<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended JUNE 30, 1996
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to ________
Commission File Number: 0-21142
NEMATRON CORPORATION
(Exact name of small business issuer as specified in its charter)
<TABLE>
<S><C>
MICHIGAN 38-2483796
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
5840 INTERFACE DRIVE, ANN ARBOR, MICHIGAN 48103
(Address of principal executive offices) (Zip Code)
(313) 994-0591
(Issuer's telephone number, including area code)
Check whether the issuer (1) has filed all reports required to be filed by
section 13 or 15(d) of the Securities Exchange Act during the past 12 months
(or for such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the past 90
days.
[X] YES [ ] No
State the number of shares outstanding of each of the issuer's classes of
common equity, as of the latest practicable date:
No par value Common Stock: 4,244,415 SHARES AS OF AUGUST 10, 1996
Transitional Small Business Disclosure Format: [ ] YES [X] NO
<PAGE> 2
PART I -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
NEMATRON CORPORATION
CONSOLIDATED CONDENSED BALANCE SHEETS
JUNE 30, 1996 AND SEPTEMBER 30, 1995
<TABLE>
<CAPTION>
JUNE 30, SEPTEMBER 30,
1996 1995
(UNAUDITED) (AUDITED)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents (Note 2) $ 4,929,068 $ 78,258
Accounts receivable, net of allowance for doubtful
accounts of $136,000 at June 30, 1996, and $74,000
at September 30, 1995 4,863,287 3,161,626
Inventories (Note 3) 4,802,293 4,123,022
Prepaid expenses and other current assets 229,260 269,357
- ------------------------------------------------------------------------------------------
Total Current Assets 14,823,908 7,632,263
Property and Equipment, net 3,029,388 2,962,033
Other Assets:
Capitalized software, net of accumulated amortization
of $668,106 at June 30, 1996, and $569,000
at September 30, 1995 4,850,205 4,327,434
Other intangible assets, net of accumulated amortization
of $422,381 at June 30, 1996 and $297,649
at September 30, 1995 311,598 282,737
- ------------------------------------------------------------------------------------------
Net Other Assets 5,161,803 4,610,171
- ------------------------------------------------------------------------------------------
Total Assets $23,015,099 $15,204,467
==========================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Demand note payable to bank (Note 4) $ -0- $2,450,000
Accounts payable 1,483,243 2,744,400
Other accrued liabilities 1,054,106 1,048,096
Current maturities of long-term debt (Note 4) 110,288 119,706
- ------------------------------------------------------------------------------------------
Total Current Liabilities 2,647,637 6,362,202
Long-Term Debt, less current maturities (Note 4) 3,639,327 2,306,107
- ------------------------------------------------------------------------------------------
Total Liabilities 6,286,964 8,668,309
Stockholders' Equity (Notes 6 and 7):
Common stock, no par value, 15,000,000 shares authorized
and 4,244,415 shares issued and outstanding at June 30,
1996; 8,000,000 shares authorized and 2,869,613 shares
issued and outstanding at September 30, 1995 16,788,232 6,796,193
Foreign currency translation adjustment (85,186) (50,947)
Retained earnings (accumulated deficit) 25,089 (209,088)
- ------------------------------------------------------------------------------------------
Total Stockholders' Equity 16,728,135 6,536,158
- ------------------------------------------------------------------------------------------
Total Liabilities and Stockholders' Equity $23,015,099 $15,204,467
==========================================================================================
</TABLE>
PAGE 2
<PAGE> 3
ITEM 1. FINANCIAL STATEMENTS - CONTINUED
NEMATRON CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
FOR THE THREE AND NINE MONTHS ENDED JUNE 30, 1996 AND 1995
<TABLE>
<CAPTION>
THREE MONTHS THREE MONTHS NINE MONTHS NINE MONTHS
ENDED ENDED ENDED ENDED
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1996 1995 1996 1995
(UNAUDITED) (UNAUDITED) (UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
Net Revenues $5,143,096 $4,526,453 $15,214,514 $13,121,167
Cost of Revenues 2,959,649 2,877,887 8,607,220 8,756,552
- -------------------------------------------------------------------------------------
Gross Profit 2,183,447 1,648,566 6,607,294 4,364,615
Operating Expenses:
Product development costs 306,400 240,386 909,486 695,890
Selling, general and
administrative 1,614,343 1,199,732 4,965,355 3,342,339
- -------------------------------------------------------------------------------------
Total Operating Expenses 1,920,743 1,440,118 5,874,841 4,038,229
- -------------------------------------------------------------------------------------
Operating Income 262,704 208,448 732,453 326,386
Other Income (Expense):
Interest and other income 17,177 1,307 13,418 2,921
Interest expense (176,446) (107,674) (497,848) (296,905)
Foreign currency gain (loss) 23 358 (13,846) 105,162
- -------------------------------------------------------------------------------------
Total Other Income (Expense) (159,246) (106,009) (498,276) (188,822)
- -------------------------------------------------------------------------------------
Income Before Income Taxes 103,458 102,439 234,177 137,564
Taxes on Income (Note 5) -0- -0- -0- -0-
- -------------------------------------------------------------------------------------
Net Income $ 103,458 $ 102,439 $ 234,177 $ 137,564
=====================================================================================
Earnings Per Share (Note 7) $ 0.03 $ 0.04 $ 0.06 $ 0.07
=====================================================================================
</TABLE>
PAGE 3
<PAGE> 4
ITEM 1. FINANCIAL STATEMENTS - CONTINUED
NEMATRON CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED JUNE 30, 1996 AND 1995
<TABLE>
<CAPTION>
NINE MONTHS ENDED NINE MONTHS ENDED
JUNE 30, 1996 JUNE 30, 1995
(UNAUDITED) (UNAUDITED)
<S> <C> <C>
Cash Flows From Operating Activities:
Net income $ 234,177 $ 137,564
Adjustments to reconcile net income to net cash provided by
(used in) operating activities, net of acquisitions:
Depreciation and amortization 608,607 515,874
Non-cash compensation related to restricted stock -0- 33,258
Changes in assets and liabilities that provided (used) cash:
Accounts receivable (1,701,661) (60,295)
Inventories (679,270) 216,594
Prepaid expenses and other current assets 40,097 (282,750)
Accounts payable (1,261,157) (60,264)
Other accrued liabilities 6,010 (435,353)
- -------------------------------------------------------------------------------------------------------
Net Cash Provided By (Used In) Operating Activities (2,753,197) 64,628
Cash Flows From Investing Activities:
Additions to capitalized software development costs (434,938) (311,444)
Additions to property and equipment (626,878) (195,644)
- -------------------------------------------------------------------------------------------------------
Net Cash Used In Investing Activities (1,061,816) (507,088)
Cash Flows From Financing Activities:
Net proceeds from sale of common stock 9,551,604 -0-
Increase (decrease) in notes payable to bank (2,450,000) 615,000
Proceeds from borrowings 1,860,000 200,000
Proceeds from exercise of common stock options and warrants 440,435 -0-
Payments of long-term debt (536,199) (300,008)
Payment of deferred financing fees (165,780) -0-
- -------------------------------------------------------------------------------------------------------
Net Cash Provided From Financing Activities 8,700,060 514,992
Foreign Currency Translation Effect on Cash (34,237) (39,027)
- -------------------------------------------------------------------------------------------------------
Net Increase In Cash and Cash Equivalents 4,850,810 33,505
Cash and Cash Equivalents at Beginning of Period 78,258 61,091
- -------------------------------------------------------------------------------------------------------
Cash and Cash Equivalents at End of Period $ 4,929,068 $ 94,596
=======================================================================================================
Supplemental Disclosures of Cash Flow Information:
Cash paid for interest $ 475,807 $ 314,089
Cash paid for income taxes -0- -0-
</TABLE>
PAGE 4
<PAGE> 5
NEMATRON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
QUARTER AND NINE MONTHS ENDED JUNE 30, 1996 AND 1995
NOTE 1 - BASIS OF PRESENTATION
The accompanying consolidated financial statements include the accounts of
Nematron Corporation (the "Company") and its wholly-owned subsidiaries,
Nematron Europa BV, a Netherlands corporation formed in 1990, and NemaSoft,
Inc., a Michigan corporation formed in August, 1995. All significant
intercompany transactions and balances have been eliminated in consolidation.
