SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
Date of Report (date of earliest event reported): March 24, 2000
TESSA COMPLETE HEALTH CARE, INC.
(Exact Name of Registrant as Specified in its Charter)
One South 443 Summit Avenue
Suite 203
Oakbrook Terrace, IL 60181
(Address of principal executive offices)
(630) 889-8811
Registrant's telephone number
ZABA INTERNATIONAL, INC.
5650 Greenwood Plaza Blvd, Suite 216
Englewood, Colorado 80111
(Former name and former address)
Georgia 0-21099 58-0975098
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.
incorporation)
Page One of Ninety Pages.
Exhibit Index Appears at Page Twenty-Two.
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT
Effective March 24, 2000, pursuant to an Agreement and Plan of
Reorganization (the "Merger Agreement") between Zaba International, Inc.
("Zaba"), a Colorado corporation, and Tessa Complete Health Care, Inc., a
Georgia corporation ("Tessa" or the "Company"), all outstanding shares of common
stock of Zaba were exchanged for 225,000 shares of common stock of Tessa and
$112,500 in cash in a transaction in which Tessa was the surviving company.
The Merger Agreement was adopted by the unanimous consent of the Board of
Directors of Zaba and approved by the unanimous consent of the shareholders of
Zaba on March 16, 2000. The Merger Agreement was adopted by the Board of
Directors of Tessa and by a majority of the shareholders of Tessa on March 16,
2000.
Prior to the merger, Zaba had 2,407,166 shares of common stock outstanding
which shares were exchanged for 225,000 shares of common stock of Tessa and cash
consideration of $112,500. By virtue of the merger, Tessa acquired 100% of the
issued and outstanding common stock of Zaba. Prior to the effectiveness of the
Merger, Tessa had an aggregate of 13,986,709 shares of common stock issued and
outstanding.
The officers of Tessa will continue as officers of the successor issuer.
See "Item 2. Management" below. The officers and directors, as well as the
Articles of Incorporation, as amended, and By-laws, as restated, of Tessa will
continue as in effect immediately prior to the Merger, without change. Copies of
the Tessa Articles of Incorporation, amendments thereto and restated Bylaws are
included as exhibits hereto. In addition, a copy of the Merger Agreement is also
filed as an exhibit to this Form 8-K and is incorporated in its entirety herein.
The foregoing description is modified by such reference.
(b) The following table contains information regarding the shareholdings of
Tessa's current directors and executive officers and those persons or entities
who beneficially own more than 5% of its common stock as of March 24, 2000, the
Effective Date of the Merger Agreement:
Percent
Name and Address of Amount and Nature of of
Beneficial Owner Beneficial Ownership Class
- ---------------- -------------------- -----
Robert C. Flippin(1)(2) 1,600,000 10.2%
331 Taylor St.
Vista, CA 92084
Dr. Kim Christenson 1,500,000 9.6%
18604 NW 64th Ave.
Ridgefield, WA 98642
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Percent
Name and Address of Amount and Nature of of
Beneficial Owner Beneficial Ownership Class
- ---------------- -------------------- -----
Dr. Thomas J. Bolera 796,000(3) 5.1%
4790 Peak Dr.
Hamilton, OH 45011
Robert E. Vener(1) 125,000 1.0%
121 Bret Harte Rd.
San Rafael, CA 94949
Dr. Mark Newman(1) 136,668 1.0%
7566 Silver Creek Rd.
Cleves, OH 45002
Tia C. Fernandez(1) 46,500(4) *
2358 SE Kane Ave.
Grenshaw, OR 97080
All Directors 1,908,168 12.1%
and Officers as a
Group (4 persons)
* Less than 1%
(1) Officer and/or director of the Company.
(2) Includes 1,500,000 shares of the Company's common stock subject to
option. This option is exercisable by Mr. Flippin for so long as he
remains in his current capacity with the Company, at an exercise price
of $1.00 per share, provided that the Company attains neutral cash flow
for three (3) consecutive months, is current in payment of all payroll
relating items, including payroll taxes, corporate expenses and fees
due DynaCorp Financial Services, has all doctors current on payroll and
office expenses and a restructuring or reorganization of Tessa, as
approved by the Tessa Board of Directors, occurs, as well as 225,000
shares of common stock issued in conjunction with the Merger Agreement.
(3) Includes 50,000 shares owned by Dr. Bolera's wife.
(4) Includes 6,500 shares owned by Ms. Fernandez's husband.
There are no family relationships between any of the Company's officers and
directors.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
(a) The consideration exchanged pursuant to the Merger Agreement was
negotiated between Zaba and Tessa. In evaluating
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Tessa as a candidate for the proposed merger, Zaba used criteria such as the
value of the assets of Tessa, its current business plan, Tessa's current
business operations and anticipated operations, and Tessa's business name and
reputation. Zaba determined that the consideration for the merger was
reasonable.
(b) The paradigm of multidisciplinary cooperation between health care
providers has been increasing exponentially over the past decade. This is due to
heightened public demand for a health care system where there is access to, and
funding for, both medical and complementary care. Management of Tessa has
realized that successful therapies can be expedited through a concerted team
effort that focuses on quality conservative health care. A cost- effective
approach to patient care, as well as patient satisfaction not only meets the
demands of managed care, but also is Tessa's primary goal.
In order to meet this goal, Tessa has developed a corporate strategy
intending to create and develop a national network of multidisciplinary medical
clinics throughout the United States. Clinics will specialize in the diagnosis
and conservative treatment of neuromusculoskeletal disorders. The initial growth
phase has been the development of districts in the following states: California,
Illinois, Maryland, Ohio, Oregon, Washington and Kentucky. The secondary growth
phase involves the continued initiation of development in the District of
Columbia, Florida and Alabama. The districts within each state consists of up to
eight multidisciplinary clinics within a ten mile radius of one another. Each
clinic's services include conservative medicine, physical rehabilitation,
chiropractic and comprehensive neuro-diagnostic testing.
Under the direction of a physician, various therapies can be prescribed in
accordance with the unique needs of each patient. While the initial focus of the
practices merged into Tessa has been patients suffering with chronic pain,
physical injury or work related disabilities, Tessa's plan is to broaden the
application to wellness concepts where non-invasive approaches might be used in
a preventative manner. Likewise, management believes that the approach should
have great appeal for use as preoperative treatment or as an alternative to
invasive surgical approaches.
Management believes that Tessa is in a position to provide many of the
benefits ascribed to physician management companies while focusing on
conservative approaches to medicine. Management further believes that it is one
of a very limited number of operators offering medical professionals the option
and opportunity to join forces with other like-minded professionals in this
venue.
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Current Operations
As of the date of this report, there are currently twenty- eight practices
that have been acquired into Tessa. Six of the practices were either owned in
whole or in part by Dr. Thomas J. Bolera, Tessa's founder. These six practices
were merged in 1997 to initially commence Tessa's business. Each of the
practices has, to one degree or another, begun the process of expanding care to
several modalities to compliment Tessa's concept of multi-modality non-invasive
treatment. In some instances, two to three practices are being consolidated into
one multi-modality site. Tessa is a holding company which operates through nine
(9) subsidiary companies. The principal reason that these subsidiary companies
are formed is to conform to certain legal requirements in those states requiring
ownership of medical practices by licensed physicians.
Tessa's initial phase clinics were located in Chicago, Illinois (3),
Baltimore, Maryland (1), Orange County, California (1), Portland, Oregon (2) and
Vancouver, Washington (2). These initial operations included thirteen (13)
medical doctors, nineteen (19) chiropractors, eleven (11) physical therapists
and four (4) occupational therapists. These clinics handled over 90,000 patient
visits during its initial year of existence. Since the beginning of the second
quarter of 1998, Tessa has added in excess of twenty additional clinics which
now include fifteen medical doctors or orthopedists, six neurologists, thirty
three chiropractors, fifteen physical therapists, six occupational therapists,
and twenty licensed physical therapy assistants. In the aggregate, Tessa's
clinics currently handle over 150,000 patient visits per year.
Chiropractic practices that are acquired by Tessa have the amount they
invoice double with the implementation of physical rehabilitation. With the
neurology and neuro-diagnostic testing modalities added, the practice invoices
increase an additional fifty percent or greater. Uniquely, the clinic overhead
does not increase proportionally as different facets of the overhead are
absorbed by the overlap and profitability increases.
Each treatment protocol devised by Tessa's physicians and ancillary
providers is specific to the individual patient, whose condition is often due to
a melange of factors. Following is a description of the various services
provided by Tessa's clinics.
PHYSICAL MEDICINE AND REHABILITATION, NEUROLOGY AND NEURO-DIAGNOSTIC TESTING
Tessa's physical medicine and rehabilitation specialists and neurologists
are board-certified physicians that are specially trained to provide
musculoskeletal and neuromuscular consultations with a functional, diagnostic
and rehabilitation focus. Neurologists are board-certified physicians that
specialize in diseases and conditions of the nervous system and the ability to
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treat them. The neurologists emphasize a comprehensive, yet conservative
approach to the diagnosis and management of neuromusculoskeletal disorders. Each
of these physicians emphasize non-surgical medicine as well as injury prevention
and wellness for patients of all ages. This unique blend of conservative
orthopedic, neuromuscular, pain and rehabilitation ingenuity gives those
patients with occupational, sport, age or other injury-based conditions an
option to restoring their level of function.
The staffs in Tessa's clinics have been specially trained to (i) prescribe
therapeutic exercise and other rehabilitation modalities in the case of physical
medicine and provide specialty consultations in the area of neuromuscular
medicine and treatment of pain management; (ii) perform and interpret
neuro-diagnostic studies, including needle electromyography, nerve conduction
velocity and evoked potential studies; (iii) use diagnostic studies, to include
laboratory testing, radiography and the more sophisticated studies such as MRI
(magnetic resonance imaging), CT (computerized tomography), PET (positron
emission testing) and bone scans; (iv) perform physiatric injection techniques
such as peripheral nerve blockade, trigger point injections and major joint
injections in relation to physical medicine and epidural steroid injections,
peripheral nerve blockage injections and major joint injections relevant to
neuromuscular medicine and pain management; and (v) perform interventional pain
management techniques, if necessary.
NEURO-DIAGNOSTIC TESTING
Neuro-Diagnostic testing is a specialized component of the physical
examination. It can be useful in determining the cause(s) of numbness, tingling,
pain, weakness, fatigue, muscle wasting and cramping. Analysis of these test
results can help direct the appropriate management of a specific neuromuscular
condition. Tessa' clinics provide various types of testing, including:
* Nerve Conduction Velocity Studies (NCV). Nerve function can be evaluated
by measuring the response time of signals travelling along a nerve.
* Needle Electromyography (EMG). Abnormalities of muscle or the nerve
supplying the muscle can be detected by recording the electrical activity of the
muscle.
* Evoked Potentials (SSEP, VEP, BAER). Somatosensory, visual and brainstem
auditory evoked potentials evaluate the function of nerve pathways that carry
signals through the spinal cord, vision and hearing pathways.
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ORTHOPEDICS
Orthopedic specialists are board-certified physicians that specialize in
diseases and conditions of the musculoskeletal system and the ability to treat
them. The approach and expertise of Tessa's orthopedists is consistent with the
approaches and expertise provided for other disorders discussed herein, plus
application of orthogenic devices including bracing, splinting, setting and
casting.
FAMILY AND GENERAL MEDICINE
Tessa's primary care physicians evaluate and treat a wide range of patient
conditions, to include internal disorders and direct care to the appropriate
specialist when required.
CHRONIC PAIN MANAGEMENT
Chronic pain syndromes demand the participation of various disciplines
to control and treat patients effectively. Tessa's medical, chiropractic
physicians and ancillary providers work as a team to overcome the adversities of
continual patient suffering and potential disablement.
CHIROPRACTIC
Chiropractic is a primary health care system that embodies health-oriented,
patient-centered care. The chiropractors at Tessa provide a diversity of
joint/soft tissue manipulations and mobilizations for the treatment, correction,
and prevention of neurologic, skeletal or soft tissue dysfunction as well as the
production of beneficial neurologic and physiologic effects. They are specially
trained to provide a wide range of natural and conservative therapies and to
improve biomechanical, neurological and other physiological functions by skilled
joint manipulation. They utilize soft tissue and manual resistive techniques, as
well as other manual therapies, as well as advanced physiologic therapeutics for
pain management purposes. Treatments include physical strengthening, endurance
training, balance and gait training.
In addition to the above treatments, patients may have access to other
conservative methods, which may include, but are not limited to sports medicine,
nutritional consultations, acupuncture, orthotic devices, trigger point therapy
exercise, functional neurology evaluation and treatment, life style counseling
and stress management.
PHYSICAL THERAPY
Physical Therapy is a health care profession that evaluates and treats
individuals with a wide range of acute and chronic pain
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and musculoskeletal disorders. Tessa's physical therapists (PT's) and physical
therapy assistants (PTA's), through an extensive "hands on" approach to
functional restoration, blend prevention and health promotion with an awareness
and sensitivity of the human response when treating patients. Tessa's staff has
been specially trained to assess joint motion, muscle strength and endurance,
heart and lung function, as well as performance of activities required in daily
living. They are skilled in soft tissue techniques, joint mobilization and
manual traction, utilization of advanced physiologic therapeutics for pain
management purposes, promotion of optimal physical performance via kinetic
activity, cardiovascular endurance training, and indoctrination of
occupational/social activities and oversee the entirety of the rehabilitation
process and home exercise programs.
OCCUPATIONAL THERAPY
When function in any activity has been limited or lost and it affects an
individual's occupation, the occupational therapist assumes the role of the
therapeutic facilitator. The Occupational Therapists at Tessa are responsible
for assessing individual physical capacity and occupational
limitations/restrictions and for developing work hardening programs. These
programs allow the individual to improve to pre-injury status and return to work
within an expedient time frame. In this regard, Tessa's staff have been
specially trained to screen, evaluate and assess an individual's condition with
respect to job-related physical needs, daily activities, or self-care, to
determine fitness requirements for specific jobs, to identify potentially
dangerous work sites, modify task performance to prevent job-related injuries
and provide consultations to attending clinician for treatment of the
occupational injury.
SPORTS MEDICINE
Once perceived as a discipline concerned only with repairing athletes'
traumatic injuries, sports medicine is now recognized as a specialty discipline
that understands the body's integrated response to all forms of physical
activity. Thus, treatment via the sports medicine model is relevant to everyone
who participates in exercise or sports, whether it is a child at play, an
elderly person exercising to keep fit, a weekend athlete, or a marathon runner.
Tessa' staff consists of trained clinicians and therapists who assess the
individual's performance abilities in a specific physical activity. They also
assist the functional restoration process to pre-injury status and condition the
individual's activity performance in order to improve on the pre-injury status,
recommend assistive or safety equipment to preclude injuries and develop fitness
programs on an individual basis.
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ATHLETIC TRAINING
Athletic trainers serve a complementary role to physicians and other allied
health professionals in working with patients for strength conditioning and
prevention of athletic injuries.
Marketing
Tessa has developed an extensive marketing program to increase the revenues
in existing company clinics, as well as to acquire additional qualifying
clinics. A qualifying clinic for purposes of Tessa, is one which generates a
minimum of $50,000 per month in cash collections, which understands the value of
a multi-discipline approach to healing and adopts to the Tessa corporate
culture. Tessa's goal is to add a minimum of six new clinics during the
remainder of calendar 2000.
Tessa has also identified specific activities to support the above
described effort. Detail marketing plans for each existing clinic are being
developed, based upon the current level of marketing. This will include such
features as yellow page ads, coupon saver mailings, radio advertising and local
managed care contracting. Nationally, Tessa is developing an enhanced E-
Commerce Web Site, which will contain an internet chat room, information and
education bulletin board and the ability to sell supplies and services. In this
regard, Tessa has retained an established business development specialist to
assist in these efforts.
A long range plan is also being developed to provide significant
competitive advantages resulting in higher profits and increased revenues. Key
elements of this strategy include better use of information technology and
mobile clinics, both of which make Tessa's services more convenient for
patients, employers and payers. However, no assurances can be provided that this
long range plan, when implemented, will have the desired results.
Future Acquisitions
Tessa has established its infrastructure in such a way as to allow for
expansion with regard to accounting, financial controls, operations, billing,
collections and administrative support to accommodate anticipated growth.
Management's objective is to allow for growth under the guidelines of two
principles. First, the integrity and quality of service to patients must be the
first priority of each of the clinics. Any expansion which interferes with the
provision of such service will be slowed or arrested to accommodate the delivery
of quality service. Second, the financial integrity of the operations must be a
continuing focus of management. The medical professionals who have joined Tessa
through sale or exchange of their business operations for stock in
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Tessa are reliant upon management to carry out its stewardship role in insuring
the growth and stability of operations.
Property
Tessa's principal place of business is located at 1 South 443 Summit
Avenue, Suite 203, Oakbrook Terrace, Illinois 60181 pursuant to a month to month
lease. This space consists of approximately 300 square feet of executive office
space, for which the Company pays a monthly rental charge of $1,700. In
addition, the Company also has offices at 18848 SE Highway 212, Clackamas,
Oregon, which includes approximately 300 square feet of executive office space
which is sublet on a month to month basis at a cost of $2,500 per month, and in
San Diego, California at 331 Taylor St., Vista, California 92084, consisting of
approximately 200 square feet of executive office space, which space is provided
to the Company on a rent free basis by Mr. Robert Flippin, the Company's
President. Management expects that Tessa will consolidate its offices to its San
Diego, California location in the near future. If so, Tessa will require
additional space if and when its operations expand, of which there can be no
assurance. In this regard, management is currently seeking space of between
2,000 and 3,500 square feet of executive office space.
The Company has no other properties and has no agreements to acquire any
properties.
Litigation
The Company is the defendant in an action entitled Kathi Thelander v. Spine
& Rehabilitation Centers of Oregon, P.C., in the Circuit Court for the County of
Multnomah, State of Oregon, Civil Action No. 99 07 07399, alleging unlawful
termination and breach of an employment agreement between the plaintiff and
defendant. Spine & Rehabilitation Centers of Oregon, P.C. is a subsidiary of
Tessa. Summary judgment was entered on behalf of the plaintiff and against SRA
Oregon in March 2000 in the amount of $162,313.27, plus $891.25 in costs and
$7,440 in attorneys' fees. The Company intends to appeal the judgment, but no
assurances can be provided that this judgment will be set aside.
The Company is also a defendant in an action entitled Vania Kaady v. Spine
& Rehabilitation Centers of Oregon, P.C., in the Circuit Court for the County of
Multnomah, State of Oregon, Civil Action No. 99 02 02066, alleging malpractice
arising as a result of an automobile accident and claiming damages in the amount
of $200,000. The Company is vigorously defending this action and believes this
action is without merit.
The Company has also been advised of a potential claim by Business Software
Alliance, who has alleged copyrighted product infringement for illegal
duplication of certain software. The
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Company is presently investigating this matter by performing an internal audit
of software presently being utilized by the Company. If Business Software
Alliance's claim is filed against the Company and such claim is upheld, the
Company could be subject to a penalty of up to $100,000 per copyrighted product
infringement.
