<PAGE> 1
UNITED STATES
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 OF 1934
APRIL 10, 1998
- --------------------------------------------------------------------------------
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED)
NATIONAL DIAGNOSTICS, INC.
- --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 0-24696 59-3248917
- --------------------------------------------------------------------------------
(STATE OR OTHER JURISDICTION (COMMISSION FILE (IRS EMPLOYER
OF INCORPORATION) NUMBER) IDENTIFICATION NO.)
755 WEST BRANDON BOULEVARD, BRANDON, FLORIDA 33511
- --------------------------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(813) 661-9501
- --------------------------------------------------------------------------------
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
NOT APPLICABLE
- --------------------------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS IF CHANGED SINCE LAST REPORT)
PAGE 1 OF 4
<PAGE> 2
ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
a) On March 17, 1998, National Diagnostics, Inc. ("NATD") entered into a
Stock Purchase Agreement by and between American Enterprise Solutions, Inc.
("AES"), headquartered in Tampa, Florida. On March 27, 1998, NATD issued,
pursuant to the Stock Purchase Agreement 500,000 shares of Series A Preferred
Stock of NATD in exchange for 8,000,000 shares of Common Stock of Halis, Inc.
(OTCBB:HLIS) valued at $2,000,000.
The Series A Preferred Stock has specific voting and conversion rights.
Each share of Preferred Stock has the right to cast 8 votes on any matter
brought before the shareholders for vote. The Preferred Shareholders, voting as
a separate class, have the right to elect 50% of the authorized number of
members of the Board of Directors. Each share of Preferred Stock may be at any
time converted into Common Stock of NATD at the rate of 44.11 shares of NATD
Common stock per share of Series A Preferred Stock.
On March 27, 1998 AES exercised its right to convert 131,185 shares of
Series A Preferred Stock for 5,786,570 shares of Common Stock of NATD. Prior
to conversion there were 3,098,430 shares of Common Stock outstanding. After
conversion AES holds 65% of the total 8,880,000 shares of Common Stock
outstanding.
AES, founded in September 1997, for the purpose of acquiring seasoned
and profitable high growth firms with operations and facilities to create
Community Healthcare Delivery Systems. These systems are designed to provide
comprehensive delivery of all healthcare services while electronically
interactively linking with AES's proprietary Internet/Intranet and virtual
network gateways that can link all of the healthcare industry's trading
partners, from patient/consumers/employees to the providers, payors, employers
and government agencies.
On March 30, 1997, the NATD Board of Directors filled its vacancies by
appointing Mr. Chuck Broes and Mr. Cardwell C. Nuckols, Ph.D as Directors.
Mr. Broes is Chief Executive Officer and Director of AES. Dr. Nuckols is
Executive Vice President and Director of AES.
On March 31, 1998, the Board of Directors appointed Mr. Broes as Chief
Executive Officer of NATD and Dr. Nuckols as Secretary.
b) On February 23, 1998, NATD entered into a definitive agreement to
merge with AES ("Merger Agreement"). Upon completion of the merger the Board
of Directors will consist of the then current Board of Directors of AES (a Form
8-K was filed on March 10, 1998, more fully describing the merger).
ITEM 7 EXHIBITS.
(c) Stock Purchase Agreement dated March 27, 1998 by and between National
Diagnostics, Inc., a Florida Corporation, and American Enterprise Solutions,
Inc., a Florida Corporation
2
<PAGE> 3
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.
April 10, 1998 NATIONAL DIAGNOSTICS, INC.
By: /s/ Curtis L. Alliston
--------------------------------
Curtis L. Alliston, President
3
<PAGE> 4
INDEX TO EXHIBITS
Exhibit
Number Description of Document
- ------- -----------------------
10.50 Stock Purchase Agreement dated March 17, 1998 by and between
National Diagnostics, Inc., a Florida Corporation, and
American Enterprise Solutions, Inc., a Florida Corporation.
