There is no right of dissent with respect to a plan of merger or
exchange in favor of stockholders of any class or series which, at the record
date fixed to determine the stockholders entitled to receive notice of and to
vote at the meeting at which the plan of merger or exchange is to be acted on,
were either listed on a national securities exchange, included in the national
market system by the National Association of Securities Dealers, Inc., or held
by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the shares
provide oherwise; or
(b) The holders of the class or series are required under the plan of
merger or exchange to accept for the shares anything except:
(1) Cash, owner's interests or owner's interests and cash in lieu of
fractional owner's interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of the plan of merger or
exchange, were either listed on a national securities exchange, included in the
national market system by the National Association of Securities Dealers, Inc.,
or held of record by a least 2,000 holders of owner's interests of record; or
(2) A combination of cash and owner's interests of the kind described in
sub-subparagraphs (I) and (II) of subparagraph (1) of paragraph (b).
2. There is no right of dissent for any holders of stock of the surviving
domestic corporation if the plan of merger does not require action of the
stockholders of the surviving domestic corporation under NRS 92A.130.
92A.400. Limitations on right of dissent: Assertion as to portions only to
shares registered to stockholder; assertion by beneficial stockholder.
1. A stockholder of record may assert dissenter's rights as to fewer than
all of the shares registered in his name only if he dissents with respect to all
shares beneficially owned by any one person and notifies the subject corporation
in writing of the name and address of each person on whose behalf he asserts
dissenter's rights. The rights of a partial dissenter under this subsection are
determined as if the shares as to which he dissents and his other shares were
registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter's rights as to shares held
on his behalf only if:
(a) He submits to the subject corporation the written consent of the
stockholder of record to the dissent not later than the time the beneficial
stockholder asserts dissenter's rights; and
(b) He does so with respect to all shares of which he is the beneficial
stockholder or over which he has power to direct the vote.
92A.410. Notification of stockholders regarding right of dissent.
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, the notice of the meeting must state that
stockholders are or may be entitled to assert dissenters' rights under NRS
92A.300 to 92A.500, inclusive, and be accompanied by a copy of those sections.
2. If the corporate action creating dissenters' rights is taken without a
vote of the stockholders, the domestic corporation shall notify in writing all
stockholders entitled to assert dissenters' rights that the action was taken and
send them the dissenter's notice described in NRS 92A.430.
92A.420. Prerequisite to demand for payment for shares.
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, a stockholder who wishes to assert
dissenter's rights:
(a) Must deliver to the subject corporation, before the vote is taken,
written notice of his intent to demand payment for his shares if the proposed
action is effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. A stockholder who does not satisfy the requirements of subsection 1 is
not entitled to payment for his shares under this chapter.
92A.430. Dissenter's notice: Delivery to stockholders entitled to assert rights;
contents.
1. If a proposed corporate action creating dissenters' rights is authorized
at a stockholders' meeting, the subject corporation shall deliver a written
dissenter's notice to all stockholders who satisfied the requirements to assert
those rights.
2. The dissenter's notice must be sent no later than 10 days after the
effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where and when
certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates to what
extent the transfer of the shares will be restricted after the demand for
payment is received;
(c) Supply a form for demanding payment that includes the date of the first
announcement to the news media or to the stockholders of the terms of the
proposed action and requires that the person asserting dissenter's rights
certify whether or not he acquired beneficial ownership of the shares before
that date;
(d) Set a date by which the subject corporation must receive the demand for
payment, which may not be less than 30 nor more than 60 days after the date the
notice is delivered; and
(e) Be accompanied by a copy of NRS 92A.300 to 92A.500, inclusive.
92A.440. Demand for payment and deposit of certificates; retention of rights of
stockholder.
1. A stockholder to whom a dissenter's notice is sent must:
(a) Demand payment;
(b) Certify whether he acquired beneficial ownership of the shares before
the date required to be set forth in the dissenter's notice for this
certification; and
(c) Deposit his certificates, if any, in accordance with the terms of the
notice.