The Company is party to certain other legal proceedings which have arisen
in the normal course of operating the Company's business and is aware of other
threatened or pending litigation. However, it is believed that such legal
proceedings to which the Company (or any of its officers and directors in their
capacities as such) is or may be a party or to which the property of the Company
may be or is subject would not have a material adverse effect on the Company's
business, financial condition or results of operations.
Market for Tessa's Securities
The Company's common stock trades on the OTC Bulletin Board operated by the
National Association of Securities Dealers. As of March 24, 2000, the Company's
common stock was trading at $1.31 bid, $1.62 asked. The Company's common stock
traded under the symbol "TSSA" until recently, when an "E" was added to the
symbol. However, management of Tessa believes that the "E" will be removed from
its symbol upon the filing of Tessa's audited financial statements for the
fiscal year ended December 31, 1999. Management anticipates that this filing
will be accomplished by the end of April 2000.
The following table sets forth the range of high and low bid prices as
reported on the OTC Bulletin Board operated by the NASD for each calendar
quarter during the previous two fiscal years.
Quarter Ended Bid Price
Low High
----- -----
March 31, 1998 $5.00 $5.25
June 30, 1998 $4.75 $0.75
September 30, 1998 $4.375 $1.125
December 31, 1998 $2.438 $1.00
March 31, 1999 $0.875 $2.75
June 30, 1999 $0.75 $4.875
September 30, 1999 $2.125 $4.063
December 31, 1999 $1.75 $3.438
Tessa has been a non-reporting publicly traded company with a portion of
its issued and outstanding common stock exempt from registration under the
Securities Act of 1933, as amended, pursuant to Rules 504 of Regulation D, Rule
144 and Rule 701 of the General Rules and Regulations of the Securities and
Exchange Commission.
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Tessa did not file a registration statement with the Securities and Exchange
Commission and prior to the Merger, had not been a reporting company under the
Securities Exchange Act of 1934. The NASD has implemented a change in its rules
requiring all companies trading securities on the OTC Bulletin Board to become
reporting companies under the Securities Exchange Act of 1934, as amended.
The Company was required to become a reporting company by the close of
business on May 6, 2000 or no longer be listed on the OTC Bulletin Board. Tessa
has effected the merger with Zaba and has become a successor issuer thereto in
order to comply with the reporting company requirements implemented by the NASD.
Management
Name Age Title
---- --- -----
Robert C. Flippin 61 President, Chief Executive
Officer, Director
Dr. Mark Newman 39 Director
Robert E. Vener 53 Director
Tia C. Fernandez 29 Secretary
Resumes
Robert C. Flippin, President, Chief Executive Officer and a Director. Mr.
Flippin was appointed to his positions with the Company in January 2000. Prior,
from December 1997 through January 2000, Mr. Flippin was Senior Vice President
of DynaCorp Financial Strategies, Inc., Novato, California, a corporation
engaged in providing healthcare receivable financing and management to
hospitals, clinics and physician groups on a national basis, where his
responsibilities included chief lending officer and new business development.
From December 1995 through December 1997, Mr. Flippin was vice president of
sales and marketing of Medaphis Services Corp., Atlanta, Georgia, which
currently serves approximately 2,300 hospitals and over 20,000 physicians with
financial and clinical products and services. Mr. Flippin received a Bachelor of
Science degree in accounting from the University of Oklahoma, Central State in
1970. He devotes substantially all of his business time to the business of the
Company.
Dr. Mark Newman, Director. Dr. Newman assumed his position as a director of
the Company in January 2000. In addition to his position with the Company, since
March 1998, Dr. Newman has been employed by the Company as the principal
operator of a chiropractic clinic located in Cincinnati, OH. For the three years
prior, Dr. Newman owned and operated this clinic on his own behalf. Dr. Newman
received a Doctor of Chiropractic degree from Logan College
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of Chiropractic in 1989 and attended the College of Mt. St. Joseph. He devotes
substantially all of his time to the business of the Company.
Robert E. Vener, Director. Mr. Vener assumed his position with the Company
in March 2000. In addition, since 1992 Mr. Vener has been President of DynaCorp
Financial Strategies, Inc., Novato, California, a private, non-profit company
engaged in providing healthcare accounts receivable financing. Mr. Vener
received a BBA degree from the University of Oklahoma in 1969 and a Masters of
Science degree from West Coast University in 1977. He intends to devote only
such time as necessary to the business of the Company, which is expected not to
exceed 20% of his business time.
Tia C. Fernandez, Secretary. Ms. Fernandez has been Secretary of Tessa
since September 1999. Prior, from December 1998 through September 1999, she was
assistant secretary of the Company. From May 1991 through February 1998, Ms.
Fernandez was employed by Capacity Unlimited, Inc., Clackamas, Oregon, where her
responsibilities included payroll, human resources, accounting and secretarial
duties. Ms. Fernandez devotes substantially all of her business time to the
Company.
Executive Compensation
REMUNERATION
The following table reflects all forms of compensation for services to
Tessa for the years ended December 31, 1999 and 1998 of the then chief executive
officer.
<TABLE>
SUMMARY COMPENSATION TABLE
Long Term Compensation
-----------------------------
Annual Compensation Awards Payouts
--------------------------- -------------------- -------
Securities
Other Under- All
Name Annual Restricted lying Other
and Compen- Stock Options/ LTIP Compen-
Principal Salary Bonus sation Award(s) SARs Payouts sation
Position Year ($) ($) ($) ($) (#) ($) ($)
- ---------- ---- ------- -------- ------ -------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Thomas
Bolera
President & 1999 $180,000 $300,000(1) $ 0 $ 0 $ 0 $ 0 $36,000(3)
Director(2) 1998 $180,000 $ 0 $ 0 $ 0 $ 0 $ 0 $36,000(3)
- -------------------------
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<FN>
(1) This bonus is payable by the Company to Dr. Bolera pursuant to
the terms of that certain Employment Agreement between the
Company and Dr. Bolera. However, this bonus has not been paid
by the Company, but has been accrued as a future obligation.
The Employment Agreement has been terminated pursuant to the
consent of the parties thereto.
</FN>
<FN>
(2) Dr. Bolera resigned his position as President of the Company
effective January 2000. On that date, Mr. Flippin assumed the
position as President. The information provided herein
discloses the compensation received by Dr. Bolera for the
periods indicated.
</FN>
<FN>
(3) Includes a car allowance of $500 per month and $2,500 per
month in an office rental allowance.
</FN>
</TABLE>
It is anticipated that Mr. Flippin will receive an annual salary of
$180,000 during the Company's fiscal year ending December 31, 2000. During the
fiscal year ended December 31, 1999, six other employees who are not executive
officers or directors of the Company, but who operate Company clinics, received
compensation in excess of $100,000 per annum, including Dr. Mitchell Simons
($525,000) and Dr.'s Lisa and Vaughn Dabbs (an aggregate of $112,000). It is
anticipated that nine individuals who are not executive officers or directors of
the Company will receive aggregate compensation in excess of $100,000 during the
fiscal year ending December 31, 2000, including Dr.'s Simons and Dabbs.
Tessa also maintains a policy whereby its officers and directors may be
compensated for out of pocket expenses incurred by each of them in the
performance of their relevant duties.
Related Transactions
Dr. Thomas Bolera, a former Director and Chief Executive Officer of Tessa,
along with David Russell, also formerly a Director and Chief Financial Officer
of Tessa, each own 25% of a professional employment organization by the name of
American Outsource Strategies, Inc. ("AOS") which the Company contracts to lease
all of the Company's non-professional employees. In addition to leasing
non-professional employees to the Company, AOS also is contracted to provide all
human resource functions for all professional employees of the Company. Under
the terms of the agreement with AOS which originated in February 1998, the
agreement provides for a 12 month term which automatically renews each year
unless a notice of termination is provided by either party. The agreement may be
terminated by either party without cause by submitting a 60 day written notice
to the other party of its intent to terminate. The Company is charged an amount
equal to 5% of gross monthly payroll for professional and non-professional
personnel. As of March 16, 2000, the Company had a past due
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balance of approximately $1.8 million with AOS which comprised of payroll that
AOS outlayed on behalf of Tessa and associated fees.
Also, in March 1999, options to purchase 200,000 shares of common stock at
a price of $1.00 were granted to Dr. Bolera, and options to purchase 250,000
shares of common stock at a price of $1.00 were granted to David Russell.
According to an employment agreement between Dr. Bolera and the Company
commencing on January 1, 1998, the Company is to provide reimbursement to Dr.
Bolera for office space in an amount not to exceed $2,500 per month. The amount
of reimbursement can be increased after December 31, 1998 to reflect reasonable
increases in such expenses. As of the date of this registration statement, this
employment agreement has been terminated by the mutual consent of the parties
thereto.
In addition, certain of the facilities in which the clinics that have
management contracts with the Company are housed are owned by Dr. Bolera and Dr.
Kim Christenson, each a former affiliate of Tessa. The Ontario Spine and
Rehabilitation facility in Ontario, California, and the Orient Drive Spine and
Rehabilitation facility in Gresham, Oregon, are owned by Dr. Bolera. They are
approximately 4,000 square feet and 900 square feet, respectively, and are
leased to the Company at rates of $3,800 and $1,100 per month, respectively. The
Hazel/Dell Spine and Rehabilitation and the Cascade Park Spine and
Rehabilitation facilities in Vancouver, Washington, are owned by Dr.
Christensen. They are approximately 1,800 square feet and 1,400 square feet,
respectively, and were leased to the Company at rates of approximately $2,100
and $1,600 per month, respectively. This relationship was terminated in 1999.
Robert E. Vener, a director of the Company, is also President of DynaCorp.
Financial Services, Inc. ("DCFS"). DCFS purchases healthcare receivables from
Tessa on a discounted basis. During the fiscal years ended December 31, 1999 and
1998, Tessa paid DCFS fees and interest of $1,475,085 and $134,962,
respectively. DCFS did not commence providing such financing until November
1998.
From time to time, certain shareholders of Tessa have loaned Tessa money to
meet its obligations. As of December 31, 1999, a shareholder had an outstanding
loan to the Company totalled $100,000. This loan is non-interest bearing and due
upon demand.
The Company's office in Vista, California is provided by Mr. Flippin on a
rent free basis.
Risk Factors
TESSA IS CURRENTLY OPERATING AT A LOSS. Tessa's revenues to date have not
been sufficient to cover the costs of such operations and
15
<PAGE>
Tessa has borrowed funds to maintain its operations. During Tessa's fiscal year
ended December 31, 1999, on revenues of approximately $17 million Tessa incurred
a net loss of approximately $15.5 million. Items which contributed to the loss
are as follows: (i) $3.5 million due to expenses related to goodwill write-down
and amortization; (ii) $2 million in financing related expenses; (iii) an
accrual for litigation matters of approximately $1 million; and (iv) the
increase in the allowance for contractual adjustments related to accounts
receivable of approximately $7 million.
Tessa attributes the above loss primarily to its attempts to adapt from a
company that recorded approximately $2.1 million in revenue for the fiscal year
1997 to revenue that exceeded approximately $17 million for fiscal 1999. To help
address the above issues, Tessa underwent a change in its management, including
its Board of Directors, which have included the resignations of Dr. Thomas
Bolera as Chief Executive Officer, Dr. Kim Christensen as an Officer and
Director, David Russell as Chief Financial Officer, Dr. Vaughn Dabbs as Director
and Dr. Dayna Bolla as Director. In connection with the above resignations,
Robert Flippin was appointed President, Chief Executive Officer, and a Director
of Tessa. Robert Vener and Dr. Mark Newman were also appointed as Directors of
Tessa.
There are no assurances that the Company's future operations will generate
profits in the near future, or at all. Its ability to continue development of
its operations is dependent upon acquisition of additional clinics, as well as
increasing business at its existing clinics. If Tessa is unable to accomplish
these goals, it will need to raise additional capital through the placement of
its securities or from other debt or equity financing. If the Company is not
able to raise such financing or to obtain alternative sources of funding,
management will be required to curtail operations. There is no assurance that
the Company will be able to continue to operate if additional acquisitions and
corresponding revenues cannot be generated.
TESSA COMMENCED OPERATIONS IN 1997 AND HAS A LIMITED OPERATING HISTORY.
Tessa commenced operations in 1997 and has only a limited history of operations
which to date have not been profitable. Its operations are subject to the risks
and competition inherent in the establishment of a relatively new business
enterprise. There can be no assurance that future operations will be profitable.
Revenues and profits, if any, will depend upon various factors, including market
acceptance of its concepts, market awareness and general economic conditions.
There is no assurance that Tessa will achieve its expansion goals and the
failure to achieve such goals would have an adverse impact on it.
ISSUANCE OF FUTURE SHARES MAY DILUTE INVESTORS SHARE VALUE. The Articles of
Incorporation, as amended, of Tessa authorizes the
16
<PAGE>
issuance of 50,000,000 shares of common stock. The future issuance of all or
part of the remaining authorized common stock may result in substantial dilution
in the percentage of the Company's common stock held by its then existing
shareholders. Moreover, any common stock issued in the future may be valued on
an arbitrary basis by Tessa. The issuance of the Company's shares for future
services or acquisitions or other corporate actions may have the effect of
diluting the value of the shares held by investors, and might have an adverse
effect on Tessa's trading market.
MALPRACTICE INSURANCE. Because Tessa owns and will continue to own and
operate or manage health care clinics, it may be subject to liability for the
malpractice of the chiropractors or other medical professionals it employs or
contracts with to provide services at the clinics. Generally, chiropractors have
not encountered problems in arranging for insurance coverage since they do not
prescribe medication or perform surgery. However, other medical professionals
employed by the clinics may face more significant problems in obtaining
malpractice insurance. Tessa has not currently purchased malpractice insurance
to insure against this risk. Malpractice insurance is becoming increasingly
expensive and there can be no assurance that Tessa will be able to obtain
insurance at reasonable rates. Medical doctors who become associated with the
clinics owned and operated by Tessa generally are responsible for procuring
their own malpractice insurance. No assurance can be given that insurance will
be available to Tessa or that, if obtained, such insurance will cover claims or
that there will not be a substantial uninsured or underinsured risk. In the
event that appropriate and sufficient malpractice insurance cannot be obtained,
this could adversely affect Tessa's operations.
RISKS ASSOCIATED WITH INTEGRATING ACQUISITIONS. Tessa expects to make a
substantial number of additional acquisitions of chiropractic and other health
care clinics and clinic assets, although there can be no assurance that such
acquisitions will occur. Tessa's future success is dependent upon its ability to
effectively integrate these prospective chiropractic and other health care
clinics, including the ability to implement management systems that take
advantage of marketing and cost saving opportunities potentially available to a
national network of clinics. Tessa's financial performance is and will be
subject to various risks associated with the integration of businesses. There
can be no assurance that future acquisitions will not have an adverse effect
upon the Company's operating results, particularly during the periods in which
the operations of acquired businesses are being integrated into its operations.
MARKETING AND ADVERTISING. Management of Tessa believes that the success of
the single entity medical practice depends, to some extent, on the successful
marketing of its health care concept. Tessa believes that the single entity
medical practice possesses certain advantages over autonomous clinics operated
by individuals
17
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or other unrelated groups. Tessa hopes to implement marketing techniques to
support its single entity medical practice concept in order to acquire
established chiropractic and other health care clinics. While many smaller
autonomous clinics may not be able to afford various costly media advertising to
help promote their services, Tessa intend to use television, radio, newspapers,
the Internet and other forms of media to advertise its services, as it reaches a
critical mass of acquired clinics within certain geographic areas. There are no
assurances, however, that the planned media advertising will help successfully
integrate and expand Tessa's geographic base. In the event Tessa's media
strategy does not successfully promote its clinics, the lack of geographic
expose could adversely affect its business operations.
SOURCE OF REVENUE. Chiropractic clinics receive payment from patients,
insurance carriers, preferred provider organizations, HMO's, the federal
government under Medicare programs and state governments under their respective
Medicaid programs. During the past few years, government and other third party
payors' health care policies and programs have been subject to changes in
payment levels and payment methodologies. There can be no assurance that future
changes will not reduce reimbursement from these sources for chiropractic
services. In the event of reduction in reimbursements from these sources for
such services, this could adversely affect Tessa's ability to attain profitable
operations.
CONTRACTUAL TERMINATION RIGHTS. Under the terms of Tessa's acquisition
agreements, the acquired clinic has been and may continue to be given the right
to repurchase the applicable clinic in certain circumstances. In addition, Tessa
intends to obtain contracts with governmental entities through a process of
competitive bidding. Governmental entities, unlike private entities, are
generally required to put such contracts out for competitive bid on a regular
basis. Thus, there is often more turnover with potential government contracts
than there might otherwise be with private contracts entered into by Tessa. In
the event of attempts to repurchase the clinic or in the event of high potential
turnover rates concerning government contracts, this could adversely affect
Tessa's operations.
FUTURE CAPITAL NEEDS; UNCERTAINTY OF ADDITIONAL FUNDING. Tessa intends to
continue to expend significant amounts of capital to expand its operations.
Tessa needs to obtain additional capital, either debt or equity, in order to
implement its business plan. Additional financing will be necessary for the
continued support of Tessa's services and operations and for the repayment of
its debt obligations. Historically, the Company has been dependent upon debt and
equity financing from its affiliates. There can be no assurance that the
Company's affiliates will continue to make debt or equity financing available to
it. Additional financing may be either equity, debt or a combination of debt and
equity. An equity financing could result in dilution in Tessa's net tangible
book
18
<PAGE>
value per share of Common Stock. There can be no assurance that Tessa will be
able to secure additional debt or equity financing or that such financing will
be available on favorable terms. If Tessa is unable to obtain such additional
financing, its ability to repay its debts and its ability to maintain its
current level of operations will be materially and adversely affected. In such
event, Tessa will be required to reduce its overall expenditures and may default
on its obligations.
GOVERNMENT REGULATIONS. The operations of chiropractic and other health
care clinics is subject to federal, state and local governmental regulations.
The chiropractic and other health care clinics managed, owned and to be acquired
by Tessa are also generally subject to state licensing requirements.
Chiropractic and other health care clinics may also be subject to periodic
inspection by state licensing agencies to determine whether the standard of
care, patient safety, equipment and cleanliness are being met. In addition, the
laws of several states prohibit a corporation from engaging in the practice of
medical care or otherwise exercising control over the judgment of licensed
medical professionals. Some states may also limit the ability of different
classes of licensed medical professionals from exercising control over the
judgment of other classes of licensed medical professionals. Certain state laws
also prohibit "fee splitting" between licensed medical professionals and
non-licensed individuals and between different classes of licensed medical
professionals. Since state laws vary considerably, Tessa may be required in
certain states to enter into joint ventures or use other forms of ownership or
management arrangements in connection with the clinics.