4
<PAGE> 1
Exhibit 10.50
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), is entered into and
made effective as of this 17th day of March, 1998, by and between AMERICAN
ENTERPRISE SOLUTIONS, INC. ("AES" or the "Buyer"), a Florida corporation, whose
current address is 5313 Johns Road, Suite 201, Tampa, Florida 33634, and
NATIONAL DIAGNOSTICS, INC. ("NDI" or the "Seller"), a Florida corporation, whose
current address is 755 West Brandon Blvd., Brandon, Florida 33511
W I T N E S S E T H:
WHEREAS, the Seller desires to sell to the Buyer Five Hundred Thousand
(500,000) shares of the Series A Preferred Stock of NDI (the "Shares"), with
each such Share having, among other features, the specific features and
attributes set forth in Section 1.05 hereinbelow; and
WHEREAS, the Seller is free to register the Shares pursuant to and in
tandem with the Seller's next Registration Statement, if any, on the appropriate
form, to be filed with the Unites States Securities and Exchange Commission (the
"SEC"); and
WHEREAS, the Buyer desires to purchase and receive from the Seller, and
the Seller desires to sell, assign, transfer and deliver to the Buyer, all of
the Seller's right, title and interest in the Shares, under the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual premises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
ARTICLE 1
SALE AND PURCHASE OF INTEREST
1.01 Interest to be Sold, Transferred or Assigned by the Seller. On and
as of the date of the Closing contemplated by this Agreement (the "Closing
Date"), and under the terms and conditions of this Agreement, the Seller agrees
to sell, assign, transfer and deliver to the Buyer, and the Buyer agrees to
purchase and accept from the Seller, all of the Seller's right, title and
interest in the Shares.
1.02 No Liens, Encumbrances, Etc. The Shares shall be conveyed to the
Buyer free and clear of all liens, encumbrances, conditions, and restrictions of
any kind.
1.04 Liabilities to be Retained by the Seller. The Seller will be
obligated to pay, perform and discharge the debts, obligations and liabilities
of the Seller from:
(a) any and all liabilities of the Seller relating in any
way to its ownership of the Shares prior to the Closing Date;
<PAGE> 2
(b) all federal, state, local or other income taxes accrued
and owed by Seller in connection with its ownership of the Shares prior to the
Closing date.
1.05 Voting Rights and Conversion of Shares. The holder(s) of the
Shares shall have the right to cast eight (8) votes, for each Share so held, as
a separate class, on any matter or issue properly brought before the
shareholders of NDI, whether at a special or annual meeting or by proxy, and on
which the shareholders of NDI shall be required to vote.
With respect to the election of members of the Board of Directors of
NDI, the holder(s) of the Shares, voting as a separate class, shall have the
right to elect that number of directors which constitutes fifty percent (50%) of
the authorized number of members of the Board of Directors. If fifty percent
(50%) is not a whole number, then the holder(s) of the Shares, voting as a
separate class, shall be entitled to elect the nearest higher number of
directors.
The holder(s) of the Shares shall be entitled to vote, as a separate
class, on any and all matters and issues properly brought before the
shareholders of NDI, whether at a special or annual meeting or by proxy, and on
which the shareholders of NDI are required to vote. Furthermore, at least
sixty-six and two-thirds percent (66-2/3%) of the aggregate votes entitled to be
cast by the holder(s) of the Shares shall be required for the approval and
implementation of any corporate action upon which the shareholders of NDI are
required to vote.
The holders of the Shares may convert the Shares at any time into
shares of common stock of NDI in accordance with the conversion ratio set forth
in this Section 1.05. The consideration for such conversion of the Shares shall
be both a surrender of the Shares as well as a closing of the transactions
provided for in that certain Merger Agreement (the "Merger Agreement") dated
February 23, 1998, by and between the parties hereto. Concurrent with the
closing of the transactions provided for in the Merger Agreement, the Board of
Directors of NDI shall authorize the conversion of all or a portion of the Share
into shares of the common stock of NDI at the rate of 44.11 shares of NDI common
stock per Share of Series A Preferred Stock (based upon NDI's current number of
outstanding common shares, not to be adjusted for any changes to the same). Any
of the Shares of Series A Preferred Stock that are not converted into shares of
NDI common stock upon the closing of the transactions provided for in the Merger
Agreement shall continue to bear the right of conversion into shares of NDI
common stock at the rate of 44.11 shares of NDI common stock per Share of Series
A Preferred Stock (based upon NDI's current number of outstanding common shares,
not to be adjusted for any changes to the same).