2. The stockholder who demands payment and deposits his certificates, if
any, retains all other rights of a stockholder until those rights are canceled
or modified by the taking of the proposed corporate action.
3. The stockholder who does not demand payment or deposit his certificates
where required, each by the date set forth in the dissenter's notice, is not
entitled to payment for his shares under this chapter.
92A.450. Uncertificated shares: Authority to restrict transfer after demand for
payment; retention of rights of stockholder.
1. The subject corporation may restrict the transfer of shares not
represented by a certificate from the date the demand for their payment is
received.
2. The person for whom dissenter's rights are asserted as to shares not
represented by a certificate retains all other rights of a stockholder until
those rights are canceled or modified by the taking of the proposed corporate
action.
92A.460. Payment for shares: General requirements.
1. Except as otherwise provided in NRS 92A.470, within 30 days after
receipt of a demand for payment, the subject corporation shall pay each
dissenter who complied with NRS 92A.440 the amount the subject corporation
estimates to be the fair value of his shares, plus accrued interest. The
obligation of the subject corporation under this subsection may be enforced by
the district court:
(a) Of the county where the corporation's registered office is located; or
(b) At the election of any dissenter residing or having its registered
office in this state, of the county where the dissenter resides or has its
registered office. The court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation's balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, a statement of income
for that year, a statement of changes in the stockholders' equity for that year
and the latest available interim financial statements, if any;
(b) A statement of the subject corporation's estimate of the fair value of
the shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter's rights to demand payment under NRS
92A.480; and
(e) A copy of NRS 92A.300 to 92A.500, inclusive.
92A.470. Payment for shares: Shares acquired on or after date of dissenter's
notice.
1. A subject corporation may elect to withhold payment from a dissenter
unless he was the beneficial owner of the shares before the date set forth in
the dissenter's notice as the date of the first announcement to the news media
or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment, after
taking the proposed action, it shall estimate the fair value of the shares, plus
accrued interest, and shall offer to pay this amount to each dissenter who
agrees to accept it in full satisfaction of his demand. The subject corporation
shall send with its offer a statement of its estimate of the fair value of the
shares, an explanation of how the interest was calculated, and a statement of
the dissenters' right to demand payment pursuant to NRS 92A.480.
92A.480. Dissenter's estimate of fair value: Notification of subject
corporation; demand for payment of estimate.
1. A dissenter may notify the subject corporation in writing of his own
estimate of the fair value of his shares and the amount of interest due, and
demand payment of his estimate, less any payment pursuant to NRS 92A.460, or
reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of
his shares and interest due, if he believes that the amount paid pursuant to NRS
92A.460 or offered pursuant to NRS 92A.470 is less than the fair value of his
shares or that the interest due is incorrectly calculated.
2. A dissenter waives his right to demand payment pursuant to this section
unless he notifies the subject corporation of his demand in writing within 30
days after the subject corporation made or offered payment for his shares.
92A.490. Legal proceeding to determine fair value: Duties of subject
corporation; powers of court; rights of dissenter.
1. If a demand for payment remains unsettled, the subject corporation shall
commence a proceeding within 60 days after receiving the demand and petition the
court to determine the fair value of the shares and accrued interest. If the
subject corporation does not commence the proceeding within the 60-day period,
it shall pay each dissenter whose demand remains unsettled the amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its registered office is located. If the subject
corporation is a foreign entity without a resident agent in the state, it shall
commence the proceeding in the county where the registered office of the
domestic corporation merged with or whose shares were acquired by the foreign
entity was located.