Because relevant laws, regulations and rules are subject to change and in
fact are currently being considered for change in several states, and because of
the ambiguity concerning the applicability and substantive provisions of many
applicable legal standards relating to the provision of health care services,
and the fact that many of the laws have never been interpreted authoritatively
by courts or administrative agencies, there can be no assurance that situations
will not arise in which a third party or government agency argues that some of
Tessa's operations or procedures are not in compliance with applicable laws,
regulations or rules. The penalties for noncompliance could include denial of
the right to conduct business in the jurisdiction or other significant civil or
criminal penalties. In the event of non- compliance with any relevant laws,
regulations or rules, this could adversely affect Tessa's operations.
MANAGEMENT OF GROWTH. Tessa's proposed expansion into new markets will
expose it to increased competition, greater overhead, marketing and support
costs and other risks associated with entry into new markets and solicitation of
new customers. Tessa faces all risks which are associated with any growing
business, such as
19
<PAGE>
under-capitalization, cash flow problems, and personnel, financial and resource
limitations, as well as special risks associated with its proposed operations.
To manage growth effectively, Tessa will need to continue to improve and expand
its operational, financial and management information systems and to expand,
train, motivate and manage its employees. Should Tessa be unable to manage
growth effectively, its results of operations could be adversely affected.
CURRENT TRADING MARKET FOR THE COMPANY'S SECURITIES. Tessa's common stock
is traded on the OTC Bulletin Board operated by Nasdaq under the symbol "TSSA."
Tessa did not file a registration statement with the Securities and Exchange
Commission and has not been a reporting company under the Securities Exchange
Act of 1934. The NASD has implemented a change in its rules requiring all
companies trading securities on the OTC Bulletin Board to be registered as a
reporting company. Until such registration is achieved, Tessa's trading symbol
is "TSSAE" to indicate its non-reporting status. Tessa is required to become a
reporting company by the close of business on May 6, 2000, or no longer be
listed on the OTC Bulletin Board. Tessa has effected the merger with Zaba and
has become a successor issuer thereto in order to comply with the reporting
company requirements implemented by the NASD. However, in order to maintain its
listing on the OTC Bulletin Board, Tessa must file an amendment to this report
to include its audited financial statements for the fiscal years ended December
31, 1999 and 1998. No assurance can be given that Tessa will have the necessary
financials statements available within the time parameters referenced herein, or
that an active trading market in Tessa's securities will be sustained if it is
able to retain its listed status.
PENNY STOCK REGULATION. If trading of Tessa's common stock continues on the
OTC Bulletin Board, of which there can be no assurance, Tessa's common stock may
be deemed a penny stock. Penny stocks generally are equity securities with a
price of less than $5.00 per share other than securities registered on certain
national securities exchanges or quoted on the Nasdaq Stock Market, provided
that current price and volume information with respect to transactions in such
securities is provided by the exchange or system. Tessa's securities may be
subject to "penny stock rules" that impose additional sales practice
requirements on broker- dealers who sell such securities to persons other than
established customers and accredited investors (generally those with assets in
excess of $1,000,000 or annual income exceeding $200,000 or $300,000 together
with their spouse). For transactions covered by these rules, the broker-dealer
must make a special suitability determination for the purchase of such
securities and have received the purchaser's written consent to the transaction
prior to the purchase. Additionally, for any transaction involving a penny
stock, unless exempt, the "penny stock rules" require the delivery, prior to the
transaction, of a disclosure schedule prescribed by the Commission relating to
the penny stock market. The broker-
20
<PAGE>
dealer also must disclose the commissions payable to both the broker-dealer and
the registered representative and current quotations for the securities.
Finally, monthly statements must be sent disclosing recent price information on
the limited market in penny stocks. Consequently, the "penny stock rules" may
restrict the ability of broker-dealers to sell Tessa's securities. The foregoing
required penny stock restrictions will not apply to Tessa's securities if such
securities maintain a market price of $5.00 or greater. There can be no
assurance that the price of Tessa's securities will reach or maintain such a
level.
WIDE RANGE OF COMPETITORS. Tessa's clinics face competition from other
chiropractors, as well as a wide variety of health care providers, including
medical doctors, osteopathic physicians, medical clinics, hospitals and
ambulatory care centers, most of whom have greater community recognition and, in
many cases, are better financed. Although in recent years the practice of
chiropractic medicine has increasingly received recognition from medical doctors
and professional schools, societies and other organizations affiliated with such
doctors, there is a history of opposition in such circles to the practice of
chiropractic medicine. As a result, in some jurisdictions, the practice of
chiropractic medicine is subject to restrictive legislation and in most
communities is less well recognized than other forms of health care. The
foregoing conditions create a rigorous competitive climate for chiropractic
services and increase risk that clinics operated by Tessa will be unable to
compete successfully with other health care providers whose services are
available to the public. In the event of such intense and rigorous competition,
this could adversely affect the successful operations of Tessa.
NO DIVIDENDS. No dividends have been paid on the shares of Common Stock and
Tessa does not anticipate the payment of cash dividends in the foreseeable
future. If Tessa's operations become profitable, it is anticipated that, for the
foreseeable future, any income received therefrom would be devoted to its future
operations and that cash dividends would not be paid to shareholders.
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
On April 10, 2000, Kish, Leake & Associates, P.C., the Registrant's
independent accountant for the Registrant's two most recent fiscal years,
resigned. The Registrant's financial statements for the last two years prepared
by Kish, Leake & Associates, P.C., contained a going concern opinion.
Also in April 2000, the Registrant engaged the accounting firm of Horton &
Co., L.L.C., independent public accountants to audit the Registrant's fiscal
years ended December 31, 1999 and 1998, as well as future financial statements,
to replace the firm of Kish, Leake & Associates, P.C., which was the principal
independent public accountant as reported in the Registrant's Form 10-KSB for
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<PAGE>
the fiscal year ended November 30, 1999, as filed with the Securities & Exchange
Commission. This change in independent accountants was approved by the Board of
Directors of the Registrant.
There were no disagreements within the last two fiscal years and subsequent
periods with Kish, Leake & Associates, P.C. on any matter of accounting
principles or practices, financial statement disclosure, or auditing scope of
procedure, which disagreement(s), if not resolved to the satisfaction of Kish,
Leake & Associates, P.C., would have caused that firm to make reference in
connection with its reports to the subject matter of the disagreement(s) or any
reportable events.
The Registrant has requested that Kish, Leake & Associates, P.C., furnish
it with a letter addressed to the Commission stating whether it agrees with the
above statements. A copy of such letter, dated April 10, 2000, is filed as
Exhibit 16.1 to this Form 8-K.
ITEM 5. OTHER EVENTS
SUCCESSOR ISSUER ELECTION.
Upon effectiveness of the merger, pursuant to Rule 12g-3(a) of the General
Rules and Regulations of the Securities and Exchange Commission, Tessa became
the successor issuer to Zaba for reporting purposes under the Securities
Exchange Act of 1934 and elects to report under the Act effective as of the date
of this report.
ITEM 7. FINANCIAL STATEMENTS
No financial statements are filed herewith. The Registrant shall file
financial statements by amendment hereto not later than 60 days after the date
that this initial report on Form 8-K must be filed.
Item 7(c). Exhibits.
Number Exhibit
- ------ -------
3.1 Articles of Incorporation and Amendments thereto of Tessa
Complete Health Care, Inc.
3.2 Restated Bylaws of Tessa Complete Health Care, Inc.
10.1 Agreement and Plan of Reorganization between Zaba
International, Inc. and Tessa Complete Health Care, Inc.
16.1 Letter of Resignation of Registrant's independent
certified accountant, Kish, Leake & Associates, P.C.
22
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ITEM 8. CHANGE IN FISCAL YEAR
The successor issuer is adopting a fiscal year end of December 31. Tessa
will file a transitional annual report if and as required.
23
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TESSA COMPETE HEALTH CARE, INC.
By:s/ Robert C. Flippin
--------------------
Robert C. Flippin, President
Date: April 10, 2000
24
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TESSA COMPLETE HEALTH CARE, INC.
-------------------------------
EXHIBIT 3.1
---------------------------------
ARTICLES OF INCORPORATION
AND AMENDMENTS THERETO
--------------------------------
25
<PAGE>
STATE OF GEORGIA
OFFICE OF SECRETARY OF STATE
I, Ben W. Fortson, Jr., Secretary of State of the
State of Georgia, do hereby certify that
"STRUCTOFAB, INC.
was on the 20th day of April, 1967,
duly incorporated under the laws of the State of Georgia by the Superior Court
of Bibb County for a period of Thirty-Five years
from said date, in accordance with the certified copy hereto attached, and that
a certified copy of the charter of said corporation has been duly filed in the
office of the Secretary of State and the fees therefor paid, as provided by law.
In Testimony Whereof, I have hereunto set my hand
and affixed the seal of office, at the Capitol, in
the City of Atlanta, this 1st day of May, in the
year of our Lord One Thousand Nine Hundred and Sixty
Seven and of the Independence of the United States
of America, the One Hundred and Ninety-First.
s/Ben W. Fortson, Jr.
----------------------------------------------------
Secretary of State, Ex-Officio Corporation
Commissioner of the State of Georgia
26
<PAGE>
GEORGIA, BIBB COUNTY.
TO THE SUPERIOR COURT OF SAID COUNTY,
The petition of William Y. Barnes, III, Joseph H. Chambless
and Richard M. Olnick respectfully shows:
1) That they desire to be incorporated under the name
and style of
STRUCTOFAB, INC.
2) The capital stock of said corporation shall be Five
Thousand Dollars ($5,000) divided into 5,000 shares of common
stock of a single class, having a par value of $1.00 per share.
The amount of capital with which the corporation shall begin
business shall be $5,000.00, all paid, either in money or property.
The corporation shall have the right to increase the capital stock
to not in excess of One Hundred Fifty Thousand Dollars
($150,000.00) by a two-thirds majority vote of the shares of stock
then outstanding and entitled to vote.
3) That the principal office of said corporation is to be
in Bibb County, Georgia, with the right to establish branch
offices elsewhere in the United States and that petitioners desire
that the charter be granted for a period of thirty-five (35)
years with the right of renewal as provided by law.
4) The general nature of the business to be carried on
by said corporation is that of designing, constructing, manufac-
turing, buying, selling and distributing plastics; chemicals;
fiberglas, plastic fabrication and related products, and to carry
on any business similar to or in any way related to the foregoing,
permissible under the corporation laws of the State of Georgia,
which may be carried on to advantage in connection with the
business of the corporation, or which may tend to promote its
27
<PAGE>
interests; and to acquire, own, operate, lease and dispose of
like businesses or parts thereof; to apply for and own trade-
marks, trade names, copyrights and patents and rights relating
thereto; to act as agent and broker for other persons, to enter
into contracts and partnerships with individuals and corporations;
to own, buy, sell, lease and deal in real estate and personal
property of all kinds; to subscribe for, purchase, own, hold, sell,
mortgage and dispose of stocks and bonds and other obligations of
other corporations; to lend money at legal rates of interest; to
borrow money and make mortgages, security deeds and notes; to
acquire, own, buy and sell its own stock; to guarantee, become
surety upon or indorse the contracts or obligations of any other
corporation, firm, association or individual, whether the
corporation has any direct interest in the subject matter of the
contract or not, and also to make any purely accomodation
indorsement or contract of suretyship; and generally to have all
other powers allowed to corporations under the Georgia Corpora-
tion Act of 1938 (Georgia Code Sections 22-1801, et seq.Sup) and
any other law or laws of the State of Georgia.
5) The post office address of each of the applicants
hereunder is 914 Persons Building, Macon, Georgia 31201.
6) Petitioners present herewith a certificate of the
Secretary of State showing that said proposed corporation is not
the name of any other corporation now registered in that office.
WHEREFORE, Petitioners pray that they may be incorporated
for the purposes herein set forth, with all additional powers,
rights, immunities and privileges as are now conferred by law
upon corporations under the laws of Georgia.
s/ Harris Russell & Watkins
------------------------------------------
P.O. Address: HARRIS, RUSSELL & WATKINS, ATTORNEYS FOR
914 Persons Building PETITIONER
Macon, Georgia 31201
28
<PAGE>
IN THE SUPERIOR COURT OF BIBB COUNTY, GEORGIA
IN RE: )
) APPLICATION FOR CHARTER
STRUCTOFAB, INC. )
)
O R D E R
---------
The above and foregoing petition having been duly
presented to me;
It appearing that said application is legitimately within
the purview and intention of the laws of the State of Georgia;
IT IS CONSIDERED, ORDERED AND ADJUDGED that said applica-
tion be and the same is hereby granted and STRUCTOFAB, INC. is
hereby granted a charter as prayed for in said petition.
This 28 day of April , 1967.
---- -------
s/ Hal Bell
------------------------------------------
JUDGE, SUPERIOR COURTS, MACON JUDICIAL
CIRCUIT
29
<PAGE>
CLERK'S OFFICE, BIBB SUPERIOR COURT:
I, ADAM H. GREENE, Clerk of Bibb Superior Court, do hereby certify that
the attached petition for Charter for "STRUCTOFAB, INC." was this day filed and
that the Clerk's fees of $6.05 have been paid.
Witness my official signature and seal, this 28th day of April 1967
s/ Adam H. Greene
------------------------------------------
Clerk, Bibb Superior Court
GEORGIA, BIBB COUNTY:
I, ADAM H. GREENE, Clerk of Bibb Superior Court, do certify that the
foregoing is a true and correct copy of Application for Charter for "STRUCTOFAB,
INC." with the order of the Judge thereon and the filing of the Clerk thereon,
receipts for Clerk's cost paid and affidavit and receipt of Publisher for
deposit to cover four insertions in Macon News as prescribed by law.
Witness my official signature and seal, this 28th day of April 1967
s/ Adam H. Greene
------------------------------------------
Clerk, Bibb Superior Court
30
<PAGE>
STATE OF GEORGIA
OFFICE OF SECRETARY OF STATE
I, Ben W. Fortson, Jr., Secretary of State of the
State of Georgia, do hereby certify that
The articles of incorporation of "STRUCTOFAB, INC., were duly
amended, as set forth in the annexed articles of amendment, dated
the 13th day of November, 1969, granted by the Superior Court of
Bibb County and filed with the Clerk of that Court on the 13th day
of November, 1969; that the original articles of amendment, have
been duly filed in the office of the Secretary of State and the
fees therefor paid, as provided by law.
In Testimony Whereof, I have hereunto set my hand
and affixed the seal of office, at the Capitol, in
the City of Atlanta, this 17th day of November, in
the year of our Lord One Thousand Nine Hundred and
Sixty Nine and of the Independence of the United
States of America, the One Hundred and
Ninety-Fourth.
s/Ben W. Fortson, Jr.
----------------------------------------------------
Secretary of State, Ex-Officio Corporation
Commissioner of the State of Georgia
31
<PAGE>
IN THE SUPERIOR COURT OF BIBB COUNTY, GEORGIA
The petition of STRUCTOFAB, INC. respectfully shows the
Court:
1) The Articles of Amendment to the Charter of
petitioner are attached to this petition.
2) The Certificate of the Secretary of the Corporation,
attesting to the fact that the Amendments sought by this petition
have been adopted and approved by the unanimous vote of all of
the stockholders of the corporation, is attached hereto and made
a part of this petition.
WHEREFORE, Petitioner prays that these Articles of
Amendment be allowed by the Court and that petitioner's corporate
charter be amended in accordance therewith, pursuant to the
Georgia Business Corporation Code, as amended.
s/ T. Reese Watkins
------------------------------------------
T. Reese Watkins, Attorney for
Petitioner
P. O. Address:
1200 Georgia Power Building
Macon, Georgia 31201
32
<PAGE>
ARTICLES OF AMENDMENT
STRUCTOFAB, INC.
1) The name of the corporation is STRUCTOFAB, INC.
2) The following Amendments to the charter of the corpora-
tion have been adopted by an unanimous vote of all of the
outstanding stock;
(a) Paragraph 2 of the charter of the corporation is
stricken and in lieu thereof the following Paragraph 2 is
substituted:
"2) The capital stock of said corporation shall
be Twenty Thousand Dollars ($20,000.00) divided into
1,000,000 shares of common stock of a single class,
having a par value of two (2) cents per share."
(b) Paragraph 3 of the charter of the corporation is
stricken and in lieu thereof the following paragraph, numbered 3,
is adopted and approved:
"3) That the principal office of said corpora-
tion is to be in Bibb County, Georgia, with the right
to establish branch offices elsewhere in the United
States and that the existence of this corporation
shall be perpetual."
The effect of this Amendment is only to provide
that the existence of the corporation shall be
perpetual.
(c) A new paragraph shall be added to the Charter of the
corporation which, when added, shall be numbered and read as
follows:
"7) No holder of stock of any class of the
corporation, now or hereafter authorized, shall have
any preemptive right to purchase, subscribe for, or
otherwise acquire any shares of stock of any class of
33
<PAGE>
the corporation, now or hereafter authorized, or any
part-paid receipts or allotments, certificates in
respect of any such shares, or any securities
convertible into or exchangeable for any such shares,
or any warrants, options or other instruments evidenc-
ing rights to subscribe for purchase or otherwise
acquire any such shares, whether such shares, receipts,
certificates, securities, warrants, options or other
instruments be unissued or issued and thereafter
acquired by the corporation, and any such shares,
receipts, certificates, securities, warrants, options
or other instruments may be sold by the Board of
Directors of the corporation without being first
offered to the stockholders, at such price and to
such purchasers, and upon such terms and conditions
as the Board of Directors may deem advisable."
(d) A new paragraph shall be added to the charter of
the corporation which, when added, shall be numbered and read
as follows:
"8) The corporation shall split the shares of common
stock in the corporation so that each shareholder of record
on November 1, 1969 shall receive seventy-six (76) shares
of common stock having a par value of two (2) cents per
share, in exchange for each share of common stock held
by such shareholder on November 1, 1969."
3) The shareholders of all of the stock of the corpora-
tion adopted the foregoing amendments by an unanimous vote on
November 1, 1969.
4) Two-thirds majority vote of the shares of stock of
the corporation were required to adopt the amendments hereinabove
set forth. The number of shares outstanding and entitled to vote
Page 2
34
<PAGE>
when said amendments were adopted was 5,000 and the vote for the
amendments was 5,000.
5) The manner and basis for the exchange of the out-
standing stock of the corporation at the time of the adoption of
the foregoing amendments are set forth in Paragraph (d) above.
6) The adoption of the foregoing amendments effects a
change in the amount of stated capital by raising the sum from
$5,000.00 to $20,000.00 and by dividing such capital of
$20,000.00 into one million shares of the par value of two (2)
cents per share.
IN WITNESS WHEREOF, the undersigned has caused these
Articles of Amendment to be executed and submitted by its duly
authorized officers.
STRUCTOFAB, INC. (SEAL)
By s/Alvin G. Hirsh
---------------------------
Alvin G. Hirsh, President
Attest:
s/Milton Hirsh
--------------------------
Hilton Hirsh, Secretary.
Page 3
35
<PAGE>
O R D E R
---------
The within Articles of Amendment of Structofab, Inc.,
submitted with its petition for adoption thereof having been
examined and found lawful;
IT IS, THEREUPON, CONSIDERED, ORDERED AND ADJUDGED that
said Articles of Amendment be and they are hereby approved
and adopted and made a part of the Articles of Incorporation of
Structofab, Inc., pursuant to applicable provisions of the
Georgia Business Corporation Code as amended.