ARTICLE 2
PURCHASE PRICE
2.01 Price. The purchase price ("Purchase Price") for the Shares shall
be as set forth in Exhibit A attached hereto.
2
<PAGE> 3
2.02 Manner of Payment. The Buyer will pay the Purchase Price to the
Seller as set forth in Exhibit A attached hereto.
ARTICLE 3
APPORTIONMENT OF EXPENSES AND INCOME
3.01 Accounting Apportionment. For accounting purposes, all loss and
income attributable to the Shares (determined on a cash basis) on or before
11:59 P.M. on the day before the Closing Date shall be for the account of the
Seller. Thereafter, such expense and income shall be for the account of the
Buyer.
3.02 Pro-Rated Apportionment. All apportionable items of loss and
income applicable to any period commencing before the Closing Date and
continuing after the Closing Date shall be prorated between the Seller and the
Buyer as set forth in Section 3.01 above.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER
The Seller represents, warrants and covenants to the Buyer as follows:
4.01 Seller's Title to Shares. The Seller has good, absolute and
marketable title to the Shares, free and clear of all liens, encumbrances,
conditions and restrictions of any kind. The Seller has the complete and
unrestricted right, power and authority to sell, transfer and assign the Shares.
The Board of Directors of the Seller has established and approved the voting
rights of four votes per Share, for a total of four million votes on the Shares
being sold to Buyer under this Agreement. The Seller has the authority to
transfer and deliver the Shares to the Buyer pursuant to this Agreement. The
Shares shall be validly issued and said Shares will be transferred to Buyer free
and clear of all liens, encumbrances, conditions and restrictions of any kind.
4.03 Approval of Sale. The execution, delivery and performance of this
Agreement are within the Seller's powers. The joinder of no person or entity
other than the Seller will be necessary to convey the Shares to the Buyer.
4.04 No Litigation or Adverse Events. To the Seller's knowledge, there
is no suit, claim, action or legal, administrative, arbitration, or other
proceeding or governmental investigation pending or threatened, by or against
the Seller which would prevent transfer of the Shares to the Buyer.
4.05 Accuracy of Documents. To the Seller's knowledge, all copies of
contracts, agreements, and documents heretofore delivered or hereafter to be
delivered by the Seller in connection with the transactions contemplated hereby
are or will be (as the case may be)
3
<PAGE> 4
complete and accurate in all material respects, and will not have been amended
or modified by any oral agreements.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BUYER
The Buyer represents and warrants to the Seller as follows:
5.01 No Breach of Statute or Contract. To the Buyer's knowledge, the
Buyer's execution, delivery and performance of this Agreement will not breach
any statute or regulation of any governmental authority, and will not conflict
with or result in a breach of or default under any of the terms, conditions or
provisions of any order, writ, injunction, decree, agreement or instrument to
which the Buyer is a party, or by which the Buyer is or may be bound.
5.02 Retention and Access to Records. The Buyer shall provide to the
Seller reasonable access to any records and information acquired by the Buyer
pursuant to the terms hereof, to enable the Seller (a) to perform any acts
reasonably related to the Seller's transfer of the Seller's interest in the
Shares; (b) to enable the Seller to carry out any and all of the Seller's
obligations pursuant to the requirements of law; and (c) to access such
information for any other reason which the Seller may reasonably request. The
Buyer agrees that the Buyer shall maintain all such records and information for
a period ending the fourth anniversary of the Closing Date.
5.03 NDI Disclosure Materials; Securities Representations. Buyer has
received and reviewed pertinent disclosure materials (financial and otherwise)
pertaining to NDI. Buyer (a) has such knowledge, sophistication and experience
in business and financial matters that make it capable of evaluating the merits
and risks of an investment in the Shares, (b) fully understands the nature,
scope and duration of the limitations on transfer of the Shares, and (c) can
bear the economic risk of any investment in the Shares and can afford a complete
loss of such investment. Buyer has had an adequate opportunity to ask questions
and receive answers (and has asked such questions and received answers to its
satisfaction) from the officers of NDI concerning the business, operations and
financial condition of NDI. Buyer does not have any contract, undertaking,
agreement or arrangement, written or oral, with any other person to transfer or
grant participation in any of the Shares except as provided for in that certain
Merger Agreement dated February 23, 1998 by and between the Buyer and the
Seller. Buyer acknowledges and agrees that NDI will not provide it with a
prospectus for its use in selling the Shares.