In the opinion of management, all adjustments (consisting solely of normal
recurring adjustments) considered necessary for a fair presentation of the
consolidated financial statements for the interim periods have been included.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to S.E.C. rules and regulations,
although the Company believes that the disclosures are adequate to make the
information presented not misleading. It is suggested that these condensed
consolidated financial statements should be read in conjunction with the
consolidated financial statements and notes thereto included in the Company's
latest annual report on Form 10-KSB, as amended.
The results of operations for the three-month and nine-month periods ended June
30, 1996 and 1995 are not necessarily indicative of the results to be expected
for the full year.
NOTE 2 - CASH AND CASH EQUIVALENTS
The Company considers securities with a remaining maturity of three months or
less when purchased to be cash equivalents.
NOTE 3 - INVENTORIES
Segregation of inventories for the two periods is as follows:
<TABLE>
<CAPTION>
CATEGORY JUNE 30, 1996 SEPT. 30, 1995
<S> <C> <C>
Purchased parts and accessories $3,141,999 $2,622,872
Finished goods and demonstration stock 1,015,445 1,066,029
Work in process 349,869 160,382
Service stock 294,980 273,739
---------- ----------
Total Inventory $4,802,293 $4,123,022
========== ==========
</TABLE>
PAGE 5
<PAGE> 6
NOTE 4 - SHORT-TERM AND LONG-TERM DEBT
Short-term debt includes the following debt instruments:
<TABLE>
<CAPTION>
CATEGORY JUNE 30, 1996 SEPT. 30, 1995
<S> <C> <C>
Demand note payable to bank $-0- $2,450,000
</TABLE>
During the nine months ended June 30, 1996, the Company negotiated an expansion
of its existing credit facility and entered into a Second Amended And Restated
Loan Agreement as of March 29, 1996 (the "Agreement"). The Agreement allows a
maximum available demand line of credit in the amount of $3,250,000.
Borrowings under this facility bear interest at 1.5% over the prime rate of
interest and are secured by substantially all assets and a second mortgage on
the Company's Ann Arbor facilities. The Agreement expires January 31, 1997.
Amounts borrowed under the credit facility totaled $-0- and $2,450,000 at June
30, 1996 and September 30, 1995, respectively.
Long-term debt includes the following debt instruments:
<TABLE>
<CAPTION>
CATEGORY JUNE 30, 1996 SEPT. 30, 1995
<S> <C> <C>
Mortgage loan payable to bank $1,833,849 $1,893,919
Subordinated notes payable 1,800,000 -0-
Installment notes payable 57,749 -0-
Capitalized lease obligations 58,017 87,894
------------- --------------
3,749,615 2,425,813
Less current maturities 110,288 119,706
------------- --------------
Long-term debt, less current maturities $3,639,327 $2,306,107
============= ==============
</TABLE>
On November 7, 1995, the Company obtained a total of $1,800,000 of subordinated
debt under a term loan and warrant purchase agreement (the "Subordinated Note
Agreement") with a consortium of five lenders. The subordinated notes bear
interest at 12 percent per annum and require monthly interest-only payments
totaling $18,000 through September 30, 1997, and principal payments of $50,000,
plus interest, beginning October 31, 1997. Total principal due under the
subordinated notes is $600,000 in each of the fiscal years ending September 30,
1998, 1999 and 2000. All of the notes are collateralized by substantially all
Company assets, other than real property, and the Company has granted to one
note holder, representing $500,000 of the total subordinated debt, a third
mortgage on the Company's Ann Arbor facilities. The Subordinated Note
Agreement includes various affirmative and negative covenants, the most
restrictive of which are (1) the prohibition of dividend payments and (2)
requirements to maintain (a) a specified current ratio, (b) a specified ratio
of total liabilities less subordinated debt to the sum of tangible net worth
plus subordinated debt, and (c) a specified level of tangible net worth. In
connection with the issuance of the subordinated debt, the lenders also
received a total of 237,214 warrants to purchase common stock at $4 per share.
NOTE 5 - ACCOUNTING FOR INCOME TAXES
There is no provision for income tax expense for the three months and nine
months ended June 30, 1996 and 1995 due to the anticipated utilization of
available net operating loss carryforwards. Current tax expense of $35,000 and
$80,000 for the three month and nine month periods ended June 30, 1996, and
$35,000 and $47,000 for the three month and nine month periods ended June 30,
1995, respectively, computed at the expected tax rate of 34%, have been reduced
entirely by the utilization of net operating loss carryforwards ("NOLs") of the
same amounts.
PAGE 6
<PAGE> 7
At June 30, 1996, the Company has NOLs of approximately $4,500,000 which may be
applied against future taxable income. The NOLs expire beginning 2003 through
2010. Utilization of these carryforwards are subject to annual limitations
under current Internal Revenue Service regulations. The Company has
established a valuation allowance for its deferred tax assets, as it is
unlikely that all of the deferred tax assets will be fully realized.
NOTE 6 - CHANGE IN COMMON STOCK
The increase in common stock during the nine months ended June 30, 1996 is due
to the following:
<TABLE>
<CAPTION>
SHARES
OUTSTANDING AMOUNT
<S> <C> <C>
Balance at October 1, 1995 2,869,613 $ 6,796,193
Shares issued in connection with
exercise of warrants 164,202 410,505
Shares issued in connection with
exercise of options 10,600 29,930
Shares issued in public offering 1,200,000 9,551,604
----------- -----------
Balance, June 30, 1996 4,244,415 $16,788,232
=========== ===========
</TABLE>
NOTE 7 - EARNINGS PER SHARE
Earnings per share is based on the weighted average number of shares of common
stock and common stock equivalents outstanding for each period presented. The
weighted average number of shares outstanding for each period is as follows:
<TABLE>
<CAPTION>
JUNE 30, JUNE 30,
1996 1995
<S> <C> <C>
Three months ended 4,010,551 2,563,934
Nine months ended 3,614,316 2,024,028
</TABLE>
Fully diluted earnings per share is not presented because the computation
results in the same amounts as primary earnings per share or the amounts are
anti-dilutive. Common stock equivalents are not included in the earnings per
share calculation until the market price of the Company's common stock exceeds
the exercise price of the common stock equivalents for substantially all of the
three consecutive months ending with the last month of the period to which per
share data relate. For purposes of this calculation, the market price of the
Company's common stock was determined for the three months and nine months
ended June 30, 1996 as the closing price of the Company's stock on the NASDAQ
SmallCap Market on and prior to June 5 and on the NASDAQ National Market after
June 6, and for the three months and nine months ended June 30, 1995 as the
average of the bid and asked price per share.