This 13 day of November, 1969.
----
s/ Hal Bell
------------------------------------------
JUDGE, SUPERIOR COURT OF BIBB COUNTY,
GEORGIA
36
<PAGE>
MACON
TELEGRAPH AND NEWS
Broadway and
Riverside Drive
Macon, Georgia
Phone 743-2621
STATE OF GEORGIA,
COUNTY OF BIBB:
Personally appeared before me, a Notary Public within
and for the above State and County, Lillian Levine
-----------------------
who deposes and says that she is checking Clerk for The
Macon Telegraph Publishing Company,publishers of THE MACON
NEWS, and that $60.00 has been paid for publication of
notice of Articles of Amendment to
STRUCTOFAB, INC.
s/Lillian Levine
--------------------------------
Deponent
Sworn to and subscribed before
me, this 13 day of November , 19 69.
------ --------------- ----
s/Gladye Abel
- -----------------------------------------------
Notary Public, State of Georgia,
Bibb County
37
<PAGE>
CLERK'S OFFICE, BIBB SUPERIOR COURT:
I, ADAM H. GREENE, Clerk of Bibb Superior Court, do hereby certify that the
above and foregoing is a true and correct copy of
-----------------------------
Documents of Amendment
- -------------------------------------------------------------------------------
with the order of the Judge and Publisher's affidavit of
----------------------
STRUCTOFAB, INC.
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
a conformed copy thereof having been this date filed in said clerk's office.
I further certify that the clerk's fees of $15.00 have been paid.
WITNESS, my Official Signature and the Seal of the Court, this 13th
-------
day of November , 19 69.
------------- ----
s/ Adam H. Greene
------------------------------------------
Clerk, Superior Court
Bibb County, Georgia
38
<PAGE>
STATE OF GEORGIA
OFFICE OF SECRETARY OF STATE
I, Ben W. Fortson, Jr., Secretary of State of the
State of Georgia, do hereby certify that
The articles of incorporation of "STRUCTOFAB, INC., were duly amended
as set forth in the annexed articles of amendment granted by the Superior
Court of Bibb County on the 11th day of March, 1976, and filed
with the Clerk of that Court on the 11th day of March, 1976,
that the original articles of amendment have been duly filed in
the office of the Secretary of State and the fees paid therefor,
as provided by law.
In Testimony Whereof, I have hereunto set my hand
and affixed the seal of office, at the Capitol, in
the City of Atlanta, this 19th day of March in the
year of our Lord One Thousand Nine Hundred and
Seventy
Six and of the Independence of the United States
of America, the Two Hundredth.
s/Ben W. Fortson, Jr.
----------------------------------------------------
Secretary of State, Ex-Officio Corporation
Commissioner of the State of Georgia
39
<PAGE>
IN THE SUPERIOR COURT OF BIBB COUNTY, GEORGIA
The petition of STRUCTOFAB, INC. respectfully shows
the Court:
(1) The Articles of Amendment to the Charter of
petitioner are attached to this petition.
(2) The Certificate of the Secretary of the Corporation,
attesting to the fact that the Amendments sought by this petition
have been adopted and approved by a majority vote of all the
stockholders of the corporation, is attached hereto and made a
part of this petition.
WHEREFORE, Petitioner prays that these Articles of
Amendment be allowed by the Court and that petitioner's corporate
charter be amended in accordance therewith, pursuant to the
Georgia Business Corporation Code, as amended.
s/ William Y. Barnes, III
------------------------------------------
William Y. Barnes, Attorney for
Petitioner
850 Georgia Power Building
Macon, Georgia 31201
40
<PAGE>
ARTICLES OF AMENDMENT
STRUCTOFAB, INC.
1) The name of the corporation is STRUCTOFAB, INC.
2) The following Amendments to the charter of the corpora-
tion have been adopted by a majority vote of all of the outstand-
ing stock;
Paragraph 2 of the charter of the corporation is stricken
and in lieu thereof the following Paragraph 2 is substituted:
"2) The capital stock of this corporation shall be Forty
Thousand Dollars ($40,000.00) divided into 2,000,000 shares
of common stock of a single class, having a par value
of two (2) cents per share."
3) The foregoing Amendment was adopted by the shareholders
of the corporation on February 20, 1976.
4) A majority vote of the shares of stock of the corporation
was required to adopt the Amendment herein above set forth. The
number of shares outstanding and entitled to vote when said Amendment
was adopted was 743,100 and the vote was as follows: In favor of the
Amendment - 456,665 ; opposed to Amendment - 3,100 .
IN WITNESS WHEREOF, the undersigned has caused these Articles
of Amendment to be executed and submitted by its duly authorized officers.
STRUCTOFAB, INC. (SEAL)
By s/Robert Handler
---------------------------
Robert Handler, President
Attest:
s/William B. Hebenstreit
--------------------------
William B. Hebenstreit, Secretary
41
<PAGE>
O R D E R
---------
The within Articles of Amendment of Structofab, Inc.,
submitted with its petition for adoption thereof having been
examined and found lawful;
IT IS, THEREUPON, CONSIDERED, ORDERED AND ADJUDGED that
said Articles of Amendment be and they are hereby approved and
adopted and made a part of the Articles of Incorporation of
Structofab, Inc., pursuant to applicable provisions of the
Georgia Business Corporation Code as amended.
This 11th day of March, 1976.
------
s/ Geo. B. Culpepper
------------------------------------------
JUDGE, SUPERIOR COURT OF BIBB
COUNTY, GEORGIA
42
<PAGE>
MACON
TELEGRAPH AND NEWS
Broadway and
Riverside Drive
Macon, Georgia
Phone 743-2621
STATE OF GEORGIA,
COUNTY OF BIBB:
Personally appeared before me, a Notary Public within
and for the above State and County, Connie Lassiter
-----------------------
who, after being duly sworn, deposes and says that she is check-
ing Clerk for The Macon Telegraph Publishing Company, publishers
of THE MACON NEWS, the official organ of said County; that there
has been deposited with said newspaper the sum of $60.00 for the
cost of publishing therein once a week for four consecutive weeks
a notice of granting of Articles of Amendment
"STRUCTOFAB, INC."
as provided by Georgia Code Section 22-802(d)(2).
s/Connie Lassiter
--------------------------------
Deponent Deputy Clerk
Sworn to and subscribed before me, this
11th day of March , 19 76.
- --------- ------------- ----
s/Aline T. Byrd
- -----------------------------------------------
Notary Public, State of Georgia, Bibb
County; My Commission Expires Sep 16 1977
---------------
43
<PAGE>
CLERK'S OFFICE, BIBB SUPERIOR COURT:
I, ADAM H. GREENE, Clerk of Bibb Superior Court, do hereby certify that the
above and foregoing is a true and correct copy of Articles of Amendment
-----------------------------
- -------------------------------------------------------------------------------
with the order of the Judge and Publisher's affidavit of
----------------------
"Structofab, Inc."
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
a conformed copy thereof having been this date filed in said clerk's office.
I further certify that the clerk's fees of $15.00 have been paid.
WITNESS, my Official Signature and the Seal of the Court, this 11th
-------
day of March , 19 76.
------------- ----
s/ Adam H. Greene
------------------------------------------
Clerk, Superior Court
Bibb County, Georgia
44
<PAGE>
STATE OF GEORGIA
OFFICE OF SECRETARY OF STATE
I, Max Cleland, Secretary of State of the State of
Georgia, do hereby certify that
the articles of incorporation of "STRUCTOFAB, INC., have been duly
amended under the laws of the State of Georgia on the 14th day
of April, 1986, by the filing of articles of amendment in the office
of the Secretary of State and the fees therefor paid, as provided
by law, and that attached hereto is a true copy of said articles
of amendment.
In Testimony Whereof, I have hereunto set my hand
and affixed the seal of my office, at the Capitol,
in the City of Atlanta, this 14th day of April in
the year of our Lord One Thousand Nine Hundred and
Eighty
Six and of the Independence of the United States
of America, the Two Hundred and Ten.
s/Max Cleland
----------------------------------------------------
Secretary of State
Commissioner of Corporations
45
<PAGE>
ARTICLES OF AMENDMENT
STRUCTOFAB, INC.
1.) The name of the corporation is STRUCTOFAB, INC.
2.) The following Amendments to the charter of the corporation have been
adopted by a majority vote of all of the outstanding stock;
Paragraph 2 of the charter of the corporation is stricken and in lieu
thereof the following Paragraph 2 is substituted:
2.) The Capital Stock of said corporation shall be Twenty Thousand
Dollars ($20,000.00) divided into 5,000,000 shares of Common Stock of
a single class, having a par value of two (2) cents per share.
IN WITNESS WHEREOF, the undersigned has caused these Articles of Amendment
to be executed and submitted by its duly authorized officers.
STRUCTOFAB, INC., by
March 1, 1986 s/Robert Handler
-----------------------------
Robert Handler, President
46
<PAGE>
MACON TELEGRAPH AND NEWS
120 Broadway - P.O. Box 4167 - Macon, GA 31213
AD NUMBER 612390
912-744-4317
STATE OF GEORGIA STRUCTOFAB AMENDMENT
COUNTY OF BIBB
PERSONALLY APPEARED BEFORE ME, Georgia, Bibb County
ARTICLES OF AMENDMENT
A NOTARY PUBLIC WITHIN AND FOR ABOVE The Articles of Incorporation of
Structofab, Inc., have been duly
STATE AND COUNTY, JIM HUNTSINGER, amended on the 14th day of April,
1986, by the issuance of a
WHO DEPOSES AND SAYS HE IS CHECKING certificate of amendment by the
Secretary of State, in accordance
CLERK FOR THE MACON TELEGRAPH AND NEWS with the applicable provisions of the
Georgia Profit Corporation Code.
AND IS DULY AUTHORIZED BY THE PUBLISHER JOSEPH E. DEMING, ATTY.
150 River Road, Suite A2
THEREOF TO MAKE THIS AFFIDAVIT, AND THAT Montville, New Jersey 07045
5/10, 17, 24, 31, 1986-612390
ADVERTISEMENT AS PER ATTACHED CLIPPING
HAS BEEN PUBLISHED IN THE MACON TELEGRAPH
AND NEWS ON THE FOLLOWING DATES:
05/10, 05/17, 05/24, 05/31
SIGNED s/Jim Huntsinger
SWORN TO AND SUBSCRIBED BEFORE ME
THIS 31 DAY OF MAY, 1986
s/Dawn W. Waites
NOTARY PUBLIC, BIBB COUNTY, GEORGIA
MY COMMISSION EXPIRES AUGUST 1, 1987
MISCELLANEOUS LEGAL
120 BROADWAY
MACON GA 31213
47
<PAGE>
SECRETARY OF STATE DOCKET NUMBER : 980350875
Corporations Division CONTROL NUMBER : 7602267
Suite 315, West Tower EFFECTIVE DATE : 02/12/1998
2 Martin Luther King Jr. Dr. REFERENCE : 0045
Atlanta, Georgia 30334-1530 PRINT DATE : 02/12/1998
FORM NUMBER : 611
JOHN B. OWY
645 FIFTH AVE.
4TH FLOOR
NEW YORK, NY 10022
CERTIFICATE OF NAME CHANGE AMENDMENT
I, Lewis A. Massey, the Secretary of State and the Corporation
Commission of the State of Georgia, do hereby certify under the
seal of my office that
STRUCTOFAB, INC.
A DOMESTIC PROFIT CORPORATION
has filed articles of amendment in the office of the Secretary of
State changing its name to
TESSA COMPLETE HEALTH CARE, INC.
and has paid the required fees as provided by Title 14 of the Official Code of
Georgia Annotated. Attached hereto is a true and correct copy of said articles
of amendment.
WITNESS my hand and official seal in the City of Atlanta and the State of
Georgia on the date set forth above.
s/Lewis A. Massey
Lewis A. Massey
Secretary of State
48
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ARTICLES OF INCORPORATION
OF
STRUCTOFAB, INC.
Under Section 14-2-1006 of the
Georgia Business Corporation Code
---------------------------------
STRUCTOFAB, INC., (the "Corporation"), a corporation organized and existing
under and by virtue of the Georgia Business Corporation Code, DOES HEREBY
CERTIFY
FIRST: That the Board of Directors of said Corporation, by written consent
filed with the minutes of the Board, adopted the following resolutions proposing
and declaring advisable the following amendments to the Articles of
Incorporation of said Corporation:
"1. That Paragraph 1) of the Articles of Incorporation be amended and, as
amended, read as follows:
"1) The name of the Corporation is TESSA COMPLETE HEALTH CARE,
INC.";
2. That Paragraph 2) of the Articles of Incorporation be amended and, as
amended, read as follows:
"2) The total authorized capital stock of this Corporation
shall be One Million Dollars ($1,000,000) consisting of Fifty Million
(50,000,000) shares of Common Stock, with a par value of $.02 per share."
3. The foregoing amendments are effective as of the opening of business on
February 12, 1998.
4. Effective as of the opening of business on February 12, 1998, the
Corporation's outstanding shares are reverse split on a one-for-25 basis, so
that each 25 shares of Common Stock, $.02 par value outstanding prior to the
reverse split shall, without further action, become one share of Common Stock,
$.02 par value after the reverse split.
SECOND: That the aforesaid amendments and reverse split were duly adopted
in accordance with the applicable provisions of Section 14-2-1003 of the Georgia
Business Corporation Code, at a meeting of stockholders duly called and held for
the above purposes, on February 12, 1998.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Robert Handler, its President, this 9 day of February, 1998.
-----
STRUCTOFAB, INC.
By: s/Robert Handler
---------------------------------
Robert Handler, President
[STRI0001.018]
49
<PAGE>
CERTIFICATE OF MERGER
THIS IS TO CERTIFY:
1. PARTIES. Pursuant to the terms of that certain definitive Agreement
and Plan of Reorganization dated March 16 , 2000 (the "Agreement"), Tessa
Complete Health Care, Inc. ("Tessa"), a corporation formed pursuant to the laws
of the State of Georgia, has acquired all of the issued and outstanding common
voting stock of Zaba International, Inc. ("Zaba"), a corporation formed pursuant
to the laws of the State of Colorado, effective March 16 , 2000 (the "Effective
Date").
2. APPROVAL. The terms of the Agreement were approved by the unanimous
vote of the Board of Directors and Shareholders of Zaba by written consents
pursuant to the laws of the State of Colorado. The terms of the Agreement were
approved by the unanimous vote of the Board of Directors of Tessa by written
consent pursuant to the laws of the State of Georgia and approved by the
affirmative vote of the holders of a majority of the issued and outstanding
stock at a meeting of shareholders of Tessa held pursuant to proper notice (or
waiver thereof).
3. SHARE EXCHANGE. The Agreement provides that all of the shareholders
of Zaba, representing 2,407,165 issued and outstanding common shares, shall
exchange their respective shares for an aggregate of 275,000 shares of Tessa
common stock, to be distributed to each Zaba shareholder pro rata to their
respective ownership in Zaba at the Effective Date. Immediately prior to the
Effective Date, there were 13,986,709 common shares of Tessa issued and
outstanding.
4. SURVIVING ENTITY. Pursuant to the terms of the Agreement, Tessa
shall be the surviving entity and, upon the Effective Date and upon filing of
this Certificate of Merger with the Georgia Secretary of State and filing of
Articles of Merger with the Colorado Secretary of State and issuance of an
applicable Certificate of Merger by the Secretary of State for the State of
Colorado, Zaba shall cease to exist as a bona fide Colorado corporation.
5. ARTICLES OF INCORPORATION. The Articles of Incorporation of the
Surviving Corporation as in effect as of the Effective Date shall continue in
full force and effect, without amendment or modification thereto.
6. PLAN OF MERGER OR SHARE EXCHANGE. The executed Agreement and Plan of
Reorganization and Plan of Merger is on file at the principal place of business
of Tessa located at One South 443 Summit Avenue, Suite 201, Oakbrook Terrace,
Illinois 60181, and copy thereof will be furnished on request and without cost
to any shareholder of any corporation that is a party to the merger.
7. UNDERTAKING OF SURVIVING CORPORATION. Upon the Effective Date,
Tessa, as the Surviving Corporation, hereby agrees that it will cause and submit
payment for a request for publication of a notice of the filing of this
Certificate of Merger pursuant to ss. 14-2-1105.1(b) of the Georgia Business
Corporation Code.
50
<PAGE>
Executed this 16th day of March , 2000.
------- -----------------------
TESSA COMPLETE HEALTH CARE, INC.
By: s/Robert C. Flippin
---------------------------------
Its: President
--------------------------------
51
<PAGE>
TESSA COMPLETE HEALTH CARE, INC.
--------------------------------
EXHIBIT 3.2
---------------------------------
RESTATED BYLAWS
--------------------------------
52
<PAGE>
INDEX TO THE RESTATED BYLAWS OF
TESSA COMPLETE HEALTH CARE, INC.
ARTICLE I - OFFICES.......................................................... 1
SECTION 1. Offices........................................ 1
SECTION 2. Registered Office.............................. 1
ARTICLE II - SHAREHOLDERS.................................................... 1
SECTION 1. Annual Meeting................................. 1
SECTION 2. Special Meetings............................... 2
SECTION 3. Place of Meetings.............................. 2
SECTION 4. Notice of Meeting.............................. 2
SECTION 5. Fixing of Record Date.......................... 3
SECTION 6. Voting Lists................................... 3
SECTION 7. Recognition Procedure for Beneficial Owners.... 4
SECTION 8. Quorum and Manner of Acting.................... 4
SECTION 9. Proxies........................................ 4
SECTION 10. Voting of Shares.............................. 5
SECTION 11. Corporation's Acceptance of Votes............. 6
SECTION 12. Informal Action by Shareholders............... 7
SECTION 13. Meetings by Telecommunication................. 7
ARTICLE III - BOARD OF DIRECTORS............................................. 8
SECTION 1. General Powers................................. 8
SECTION 2. Number, Qualifications and Tenure.............. 8
SECTION 4. Regular Meetings............................... 8
SECTION 5. Special Meetings............................... 8
SECTION 6. Notice......................................... 9
SECTION 7. Quorum......................................... 9
SECTION 8. Manner of Acting............................... 9
SECTION 9. Compensation................................... 9
SECTION 10. Presumption of Assent......................... 9
SECTION 11. Committees.................................... 10
SECTION 12. Informal Action by Directors.................. 10
SECTION 13. Telephonic Meetings........................... 10
SECTION 14. Standard of Care.............................. 11
ARTICLE IV - OFFICERS AND AGENTS............................................. 11
SECTION 1. General........................................ 11
SECTION 2. Appointment and Term of Office................. 11
SECTION 3. Resignation and Removal........................ 11
i
53
<PAGE>
SECTION 4. Vacancies...................................... 12
SECTION 5. President...................................... 12
SECTION 6. Vice Presidents................................ 12
SECTION 7. Secretary...................................... 12
SECTION 8. Treasurer...................................... 13
ARTICLE V - STOCK............................................................ 13
SECTION 1. Certificates................................... 13
SECTION 2. Consideration for Shares....................... 14
SECTION 3. Lost Certificates.............................. 15
SECTION 4. Transfer of Shares............................. 15
SECTION 5. Transfer Agent, Registrars and Paying Agents... 15
ARTICLE VI - INDEMNIFICATION OF CERTAIN PERSONS.............................. 15
SECTION 1. Indemnification................................ 15
SECTION 2. Right to Indemnification....................... 16
SECTION 3. Effect of Termination of Action................ 16
SECTION 4. Groups Authorized to Make Indemnification
Determination......................................... 16
SECTION 5. Court-Ordered Indemnification.................. 17
SECTION 6. Advance of Expenses............................ 17
SECTION 7. Additional Indemnification to Certain
Persons Other Than Directors............................... 17
SECTION 8. Witness Expenses............................... 18
SECTION 9. Report to Shareholders......................... 18
ARTICLE VII - INSURANCE...................................................... 18
SECTION 1. Provision of Insurance......................... 18
ARTICLE VIII - MISCELLANEOUS................................................. 18
SECTION 1. Seal........................................... 18
SECTION 2. Fiscal Year.................................... 18
SECTION 3. Amendments..................................... 18
SECTION 4. Receipt of Notices by the Corporation.......... 19
SECTION 5. Gender......................................... 19
SECTION 6. Conflicts...................................... 19
SECTION 7. Definitions.................................... 19
CERTIFICATE.................................................................. 19
ii
54
<PAGE>
RESTATED BYLAWS
OF
TESSA COMPLETE HEALTH CARE, INC.