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the proceeding
as in an action against their shares. All parties must be served with a copy of
the petition. Nonresidents may be served by registered or certified mail or by
publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced under
subsection 2 is plenary and exclusive. The court may appoint one or more persons
as appraisers to receive evidence and recommend a decision on the question of
fair value. The appraisers have the powers described in the order appointing
them, or any amendment thereto. The dissenters are entitled to the same
discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a
judgment:
(a) For the amount, if any, by which the court finds the fair value of his
shares, plus interest, exceeds the amount paid by the subject corporation; or
(b) For the fair value, plus accrued interest, of his after-acquired shares
for which the subject corporation elected to withhold payment pursuant to NRS
92A.470.
92A.500. Legal proceeding to determine fair value: Assessment of costs and fees.
1. The court in a proceeding to determine fair value shall determine all of
the costs of the proceeding, including the reasonable compensation and expenses
of any appraisers appointed by the court. The court shall assess the costs
against the subject corporation, except that the court may assess costs against
all or some of the dissenters, in amounts the court finds equitable, to the
extent the court finds the dissenters acted arbitrarily, vexatiously or not in
good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and
experts for the respective parties, in amounts the court finds equitable:
(a) Against the subject corporation and in favor of all dissenters if the
court finds the subject corporation did not substantially comply with the
requirements of NRS 92A.300 to 92A.500, inclusive; or
(b) Against either the subject corporation or a dissenter in favor of any
other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously or not in good faith with
respect to the rights provided by NRS 92A.300 to 92A.500, inclusive.
3. If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the fees
for those services should not be assessed against the subject corporation, the
court may award to those counsel reasonable fees to be paid out of the amounts
awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS 92A.460, the court may assess
the costs against the subject corporation, except that the court may assess
costs against all or some of the dissenters who are parties to the proceeding,
in amounts the court finds equitable, to the extent the court finds that such
parties did not act in good faith in instituting the proceeding.
5. This section does not preclude any party in a proceeding commenced
pursuant to NRS 92A.460 or 92A.490 from applying the provisions of N.R.C.P. 68
or NRS 17.115.
<PAGE> 49
BIOSAFE INTERNATIONAL, INC.
PROXY FOR SPECIAL MEETING OF STOCKHOLDERS, FEBRUARY 14, 1997
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
The undersigned hereby appoints Philip Strauss and Robert Rivkin, and each
of them, as Proxies of the undersigned, with full power of substitution, and
authorizes each of them to represent and to vote all shares of Common Stock of
BioSafe International, Inc. (the "Company") held by the undersigned as of the
close of business on January 3, 1997, at the Special Meeting of Stockholders to
be held at Goodwin, Procter & Hoar LLP, 53 State Street, Conference Room 26A-1,
Boston, Massachusetts on Friday, February 14, 1997 at 10:00 p.m., local time,
and at any adjournments or postponements thereof. The undersigned hereby
acknowledge(s) receipt of a copy of the accompanying Notice of Special Meeting
of Stockholders and the Proxy Statement with respect thereto, and hereby
revoke(s) any proxy or proxies heretofore given. This proxy may be revoked at
any time before it is executed. PLEASE MARK BOXES WITH AN [X] IN BLUE OR BLACK
INK.
1. To approve the change in the Company's state of incorporation from Nevada
to Delaware including a change of corporate name and related changes to the
certificate of incorporation and bylaws.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
WHEN PROPERLY EXECUTED, THIS PROXY WILL BE VOTED IN THE MANNER DIRECTED
HEREIN BY THE UNDERSIGNED STOCKHOLDER(S). IF NO DIRECTION IS GIVEN, THIS PROXY
WILL BE VOTED FOR THE ITEMS DESCRIBED IN PROPOSAL 1 AND AT THE PROXIES'
DISCRETION UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE MEETING.
PLEASE SIGN, DATE, AND RETURN THIS PROXY IN THE ENCLOSED ENVELOPE.
Please sign name exactly as
shown. Where there is more than
one holder, each should sign the
proxy. When signing as an
attorney, administrator,
executor, guardian, or trustee,
please add your title as such.
If executed by a corporation,
the proxy should be signed by a
duly authorized person, stating
his or her title or authority.
Dated: _________________, 1997