PAGE 7
<PAGE> 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
THREE AND NINE MONTH PERIODS ENDED JUNE 30, 1996 COMPARED
WITH THREE AND NINE MONTH PERIODS ENDED JUNE 30, 1995
Net revenues for the three and nine month periods ended June 30, 1996 increased
$617,000 (13.6%) and $2,093,000 (16.0%) compared to the same periods last year.
The increase in net revenues in the three month period is primarily
attributable to revenues from sales of Industrial Control Computers. The
increase in net revenues in the nine month period was due equally to an
increase in software revenues resulting from the Company's acquisitions of
Imagination Systems, Inc. and Universal Automation, Inc. in March 1995 and
September 1995, respectively, and to increases in sales volumes and prices of
hardware products in response to increases in the level of marketing and sales
efforts during the current period. Domestic revenues for the three and nine
month periods ended June 30, 1996 increased $1,249,000 and $3,635,000,
respectively, while foreign revenues decreased $632,000 and $1,542,000,
respectively, compared to the same periods last year. Domestic revenues
reflect the strong demand for new hardware and software products in North
America in response to increased marketing and sales efforts. Foreign revenues
have decreased due to the timing of planned purchases by certain customers of
the Company's new products and the Company's decreased emphasis and planned
phase out of certain older products. Additionally, international marketing and
sales campaigns for the Industrial Control Computers and for certain of the
Company's software products are not planned until fiscal 1997.
Gross profit for the three and nine month periods ended June 30, 1996 increased
$535,000 and $2,243,000, respectively, over the same periods last year. Gross
profit as a percentage of revenues in the three and nine month periods ended
June 30, 1996 was 42.5% and 43.4%, respectively, versus 36.4% and 33.3%,
respectively, in the same periods last year. The improvement was due primarily
to the high gross profit margin afforded by software and applied systems
revenue, and cost controls in place during the entire current period; only a
portion of the corresponding prior period was affected.
Total operating expenses for the three and nine month periods ended June 30,
1996 increased $481,000 (33.4%) and $1,837,000 (45.5%), respectively, over the
comparable periods last year primarily as a result of higher sales and
marketing costs and increased product development efforts. The number of
employees during at June 30, 1996 has increased by approximately 10% since the
beginning of the year in response to the Company's increased emphasis on
sales, marketing and product development. The Company expects to continue to
invest a significant amount of cash to continue to its product development
efforts, especially as it pertains to the development of its real time NT
software, FloProNT and VFE software products and to revisions and enhancements
to the Company's Industrial Control Computer product line.
Interest expense for the three month period ended June 30, 1996 increased to
$176,000 compared to $108,000 for the comparable period last year and, for the
nine month period ended June 30, 1996, increased to $498,000 from $297,000 for
the comparable period last year. Such increases were due to increased average
borrowing levels and higher effective interest rates. Total average debt levels
increased due to increased borrowings on the bank line of credit through June
12, 1996, and increases in the mortgage note and subordinated debt levels.
Foreign currency losses of $-0- and $14,000, respectively, were recorded in the
three and nine month periods ended June 30, 1996 compared to foreign currency
gains $-0- and $105,000, respectively, in the comparable periods last year.
Foreign currency gains and losses are largely attributable to the impact of
translating Dutch guilder transactions of the Company's Netherlands-based
subsidiary to the Company's functional U.S. dollar currency.
PAGE 8
<PAGE> 9
LIQUIDITY AND CAPITAL RESOURCES
Nematron had working capital of approximately $12,176,000 at June 30, 1996.
Primary sources of near-term liquidity are cash from operations and the
Company's $3,250,000 bank line of credit. Borrowings under the line of credit
are limited by a borrowing formula which allows for advances up to 80% of
eligible domestic accounts receivable plus a maximum of $1,000,000 of eligible
foreign accounts receivable plus a maximum of $1,000,000 against certain
inventory categories. The Company does not expect that the borrowing formula
will materially limit the amount of funds available to be borrowed under the
line of credit during fiscal 1996. Amounts borrowed under the credit facility
are due on demand and bear interest at prime plus 1.5%. The line of credit
facility expires on January 31, 1997.
The Company sold 1,200,000 shares of its common stock in a secondary offering
which closed on June 11, 1996. After payment of the underwriters discount and
offering expenses, net proceeds were approximately $9,552,000. Upon completion
of the offering the Company repaid outstanding borrowings of $3,250,000 under
the line of credit and added the remaining proceeds to working capital.
Common stock outstanding increased to 4,244,415 shares at June 30, 1996
compared to 2,869,613 shares outstanding at September 30, 1995. The increases
were due to the sale of 1,200,000 shares of common stock in the secondary
offering and to the exercise of 164,202 warrants and 10,600 of stock options at
an average exercise price of $2.50 per share.
Accounts receivable at June 30, 1996 increased $1,702,000 from the balance at
September 30, 1995, primarily as a result of increased revenues for the nine
months ended June 30, 1996. Inventories increased $679,000 due primarily to
forecasted sales activities.
Notes payable to the bank at June 30, 1996 decreased to $-0- from the
$2,450,000 balance at September 30, 1995 due to the repayment of the amount
borrowed under the line of credit from proceeds of the secondary offering, in
the future the Company expects to expand this facility.
Long-term debt, including current maturities, increased a total of $1,324,000
at June 30, 1996 due to the net effect of increases from borrowings of
$1,800,000 under a subordinated note agreement and $60,000 under term loans for
equipment purchases, and reductions due to repayment of a $444,000 convertible
subordinated note and other scheduled debt repayments of $92,000 under the
terms of various debt agreements. The Company intends to renegotiate or
replace the current facility.
PAGE 9
<PAGE> 10
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The exhibits included herewith are set forth on the Index to Exhibits.
ALL OTHER ITEMS OMITTED ARE NOT APPLICABLE OR THE ANSWERS THERETO ARE NEGATIVE.
PAGE 10
<PAGE> 11
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 thereunto duly authorized.
NEMATRON CORPORATION
BY:
AUGUST 12, 1996 /s/ FRANK G. LOGAN, III
- --------------- ------------------------------------
DATE FRANK G. LOGAN, III, PRESIDENT & CEO
(DULY AUTHORIZED OFFICER)
AUGUST 12, 1996 /s/ DAVID P. GIENAPP
- --------------- ------------------------------------
DATE DAVID P. GIENAPP,
CHIEF FINANCIAL OFFICER
(CHIEF ACCOUNTING OFFICER)
PAGE 11
<PAGE> 12
INDEX TO EXHIBITS
<TABLE>
<S> <C>
Exhibit Number Description of Exhibit
-------------- ---------------------------------
3(i) Articles of Incorporation
11 Computation of Earnings Per Share
27 Financial Data Schedule
</TABLE>
PAGE 12
<PAGE> 1
EXHIBIT 3(i)
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF NEMATRON CORPORATION
Pursuant to the provisions of Act 284, Public Acts of 1972, the
undersigned corporation executes the following Articles:
1. The present name of the corporation is NEMATRON CORPORATION.
2. The corporation identification number (CID) assigned by the Bureau
is 333-652.