ARTICLE I - OFFICES
SECTION 1. Offices. The principal office of the corporation shall be
designated from time to time by the corporation and may be within or outside of
Georgia.
The corporation may have such other offices, either within or outside of
the State of Georgia, as the board of directors may designate or as the business
of the corporation may require from time to time.
SECTION 2. Registered Office. The registered office of the corporation,
required by the Georgia Business Corporation Code to be maintained in the State
of Georgia, may be, but need not be, identical with the principal office in the
State of Georgia, and the address of the registered office may be changed from
time to time by the board of directors.
ARTICLE II - SHAREHOLDERS
SECTION 1. Annual Meeting. The annual meeting of the shareholders shall be
held during the month of August of each year on a date and at a time fixed by
the board of directors of the corporation (or by the president in the absence of
action by the board of directors) beginning with the year 2000, for the purpose
of electing directors and for the transaction of such other business as may come
before the meeting. If the election of directors is not held on the day fixed as
provided herein for any annual meeting of the shareholders, or any adjournment
thereof, the board of directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as it may conveniently be held.
A shareholder may apply to the superior court in the county in Georgia
where the corporation's principal office is located or, if the corporation has
no principal office in Georgia, to the superior court of the county in which the
corporation's registered office is located to seek an order that a shareholder
meeting be held (i) if an annual meeting was not held within six months after
the close of the corporation's most recently ended fiscal year or fifteen months
after its last annual meeting, whichever is earlier, or (ii) if the shareholder
participated in a proper call of or proper demand for a special meeting and
notice of the special meeting was not given within thirty days after the date of
the call or the date the last of the demands necessary to require calling of the
meeting was received by the corporation pursuant to ss. 4-2-703(2)(A) of the
Georgia Business Corporation Code, or the special meeting was not held in
accordance with the notice.
1
55
<PAGE>
SECTION 2. Special Meetings. Unless otherwise prescribed by statute,
special meetings of the shareholders may be called for any purpose by the
president or by the board of directors. The president shall call a special
meeting of the shareholders if the corporation receives one or more written
demands for the meeting, stating the purpose or purposes for which it is to be
held, signed and dated by holders of shares representing at least ten percent of
all the votes entitled to be cast on any issue proposed to be considered at the
meeting.
SECTION 3. Place of Meetings. The board of directors may designate any
place, either within or outside of the State of Georgia, as the place for any
annual meeting or any special meeting called by the board of directors. A waiver
of notice signed by all shareholders entitled to vote at a meeting may designate
any place, either within or outside the State of Georgia, as the place for such
meeting. If no designation is made, or if a special meeting is called other than
by the board, the place of meeting shall be the principal office of the
corporation.
SECTION 4. Notice of Meeting. Written notice stating the place, date and
hour of the meeting shall be given not less than ten nor more than sixty days
before the date of the meeting, except that (i) if the number of authorized
shares is to be increased, at last thirty days' notice shall be given, or (ii)
any other longer notice period is required by the Georgia Business Corporation
Code. The secretary shall be required to give such notice only to shareholders
entitled to vote at the meeting except as otherwise required by the Georgia
Business Corporation Code.
Notice of a special meeting shall include a description of the purpose or
purposes of the meeting. Notice of an annual meeting need not include a
description of the purpose or purposes of the meeting except the purpose or
purposes shall be stated with respect to (i) an amendment to the articles of
incorporation of the corporation; (ii) a merger or share exchange in which the
corporation is a party and, with respect to a share exchange, in which the
corporation's shares will be acquired; (iii) a sale, lease, exchange or other
disposition, other than in the usual and regular course of business, of all or
substantially all of the property of the corporation or of another entity which
this corporation controls, in each case with or without the goodwill; (iv) a
dissolution of the corporation; (v) restatement of the articles of
incorporation; or (vi) any other purpose for which a statement of purpose is
required by the Georgia Business Corporation Code. Notice shall be given
personally or by mail, private carrier, telegraph, teletype, electronically
transmitted facsimile or other form of wire or wireless communication by or at
the direction of the president, the secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote at such meeting. If
mailed and if in a comprehensible form, such notice shall be deemed to be given
and effective when deposited in the united States mail, properly addressed to
the shareholder at his address as it appears in the corporation's current record
of shareholders, with first class postage prepaid. If notice is given other than
by mail, and provided that such notice is in a comprehensible form, the notice
is given and effective on the date actually received by the shareholder.
If requested by the person or persons lawfully calling such meeting, the
secretary shall give notice thereof at corporate expense. No notice need be sent
to any shareholder if three successive notices mailed to the last known address
of such shareholder have been returned as undeliverable until such time as
another address for such shareholder is made known to the corporation by such
shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholders' mailing address as shown on the corporation's books and records.
2
56
<PAGE>
When a meeting is adjourned to another date, time or place, notice need not
be given of the new date, time or place if the new date, time or place of such
meeting is announced before adjournment at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
which may have been transacted at the original meeting. If the adjournment is
for more than 120 days, or if a new record date is fixed for the adjourned
meeting, a new notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting as of the new record date.
A shareholder may waive notice of a meeting before or after the time and
date of the meeting by a writing signed by such shareholder. Such waiver shall
be delivered to the corporation for filing with the corporate records, but this
delivery and filing shall not be conditions to the effectiveness of the waiver.
Further, by attending a meeting either in person or by proxy, a shareholder
waives objection to lack of notice or defective notice of the meeting unless the
shareholder objects at the beginning of the meeting to the holding of the
meeting or the transaction of business at the meeting because of lack of notice
or defective notice. By attending the meeting, the shareholder also waives any
objection to consideration at the meeting of a particular matter not within the
purpose or purposes described in the meeting notice unless the shareholder
objects to considering the matter when it is presented.
SECTION 5. Fixing of Record Date. For the purpose of determining
shareholders entitled to (i) notice of or to vote at any meeting of shareholders
or any adjournment thereof, (ii) receive distributions or share dividends, (iii)
demand a special meeting, or (iv) make a determination of shareholders for any
other proper purpose, the board of directors may fix a future date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy days, and, in case of a meeting of shareholders, not less than
ten days, prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If no record date is fixed by the
directors, the record date shall be the day before the notice of the meeting it
given to shareholders, or the date on which the resolution of the board of
directors providing for a distribution is adopted, as the case may be. When a
determination of shareholders entitled to vote at any meeting of shareholders is
made as provided in this Section, such determination shall apply to any
adjournment thereof unless the board of directors fixes a new record date, which
it must do if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting. Unless otherwise specified when the record
date is fixed, the time of day for such determination shall be as of the
corporation's close of business on the record date.
Notwithstanding the above, the record date for determining the shareholders
entitled to take action without a meeting or entitled to be given notice of
action so taken shall be the date a writing upon which the action is taken is
first received by the corporation. The record date for determining shareholders
entitled to demand a special meeting shall be the date of the earliest of any of
the demands pursuant to which the meeting is called.
SECTION 6. Voting Lists. After a record date is fixed for a shareholder's
meeting, the secretary shall make, at the earlier of ten days before such
meeting or two business days after notice of the meeting has been given, a
complete list of the shareholders entitled to be given notice of such meeting or
any adjournment thereof. The list shall be arranged by voting group by class or
series of shares, shall be in alphabetical order within each class or series,
and shall show the address of and the number of shares of each class or series
held by each shareholder. For the period beginning the earlier of ten days prior
to the meeting or two business days after notice of the meeting is given and
continuing through the meeting and any adjournment thereof, this list shall be
kept on file at the principal office of
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the corporation, or at a place (which shall be identified in the notice) in the
city where the meeting will be held. Such list shall be available for inspection
on written demand by any shareholder (including for the purpose of this Section
6 any holder of voting trust certificates) or his agent or attorney during
regular business hours and during the period available for inspection. The
original stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such list or transfer books or to vote at any
meeting of shareholders.
Any shareholder, his agent or attorney may copy the list during regular
business hours and during the period it is available for inspection, provided
(i) the shareholder holds at least two percent of all outstanding shares of any
class of shares as of the date of the demand, (ii) the demand is made in good
faith and for a purpose reasonably related to the demanding shareholder's
interest as a shareholder, (iii) the shareholder describes with reasonable
particularity the purpose and the records the shareholder desires to inspect,
(iv) the records are directly connected with the described purpose, and (v) the
shareholder pays a reasonable charge covering the costs of labor and materials
for such copies, not to exceed the estimated cost of production and
reproduction.
SECTION 7. Recognition Procedure for Beneficial Owners. The board of
directors may adopt by resolution a procedure whereby a shareholder of the
corporation may certify in writing to the corporation that all or a portion of
the shares registered in the name of such shareholder are held for the account
of a specified person or persons. The resolution may set forth (i) the types of
nominees to which it applies; (ii) the rights or privileges that the corporation
will recognize in a beneficial owner, which may include rights and privileges
other than voting; (iii) the form of certification and the information to be
contained therein; (iv) if the certification is with respect to a record date,
the time within which the certification must be received by the corporation; (v)
the period for which the nominee's use of the procedure is effective; and (vi)
such other provisions with respect to the procedure as the board deems necessary
or desirable. Upon receipt by the corporation of a certificate complying with
the procedure established by the board of directors, the person specified in the
certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the registered holders of the number of shares specified in
place of the shareholder making the certification.
SECTION 8. Quorum and Manner of Acting. A majority of the votes entitled to
be cast on a matter by a voting group represented in person or by proxy shall
constitute a quorum of that voting group for action on the matter. If less than
one-third of such votes are represented at a meeting, a majority of the votes so
represented may adjourn the meeting from time to time without further notice,
for a period not to exceed 120 days for any one adjournment. If a quorum is
present at such adjourned meeting, any business may be transacted which might
have been transacted at the meeting as originally noticed. The shareholders
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, unless the meeting is adjourned and a new record date is set for
the adjourned meeting.
If a quorum exists, action on a matter other than the election of directors
by a voting group is approved if the votes cast within the voting group favoring
the action exceed the votes cast within the voting group opposing the action,
unless the vote of a greater number or voting by classes is required by law or
the articles of incorporation.
SECTION 9. Proxies. At all meetings of shareholders, a shareholder may vote
by proxy by signing an appointment form or similar writing, either personally or
by his duly authorized attorney-in- fact. A shareholder may also appoint a proxy
by transmitting or authorizing the transmission of a
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telegram, teletype, or other electronic transmission providing a written
statement of the appointment to the proxy, a proxy solicitor, proxy support
service organization, or other person duly authorized by the proxy to receive
appointments as agent for the proxy, or to the corporation. The transmitted
appointment shall set forth or be transmitted with written evidence from which
it can be determined that the shareholder transmitted or authorized the
transmission of the appointment. The proxy appointment form or similar writing
shall be filed with the secretary of the corporation before or at the time of
the meeting. The appointment of a proxy is effective when received by the
corporation and is valid for eleven months unless a different period is
expressly provided in the appointment form or similar writing.
Any complete copy, including an electronically transmitted facsimile, of an
appointment of a proxy may be substituted for or used in lieu of the original
appointment for any purpose for which the original appointment could be used.
Revocation of a proxy does not affect the right of the corporation to
accept the proxy's authority unless (i) the corporation had notice that the
appointment was coupled with an interest and notice that such interest is
extinguished is received by the secretary or other officer or agent authorized
to tabulate votes before the proxy exercises his authority under the
appointment, or (ii) other notice of the revocation of the appointment is
received by the secretary or other officer or agent authorized to tabulate votes
before the proxy exercises his authority under the appointment. Other notice of
revocation may, in the discretion of the corporation, be deemed to include the
appearance at a shareholders' meeting of the shareholder who granted the proxy
and his voting in person on any matter subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the secretary or other officer
or agent authorized to tabulate votes before the proxy exercises his authority
under the appointment.
The corporation shall not be required to recognize an appointment made
irrevocable if it has received a writing revoking the appointment signed by the
shareholder (including a shareholder who is a successor to the shareholder who
granted the proxy) either personally or by his attorney-in-fact, notwithstanding
that the revocation may be a breach of an obligation of the shareholder to
another person not to revoke the appointment.
Subject to Section 11 and any express limitation on the proxy's authority
appearing on the appointment form, the corporation is entitled to accept the
proxy's vote or other action as that of the shareholder making the appointment.
SECTION 10. Voting of Shares. Each outstanding share, regardless of class,
shall be entitled to one vote, except in the election of directors, and each
fractional share shall be entitled to a corresponding fractional vote on each
matter submitted to a vote at a meeting of shareholders, except to the extent
that the voting rights of the shares of any class or classes are limited or
denied by the articles of incorporation as permitted by the Georgia Business
Corporation Code. Cumulative voting shall not be permitted in the election of
directors or for any other purpose. Each holder of stock shall be entitled to
vote in the election of directors and shall have as many votes for each of the
shares owned by him as there are directors to be elected and for whose election
he has the right to vote.
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At each election of directors, that number of candidates equalling the
number of directors to be elected, having the highest number of votes cast in
favor of their election, shall be elected to the board of directors.
Except as otherwise ordered by a court of competent jurisdiction upon a
finding that the purpose of this Section would not be violated in the
circumstances presented to the court, the shares of the corporation are not
entitled to be voted if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the first corporation owns, directly or
indirectly, a majority of the shares entitled to vote for directors of the
second corporation except to the extent the second corporation holds the shares
in a fiduciary capacity.
Redeemable shares are not entitled to be voted after notice of redemption
is mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
SECTION 11. Corporation's Acceptance of Votes. If the name signed on a
vote, consent, waiver, proxy appointment, or proxy appointment revocation
corresponds to the name of a shareholder, the corporation, if acting in good
faith, is entitled to accept the vote, consent, waiver, proxy appointment or
proxy appointment revocation and give it effect as the act of the shareholder.
If the name signed on a vote, consent, waiver, proxy appointment or proxy
appointment revocation does not correspond to the name of a shareholder, the
corporation, if acting in good faith, is nevertheless entitled to accept the
vote, consent, waiver, proxy appointment or proxy appointment revocation and to
give it effect as the act of the shareholder if:
(i) the shareholder is an entity and the name signed purports to be
that of an officer or agent of the entity;
(ii) the name signed purports to be that of an administrator,
executor, guardian or conservator representing the shareholder and, if the
corporation requests, evidence of fiduciary status acceptable to the
corporation has been presented with respect to the vote, consent, waiver,
proxy appointment or proxy appointment revocation;
(iii) the name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the corporation requests, evidence of
this status acceptable to the corporation has been presented with respect
to the vote, consent, waiver, proxy appointment or proxy appointment
revocation;
(iv) the name signed purports to be that of a pledgee, beneficial
owner or attorney-in- fact of the shareholder and, if the corporation
requests, evidence acceptable to the corporation of the signatory's
authority to sign for the shareholder has been presented with respect to
the vote, consent, waiver, proxy appointment or proxy appointment
revocation;
(v) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-tenants or fiduciaries, and the person signing appears to be acting
on behalf of all the co-tenants or fiduciaries; or
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(vi) the acceptance of the vote, consent, waiver, proxy appointment or
proxy appointment revocation is otherwise proper under rules established by
the corporation that are not inconsistent with this Section 11.
The corporation is entitled to reject a vote, consent, waiver, proxy
appointment or proxy appointment revocation if the secretary or other officer or
agent authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the signatory's
authority to sign for the shareholder.
Neither the corporation nor its officers nor any agent who accepts or
rejects a vote, consent, waiver, proxy appointment or proxy appointment
revocation in good faith and in accordance with the standards of this Section is
liable for damages for the consequences of the acceptance or rejection.
SECTION 12. Informal Action by Shareholders. Any action required or
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if a written consent (or counterparts thereof) that sets forth the
action so taken is signed by all of the shareholders entitled to vote with
respect to the subject matter thereof and received by the corporation, or, if
provided in the articles of incorporation, by a written consent (or counterparts
thereof) that sets forth the action so taken is signed by shareholders who would
be entitled to vote at a meeting representing the minimum number of shares which
would be necessary to authorize or take the action at a meeting at which all
shareholders entitled to vote were present and voted. Such consent, if signed by
all of the shareholders or, if provided in the articles of incorporation, by
shareholders holding the minimum number of shares necessary to authorize or take
such action at a meeting of shareholders, shall have the same force and effect
as a vote taken at a meeting of shareholders and may be stated as such in any
document. Action taken under this Section 12 is effective as of the date the
last writing necessary to effect the action is received by the corporation,
unless all of the writing specifies a different effective date, in which case
such specified date shall be the effective date for such action; provided,
however, that no written consent shall be effective to take the action referred
to therein unless evidence of written consents signed by the shareholders
holding the number of shares sufficient to act by written consent are received
by the corporation within sixty (60) days of the earliest date appearing on a
signed consent received by the corporation. If any shareholder revokes his
consent as provided for herein prior to what would otherwise be the effective
date, the action proposed in the consent shall be invalid if the votes
represented by the remaining unrevoked written consents are insufficient in
number to take the action referred to therein. The record date for determining
shareholders entitled to take action without a meeting is the date the
corporation first receives a writing upon which the action is taken.
Any shareholder who has signed a writing describing and consenting to
action taken pursuant to this Section 12 may revoke such consent by a writing
signed by the shareholder describing the action and stating that the
shareholder's prior consent thereto is revoked, if such writing is received by
the corporation prior to the receipt of unrevoked written consents sufficient in
number to take the action referred to in the consent.