Notwithstanding any other provision of this Agreement, Buyer
represents, warrants and agrees that it will not (a) sell, assign, exchange,
transfer, encumber, pledge (if the sole recourse of the lender secured by the
pledge of such shares is to the pledged shares), distribute, appoint, or
otherwise dispose of (i) any of the Shares, or (ii) any interest (including
without limitation an option to buy or sell) in any such Shares, in whole or in
part, and no such attempted transfer shall be treated as effective for any
purpose; or (b) engage in any transaction with resect to any
4
<PAGE> 5
of the Shares, the intent or effect of which is to reduce the risk of owning
such Shares. (including without limitation engaging in put, call, short-sale,
straddle or similar market transactions) except in compliance with the
provisions of this Paragraph 5.03. The certificates evidencing the Shares will
bear a legend substantially in the form set forth below and containing such
other information as NDI amy deem necessary or appropriate.
THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED PURSUANT TO A
PRIVATE OFFERING EXEMPTION UNDER THE SECURITIES ACT OF 1933, AND CANNOT
BE SOLD, TRANSFERRED, ASSIGNED, OR OTHERWISE DISPOSED OF, AND THE
ISSUER SHALL NOT BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED SALE,
TRANSFER, ASSIGNMENT OR OTHER DISPOSITION, UNLESS SUCH SALE TRANSFER
ASSIGNMENT OR OTHER DISPOSITION IS EFFECTED IN COMPLIANCE WITH
PERTINENT REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND RULES
PROMULGATED THEREUNDER.
ARTICLE 6
CLOSING, POST-CLOSING
6.01 Closing. Closing shall take place on a date mutually agreeable to
the parties hereto. The parties hereto shall make every reasonable effort to
complete the Closing on or before March 31, 1998, unless the time of Closing is
extended through mutual written agreement of the parties.
6.02 The Seller's Deliveries. At the Closing, the Seller shall execute
and deliver to the Buyer or, as applicable, the Buyer shall have received from
the Seller:
(a) a duly executed stock power and stock certificate(s), in
form and content acceptable to the Buyer, selling, assigning or otherwise
transferring and delivering the Shares to the Buyer, free and clear of all
liens, encumbrances, conditions and restrictions.
6.03 The Buyer' Deliveries. At the Closing, the Buyer shall deliver to
the Seller, or, as applicable, the Seller shall have received from the Buyer:
(a) the full Purchase Price due at Closing for the Shares.
(b) an affidavit from the Buyer to the effect that all
representations and warranties of the Buyer set forth in Article 5 are true and
correct in all material respects as of the Closing Date and that all covenants
of the Buyer set forth herein have been duly performed by the Buyer in all
material respects.
(c) a copy of the Amendments to the Articles of Incorporation
of NDI attached hereto as Exhibit B, certified by the Florida Secretary of State
has having been filed.
5
<PAGE> 6
(d) within five (5) business days following the Closing, the
Board of Directors of Buyer to hold the appropriate corporate meeting and cause
the Buyer to adopt, certify and deliver to the Seller a corporate resolution
effectuating the indemnification of the Seller set forth in Section 7.03 hereof.
6.04 Post-Closing Deliveries. After the Closing, each party to this
Agreement shall, at the request of the other and without further consideration,
furnish, execute and deliver such documents, instruments, certificates, notices
of other further assurances as the requesting party shall reasonably request as
necessary or desirable to effect complete consummation of this Agreement and the
transaction contemplated hereby.