3. The date of filing the original Articles of Incorporation was October 7,
1983. The corporation has had no other names.
The following Amended and Restated Articles of Incorporation supersede the
Articles of Incorporation as amended and shall be the Articles of
Incorporation for the corporation:
ARTICLE I
The name of the corporation is NEMATRON CORPORATION.
ARTICLE II
The purpose or purposes for which the corporation is formed are to
engage in any activity within the purposes for which corporations may be
organized under the Michigan Business Corporation Act.
ARTICLE III
The total authorized capital stock is:
1. Common stock: 3,000,000 shares
2. A statement of all or any of the relative rights, preferences and
limitations of the shares of each class is as follows:
Subject to the preferences accorded the holders of any other class of
stock pursuant to these Articles of Incorporation or action of the Board of
Directors taken with respect to such preferences, holders of Common Stock are
entitled to receive such dividends as may be declared by the Board of Directors
of the corporation from time to time and, in the event of any liquidation,
dissolution or winding up of the corporation, the holders of Common Stock will
be entitled to receive pro rata all of the remaining assets of the corporation
available for distribution. Each issued and outstanding share of Common Stock
is entitled to one vote.
No holder of any shares of any class of stock of this corporation shall
have any preemptive or preferential right to subscribe for, or to purchase, any
part of a new or additional issue of stock or any other reacquired shares of
stock of any class whatsoever or of any securities convertible into stock of
any class whatsoever, whether now or hereafter authorized and whether issued
for cash or other consideration.
<PAGE> 2
ARTICLE IV
The current resident agent is G. Paul Horst, 5840 Interface Drive, Ann
Arbor, Michigan 48103.
ARTICLE V
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, provided that the foregoing shall not eliminate or limit
the liability of a director for any of the following: (i) breach of the
director's duty of loyalty to the corporation or its shareholders; (ii) acts or
omissions not in good faith or that involve intentional misconduct or knowing
violation of law; (iii) a violation of Section 551(1) of the Michigan Business
Corporation Act; (iv) a transaction from which the director derived an improper
personal benefit or (v) an act or omission occurring prior to the date this
article becomes effective. If the Michigan Business Corporation Act hereafter
is amended to authorize the further elimination or limitation of the liability
of directors, then the liability of a director of the corporation, in addition
to the limitation on personal liability contained herein, shall be limited to
the fullest extent permitted by the amended Michigan Business Corporation Act.
No amendment or repeal of this Article V shall apply to or have any effect on
the liability or alleged liability of any director of the corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
ARTICLE VI
A. Directors and officers of the corporation shall be indemnified in
connection with any actual or threatened action or proceeding (including civil,
criminal, administrative or investigative proceedings) arising out of their
service to the corporation or to another organization at the corporation's
request, and shall be paid expenses incurred in defending any such proceeding
in advance of its final disposition, to the fullest extent permitted by law.
Persons who are not directors or officers of the Company may be similarly
indemnified in respect of such service to the extent authorized at any time by
the Board of Directors or the Bylaws of the corporation. The provisions of this
Article shall be applicable to actions or proceedings commenced after the
adoption hereof, whether arising from acts or omissions occurring before or
after the adoption hereof, and to persons who have ceased to be directors,
officers or employees, and shall inure to the benefit of their heirs, executors
and administrators. The right to indemnification and advancement of expenses
conferred hereunder shall be a contract right which may not be modified
retroactively without the written consent of the director or officer and shall
not be deemed exclusive of any other rights to indemnification or advancement
of expenses such person may have or to which such person may be entitled.
B. If a claim under this Article VI is not paid in full by the
corporation within thirty days after a written claim has been received by the
corporation, the indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim. If successful in whole
2
<PAGE> 3
or in part in any such suit or in a suit brought by the corporation to recover
advances, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such claim. In any action brought by the indemnitee to
enforce a right hereunder (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking has been tendered to the
corporation) it shall be a defense that, and in any action brought by the
corporation to recover advances the corporation shall be entitled to recover
such advances if, the indemnitee has not met the applicable standard of conduct
set forth in the Michigan Business Corporation Act. Neither the failure of the
corporation (including its Board of Directors, a committee of its Board of
Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the indemnitee is proper in the circumstances because the indemnitee has met
the applicable standard of conduct set forth in the Michigan Business
Corporation Act, nor an actual determination by the corporation (including its
Board of Directors, a committee of its Board of Directors, independent legal
counsel, or its shareholders) that the indemnitee has not met such applicable
standard of conduct, shall be a defense to an action brought by the indemnitee
or create a presumption that the indemnitee has not met the applicable standard
of conduct. In any action brought by the indemnitee to enforce a right
hereunder or by the corporation to recover payments by the corporation of
advances, the burden of proof shall be on the corporation.
ARTICLE VII
A. The number of directors constituting the entire Board of Directors
shall not be less than three nor more than twelve, the exact number of
directors to be fixed from time to time only by vote of a majority of the Board
of Directors. The Board of Directors shall be divided into three classes as
nearly equal in number as possible, with the term of office of one class
expiring each year. The first class of the Board of Directors shall be elected
to hold office for a term expiring at the annual meeting of shareholders in
1994; directors of the second class shall be elected to hold office for a term
expiring at the next succeeding annual meeting of shareholders; and directors
of the third class shall be elected to hold office for a term expiring at the
third succeeding annual meeting of shareholders, and in each case, until their
respective successors are elected and have qualified, or until their earlier
death, resignation or removal. At each annual election held after the initial
classification and election in the manner provided above, a number of directors
equal to the number of the class whose term expires at the time of the meeting
shall be elected to hold office until the end of the third succeeding annual
meeting of shareholders after their election and until their respective
successors are elected and have qualified, or until their earlier death,
resignation or removal. When the number of directors is changed, any newly
created directorships or any decrease in directorships shall be so apportioned
among the classes so as to make all classes as nearly equal in number as
possible. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
3
<PAGE> 4
B. During the intervals between annual meetings of shareholders, any
vacancy occurring in the Board of Directors caused by resignation, removal,
death or other incapacity, and any newly created directorships resulting from
an increase in the number of directorships shall be filled by a majority vote
of the directors then in office, whether or not a quorum, or, if there are no
directors in office, by the shareholders. If the Board of Directors accepts the
resignation of any director or officer to take effect at a future time, it
shall have the power to elect a successor who shall take office when the
resignation becomes effective. Each director chosen to fill a vacancy or chosen
to fill a newly created directorship shall hold office until the next election
for the class for which such director shall have been chosen and until the
election and qualification of his successor, or until his earlier death,
resignation or removal. A director or directors or the entire Board of
Directors may be removed from office only for cause.
C. The affirmative vote of the holders of at least 80% of the
outstanding shares of the capital stock of the corporation entitled to vote
generally in the elections of directors shall be required to amend, repeal or
adopt any provision inconsistent with this Article VII.
These Restated Articles of Incorporation were duly adopted on the 25th
day of January, 1993 in accordance with the provisions of Section 642 of the
Michigan Business Corporation Act, and were duly adopted by the sole
shareholder at a meeting of its board of directors held January 25, 1993.
Signed this 12th day of February, 1993
By /s/ G. Paul Horst
-------------------------------------------
(Signature)
G. Paul Horst President
---------------------------------------------
(Type or Print Name) (Type or Print Title)
4
<PAGE> 5
NAME OF ORGANIZATION REMITTING FEES:
Nematron Corporation
Preparer's Name
and Business Telephone
Number:
Marguerite M. Gritenas
(313) 568-6503
RETURN DOCUMENT TO:
Marguerite M. Gritenas, Esq.