SECTION 13. Meetings by Telecommunication. Any or all of the shareholders
may participate in an annual or special shareholders' meeting by, or the meeting
may be conducted through the use of, any means of communication by which all
persons participating in the meeting may hear each other during the meeting. A
shareholder participating in a meeting by this means is deemed to be present in
person at the meeting.
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ARTICLE III - BOARD OF DIRECTORS
SECTION 1. General Powers. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
managed under the direction of, its board of directors, except as otherwise
provided in the Georgia Business Corporation Code or the articles of
incorporation.
SECTION 2. Number, Qualifications and Tenure. The number of directors of
the corporation shall be fixed from time to time by the board of directors, but
in no instance shall there be less than one director or that number otherwise
required by law and no decrease in the number of directors shall have the effect
of shortening the term of any incumbent director. A director shall be a natural
person who is eighteen years of age or older. A director need not be a resident
of the State of Georgia or a shareholder of the corporation.
Directors shall be elected at each annual meeting of shareholders. Each
director shall hold office until the next annual meeting of shareholders
following his election and thereafter until his successor shall have been
elected and qualified. Directors shall be removed in the manner provided by the
Georgia Business Corporation Code. Any director may be removed by the
shareholders of the voting group that elected the director, with or without
cause, at a meeting called for that purpose. The notice of the meeting shall
state that the purpose or one of the purposes of the meeting is removal of the
director. A director may be removed only if the number of votes cast in favor of
removal exceeds the number of votes cast against removal.
SECTION 3. Vacancies. Any director may resign at any time by giving written
notice to the Board of Directors, its chairman, or to the corporation. Such
resignation shall take effect at the time the notice is received unless the
notice specifies a later effective date. Unless otherwise specified in the
notice of resignation, the corporation's acceptance of such resignation shall
not be necessary to make it effective. Any vacancy on the board of directors may
be filled by the affirmative vote of a majority of all the directors remaining
in office. If elected by the directors, the director shall hold office until the
next annual shareholders' meeting at which directors are elected. If elected by
the shareholders, the director shall hold office for the unexpired term of his
predecessor in office; except that, if the director's predecessor was elected by
the directors to fill a vacancy, the director elected by the shareholders shall
hold office for the unexpired term of the last predecessor elected by the
shareholders.
SECTION 4. Regular Meetings. A regular meeting of the board of directors
shall be held without notice immediately after and at the same place as the
annual meeting of shareholders. The board of directors may provide by resolution
the time and place, either within or outside the State of Georgia, for the
holding of additional regular meetings without other notice.
SECTION 5. Special Meetings. Special meetings of the board of directors may
be called by or at the request of the president or any two directors. The person
or persons authorized to call special meetings of the board of directors may fix
any place, either within or outside the State of Georgia, as the place for
holding any special meeting of the board of directors called by them, provided
that no meeting shall be called outside the State of Georgia unless a majority
of the board of directors has so authorized.
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SECTION 6. Notice. Notice of the date, time and place of any special
meeting shall be given to each director at least two days prior to the meeting
by written notice either personally delivered or mailed to each director at his
business address, or by notice transmitted by private courier, telegraph, telex,
electronically transmitted facsimile or other form of wire or wireless
communication. If mailed, such notice shall be deemed to be given and to be
effective on the earlier of (i) five days after such notice is deposited in the
United States mail, properly addressed, with first class postage prepaid, or
(ii) the date shown on the return receipt, if mailed by registered or certified
mail, return receipt requested, provided that the return receipt is signed by
the director to whom the notice is addressed. If notice is given by telex,
electronically transmitted facsimile or other similar form of wire or wireless
communication, such notice shall be deemed to be given and to be effective when
sent, and with respect to a telegram, such notice shall be deemed to be given
and to be effective when the telegram is delivered to the telegraph company. If
a director has designated in writing one or more reasonable addresses or
facsimile numbers for delivery of notice to him, notice sent by mail, telegraph,
telex, electronically transmitted facsimile or other form of wire or wireless
communication shall not be deemed to have been given or to be effective unless
sent to such addresses or facsimile numbers, as the case may be.
A director may waive notice of a meeting before or after the time and date
of the meeting by a writing signed by such director. Such waiver shall be
delivered to the secretary for filing with the corporate records, but such
delivery and filing shall not be conditions to the effectiveness of the waiver.
Further, a director's attendance at or participation in a meeting waives any
required notice to him of the meeting unless at the beginning of the meeting, or
promptly upon his later arrival, the director objects to holding the meeting or
transacting business at the meeting because of lack of notice or defective
notice and does not thereafter vote for or assent to action taken at the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the board of directors need be specified in the
notice or waiver of notice of such meeting.
SECTION 7. Quorum. A majority of the number of directors fixed by the board
of directors pursuant to Article III, Section 2, or, if no number is fixed, a
majority of the number in office immediately before the meeting begins, shall
constitute a quorum for the transaction of business at any meeting of the board
of directors.
SECTION 8. Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
SECTION 9. Compensation. By resolution of the board of directors, any
director may be paid any one or more of the following: his expense, if any, of
attendance at meetings, a fixed sum for attendance at each meeting, a stated
salary as director, or such other compensation as the corporation and the
director may reasonably agree upon. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
SECTION 10. Presumption of Assent. A director of the corporation who is
present at a meeting of the board of directors or committee of the board of
directors at which action on any corporate matter is taken shall be presumed to
have assented to the action taken at the meeting unless (i) the director objects
at the beginning of the meeting, or promptly upon his arrival, to the holding of
the meeting or the transaction of business at the meeting and does not
thereafter vote for or assent to any action taken at the meeting; (ii) the
director contemporaneously requests that his dissent shall be entered in the
minutes of the meeting or unless he or she shall file his or her written dissent
or abstention
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as to any specific action taken be entered in the minutes of the meeting; or
(iii) the director causes written notice of his dissent or abstention as to any
specific action to be received by the presiding officer of the meeting before
its adjournment or by the secretary promptly after the adjournment of the
meeting. A director may dissent to a specific action at a meeting while
assenting to others. The right to dissent to a specific action taken at a
meeting of the board of directors or a committee of the board shall not be
available to a director who voted in favor of such action.
SECTION 11. Committees. By resolution adopted by a majority of all the
directors in office when the action is taken, the board of directors may
designate from among its members an executive committee and one or more other
committees, and appoint one or more members of the board of directors to serve
on them. To the extent provided in the resolution, each committee shall have all
the authority of the board of directors, except that no such committee shall
have the authority to (i) authorize distributions; (ii) approve or propose to
shareholders actions or proposals required by the Georgia Business Corporation
Code to be approved by shareholders; (iii) fill vacancies on the board of
directors or any committee thereof; (iv) amend the articles of incorporation;
(v) adopt, amend or repeal the Bylaws; (vi) approve a plan of merger not
requiring shareholder approval; (vii) authorize or approve the reacquisition of
shares unless pursuant to a formula or method prescribed by the board of
directors; or (viii) authorize or approve the issuance or sale of shares, or
contract for the sale of shares or determine the designations and relative
rights, preferences and limitations of a class or series of shares, except that
the board of directors may authorize a committee or officer to do so within
limits specifically prescribed by the board of directors. The committee shall
then have full power within the limits set by the board of directors to adopt
any final resolution setting forth all preferences, limitations and relative
rights of such class or series and to authorize an amendment to the articles of
incorporation stating the preferences, limitations and relative rights of a
class or series for filing with the Secretary of State under the Georgia
Business Corporation Code.
Sections 4, 5, 6, 7, 8 or 12 of Article III, which govern meetings, notice,
waiver of notice, quorum, voting requirements and action without a meeting of
the board of directors, shall apply to committees and their members appointed
under this Section 11.
Neither the designation of any such committee, the delegation of authority
to such committee, nor any action by such committee pursuant to its authority
shall alone constitute compliance by any member of the board of directors or a
member of the committee in question with his responsibility to conform to the
standard of care set forth in Article III, Section 14 of these Bylaws.
SECTION 12. Informal Action by Directors. Any action required or permitted
to be taken at a meeting of the directors or any committee designated by the
board of directors may be taken without a meeting if a written consent (or
counterparts thereof) that sets forth the action so taken is signed by all of
the directors or all of the committee members entitled to vote with respect to
the action taken. Such consent shall have the same force and effect as a
unanimous vote of the directors or committee members and may be stated as such
in any document. Unless the consent specifies a different effective time or
date, action taken under this Section 12 is effective at the time or date the
last director signs a writing describing the action so taken, unless, before
such time, any director has revoked his consent by a writing signed by the
director and received by the president or the secretary of the corporation.
SECTION 13. Telephonic Meetings. The board of directors may permit any
director (or any member of a committee designated by the board) to participate
in a regular or special meeting of the
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board of directors or a committee thereof through the use of any means of
communication by which all directors participating in the meeting can hear each
other during the meeting. A director participating in a meeting in this manner
is deemed to be present in person at the meeting.
SECTION 14. Standard of Care. A director shall perform his duties as a
director, including without limitation his duties as a member of any committee
of the board, in good faith, in a manner he reasonably believes to be in the
best interests of the corporation, and with the care an ordinarily prudent
person in a like position would exercise under similar circumstances. In
performing his duties, a director shall be entitled to rely on information,
opinions, reports or statements, including financial statements and other
financial data, in each case prepared or presented by the persons herein
designated. However, he shall not be considered to be acting in good faith if he
has knowledge concerning the matter in question that would cause such reliance
to be unwarranted. A director shall not be liable to the corporation or its
shareholders for any action he takes or omits to take as a director if, in
connection with such action or omission, he performs his duties in compliance
with this Section 14.
ARTICLE IV - OFFICERS AND AGENTS
SECTION 1. General. The officers of the corporation shall be a president,
one or more vice presidents, a secretary and a treasurer, each of whom shall be
appointed by the board of directors and shall be a natural person eighteen years
of age or older. One person may hold more than one office. The board of
directors or an officer or officers so authorized by the board may appoint such
other officers, assistant officers, committees and agents, including a chairman
of the board, assistant secretaries and assistant treasurers, as they may
consider necessary. Except as expressly prescribed by these Bylaws, the board of
directors or the officer or officers authorized by the board shall from time to
time determine the procedure for appointment of officers, their authority and
duties and their compensation, provided that the board of directors may change
the authority, duties and compensation of any officer who is not appointed by
the board.
SECTION 2. Appointment and Term of Office. The officers of the corporation
to be appointed by the board of directors shall be appointed at each annual
meeting of the board held after each annual meeting of the shareholders. If the
appointment of officers is not made at such meeting or if an officer or officers
are to be appointed by another officer or officers of the corporation, such
appointment shall be made as determined by the board of directors or the
appointing person or persons. Each officer shall hold office until the first of
the following occurs: his successor shall have been duly appointed and
qualified, his death, his resignation, or his removal in the manner provided in
Section 3.
SECTION 3. Resignation and Removal. An officer may resign at any time by
giving written notice of resignation to the president, secretary or other person
who appoints such officer. The resignation is effective when the notice is
received by the corporation unless the notice specifies a later effective date.
Any officer or agent may be removed at any time with or without cause by
the board of directors or an officer or officers authorized by the board. Such
removal does not affect the contract rights, if any, of the corporation or of
the person so removed. The appointment of an officer or agent shall not in
itself create contract rights.
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SECTION 4. Vacancies. A vacancy in any office, however occurring, may be
filled by the board of directors, or by the officer or officers authorized by
the board, for the unexpired portion of the officer's term. If an officer
resigns and his resignation is made effective at a later date, the board of
directors, or officer or officers authorized by the board, may permit the
officer to remain in office until the effective date and may fill the pending
vacancy before the effective date if the board of directors or officer or
officers authorized by the board provide that the successor shall not take
office until the effective date. In the alternative, the board of directors, or
officer or officers authorized by the board of directors, may remove the officer
at any time before the effective date and may fill the resulting vacancy.
SECTION 5. President. The president shall preside at all meetings of
shareholders and all meetings of the board of directors unless the board of
directors has appointed a chairman, vice chairman, or other officer of the board
and has authorized such person to preside at meetings of the board of directors.
Subject to the direction of the board of directors, the president shall be the
chief executive officer of the corporation and shall have general and active
control of its affairs and business and general supervision of its officers,
agents and employees. Unless otherwise directed by the board of directors, the
president shall attend in person or by substitute appointed by him, or shall
execute on behalf of the corporation written instruments appointing a proxy or
proxies to represent the corporation, at all meetings of the stockholders of any
other corporation in which the corporation holds any stock. On behalf of the
corporation, the president may in person or by substitute or by proxy execute
written waivers of notice and consents with respect to any such meetings. At all
such meetings and otherwise, the president, in person or by substitute or proxy,
may vote the stock held by the corporation, execute written consents and other
instruments with respect to such stock, and exercise any and all rights and
powers incident to the ownership of said stock, subject to the instructions, if
any, of the board of directors. The president shall have custody of the
treasurer's bond, if any. The president shall have such additional authority and
duties as are appropriate and customary for the office of president and chief
executive officer, except as the same may be expanded or limited by the board of
directors from time to time.
SECTION 6. Vice Presidents. The vice presidents shall assist the president
and shall perform such duties as may be assigned to them by the president or by
the board of directors. In the absence of the president, the vice president, if
any (or, if more than one, the vice presidents in the order designated by the
board of directors, or if the board makes no such designation, then the vice
president designated by the president, or if neither the board nor the president
make any such designation, the senior vice president as determined by first
election to that office) shall have the powers and perform the duties of the
president.
SECTION 7. Secretary. The secretary shall (i) prepare and maintain as
permanent records the minutes of the proceedings of the shareholders and of the
board of directors, a record of all actions taken by the shareholders or board
of directors without a meeting, a record of all actions taken by a committee of
the board of directors in place of the board of directors on behalf of the
corporation, and a record of all waivers of notice of meetings of shareholders
and of the board of directors or any committee thereof; (ii) see that all
notices are duly given in accordance with the provisions of these Bylaws and as
required by law; (iii) serve as custodian of the corporate records and of the
seal of the corporation and affix the seal to all documents when authorized by
the board of directors; (iv) keep at the corporation's registered office or
principal place of business a record containing the names and addresses of all
shareholders in a form that permits preparation of a list of shareholders
arranged by voting group and by class or series of shares within each voting
group, that is alphabetical within each class or series and that shows the
address of, and the number of shares of each class or series held by,
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each shareholder, unless such a record shall be kept at the office of the
corporation's transfer agent or registrar; (v) maintain at the corporation's
principal office the originals or copies of the corporation's articles of
incorporation, Bylaws, minutes of all shareholders' meetings and records of all
action taken by shareholders without a meeting for the past three years, all
written communications within the past three years to shareholders as a group or
to the holders of any class or series of shares as a group, a list of the names
and business addresses of the current directors and officers, a copy of the
corporation's most recent corporate report filed with the Secretary of State,
and financial statements showing in reasonable detail the corporation's assets
and liabilities and results of operations for the last three years; (vi) have
general charge of the stock transfer books of the corporation, unless the
corporation has a transfer agent; (vii) authenticate records of the corporation;
and (viii) in general, perform all duties incident to the office of secretary
and such other duties as from time to time may be assigned to him by the
president or by the board of directors. Assistant secretaries, if any, shall
have the same duties and powers, subject to supervision by the secretary. The
directors and/or shareholders may, however, respectively designate a person
other than the secretary or assistant secretary to keep the minutes of their
respective meetings.
Any books, records, or minutes of the corporation may be in written form or
in any form capable of being converted into written form within a reasonable
time.
SECTION 8. Treasurer. The treasurer shall be the principal financial
officer of the corporation, shall have the care and custody of all funds,
securities, evidences of indebtedness and other personal property of the
corporation and shall deposit the same in accordance with the instructions of
the board of directors. Subject to the limits imposed by the board of directors,
he shall receive and give receipts and acquittance for money paid in or on
account of the corporation, and shall pay out of the corporation's funds on hand
all bills, payrolls and other just debts of the corporation of whatever nature
upon maturity. He shall perform all other duties incident to the office of
treasurer and, upon request of the board, shall make such reports to it as may
be required at any time. He shall, if required by the board, give the
corporation a bond in such sums and with such sureties as shall be satisfactory
to the board, conditioned upon the faithful performance of his duties and for
the restoration to the corporation of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation. He shall have such other powers and perform such other
duties as may from time to time be prescribed by the board of directors or the
president. The assistant treasurers, if any, shall have the same powers and
duties, subject to the supervision of the treasurer.
The treasurer shall also be the principal accounting officer of the
corporation. He shall prescribe and maintain the methods and system of
accounting to be followed, keep complete books and records of account as
required by the Georgia Business Corporation Code, prepare and file all local,
state and federal tax returns, prescribe and maintain an adequate system of
internal audit and prepare and furnish to the president and the board of
directors statements of account showing the financial position of the
corporation and the results of its operations.
ARTICLE V - STOCK
SECTION 1. Certificates. The board of directors shall be authorized to
issue any of its classes of shares with or without certificates. The fact that
the shares are not represented by certificates shall have no effect on the
rights and obligations of the shareholders. If the shares are represented by
certificates, such shares shall be represented by consecutively numbered
certificates signed, either manually or by facsimile, in the name of the
corporation by the president or one or more vice presidents
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and the secretary or an assistant secretary. In case any officer who has signed
or whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer before such certificate is issued, such certificate
may nonetheless be issued by the corporation with the same effect as if he were
such officer at the date of its issue. All certificates shall be consecutively
numbered, and the names of the owners, the number of shares, and the date of
issue shall be entered on the books of the corporation. Each certificate
representing shares shall state upon its face:
(i) That the corporation is organized under the laws of the State of
Georgia;
(ii) The name of the person to whom issued;
(iii) The number and class of the shares and the designation of the
series, if any, that the certificate represents;
(iv) The par value, if any, of each share represented by the
certificate;
(v) A summary, on the front or the back, of the designations,
preferences, limitations, and relative rights applicable to each class, the
variations in preferences, limitations and rights determined for each
series, and the authority of the board of directors to determine variations
for future classes or series, or in lieu thereof, a conspicuous statement,
on the front or the back, that the corporation will furnish to the
shareholder, on request in writing and without charge, information
concerning the designations, preferences, limitations and relative rights
applicable to each class, the variations in preference, limitations, and
rights determined for each series, and the authority of the board of
directors to determine variations for future classes or series; and
(vi) Any restrictions imposed by the corporation upon the transfer of
the shares represented by the certificate.
If shares are not represented by certificates, within a reasonable time
following the issue or transfer of such shares, the corporation shall send the
shareholder a complete written statement of all of the information required to
be provided to holders of uncertificated shares by the Georgia Business
Corporation Code.
SECTION 2. Consideration for Shares. Certificated or uncertificated shares
shall not be issued until the shares represented thereby are fully paid. The
board of directors may authorize the issuance of shares for consideration
consisting of any tangible or intangible property or benefit to the corporation,
including cash, promissory notes, services performed, contracts for services to
be performed, or other securities of the corporation. The promissory note of a
subscriber or an affiliate of a subscriber shall not constitute payment or
partial payment for shares of the corporation unless the note is negotiable and
is secured by collateral, other than the shares being purchased, having a fair
market value at least equal to the principal amount of the note. For purposes of
this Section 2, "promissory note" means a negotiable instrument on which there
is an obligation to pay independent of collateral and does not include a
non-recourse note. The corporation may place shares issued for a contract for
future services or benefits or a promissory note in escrow, or make other
arrangements to restrict the transfer of the shares, until the services are
performed, the note is paid, or the benefits received. If the services are not
performed, the note is not paid, or the benefits are not received, the shares
escrowed or restricted may be canceled in whole or in part.