ARTICLE 7
INDEMNIFICATION
7.01 Indemnification of the Buyer by the Seller. The Seller shall
defend, indemnify and hold the Buyer and any of the Buyer's assigns, heirs,
agents and representatives harmless against, all damages, loss, costs or
expenses (including reasonable attorney's fees at all levels of trial or appeal
incurred in defending any claim for such damages, loss, costs or expenses)
incurred by the Buyer resulting from or in respect to:
(a) the Seller's breach of any of its representations,
warranties or covenants contained in this Agreement;
(b) any claim by a broker, agent or finder alleged to be
employed by, representing or otherwise involved with the Seller relating to this
transaction;
7.02 Indemnification of the Seller by the Buyer. The Buyer shall
defend, indemnify and hold the Seller and any of the Seller's assigns, heirs,
agents and representatives harmless against, all damages, loss, costs or
expenses (including reasonable attorney's fees at all levels of trial or appeal
incurred in defending any claim for such damages, loss, costs or expenses)
incurred by the Seller resulting from:
(a) the Buyer 's breach of any of its representations
warranties or covenants contained in this Agreement;
(b) any claim by a broker, agent or finder alleged to be
employed by, representing or otherwise involved with the Buyer relating to this
transaction;
7.05 Notice of Claims. In the event that any party hereunder shall
receive any written notice of any claim or proceeding against said party (the
"Indemnitee"), the Indemnitee shall give the party upon whom a claim could be
made under this Section 7 (the "Indemnitor") written notice of any such loss,
liability, claim, damage or expense, and the Indemnitor shall have the
6
<PAGE> 7
right to contest and defend any action brought against the Indemnitee based
thereon, and shall have the right to contest and defend any such action in the
name of the Indemnitee at the Indemnitor's own expense; provided, that if the
Indemnitor shall fail to notify the Indemnitee of the assumption of the defense
of any such action within ten (10) days of the giving of such notice by the
Indemnitee, then the Indemnitee shall have the right to take any such action as
it deems reasonable to defend, contest, settle or compromise any such action or
assessment and claim indemnification as provided herein. If the Indemnitor
defends any action for which indemnification is claimed, the Indemnitee shall be
entitled to participate at its own expense in the defense of such action;
provided, however, that the Indemnitor shall bear the fees and expenses of the
Indemnitee's counsel if (i) the employment of such counsel is specifically
authorized in writing by the Indemnitor, or (ii) the named parties to such
action include both the Indemnitor and the Indemnitee, and there exists a
conflict of interest between such parties which renders it inappropriate for
counsel selected by the Indemnitor to represent both of such parties. The
Indemnitor shall not be liable for any settlement of any claim, action or
proceeding affected without its written consent, except as expressly provided in
the first sentence of this Section 7. Failure of the Indemnitee to notify the
Indemnitor of any such claim for which it is entitled to indemnity hereunder
shall not impair, limit or affect the indemnification provided for herein so
long as the ability of the Indemnitor to contest, defend or dispute such claim
has not been materially and adversely affected.
ARTICLE 8
NOTICES
All notices, requests, demands and other communications provided for
hereunder or required hereby shall be in writing and will be deemed to have been
duly given if personally delivered, or when transmitted by facsimile with
confirmation of receipt from the other party, or when received if mailed by the
United States First-Class Certified or Registered Mail, postage pre-paid, with
return receipt requested and marked delivered or refused, or via an overnight
delivery service (such as Federal Express) with proof of delivery or refusal of
delivery, to the other parties at the following addresses (or at such other
address as to which the parties hereto have been notified as provided herein):
if to Seller: National Diagnostics, Inc.
755 West Brandon Blvd.
Brandon, Florida 33511
Attention: Mr. Curtis L. Alliston
7
<PAGE> 8
if to Buyer: American Enterprise Solutions, Inc.
5313 Johns Road
Suite 201
Tampa, Florida 33634
Attention: Mr. Charles Broes
Notices by mail shall be deemed to have been given on the date on which the
party actually received or refused such written notice.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.01 Assignment. No party hereto may assign its rights or obligations
under this Agreement without the written consent of the other party hereto.
9.02 Modification. There are no other agreements, promises, or
undertakings between the parties hereto with respect to the Shares except as
specifically set forth herein. No alterations, changes, modifications or
amendments shall be made to this Agreement except in writing and signed or
initialed by the parties hereto.
9.03 Severability. If any provision or paragraph of this Agreement is
deemed to be unlawful or unenforceable by any court, administrative agency or
statute, law or ordinance, the said provision or paragraph shall be severed from
the Agreement without affecting the enforceability of the remainder of the
Agreement. The parties shall make a good faith effort to redraft the severed
provision or paragraph consistent with the parties' original intention but in
such a way as to be lawful and enforceable.