Dykema Gossett
400 Renaissance Center
Detroit, Michigan 48243
5
<PAGE> 6
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
Date Received (FOR BUREAU USE ONLY)
JUL 29 1993 FILED
AUG 04 1993
Administrator
MICHIGAN DEPARTMENT OF COMMERCE
Corporation & Securities Bureau
EFFECTIVE DATE:
Name
NEMATRON CORPORATION
Address
5840 INTERFACE DRIVE
City State ZIP Code
ANN ARBOR MI 48103
DOCUMENT WILL BE RETURNED TO THE NAME AND ADDRESS YOU ENTER ABOVE.
CERTIFICATE OF CHANGE OF REGISTERED OFFICE AND/OR CHANGE OF RESIDENT AGENT
FOR USE BY DOMESTIC AND FOREIGN CORPORATIONS
(Please read information and instructions on reverse side)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), or Act 162, Public Acts of 1982 (nonprofit corporations), the
undersigned corporation executes the following Certificate:
1. The name of the corporation is: NEMATRON CORPORATION
2. The identification number assigned by the Bureau is: 333-652
3. a. The name of the resident agent on file with the Bureau is: G. PAUL HORST
-------------------------------------------------------------------------
b. The address of the registered office on file with the Bureau is:
5840 INTERFACE DR., ANN ARBOR , Michigan 48103
----------------------------------------- ---------------------
(STREET ADDRESS) (CITY) (ZIP CODE)
c. The mailing address of the above registered office on file with the
Bureau is:
PO BOX 1108 ANN ARBOR , Michigan 48106
----------------------------------------- ---------------------
(P.O. BOX) (CITY) (ZIP CODE)
ENTER IN ITEM 4 THE INFORMATION AS IT SHOULD NOW APPEAR ON OUR RECORDS
4. a. The name of the resident agent is: G. PAUL HORST
b. The address of the registered office is:
5840 INTERFACE DR., ANN ARBOR , Michigan 48103
----------------------------------------- ---------------------
(STREET ADDRESS) (CITY) (ZIP CODE)
c. The mailing address of the registered office IF DIFFERENT THAN 4B IS:
, Michigan
----------------------------------------- ------------------------------
(P.O. BOX) (CITY) (ZIP CODE)
5. The above changes were authorized by resolution duly adopted by its board
of directors or trustees, or by the resident agent of a profit corporation
to change the address of the registered office in which case a copy of
this statement has been mailed to the corporation. The Corporation further
states that the address of its registered office and the address of its
resident agent, as changed, are identical.
Date signed: Signed by: /s/ G. Paul Horst
------------------- ------------------------
(SIGNATURE)
G. PAUL HORST PRESIDENT
------------------------------------
(TYPE OR PRINT NAME) (TYPE OF PRINT TITLE)
<PAGE> 7
Name of Person or Organization
Remitting Fees:
NEMATRON CORPORATION
------------------------------
------------------------------
Preparer's Name and Business
Telephone Number:
TERRI JEFFREY-BARKER
----------------------------
(313) 994-0591 x259
----------------------
INFORMATION AND INSTRUCTIONS
1. The certificate of change of registered office and/or change of resident
agent cannot be filed until this form, or a comparable document, is
submitted.
2. Submit one original copy of this document. Upon filing, a microfilm copy
will be prepared for the records of the Corporation and Securities Bureau.
The original copy will be returned to the address appearing in the box on
front as evidence of filing.
Since this document must be microfilmed, it is important that the filing be
legible. Documents with poor black and white contrast, or otherwise
illegible, will be rejected.
3. This document is to be used pursuant to section 242 of the Act by domestic
and foreign corporations for the purpose of changing their registered office
or resident agent, or both.
4. Item 2 -- Enter the identification number previously assigned by the Bureau.
If this number is unknown, leave it blank.
5. Item 3 -- The address of the registered office and the name of the resident
agent must be the same as are designated in the articles of incorporation or
subsequent change filed with the Bureau.
6. Item 4 -- A post office box may not be designated as the address of the
registered office. The resident agent can change the registered office by
filing this form only if this is a profit corporation.
7. This certificate must be signed in ink by the president, vice-president,
chairperson, vice-chairperson, secretary or assistant secretary of the
corporation. (Profit corporations only): If only the registered office
address is changed, it may be signed by the resident agent.
8. NON REFUNDABLE FEES: (Make remittance payable to the State of Michigan.
Include corporation name and number on check or money order.).......$5.00.
9. Mail form and fee to: The office is located at:
Michigan Department of Commerce 6546 Mercantile Way
Corporation and Securities Bureau Lansing, MI 48910
Corporation Division
P.O. Box 30054
Lansing, Michigan 48909-7554
Telephone: (517) 334-6302
<PAGE> 8
MICHIGAN DEPARTMENT OF COMMERCE-CORPORATION AND SECURITIES BUREAU
Date Received (FOR BUREAU USE ONLY)
NOV 15 1993 FILED
NOV 18 1993
Administrator
Name MICHIGAN DEPARTMENT OF COMMERCE
Nematron Corporation Corporation & Securities Bureau
Address
5840 Interface Drive EXPIRATION DATE: December 31, 1998
City State ZIP Code
Ann Arbor MI 48103
DOCUMENT WILL BE RETURNED TO THE NAME AND ADDRESS YOU ENTER ABOVE.
CERTIFICATE OF ASSUMED NAME
FOR USE BY CORPORATIONS AND LIMITED PARTNERSHIPS
(Please read information and instructions on reverse side)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), or Act 162, Public Acts of 1982 (nonprofit corporations), or Act
213, Public Acts of 1982 (limited partnerships), the corporation or limited
partnership in item one below executes the following Certificate:
1. The true name of the corporation or limited partnership is:
NEMATRON CORPORATION
2. The identification number assigned by the Bureau is: 333-652
3. The location of the corporate registered office or the office at which the
limited partnership records are maintained is:
5840 Interface Drive, Ann Arbor, MI 48103
---------------------------------------------------------------------------
(STREET ADDRESS) (CITY) (STATE) (ZIP CODE)
4. The assumed name under which business is to be transacted is:
ACTION INDUSTRIAL COMPUTERS
COMPLETE ITEM 5 ON PAGE 3 IF THIS NAME IS ASSUMED BY MORE THAN ONE ENTITY.
Signed this 10th day of November, 1993
By /s/ Albert W. Lowery
--------------------------------------------------
(SIGNATURE)
Albert W. Lowery Secretary
---------------------------------------------------
(TYPE OR PRINT NAME) (TYPE OR PRINT TITLE)
---------------------------------------------------
(LIMITED PARTNERSHIPS ONLY-INDICATE NAME OF GENERAL
PARTNER IF A CORPORATION OR OTHER ENTITY)
1
<PAGE> 9
- --------------------------------------------------------------------------------
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
- --------------------------------------------------------------------------------
Date Received MAR 03 1995 / (FOR BUREAU USE ONLY)
- -----------------------------------
Name Marguerite M. Gritenas FILED
- ------------------------------- MAR 03 1995
Address Dykema Gossett PLLC Administrator
400 Renaissance Center MICHIGAN DEPARTMENT OF COMMERCE
- ------------------------------- Corporation & Securities Bureau
City State Zip Code
Detroit, MI 48243-1668 EFFECTIVE DATE:
- -------------------------------
DOCUMENT WILL BE RETURNED TO THE
NAME AND ADDRESS YOU ENTER ABOVE.