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SECTION 3. Lost Certificates. In case of an alleged loss, destruction or
mutilation of a certificate of stock, the board of directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with the law as the board may prescribe. The board of directors may
in its discretion require an affidavit of lost certificate and/or a bond in such
form and amount and with such surety as it may determine before issuing a new
certificate.
SECTION 4. Transfer of Shares. Upon surrender to the corporation or to a
transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and receipt of such documentary stamps as may be required by law and
evidence of compliance with all applicable securities laws and other
restrictions, the corporation shall issue a new certificate to the person
entitled thereto, and cancel the old certificate. Every such transfer of stock
shall be entered on the stock books of the corporation which shall be kept at
its principal office or by the person and at the place designated by the board
of directors.
Except as otherwise expressly provided in Article II, Sections 7 and 11,
and except for the assertion of dissenters' rights to the extent provided in ss.
4-2-1301, et. seq., of the Georgia Business Corporation Code, the corporation
shall be entitled to treat the registered holder of any shares of the
corporation as the owner thereof for all purposes, and the corporation shall not
be bound to recognize any equitable or other claim to, or interest in, such
shares or rights deriving from such shares on the part of any person other than
the registered holder, including without limitation any purchaser, assignee or
transferee of such shares or right deriving from such shares, unless and until
such other person becomes the registered holder of such shares, whether or not
the corporation shall have either actual or constructive notice of the claimed
interest of such other person.
SECTION 5. Transfer Agent, Registrars and Paying Agents. The board may at
its discretion appoint one or more transfer agents, registrars and agents for
making payment upon any class of stock, bond, debenture or other security of the
corporation. Such agents and registrars may be located either within or outside
the State of Georgia. They shall have such rights and duties and shall be
entitled to such compensation as may be agreed.
ARTICLE VI - INDEMNIFICATION OF CERTAIN PERSONS
SECTION 1. Indemnification. For purposes of this Article VI, a "Proper
Person" means any person (including the estate or personal representative of a
director) who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether formal or informal, by
reason of the fact that he is or was a director, officer, employee, fiduciary or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, fiduciary or agent of any
foreign or domestic profit or nonprofit corporation or of any partnership, joint
venture, trust, profit or nonprofit unincorporated association, limited
liability company, or other enterprise or employee benefit plan. The corporation
shall indemnify any Proper Person against reasonably incurred expenses
(including attorneys' fees), judgments, penalties, fines (including any excise
tax assessed with respect to an employee benefit plan) and amounts paid in
settlement reasonably incurred by him in connection with such action, suit or
proceeding if it is determined by the groups set forth in Section 4 of this
Article that he conducted himself in good faith and that he reasonably believed
(i) in the case of conduct in his official capacity with the corporation, that
his conduct was in the corporation's best interest; or (ii) in all
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other cases (except criminal cases) that his conduct was at least not opposed to
the corporation's best interest; or (iii) in the case of any criminal
proceeding, that he had no reasonable cause to believe his conduct was unlawful.
Official capacity means, when used with respect to a director, the office of
director and, when used with respect to any other Proper Person, the office in a
corporation held by the officer or the employment, fiduciary or agency
relationship undertaken by the employee, fiduciary, or agent on behalf of the
corporation. Official capacity does not include service for any other domestic
or foreign corporation or other person or employee benefit plan.
A director's conduct with respect to an employee benefit plan for a purpose
the director reasonably believed to be in the best interests of the participants
in or beneficiaries of the plan is conduct that satisfies the requirements in
subparagraph (ii) of this Section 1. A director's conduct with respect to an
employee benefit plan for a purpose that the director did not reasonably believe
to be in the interests of the participants in or beneficiaries of the plan shall
be deemed not to satisfy the requirements of this Section that he conducted
himself in good faith.
No indemnification shall be made under this Article VI to a Proper Person
with respect to any claim, issue or matter in connection with a proceeding by or
in the right of a corporation in which the Proper Person was adjudged liable to
the corporation or in connection with any proceeding charging that the Proper
Person derived an improper personal benefit, whether or not involving action in
an official capacity, in which he was adjudged liable on the basis that he
derived an improper personal benefit. Further, indemnification under this
Section in connection with a proceeding brought by or in the right of the
corporation shall be limited to reasonable expenses, including attorneys' fees,
incurred in connection with the proceeding.
SECTION 2. Right to Indemnification. The corporation shall indemnify any
Proper Person who was wholly successful, on the merits or otherwise, in defense
of any action, suit, or proceeding as to which he was entitled to
indemnification under Section 1 of this Article VI against expenses (including
attorneys' fees) reasonably incurred by him in connection with the proceeding
without the necessity of any action by the corporation other than the
determination in good faith that the defense has been wholly successful.
SECTION 3. Effect of Termination of Action. The termination of any action,
suit or proceeding by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent shall not of itself create a presumption
that the person seeking indemnification did not meet the standards of conduct
described in Section 1 of this Article VI. Entry of a judgment by consent as
part of a settlement shall not be deemed an adjudication of liability, as
described in Section 2 of this Article VI.
SECTION 4. Groups Authorized to Make Indemnification Determination. Except
where there is a right to indemnification as set forth in Sections 1 or 2 of
this Article or where indemnification is ordered by a court in Section 5, any
indemnification shall be made by the corporation only as determined in the
specific case by a proper group that indemnification of the Proper Person is
permissible under the circumstances because he has met the applicable standards
of conduct set forth in Section 1 of this Article. This determination shall be
made by the board of directors by a majority vote of those present at a meeting
at which a quorum is present, which quorum shall consist of directors not
parties to the proceeding ("Quorum"). If a Quorum cannot be obtained, the
determination shall be made by a majority vote of a committee of the board of
directors designated by the board, which committee shall consist of two or more
directors not parties to the proceeding, except that directors who are parties
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to the proceeding may participate in the designation of directors for the
committee. If a Quorum of the board of directors cannot be obtained and the
committee cannot be established, or even if a Quorum is obtained or the
committee is designated and a majority of the directors constituting such Quorum
or committee so directs, the determination shall be made by (i) independent
legal counsel selected by a vote of the board of directors or the committee in
the manner specified in this Section 4 or, if a Quorum of the full board of
directors cannot be obtained and a committee cannot be established, by
independent legal counsel selected by a majority vote of the full board
(including directors who are parties to the action) or (ii) a vote of the
shareholders.
Authorization of indemnification and advance of expenses shall be made in
the same manner as the determination that indemnification or advance of expenses
is permissible except that, if the determination that indemnification or advance
of expenses is permissible is made by independent legal counsel, authorization
of indemnification and advance of expenses shall be made by the body that
selected such counsel.
SECTION 5. Court-Ordered Indemnification. Any Proper Person may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction for mandatory indemnification under Section 2 of this
Article, including indemnification for reasonable expenses incurred to obtain
court-ordered indemnification. If a court determines that the Proper Person is
entitled to indemnification under Section 2 of this Article, the court shall
order indemnification, including the Proper Person's reasonable expenses
incurred to obtain court-ordered indemnification. If the court determines that
such Proper Person is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances, whether or not he met the standards of
conduct set forth in Section 1 of this Article or was adjudged liable in the
proceeding, the court may order such indemnification as the court deems proper
except that if the Proper Person has been adjudged liable, indemnification shall
be limited to reasonable expenses incurred in connection with the proceeding and
reasonable expenses incurred to obtain court-ordered indemnification.
SECTION 6. Advance of Expenses. Reasonable expenses (including attorneys'
fees) incurred in defending an action, suit or proceeding as described in
Section 1 may be paid by the corporation to any Proper Person in advance of the
final disposition of such action, suit or proceeding upon receipt of (i) a
written affirmation of such Proper Person's good faith belief that he has met
the standards of conduct prescribed in Section 1 of this Article VI; (ii) a
written undertaking, executed personally or on the Proper Person's behalf, to
repay such advances if it is ultimately determined that he did not meet the
prescribed standards of conduct (the undertaking shall be an unlimited general
obligation of the Proper Person but need not be secured and may be accepted
without reference to financial ability to make repayment); and (iii) a
determination is made by the proper group (as described in Section 4 of this
Article VI) that the facts as then known to the group would not preclude
indemnification. Determination and authorization of payments shall be made in
the same manner specified in Section 4 of this Article VI.
SECTION 7. Additional Indemnification to Certain Persons Other Than
Directors. In addition to the indemnification provided to officers, employees,
fiduciaries or agents because of their status as Proper Persons under this
Article, the corporation may also indemnify and advance expenses to them if they
are not directors of the corporation to a greater extent than is provided in
these Bylaws, if not inconsistent with public policy, and if provided for by
general or specific action of its board of directors or shareholders or by
contract.
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SECTION 8. Witness Expenses. The Sections of this Article VI do not limit
the corporation's authority to pay or reimburse expenses incurred by a director
in connection with an appearance as a witness in a proceeding at a time when he
has not been made or named as a defendant or respondent in the proceeding.
SECTION 9. Report to Shareholders. Any indemnification of or advance of
expenses to a director in accordance with this Article VI, if arising out of a
proceeding by or on behalf of the corporation, shall be reported in writing to
the shareholders with or before the notice of the next shareholders' meeting. If
the next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
ARTICLE VII - INSURANCE
SECTION 1. Provision of Insurance. By action of the board of directors,
notwithstanding any interest of the directors in the action, the corporation may
purchase and maintain insurance, in such scope and amounts as the board of
directors deems appropriate, on behalf of any person who is or was a director,
officer, employee, fiduciary or agent of the corporation, or who, while a
director, officer, employee, fiduciary or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, fiduciary or agent of any other foreign or domestic profit or
nonprofit corporation or any partnership, joint venture, trust, profit or
nonprofit unincorporated association, limited liability company, other
enterprise or employee benefit plan, against any liability asserted against, or
incurred by, him in that capacity or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against such
liability under the provisions of Article VI or applicable law. Any such
insurance may be procured from any insurance company designated by the board of
directors of the corporation, whether such insurance company is formed under the
laws of the State of Georgia or any other jurisdiction of the United States or
elsewhere, including any insurance company in which the corporation has an
equity interest or any other interest, through stock ownership or otherwise.
ARTICLE VIII - MISCELLANEOUS
SECTION 1. Seal. The board of directors may adopt a corporate seal, which
shall be circular in form and shall contain the name of the corporation and the
words, "Seal, Georgia."
SECTION 2. Fiscal Year. The fiscal year of the corporation shall be as
established by the board of directors.
SECTION 3. Amendments. The board of directors shall have power, to the
maximum extent permitted by the Georgia Business Corporation Code, to make,
amend and repeal the Bylaws of the corporation at any regular or special meeting
of the board unless the shareholders, in making, amending or repealing a
particular Bylaw, expressly provide that the directors may not amend or repeal
such Bylaw. The shareholders also shall have the power to make, amend or repeal
the Bylaws of the corporation at any annual meeting or at any special meeting
called for that purpose.
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SECTION 4. Receipt of Notices by the Corporation. Notices, shareholder
writings consenting to action, and other documents or writings shall be deemed
to have been received by the corporation when they are actually received: (1) at
the registered office of the corporation in Georgia; (2) at the principal office
of the corporation (as that office is designated in the most recent document
filed by the corporation with the Secretary of State for Georgia designating a
principal office) addressed to the attention of the secretary of the
corporation; (3) by the secretary of the corporation wherever the secretary may
be found; or (4) by any other person authorized from time to time by the board
of directors or the president to receive such writings, wherever such person is
found.
SECTION 5. Gender. The masculine gender is used in these Bylaws as a matter
of convenience only and shall be interpreted to include the feminine and neuter
genders as the circumstances indicate.
SECTION 6. Conflicts. In the event of any irreconcilable conflict between
these Bylaws and either the corporation's articles of incorporation or
applicable law, the latter shall control.
SECTION 7. Definitions. Except as otherwise specifically provided in these
Bylaws, all terms used in these Bylaws shall have the same definition as in the
Georgia Business Corporation Code.
CERTIFICATE
I hereby certify that the foregoing Bylaws, consisting of 19 pages,
including this page, constitute the Restated Bylaws of Tessa Complete Health
Care, Inc., adopted by the board of directors of the Corporation as of February
, 2000.
- ---
-----------------------------------
Secretary
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TESSA COMPLETE HEALTH CARE, INC.
---------------------------------
EXHIBIT 10.1
---------------------------------
AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN THE COMPANY AND
ZABA INTERNATIONAL, INC.
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AGREEMENT AND PLAN OF REORGANIZATION
by and between
ZABA INTERNATIONAL, INC.
a Colorado corporation
and
TESSA COMPLETE HEALTH CARE, INC.
a Georgia corporation
effective as of March 16, 2000
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION dated March 16, 2000, by and
between ZABA INTERNATIONAL, INC., a Colorado corporation ("Zaba"), and TESSA
COMPLETE HEALTH CARE, INC., a Georgia corporation ("Tessa"), Zaba and Tessa
being sometimes referred to herein as the "Constituent Corporations", who hereby
agree as follows.
Premises
WHEREAS, this Agreement provides for the merger of Zaba into Tessa, and in
connection therewith, the conversion of the outstanding common stock of Zaba
into shares of common voting stock of Tessa, all for the purpose of effecting a
tax-free reorganization pursuant to section 368(a)(1)(A) of the Internal Revenue
Code of 1986, as amended; and
WHEREAS, the boards of directors of Zaba and Tessa have determined, subject
to the terms and conditions set forth in this Agreement and the approval of each
respective corporations' shareholders, that the merger contemplated hereby is
desirable and in the best interests of their respective corporations. This
Agreement is being entered into for the purpose of setting forth the terms and
conditions of the proposed merger.
Agreement
NOW, THEREFORE, in consideration of the premises and the respective mutual
covenants, representations and warranties herein contained, the parties agree as
follows:
1. SURVIVING CORPORATION. Zaba shall be merged with and into Tessa which
shall be the surviving reporting corporation (hereinafter the "Surviving
Corporation") in accordance with the applicable laws of the United States, as
well as the States of Colorado and Georgia, respectively.
2. MERGER DATE. The Merger shall become effective (the "Merger Date") upon
the completion of:
2.1 Adoption of this Agreement by the shareholders of Zaba pursuant to
the Colorado Business Corporation Act and by the shareholders of Tessa by a
vote of the shareholders ratified by the Board of Directors of Tessa,
pursuant to the Georgia Business Corporation Act.
2.2 Execution and filing of the Certificate of Merger with the
Secretary of State of the States of Colorado and Georgia in accordance with
the respective laws of such states.
3. TIME OF FILINGS. The Certificate of Merger shall be filed with the
Secretary of State of Colorado and Georgia upon the approval of this Agreement
by the shareholders of the Constituent Corporations and the fulfillment or
waiver of the terms and conditions herein.
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4. GOVERNING LAW. The Surviving Corporation shall be governed by the laws
of the State of Georgia.
5. ARTICLES OF INCORPORATION. The Articles of Incorporation of Tessa shall
be the Articles of Incorporation of the Surviving Corporation from and after the
Merger Date, including those amendments to the Tessa Articles of Incorporation
adopted by the Tessa shareholders on or about March 16, 2000.
6. BYLAWS. The Bylaws of the Surviving Corporation shall be the Bylaws of
Tessa as in effect on the date of this Agreement.
7. NAME OF SURVIVING CORPORATION. The Surviving Corporation will continue
to use its name "TESSA COMPLETE HEALTH CARE, INC." or such name as it may choose
and shall be available.
8. CONVERSION. The mode of carrying the merger into effect and the manner
and basis of converting the shares of Zaba into shares of the Surviving
Corporation are as follows:
8.1 The aggregate number of shares of Zaba Common Stock issued and
outstanding on the Merger Date shall, by virtue of the merger and without
any action on the part of the holders thereof, be converted into an
aggregate of 225,000 shares of Tessa Common Stock adjusted by any increase
for fractional shares and reduced by any Dissenting Shares (defined below).
8.2 At March 16, 2000, there were issued and outstanding approximately
13,986,709 shares of Common Stock of Tessa.
8.3 With the exception of certain finders' fees due and payable by
Zaba, the balance of the Tessa Common Stock to be issued herein shall be
issued to the holders of such Zaba Common Stock in exchange for their
shares on a pro rata basis in accordance with each holder's relative
ownership of the Zaba Common Stock that is being exchanged.
8.4 The shares of Tessa Common Stock to be issued in exchange for Zaba
Common Stock hereunder shall be proportionately reduced by any shares owned
by Zaba shareholders who shall have timely objected to the merger (the
"Dissenting Shares") in accordance with the provisions of Georgia Business
Corporation Act which objections will be dealt with as provided in those
sections.
8.5 Each share of Zaba Common Stock that is issued and outstanding and
owned by Zaba on the Merger Date shall, by virtue of the merger and without
any action on the part of Zaba, be retired and canceled.
8.6 Each certificate evidencing ownership of shares of Tessa Common
Stock issued and outstanding on the Merger Date or held by Tessa in its
treasury shall continue to evidence ownership of the same number of shares
of Tessa Common Stock.
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9. ADDITIONAL CONSIDERATION. As additional consideration, Tessa hereby
agrees to tender to Zaba $112,500 in cash on the Closing Date. Relevant thereto,
Zaba hereby acknowledges receipt of a deposit in the amount of $20,000, which
shall be applied to the balance due Zaba by Tessa herein.
10. EXCHANGE OF CERTIFICATES. As promptly as practicable after the Merger
Date, each holder of an outstanding certificate or certificates theretofore
representing shares of Zaba Common Stock (other than certificates representing
Dissenting Shares) shall surrender such certificate(s) for cancellation to the
party designated by the Surviving Corporation to handle such exchange (the
"Exchange Agent"), and shall receive in exchange a certificate or certificates
representing the number of full shares of Tessa Common Stock into which the
shares of Zaba Common Stock represented by the certificate or certificates so
surrendered shall have been converted.
11. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding
certificate that prior to the Merger Date represented Zaba Common Stock (other
than certificates representing Dissenting Shares) shall be deemed for all
purposes, other than the payment of dividends or other distributions, to
evidence ownership of the number of shares of Tessa Common Stock into which it
was converted. No dividend or other distribution payable to holders of Tessa
Common Stock as of any date subsequent to the Merger Date shall be paid to the
holders of outstanding certificates of Zaba Common Stock; provided, however,
that upon surrender and exchange of such outstanding certificates (other than
certificates representing Dissenting Shares), there shall be paid to the record
holders of the certificates issued in exchange therefor the amount, without
interest thereon, of dividends and other distributions that would have been
payable subsequent to the Merger Date with respect to the shares of Tessa Common
Stock represented thereby.