9.04 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns, and is applicable to the
heirs and legal representatives, of the parties hereto.
9.05 Survivability. The covenants, representations and warranties of
the respective parties hereto shall survive the Closing. No performance or
execution of this Agreement in whole or in part by any party hereto, no course
of dealing between or among the parties hereto or any delay or failure on the
part of any party in exercising any rights hereunder or at law or in equity, and
no investigation by any party hereto shall operate as a waiver of any rights of
such party, except to the extent expressly waived in writing by such party.
9.06 Florida Contract. This Agreement shall be deemed a Florida
contract and shall be construed in accordance with the laws of the State of
Florida, regardless of whether or not this Agreement is being executed by any of
the parties hereto in other states or otherwise.
8
<PAGE> 9
9.07 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original.
9.08 Compliance Dates. In the event that any date specified in this
Agreement shall be on a Saturday, Sunday or nationally declared holiday, then
the date so specified shall be deemed to be the next business day following such
date, and compliance by such business day hereunder shall not be deemed a
default by any of the parties under this Agreement.
9.09 Headings. The headings of each section or subsection in this
Agreement are for convenience of reference only, and shall in no manner or way
whatsoever affect the interpretation or meaning of such section or subsection.
9.10 Entire Agreement. This constitutes the entire Agreement between
the parties relating to the subject hereof, and prior agreements pertaining
thereto, whether oral or written, have been merged and integrated into this
Agreement.
9.11 Exhibits. The Exhibits attached hereto, together with all
documents incorporated by reference herein, form an integral part of this
Agreement and are hereby incorporated herein wherever reference is made to them,
to the same extent as if they were set out in full at the point at which such
reference is made.
IN WITNESS WHEREOF, the parties have executed this Agreement this 17th
day of March, 1998.
SELLER: BUYER:
NATIONAL DIAGNOSTICS, INC. AMERICAN ENTERPRISE SOLUTIONS, INC.
By: /s/ Curtis L. Alliston By: /s/ Charles Broes
-------------------------- ---------------------------------
Name: Curtis L. Alliston Name: Charles Broes
Title: President and C.O.O. Title: Chief Executive Officer
9
<PAGE> 10
EXHIBIT A
PURCHASE PRICE AND MANNER OF PAYMENT
The Purchase Price and manner of payment for the Shares shall be as
follows:
The Seller shall receive, from the Buyer, Two Million Dollars
in cash, assets and credit underwriting to maintain the
Seller's financial stability.
10
<PAGE> 11
EXHIBIT B
NATIONAL DIAGNOSTICS, INC.
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
Pursuant to and in compliance with the requirements of Section
607.0602, Florida Statutes, National Diagnostics, Inc., a corporation organized
and existing under the laws of the State of Florida (the "Corporation"), hereby
adopts the following amendments to the Corporation's Articles of Incorporation.
Section 1 of Article Third of the Corporation's Articles of Incorporation is
amended to read as follows:
Section 1. Preferred Shares.
(a) The distinctive designation of the Preferred Shares shall be
"Series A Preferred Stock." The aggregate number of shares of
Series A Preferred Stock shall be one million (1,000,000). The
Series A Preferred Stock shall have no par value.
(b) Commencing on the date of purchase of shares of Series A
Preferred Stock, the holders of such shares shall be entitled
to receive dividends, but not exceeding $0.10 per share, when
and as declared by the Board of Directors, out of funds of the
Corporation at the time legally available for the declaration
of dividends. Such dividends may be payable at such intervals
as the Board of Directors may from time to time determine and
shall not be cumulative. As such, no right shall accrue to the
holders of shares of the Series A Preferred Stock by reason of
the
11
<PAGE> 12
fact that dividends on such shares are not, or have not been,
declared in any prior period.
(c) The "Liquidation Price" of each share of Series A Preferred
Stock shall be $4.00 per share. In the event of any
liquidation, dissolution or winding up of the Corporation,
either voluntarily or involuntarily, the holders of each share
of Series A Preferred Stock shall be entitled to be paid an
amount equal to the Liquidation Price of $4.00 per share.