CERTIFICATE OF MERGER/CONSOLIDATION
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), the undersigned corporations execute the following Certificate:
1. The Plan of Merger is as follows:
a. The name of each constituent corporation and its corporation
identification number (CID) is as follows:
Nematron Corporation: (333-652)
Imagination Systems, Inc., a Virginia corporation which has no
Michigan CID.
b. The name of the surviving corporation and its corporation
identification number (CID) is:
Nematron Corporation (333-652)
c. As to each constituent corporation, the designation and number of
outstanding shares of each class and series and the voting rights thereof are
as follows:
<PAGE> 10
<TABLE>
<CAPTION>
Designation and
number of shares
in each class Class or series Class or series
Name of or series out- of shares entitled to
Corporation standing entitled to vote vote as a class
- ----------- ---------------- ---------------- ---------------
<S> <C> <C> <C>
Nematron Common Stock, Common Stock Common Stock
Corporation no par value
("Nematron" or 1,601,023 shares
the "Surviving
Corporation")
Imagination Common Stock Common Stock Common Stock
Systems, Inc. $0.01 par value,
("ISI") 1,453,442 shares
</TABLE>
Neither the number of shares of common stock of Nematron nor number of
the shares of common stock of ISI is subject to change prior to the effective
date of the merger.
d. Not applicable, as this item relates to nonstock corporations.
e. The terms and conditions of the proposed merger, including the
manner and basis of converting the shares of each constituent corporation into
shares, bonds or other securities of the surviving corporation, or into cash or
other consideration, are as follows:
(i) The Merger. On the effective date of the merger, ISI
will be merged with and into Nematron, the separate corporate
existence of ISI will cease and Nematron will continue as the
Surviving Corporation. On the effective date of the merger (A)
Nematron will continue its corporate existence under the laws
of the State of Michigan and will possess all of the rights,
powers, franchises and purposes of ISI and Nematron prior to
the merger, (B) all of the property of the constituent
corporations will be the property of Nematron and (C) Nematron
will, by operation of law, assume all of the liabilities and
obligations of the constituent corporations.
(ii) Articles and Bylaws. The Amended and Restated Articles of
Incorporation of Nematron in effect on the effective date of
the merger will remain the Amended and Restated Articles of
Incorporation of the Surviving Corporation without any
modification or amendment in the merger. The Amended and
Restated Bylaws of Nematron will remain the Amended and
Restated Bylaws of the Surviving Corporation, except that they
will be amended as provided in the Agreement and Plan of
Merger between the constituent corporations dated February 2,
1995 (the "Merger Agreement").
-2-
<PAGE> 11
(iii) Directors and Officers. The directors and officers of
Nematron in office at and as of the effective date of the
merger will remain the directors and officers of the Surviving
Corporation. In addition, the number of seats on the Surviving
Corporation's Board of Directors will be increased by three
seats, and three directors designated by ISI, who have
satisfied the selection criteria in Nematron's Amended and
Restated Bylaws, will be appointed to the Surviving
Corporation's Board of Directors.
(iv) Common Stock of ISI. On the effective date of the merger: (i)
each share of ISI common stock issued and outstanding
immediately prior to the effective date of the merger (other
than a share of ISI common stock with respect to which
Nematron has received notice of the exercise of dissenters'
rights under the Virginia Stock Corporation Act (a "Dissenting
Share")) shall, ipso facto and without any action on the part
of the holder thereof, be converted into and represent the
right (A) to receive 0.56798 shares of Nematron common stock,
and (B) to receive cash in lieu of any fractional share of
Nematron common stock that would otherwise be issuable, and
(ii) each Dissenting Share will have the rights set forth in
the Virginia Stock Corporation Act. In addition, the Merger
Agreement provides that, after the effective date of the
merger, the Surviving Corporation will issue a warrant to
purchase one share of Nematron common stock for every two
shares of Nematron common stock issued in the merger only if
certain conditions precedent set forth in the Merger Agreement
are satisfied. Regardless of whether a holder of ISI common
stock shall have received a certificate for Nematron common
stock issued in the merger, no certificate representing ISI
common stock shall be deemed to be outstanding or to have
rights other than the right to receive the merger
consideration described above, or to dissent from the merger
and have the rights specified by the Virginia Stock
Corporation Act. Each holder of a certificate representing ISI
common stock (other than Dissenting Shares), upon surrender to
Nematron of the stock certificate or certificates representing
ISI common stock and the investment representation letter
described in the Merger Agreement, shall be entitled to
receive the merger consideration. After the effective date of
the merger, there shall be no transfer of ISI common stock on
the stock transfer books of ISI. The procedures for payment of
the merger consideration are further described in the Merger
Agreement.
-3-
<PAGE> 12
(v) Common Stock of Nematron. Each share of common stock of
Nematron issued and outstanding on the effective date of
the merger, shall, ipso facto and without any action on the
part of the holder thereof, be converted into one share of
the common stock of the Surviving Corporation. Outstanding
certificates of Nematron shall be deemed to represent the
number of outstanding shares of common stock of the
Surviving Corporation into which they have been converted,
and need not be exchanged for new certificates of the
Surviving Corporation by any holder thereof.
f. Not applicable, as the Amended and Restated Articles of
Incorporation of Nematron will not be amended as a result of the merger.
g. Not applicable, as the terms and conditions of the merger are
described in 1(e) above.
2. The merger is permitted under the laws of the Commonwealth of Virginia, the
jurisdiction under which ISI is organized, and the Plan of Merger was adopted
and approved by such corporation pursuant to and in accordance with the laws of
that jurisdiction.
3. Not applicable, as the constituent corporations desire that the merger be
effective upon the date of the filing of this Certificate of Merger with the
Michigan Department of Commerce.
4. The Plan of Merger was approved by the Board of Directors of Nematron and
ISI. In addition, the Plan of Merger was approved by the shareholders of ISI.
Neither Section 703a nor Section 754 of the Michigan Business Corporation Act
requires the shareholders of Nematron to approve the Plan of Merger. The Plan
of Merger, and the related Merger Agreement referred to herein, will be
furnished by the Surviving Corporation, on request and without cost, to any
shareholder of any constituent corporation.
Signed this 2nd day of March, 1995.
NEMATRON CORPORATION
By: /s/ G. Paul Horst
--------------------------
Its: President
--------------------------
Signed this 2nd day of March, 1995.
IMAGINATION SYSTEMS, INC.
By: /s/ Frank G. Logan, III
----------------------------
Its: President
----------------------------
-4-
<PAGE> 13
MICHIGAN DEPARTMENT OF COMMERCE--CORPORATION AND SECURITIES BUREAU
Date Received (FOR BUREAU USE ONLY)
JUN 30 1995
FILED
JUN 30 1995
ADMINISTRATOR
MICHIGAN DEPARTMENT OF COMMERCE
CORPORATION & SECURITIES BUREAU
Name
Mark A. Metz Dykema Gossett PLLC
- ----------------------------------------
Address
400 Renaissance Center
- ----------------------------------------
City State Zip Code
Detroit Michigan 48243 EFFECTIVE DATE:
- ----------------------------------------
DOCUMENT WILL BE RETURNED TO THE NAME AND ADDRESS YOU ENTER ABOVE
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC PROFIT CORPORATIONS
(Please read information and instructions on the last page)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), or Act 162, Public Acts of 1982 (nonprofit corporations), the
undersigned corporation executes the following Certificate:
1. The present name of the corporation is: Nematron Corporation
2. The identification number assigned by the Bureau is: 333-652
3. The location of the registered office is:
5840 Interface Drive Ann Arbor , Michigan 48103
- -------------------------------------------------------- -----------
(Street Address) (City) (ZIP Code)
4. Article III of the Articles of Incorporation is hereby amended to read as
set forth on Exhibit A, attached hereto and made a part hereof.