12. BOARD OF DIRECTORS AND OFFICERS. The members of the board of directors
of the Surviving Corporation shall be the members of the board of directors of
Tessa on the Merger Date or such others as Tessa may designate. The officers of
the Surviving Corporation shall be the officers of Tessa on the Merger Date or
such others as Tessa may designate.
13. EFFECT OF THE MERGER. On the Merger Date, the separate existence of
Zaba shall cease (except insofar as continued by statute), and it shall be
merged with and into the Surviving Corporation. All the property, real,
personal, and mixed, of each of the Constituent Corporations, and all debts due
to either of them, shall be transferred to and vested in the Surviving
Corporation, without further act or deed. The Surviving Corporation shall
thenceforth be responsible and liable for all the liabilities and obligations,
including liabilities to holders of Dissenting Shares, of each of the
Constituent Corporations, and any claim or judgment against either of the
Constituent Corporations may be enforced against the Surviving Corporation.
14. APPROVAL OF SHAREHOLDERS. This Agreement shall be adopted by the
shareholders of the Constituent Corporations at meetings of such shareholders
called for that purpose or by written consent pursuant to the laws applicable
thereto. There shall be required for the adoption of this Agreement the
affirmative vote of the holders of at least a majority of the holders of all the
shares of the Common Stock issued and outstanding and entitled to vote for
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each of the Constituent Corporations.
15. REPRESENTATIONS AND WARRANTIES OF ZABA. Zaba represents and warrants
that:
15.1 CORPORATE ORGANIZATION AND GOOD STANDING. Zaba is a corporation
duly organized, validly existing, and in good standing under the laws of
the State of Colorado, and is qualified to do business as a foreign
corporation in each jurisdiction, if any, in which its property or business
requires such qualification.
15.2 REPORTING COMPANY. Zaba has filed with the Securities and
Exchange Commission a registration statement on Form 10-SB which became
effective pursuant to the Securities Exchange Act of 1934 and is a
reporting company pursuant to Section 12 thereunder.
15.3 REPORTING COMPANY STATUS. Zaba is current on all reports required
to be filed by it pursuant to Section 12(g) of the Securities Exchange Act
of 1934.
15.4 CAPITALIZATION. Zaba's authorized capital stock consists of
1,000,000,000 shares of Common Stock, par value $0.0001 per share and
100,000,000 shares of Preferred Stock, par value $0.001 per share. As of
the date hereof, there are 2,407,166 common shares issued and outstanding,
and no shares of preferred stock issued or outstanding.
15.5 ISSUANCE OF STOCK. All the outstanding shares of its Common Stock
are duly authorized and validly issued, fully paid and non-assessable.
15.6 STOCK RIGHTS. There are no stock grants, options, rights,
warrants or other rights to purchase or obtain the Zaba Common or Preferred
Stock issued or committed to be issued.
15.7 CORPORATE AUTHORITY. Zaba has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver, perform and
conclude the transactions contemplated by this Agreement and all other
agreements and instruments related to this Agreement.
15.8 AUTHORIZATION. Execution of this Agreement has been duly
authorized and approved by Zaba's board of directors.
15.9 SUBSIDIARIES. Zaba has no subsidiaries.
15.10 FINANCIAL STATEMENTS. Zaba's audited financial statements dated
November 30, 1999, copies of which will have been delivered by Zaba to
Tessa prior to the Merger Date (the "Zaba Financial Statements"), fairly
present the financial condition of Zaba as of the date therein and the
results of its operations for the periods then ended
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in conformity with generally accepted accounting principles consistently
applied.
15.11 ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
reflected or reserved against in the Zaba Financial Statements, Zaba did
not have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) of a nature customarily reflected in a corporate
balance sheet prepared in accordance with generally accepted accounting
principles.
15.12 NO MATERIAL CHANGES. There has been no material adverse change
in the business, properties, or financial condition of Zaba since the date
of the Zaba Financial Statements.
15.13 LITIGATION. There is not, to the knowledge of Zaba, any pending,
threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated against
Zaba or against any of its officers.
15.14 CONTRACTS. Zaba is not a party to any material contract not in
the ordinary course of business that is to be performed in whole or in part
at or after the date of this Agreement.
15.15 TITLE. Zaba has good and marketable title to all the real
property and good and valid title to all other property included in the
Zaba Financial Statements. Except as set out in the balance sheet thereof,
the properties of Zaba are not subject to any mortgage, encumbrance, or
lien of any kind except minor encumbrances that do not materially interfere
with the use of the property in the conduct of the business of Zaba.
15.16 NO VIOLATION. Consummation of the merger will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree,
law, or regulation to which any property of Zaba is subject or by which
Zaba is bound.
16. REPRESENTATIONS AND WARRANTIES OF TESSA. Tessa represents and warrants
that:
16.1 CORPORATE ORGANIZATION AND GOOD STANDING. Tessa is a corporation
duly organized, validly existing, and in good standing under the laws of
the State of Georgia and is qualified to do business as a foreign
corporation in each jurisdiction, if any, in which its property or business
requires such qualification.
16.2 CAPITALIZATION. Tessa's authorized capital stock consists of
50,000,000 shares of Common Stock, $.02 par value, of which 13,986,709
shares are issued and outstanding
16.3 ISSUED STOCK. All the outstanding shares of its Common Stock are
duly authorized and validly issued, fully paid and non-assessable.
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16.4 CORPORATE AUTHORITY. Tessa has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver, perform and
conclude the transactions contemplated by this Agreement and all other
agreements and instruments related to this Agreement.
16.5 AUTHORIZATION. Execution of this Agreement has been duly
authorized and approved by Tessa's board of directors.
16.6 SUBSIDIARIES. Tessa has nine (9) subsidiary companies.
16.7 FINANCIAL STATEMENTS. Tessa's unaudited financial statements of
December 31, 1999, copies of which will have been delivered by Tessa to
Zaba by the Merger Date (the "Tessa Financial Statements"), are believed to
be substantially correct and fairly present the financial condition of
Tessa as of the date therein and the results of its operations for the
periods then ended in conformity with generally accepted accounting
principles consistently applied.
16.8 ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
reflected or reserved against in the Tessa Financial Statements, Tessa did
not have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) of a nature customarily reflected in a corporate
balance sheet prepared in accordance with generally accepted accounting
principles.
16.9 NO MATERIAL CHANGES. There has been no material adverse change in
the business, properties, or financial condition of Tessa since the date of
the Tessa Financial Statements.
16.10 LITIGATION. Except as provided by Tessa to Zaba, there is not,
to the best knowledge of Tessa, any other pending, threatened, or existing
litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Tessa or against any of
its officers relevant to their capacity as an officer and/or director of
Tessa.
16.11 CONTRACTS. Tessa is not a party to any material contract not in
the ordinary course of business that is to be performed in whole or in part
at or after the date of this Agreement.
16.12 TITLE. Tessa has good and marketable title to all the real
property and good and valid title to all other property included in the
Tessa Financial Statements. Except as set out in the balance sheet thereof,
the properties of Tessa are not subject to any mortgage, encumbrance, or
lien of any kind except minor encumbrances that do not materially interfere
with the use of the property in the conduct of the business of Tessa.
16.13 NO VIOLATION. Consummation of the merger will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture,
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mortgage, lease, or agreement, or any order, judgment, decree, law, or
regulation to which any property of Tessa is subject or by which Tessa is
bound.
16.14 UNDERTAKING. Management of Tessa hereby undertakes to Zaba and
its shareholders to exercise good faith in their efforts to file all
reports required to be filed by the Surviving Corporation with the
Securities and Exchange Commission or any other governmental agency, in a
timely manner.
17. CONDUCT OF ZABA PENDING THE MERGER DATE. Zaba covenants that between
the date of this Agreement and the Merger Date:
17.1 No change will be made in Zaba's articles of incorporation or
bylaws.
17.2 Zaba will not make any change in its authorized or issued capital
stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock other
than as provided herein.
17.3 Zaba will submit this Agreement for its shareholders' approval
with a favorable recommendation by its board of directors and will use its
best efforts to obtain the requisite shareholder approval.
17.4 Zaba will use its best efforts to maintain and preserve its
business organization, employee relationships, and goodwill intact, and
will not enter into any material commitment except in the ordinary course
of business.
18. CONDUCT OF TESSA PENDING THE MERGER DATE. Tessa covenants that between
the date of this Agreement and the Merger Date:
18.1 Other than as disclosed by Tessa to Zaba, no other changes will
be made in Tessa's certificate of incorporation or bylaws.
18.2 Tessa will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock otherwise
than as provided herein.
18.3 Tessa will submit this Agreement for its shareholders' approval
with a favorable recommendation by its board of directors and will use its
best efforts to obtain the requisite shareholder approval.
18.4 Tessa will use its best efforts to maintain and preserve its
business organization, employee relationships, and goodwill intact, and
will not enter into any material commitment except in the ordinary course
of business.
19. CONDITIONS PRECEDENT TO OBLIGATION OF ZABA. Zaba's obligation to
consummate this merger shall be subject to fulfillment on or before the Merger
Date of each of the following conditions, unless waived in writing by Zaba:
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19.1 TESSA'S REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Tessa set forth herein shall be true and correct at the
Merger Date as though made at and as of that date, except as affected by
transactions contemplated hereby.
19.2 TESSA'S COVENANTS. Tessa shall have performed all covenants
required by this Agreement to be performed by it on or before the Merger
Date.
19.3 SHAREHOLDER APPROVAL. This Agreement shall have been approved by
the required number of shareholders of the Constituent Corporations.
19.4 SUPPORTING DOCUMENTS OF TESSA. Tessa shall have delivered to Zaba
supporting documents in form and substance satisfactory to Zaba to the
effect that:
(i) Tessa is a corporation duly organized, validly existing, and
in good standing.
(ii) Tessa's authorized and issued capital stock is as set forth
herein.
(iii) The execution and consummation of this Agreement have been
duly authorized and approved by Tessa's board of directors.
20. CONDITIONS PRECEDENT TO OBLIGATION OF TESSA. Tessa's obligation to
consummate this merger shall be subject to fulfillment on or before the Merger
Date of each of the following conditions, unless waived in writing by Tessa:
20.1 ZABA'S REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Zaba set forth herein shall be true and correct at the Merger
Date as though made at and as of that date, except as affected by
transactions contemplated hereby.
20.2 ZABA'S COVENANTS. Zaba shall have performed all covenants
required by this Agreement to be performed by it on or before the Merger
Date.
20.3 SHAREHOLDER APPROVAL. This Agreement shall have been approved by
the required number of shareholders of the Constituent Corporations.
20.4 SUPPORTING DOCUMENTS OF ZABA. Zaba shall have delivered to Tessa
supporting documents in form and substance satisfactory to Tessa to the
effect that:
(i) Zaba is a corporation duly organized, validly existing, and
in good standing.
(ii) Zaba's authorized and issued capital stock is as set forth
herein.
(iii) The execution and consummation of this Agreement have been
duly
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authorized and approved by Zaba's board of directors.
21. ACCESS. From the date hereof to the Merger Date, Tessa and Zaba shall
provide each other with such information and permit each other's officers and
representatives such access to its properties and books and records as the other
may from time to time reasonably request. If the merger is not consummated, all
documents received in connection with this Agreement shall be returned to the
party furnishing such documents, and all information so received shall be
treated as confidential.
22. CLOSING. The transfers and deliveries to be made pursuant to this
Agreement (the "Closing") shall be made by and take place at such location
designated by the Constituent Corporations without requiring the meeting of the
parties hereof. All proceedings to be taken and all documents to be executed at
the Closing shall be deemed to have been taken, delivered and executed
simultaneously, and no proceeding shall be deemed taken nor documents deemed
executed or delivered until all have been taken, delivered and executed.
22.1 Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission required by this Agreement or
any signature required thereon may be used in lieu of an original writing
or transmission or signature for any and all purposes for which the
original could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of
the entire original writing or transmission or original signature.
22.2 At the Closing, Zaba shall deliver to Tessa in satisfactory form,
if not already delivered to Tessa:
(i) A list of the holders of the shares of Zaba Common Stock
being exchanged with an itemization of the number of shares held by
each, the address of each holder, and the aggregate number of shares
of Tessa Common Stock to be issued to each holder;
(ii) Evidence of the consent of shareholders of Zaba to this
Agreement;
(iii) Certificate of the Secretary of State of Colorado as of a
recent date as to the good standing of Zaba;
(iv) Certified copies of the resolutions of the board of
directors of Zaba authorizing the execution of this Agreement and the
consummation of the Merger;
(v) The Zaba Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and
directors of Zaba; and
(vii) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
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22.3 At the Closing, Tessa shall deliver to Zaba in satisfactory form,
if not already delivered to Zaba:
(i) Evidence of the consent of shareholders of Tessa to this
Agreement;
(ii) Certificate of the Secretary of State of Georgia as of a
recent date as to the good standing of Tessa;
(iv) Certified copies of the resolutions of the board of
directors of Tessa authorizing the execution of this Agreement and the
consummation of the merger;
(v) The Tessa Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and
directors of Tessa; and
(vii) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
23. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
24. ARBITRATION.
24.1 SCOPE. The parties hereby agree that any and all claims
(except only for requests for injunctive or other equitable relief)
whether existing now, in the past or in the future as to which the
parties or any affiliates may be adverse parties, and whether arising
out of this agreement or from any other cause, will be resolved by
arbitration before the American Arbitration Association within the
State of Illinois.
24.2 CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The parties
hereby irrevocably consent to the jurisdiction of the American
Arbitration Association and the situs of the arbitration within the
State of Illinois. Any award in arbitration may be entered in any
domestic or foreign court having jurisdiction over the enforcement of
such awards.
24.3 APPLICABLE LAW. The law applicable to the arbitration and
this agreement shall be that of the State of Colorado, determined
without regard to its provisions which would otherwise apply to a
question of conflict of laws.
24.4 DISCLOSURE AND DISCOVERY. The arbitrator may, in its
discretion, allow the parties to make reasonable disclosure and
discovery in regard to any matters which are the subject of the
arbitration and to compel compliance with such disclosure and
discovery order. The arbitrator may order the parties to comply with
all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by
the arbitrator consistent with the desire to simplify the
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conduct and minimize the expense of the arbitration.
24.5 RULES OF LAW. Regardless of any practices of arbitration to
the contrary, the arbitrator will apply the rules of contract and
other law of the jurisdiction whose law applies to the arbitration so
that the decision of the arbitrator will be, as much as possible, the
same as if the dispute had been determined by a court of competent
jurisdiction.
24.6 FINALITY AND FEES. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable
except as to errors of law or the failure of the arbitrator to adhere
to the arbitration provisions contained in this agreement. Each party
to the arbitration shall pay its own costs and counsel fees except as
specifically provided otherwise in this agreement.
24.7 MEASURE OF DAMAGES. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and\or
securities issued or to be issued and no claims shall be made by any
party or affiliate for lost profits, punitive or multiple damages.
24.8 COVENANT NOT TO SUE. The parties covenant that under no
conditions will any party or any affiliate file any action against the
other (except only requests for injunctive or other equitable relief)
in any forum other than before the American Arbitration Association,
and the parties agree that any such action, if filed, shall be
dismissed upon application and shall be referred for arbitration
hereunder with costs and attorney's fees to the prevailing party.
24.9 INTENTION. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever
arising, whether in regard to this agreement or any other matter, from
whatever cause, based on whatever law, rule or regulation, whether
statutory or common law, and however characterized, be decided by
arbitration as provided herein and that no party or affiliate be
required to litigate in any other forum any disputes or other matters
except for requests for injunctive or equitable relief. This agreement
shall be interpreted in conformance with this stated intent of the
parties and their affiliates.
24.10 SURVIVAL. The provisions for arbitration contained herein
shall survive the termination of this agreement for any reason.
25. GENERAL PROVISIONS.
25.1 FURTHER ASSURANCES. From time to time, each party will
execute such additional instruments and take such actions as may be
reasonably required to carry out the intent and purposes of this
Agreement.
25.2 WAIVER. Any failure on the part of either party hereto to
comply with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed.
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25.3 BROKERS. Each party agrees to indemnify and hold harmless
the other party against any fee, loss, or expense arising out of
claims by brokers or finders employed or alleged to have been employed
by the indemnifying party.
25.4 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if
delivered in person or sent by prepaid first-class certified mail,
return receipt requested, or recognized commercial courier service, as
follows:
If to Zaba, to: Zaba International, Inc.
5650 Greenwood Plaza Blvd, Suite 216
Englewood, Colorado 80111
If to Tessa, to Tessa Complete Health Care, Inc.
One South 443 Summit Ave.
Suite 201
Oakbrook Terrace, IL 60181
26. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Colorado.
27. ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
28. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
29. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent shall be Jersey
Transfer & Trust Company. Closing shall take place on March 16, 2000, or as soon
thereafter as practicable. The date of Closing may be accelerated or extended by
agreement of the parties.
30. EFFECTIVE DATE. This effective date of this Agreement shall be the
Merger Date.
31. ATTORNEYS' FEES. In the event that any party institutes any action or
suit to enforce this Agreement or to secure relief from any default hereunder or
breach hereof, the breaching party or parties shall reimburse the non-breaching
party or parties for all costs, including reasonable attorneys' fees, incurred
in connection therewith and in enforcing or collecting any judgment rendered
therein.
32. SEVERABILITY. In the event that any particular provision or provisions
of this Agreement or the other agreements contained herein shall for any reason
hereafter be determined to be unenforceable, or in violation of any law,
governmental order or regulation, such
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unenforceability or violation shall not affect the remaining provisions of such
agreements, which shall continue in full force and effect and be binding upon
the respective parties hereto.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective officers, hereunto duly authorized, and
entered into as of the date first above written.
ZABA INTERNATIONAL, INC.
By: s/Gregory W. Skufca
------------------------------------
Its: President
--------------------------------
TESSA COMPLETE HEALTH CARE, INC.
By: s/Robert C. Flippin
------------------------------------
Its: President
-----------------------------------
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TESSA COMPLETE HEALTH CARE, INC.
--------------------------------
EXHIBIT 16.1
---------------------------------
LETTER OF RESIGNATION
OF INDEPENDENT CERTIFIED ACCOUNTANT
--------------------------------
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KISH, LEAKE & ASSOCIATES, P.C.
Certified Public Accountants
J.D. Kish, C.P.A., M.B.A. 7901 E. Belleview Ave., Suite 220
James D. Leake, C.P.A., M.T. Englewood, Colorado 80111
____________________________ Telephone (303) 779-5006
Arleen R. Brogan, C.P.A. Facsimile (303) 779-5724
April 10, 2000
Securities and Exchange Commission
450 5th Street N.W.
Washington, D.C. 20549
We would like to inform you that we have read the disclosures provided by Zaba
International, Inc. (comm. file #0-21099) in its filing of Form 8-K dated April
10, 2000 and that there are no disagreements regarding the statements made under
Item 4 - Changes in Registrant's Certifying Accountant.
Sincerely,
Kish, Leake & Associates, P.C.
Kish, Leake & Associates, P.C.
Englewood, Colorado
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