(d) In the event that the Corporation authorizes the redemption of
all or any of the shares of Series A Preferred Stock, the
"Redemption Price" for each share properly redeemed in
accordance with any terms and conditions specified by the
Corporation shall be $4.30 per share. Any share of Series A
Preferred Stock so redeemed shall be permanently canceled and
retired from the records of the Corporation and shall not be
reissued.
(e) At the election and option of the Board of Directors, a
sinking fund for the retirement of the Series A Preferred
Stock may be created out of net earnings of the Corporation,
if and when such earnings are deemed to be sufficient to allow
for such a sinking fund. The sinking fund, if created, shall
not be depleted in any way except for the retirement or
redemption of the Series A Preferred Stock; but until so used,
any sums to the credit of the sinking fund may be employed in
the business of the Corporation.
(f) (i) The holder(s) of the shares of Series A Preferred
Stock shall have the right to cast eight (8) votes,
for each share so held, as a separate class on
12
<PAGE> 13
any matter or issue properly brought before the
shareholders of the Corporation, whether at a special
or annual meeting or by proxy, and on which the
shareholders of the Corporation shall be required to
vote.
(ii) With respect to the election of members of the Board
of Directors of the Corporation, the holder(s) of
the shares of Series A Preferred Stock, voting as a
separate class, shall have the right to elect that
number of directors which constitutes fifty percent
(50%) of the authorized number of members of the
Board of Directors. If fifty percent (50%) is not a
whole number, then the holder(s) of the shares of
Series A Preferred Stock voting, as a separate
class, shall be entitled to elect the nearest higher
number of directors.
(iii) The holder(s) of the shares of Series A Preferred
Stock shall be entitled to vote, as a separate class,
on any and all matters and issues properly brought
before the shareholders of the Corporation, whether
at a special or annual meeting or by proxy, and on
which the shareholders of the Corporation are
required to vote. Furthermore, at least sixty-six and
two- thirds percent (66 2/3%) of the aggregate votes
entitled to be cast by the holder(s) of the shares of
Series A Preferred Stock shall be required for the
approval and implementation of any corporate action
upon which the shareholders of the Corporation are
required to vote.
13
<PAGE> 14
(g) The holders of the shares of Series A Preferred Stock may
convert those shares at any time into shares of the Common
Stock of the Corporation at the ratio of 44.11 shares of
Common Stock per share of Series A Preferred Stock. The
consideration for such conversion of the shares of Series A
Preferred Stock shall be both a surrender of the shares of
Series A Preferred Stock as well as a closing of the
transactions provided for in that certain Merger Agreement
(the "Merger Agreement") dated February 23, 1998, by and
between the Corporation and American Enterprise Solutions,
Inc., a Florida corporation. Concurrent with the closing of
the transactions provided for in the Merger Agreement, the
Board of Directors of the Corporation shall authorize the
conversion of all or a portion of the shares of Series A
Preferred Stock into shares of the Common Stock of the
Corporation at the rate of 44.11 shares of Common Stock per
shares of Series A Preferred Stock (based upon the
Corporation's current number of outstanding common shares, not
to be adjusted for any changes to the same). Any of the shares
of Series A Preferred Stock that are not converted into shares
of the Corporation's Common Stock upon the closing of the
transactions provided for in the Merger Agreement shall
continue to bear the right of conversion into shares of the
Corporation's Common Stock at the rate of 44.11 shares of the
Corporation's Common Stock per share of Series A Preferred
Stock (based upon the Corporation's current number of
outstanding common shares, not to be adjusted for any changes
to the same).
14
<PAGE> 15
The foregoing amendments to the Corporation's Articles of Incorporation
were duly approved and adopted by the Board of Directors of the Corporation on
March 17, 1998. Pursuant to the provisions of Section 607.0602(4), Florida
Statutes, shareholder approval is not required for the effectiveness of the
foregoing amendments.
IN WITNESS WHEREOF, National Diagnostics, Inc. has caused these
Articles of Amendment to its Articles of Incorporation to be executed by its
President and Chief Operating Officer on this 17th day of March, 1998.
NATIONAL DIAGNOSTICS, INC.
By: /s/ Curtis L. Alliston
---------------------------------
Name: Curtis L. Alliston
Title: President and
Chief Operating Officer
15