<PAGE> 14
5. COMPLETE SECTION (a) IF THE AMENDMENT WAS ADOPTED BY THE UNANIMOUS CONSENT
OF THE INCORPORATOR(S) BEFORE THE FIRST MEETING OF THE BOARD OF DIRECTORS OR
TRUSTEES; OTHERWISE, COMPLETE SECTION (b). DO NOT COMPLETE BOTH.
a. / / The foregoing amendment to the Articles of Incorporation was duly
adopted on the ____ day of _________, 19__, in accordance with the
provisions of the Act by the unanimous consent of the incorporator(s) before
the first meeting of the Board of Directors or Trustees.
Signed this ____ day of _________, 19__.
---------------------------------- ----------------------------------
(Signature) (Signature)
---------------------------------- ----------------------------------
(Type or Print Name) (Type or Print Name)
---------------------------------- ----------------------------------
(Signature) (Signature)
---------------------------------- ----------------------------------
(Type or Print Name) (Type or Print Name)
b. /x/ The foregoing amendment to the Articles of Incorporation was duly
adopted on the 22nd day of May, 1995. The amendment: (check one of
the following)
/x/ was duly adopted in accordance with Section 611(2) of the Act by
the vote of the shareholders if a profit corporation, or by the
vote of the shareholders or members if a nonprofit corporation,
or by the vote of the directors if a nonprofit corporation
organized on a nonstock directorship basis. The necessary votes
were cast in favor of the amendment.
/ / was duly adopted by the written consent of all directors
pursuant to Section 525 of the Act and the corporation is a
nonprofit corporation organized on a nonstock directorship
basis.
/ / was duly adopted by the written consent of the shareholders or
members having not less than the minimum number of votes
required by statute in accordance with Section 407(1) and (2) of
the Act if a nonprofit corporation, or Section 407(1) of the Act
if a profit corporation. Written notice to shareholders who
have not consented in writing has been given. (Note: Written
consent by less than all of the shareholders or members is
permitted only if such provision appears in the Articles of
Incorporation.)
/ / was duly adopted by the written consent of all the shareholders
or members entitled to vote in accordance with section 407(3) of
the Act if a nonprofit corporation, or Section 407(2) of the Act
if a profit corporation.
Signed this 24th day of May, 1995
By /s/ Frank G. Logan, III
-----------------------------------------------
(Only Signature of President, Vice-President,
Chairperson, or Vice-Chairperson)
Frank G. Logan, III President
---------------------------------------------------
(Type or Print Name) (Type or Print Title)
<PAGE> 15
EXHIBIT A
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
NEMATRON CORPORATION
ARTICLE III
The total authorized capital stock is:
1. Common stock; 8,000,000 shares
2. A statement of all or any of the relative rights, preferences and
limitations of the shares of each class is as follows:
Subject to the preferences accorded the holders of any other class of
stock pursuant to these Articles of Incorporation or action of the Board of
Directors taken with respect to such preferences, holders of Common Stock are
entitled to receive such dividends as may be declared by the Board of Directors
of the corporation from time to time and, in the event of any liquidation,
dissolution or winding up of the corporation, the holders of Common Stock will
be entitled to receive pro rata all of the remaining assets of the corporation
available for distribution. Each issued and outstanding share of Common Stock
is entitled to one vote.
No holder of any shares of any class of stock of this corporation shall
have any preemptive or preferential right to subscribe for, or to purchase, any
part of a new or additional issue of stock or any other reacquired shares of
stock of any class whatsoever or of any securities convertible into stock of
any class whatsoever, whether now or hereafter authorized and whether issued
for cash or other consideration.
<PAGE> 16
096E#6951 0426 ORG&FI $9000.00
096E#6951 0426 ORG&FI $1512.50
- -------------------------------------------------------------------------------
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
- -------------------------------------------------------------------------------
Date Received / (FOR BUREAU USE ONLY)
APR 25 1996
Name
Marguerite M. Gritenas Dykema Gossett PLLC FILED
- ----------------------------------------------- APR 25 1996
Address Administrator
400 Renaissance Center MICHIGAN DEPARTMENT OF COMMERCE
- ----------------------------------------------- Corporation & Securities Bureau
City State Zip Code
Detroit Michigan 48243-1668 EFFECTIVE DATE:
- -----------------------------------------------
Document will be returned to the name and address you enter above
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC PROFIT CORPORATIONS
(Please read information and instructions on the last page)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), or Act 162, Public Acts of 1982 (nonprofit corporations), the
undersigned corporation executes the following Certificate:
- -------------------------------------------------------------------------------
1. The present name of the corporation is:
Nematron Corporation
2. The identification number assigned by the Bureau is: 333-652
3. The location of the registered office is:
5840 Interface Drive Ann Arbor , Michigan 48103
- ---------------------------------------- --------------
(Street Address) (City) (ZIP Code)
- -------------------------------------------------------------------------------
4. Article III of the Articles of Incorporation is hereby amended to read as
set forth on Exhibit A, attached hereto and made a part hereof.
<PAGE> 17
5. COMPLETE SECTION (a) IF THE AMENDMENT WAS ADOPTED BY THE UNANIMOUS CONSENT
OF THE INCORPORATOR(S) BEFORE THE FIRST MEETING OF THE BOARD OF DIRECTORS OR
TRUSTEES; OTHERWISE, COMPLETE SECTION (b). DO NOT COMPLETE BOTH.
a. / / The foregoing amendment to the Articles of Incorporation was duly
adopted on the ____ day of _________, 19__, in accordance with the
provisions of the Act by the unanimous consent of the incorporator(s)
before the first meeting of the Board of Directors or Trustees.
Signed this ____ day of _________, 19__.
---------------------------------- ----------------------------------
(Signature) (Signature)
---------------------------------- ----------------------------------
(Type or Print Name) (Type or Print Name)
---------------------------------- ----------------------------------
(Signature) (Signature)
---------------------------------- ----------------------------------
(Type or Print Name) (Type or Print Name)
b. /x/ The foregoing amendment to the Articles of Incorporation was duly
adopted on the 8th day of March, 1996. The amendment: (check one of
the following)
/x/ was duly adopted in accordance with Section 611(2) of the Act by
the vote of the shareholders if a profit corporation, or by the
vote of the shareholders or members if a nonprofit corporation,
or by the vote of the directors if a nonprofit corporation
organized on a nonstock directorship basis. The necessary votes
were cast in favor of the amendment.
/ / was duly adopted by the written consent of all directors
pursuant to Section 525 of the Act and the corporation is a
nonprofit corporation organized on a nonstock directorship
basis.
/ / was duly adopted by the written consent of the shareholders or
members having not less than the minimum number of votes
required by statute in accordance with Section 407(1) and (2) of
the Act if a nonprofit corporation, or Section 407(1) of the Act
if a profit corporation. Written notice to shareholders who
have not consented in writing has been given. (Note: Written
consent by less than all of the shareholders or members is
permitted only if such provision appears in the Articles of
Incorporation.)
/ / was duly adopted by the written consent of all the shareholders
or members entitled to vote in accordance with section 407(3) of
the Act if a nonprofit corporation, or Section 407(2) of the Act
if a profit corporation.
Signed this 26th day of March, 1996
By /s/ David P. Gienapp
---------------------------------------------------------
(Only Signature of President, Vice-President,
Chairperson, or Vice-Chairperson)
David P. Gienapp Vice President and Chief Financial Officer
------------------------------------------------------------
(Type or Print Name) (Type or Print Title)
<PAGE> 18
EXHIBIT A
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
NEMATRON CORPORATION
ARTICLE III
The total authorized capital stock is:
1. Common stock: 15,000,000 shares
2. A statement of all or any of the relative rights,
preferences and limitations of the shares of each class is
as follows:
Subject to the preferences accorded the holders of any other class of
stock pursuant to these Articles of Incorporation or action of the Board of
Directors taken with respect to such preference, holders of Common Stock are
entitled to receive such dividends as may be declared by the Board of Directors
of the corporation from time to time and, in the event of any liquidation,
dissolution or winding up of the corporation, the holders of Common Stock will
be entitled to receive pro rata all of the remaining assets of the corporation
available for distribution. Each issued and outstanding share of Common Stock
is entitled to one vote.
No holder of any shares of any class of stock of this corporation shall
have any preemptive or preferential right to subscribe for, or to purchase, any
part of a new or additional issue of stock or any other reacquired shares of
stock of any class whatsoever or of any securities convertible into stock of
any class whatsoever, whether now or hereafter authorized and whether issued
for cash or other consideration.
<PAGE> 1
EXHIBIT 11
NEMATRON CORPORATION
CALCULATION OF EARNINGS PER SHARE
THREE AND NINE MONTH PERIODS ENDED JUNE 30, 1996 AND 1995
<TABLE>
<CAPTION>
THREE MONTHS ENDED
JUNE 30
---------------------------------------
REF 1996 1995
---------------------- ---------------
<S> <C> <C> <C>
ASSUMPTIONS:
Weighted average common shares outstanding 3,372,683 2,563,934
Weighted average options and warrants outstanding 1,054,738 n/a
Number of options and warrants outstanding at end of period 1,062,375 n/a
20% of weighted average common shares outstanding 674,537
Number of common shares obtainable upon exercise of outstanding
options and warrants as a percentage of outstanding common
shares 31.27%
Average exercise price of options and warrants $3.49
Average market price of common stock during the period $8.90
COMPUTATIONS:
APPLICATION OF ASSUMED PROCEEDS:
Toward repurchase of outstanding common stock at average
market price, limited to 20% of outstanding shares,
or 674,537 shares (quarter) or 610,358 (nine months) in 1996 $3,708,397 n/a
Toward reduction of debt, if applicable 0
Computation not applicable in FY 1995; option prices exceed
average market price of common stock
---------
Total proceeds from exercise of options and warrants $3,708,397 n/a
========== =========
ADJUSTMENT OF NET INCOME:
-------- ---------
Actual net income A $103,458 $102,439
Interest reduction at 10.5% in FY 1996 0
--------- ---------
Interest reduction not applicable in FY 1995 n/a
Adjusted net income B $103,458 $102,439
======== ========
ADJUSTMENT OF SHARES OUTSTANDING:
Weighted average common shares outstanding C 3,372,683 2,563,934
Net additional shares (1,054,738 - 416,869) - Three months 637,869
Net additional shares (1,094,465 - 531,937) - Nine months
Net additional shares - not applicable in FY 1995 n/a
--------- ---------
Adjusted shares outstanding D 4,010,551 2,563,934
========= =========
EARNINGS PER SHARE:
Before adjustment A/C $0.031 $0.040
After adjustment B/D $0.026 n/a
Use for primary earnings per share for financial statements $0.03 $0.04
======== =========
<CAPTION>
NINE MONTHS ENDED
JUNE 30
-------------------------
1996 1995
---------- ----------
<S> <C> <C>
ASSUMPTIONS:
Weighted average common shares outstanding 3,051,788 2,024,028
Weighted average options and warrants outstanding 1,094,465 n/a
Number of options and warrants outstanding at end of period 1,062,375 n/a
20% of weighted average common shares outstanding 610,358
Number of common shares obtainable upon exercise of outstanding
options and warrants as a percentage of outstanding common
shares 35.86%
Average exercise price of options and warrants $3.35
Average market price of common stock during the period $6.97
COMPUTATIONS:
APPLICATION OF ASSUMED PROCEEDS:
Toward repurchase of outstanding common stock at average
market price, limited to 20% of outstanding shares,
or 674,537 shares (quarter) or 610,358 (nine months) in 1996 $3,708,397 n/a
Toward reduction of debt, if applicable 0
Computation not applicable in FY 1995; option prices exceed
average market price of common stock
---------
Total proceeds from exercise of options and warrants $3,708,397 n/a
========= =========
ADJUSTMENT OF NET INCOME:
Actual net income A $234,177 $137,564
Interest reduction at 10.5% in FY 1996 0
Interest reduction not applicable in FY 1995 n/a
--------- ---------
Adjusted net income B $234,177 $137,564
========= =========
ADJUSTMENT OF SHARES OUTSTANDING:
Weighted average common shares outstanding C 3,051,788 2,024,028
Net additional shares (1,054,738 - 416,869) - Three months
Net additional shares (1,094,465 - 531,937) - Nine months 562,528
Net additional shares - not applicable in FY 1995 n/a
--------- ---------
Adjusted shares outstanding 3,614,316 2,024,028
========= =========
EARNINGS PER SHARE:
Before adjustment A/C $0.077 $0.068
After adjustment B/D $0.065 n/a
Use for primary earnings per share for financial statements $0.06 $0.07
========= =========
</TABLE>
In fiscal 1995, the exercise price of options and warrants exceeded the average
market price of the Company's stock for all periods presented, so the options
and warrants are not considered in the earnings per share calculations.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1996
<PERIOD-END> JUN-30-1996
<CASH> 4,929,068
<SECURITIES> 0
<RECEIVABLES> 4,863,287
<ALLOWANCES> 136,000
<INVENTORY> 4,802,293
<CURRENT-ASSETS> 14,823,908
<PP&E> 3,029,388
<DEPRECIATION> 0
<TOTAL-ASSETS> 23,015,099
<CURRENT-LIABILITIES> 2,647,637
<BONDS> 3,639,327
0
0
<COMMON> 16,788,232
<OTHER-SE> (60,097)
<TOTAL-LIABILITY-AND-EQUITY> 23,015,099
<SALES> 15,214,514
<TOTAL-REVENUES> 15,214,514
<CGS> 8,607,220
<TOTAL-COSTS> 8,607,220
<OTHER-EXPENSES> 5,874,841
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 497,848
<INCOME-PRETAX> 234,177
<INCOME-TAX> 0
<INCOME-CONTINUING> 234,177
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 234,177
<EPS-PRIMARY> 0.03
<EPS-DILUTED> 0.03
</TABLE>
