SCHEDULE 14-A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. __)
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, For Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
n-Vision, Inc.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11
1) Title of each class of securities to which transaction applies:
....................................................................
2) Aggregate number of securities to which transaction applies:
....................................................................
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was determined):
....................................................................
4) Proposed maximum aggregate value of transaction:
....................................................................
5) Total fee paid:
....................................................................
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
...........................
2) Form, Schedule or Registration Statement No.:
...........................
3) Filing Party:
...........................
4) Date Filed:
...........................
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N-VISION, INC.
7680 OLD SPRINGHOUSE ROAD
MADISON BUILDING, FIRST FLOOR
MCLEAN, VIRGINIA 22102
October 19, 1998
Dear Stockholder:
You are cordially invited to attend the Special Meeting of Stockholders
(the "Meeting") of n-Vision, Inc. (the "Corporation"), which will be held on
Monday, November 9, 1998, at 10:00 a.m., at 7680 Old Springhouse Road, Madison
Bldg., First Floor, McLean, Virginia 22102.
The attached notice of the special meeting and proxy statement describe
the formal business to be transacted at the meeting. Directors and officers of
the Corporation will be present at the Meeting to respond to any questions that
our stockholders may have.
The Board of Directors of the Corporation has determined that the matters
to be considered at the Special Meeting are in the best interests of the
Corporation and its stockholders. For the reasons set forth in the proxy
statement, the Board unanimously recommends a vote "FOR" the matters to be
considered.
PLEASE SIGN AND RETURN THE ENCLOSED PROXY PROMPTLY. YOUR COOPERATION IS
APPRECIATED SINCE A MAJORITY OF THE COMMON STOCK MUST BE REPRESENTED, EITHER IN
PERSON OR BY PROXY, TO CONSTITUTE A QUORUM FOR THE CONDUCT OF BUSINESS.
On behalf of the Board of Directors and all of the employees of the
Corporation, I wish to thank you for your continued support. We appreciate your
interest.
Sincerely yours,
/s/ Delmar J. Lewis
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Delmar J. Lewis
CHAIRMAN OF THE BOARD OF DIRECTORS
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n-Vision, Inc.
7680 Old Springhouse Road
Madison Bldg., First Floor
McLean, Virginia 22102
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NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To be held on November 9, 1998
----------------
NOTICE IS HEREBY GIVEN that a Special Meeting of the Stockholders of
n-Vision, Inc., a Delaware corporation (the "Corporation"), will be held at
n-Vision, Inc.'s corporate headquarters, 7680 Old Springhouse Road, Madison
Building, First Floor, McLean, VA 22102, on November 9, 1998, at 10:00 a.m.,
Eastern Time, for the following purpose:
1. To consider and vote on the adoption and approval of the amendment
and restatement of the Corporation's Certificate of Incorporation, which will
effect a one-for-two reverse stock split of the issued and outstanding shares of
the Common Stock, par value $0.01 per share, of the Corporation; and
To transact such other business as may be properly brought before the
Special Meeting or any adjournment or adjournments thereof.
The foregoing items of business are more fully described in the Proxy
Statement accompanying this Notice. Any stockholders of record at the close of
business on October 8, 1998, will be entitled to vote at the Special Meeting and
at any adjournment thereof. In the event that there are not sufficient votes for
a quorum or to approve or ratify the foregoing proposal at the time of the
Special Meeting, the Special Meeting may be adjourned in order to permit further
solicitation of proxies by the Corporation. The transfer books will not be
closed. A list of stockholders entitled to vote at the Special Meeting will be
available for inspection at the offices of the Corporation. If you do not plan
to attend the Special Meeting in person, please sign, date and return the
enclosed proxy in the envelope provided. If you decide to attend the
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Special Meeting, you may revoke the proxy at any time before it is voted. The
prompt return of your proxy will assist us in preparing for the Special Meeting.
By Order of the Board of Directors
/s/ Christopher J. Lewis
____________________________
Christopher J. Lewis
Secretary
McLean, Virginia
October 19, 1998
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7680 Old Springhouse Road
Madison Bldg., First Floor
McLean, Virginia 22102
SPECIAL MEETING OF STOCKHOLDERS
November 9, 1998
PROXY STATEMENT
This Proxy Statement is furnished in connection with the solicitation
by the Board of Directors of n-Vision, Inc. (the "Corporation") of proxies to be
used at the Special Meeting of Stockholders of the Corporation to be held at
n-Vision, Inc.'s corporate headquarters, 7680 Old Springhouse Road, Madison
Building, First Floor, McLean, VA 22102, on November 9, 1998, at 10:00 a.m.,
Eastern Time, and at any adjournment or adjournments thereof.
It is anticipated that this Proxy Statement and the accompanying Proxy
Form will first be sent to stockholders on or about October 19, 1998. Only
holders of record of shares of Common Stock, $0.01 par value ("Common Stock"),
of the Corporation at the close of business on October 8, 1998 will be entitled
to notice of and to vote at the Special Meeting or any adjournment or
adjournments thereof.
Voting and Revocability of Proxies
Any stockholder who executes and returns the enclosed Proxy Form may
revoke it at any time before it is voted by giving written notice to the
Secretary of the Corporation, no later than the start of the Special Meeting, or
by voting in person at the Special Meeting. Unless so revoked, the shares
represented by the Proxy Form will be voted in accordance with the instructions
specified therein at the Special Meeting, if the Proxy Form is properly executed
and is received in time for voting. If no instructions are specified, the shares
represented by the Proxy Form will be voted FOR the Proposal.
The Board of Directors knows of no additional matters that will be
presented for consideration at the Special Meeting. Execution of a proxy,
however, confers on the designated proxyholders discretionary authority to vote
the shares in accordance with their
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best judgment on such other business, if any, that may properly come before the
Special Meeting or any adjournments thereof.
All proxies not voted will not be counted toward establishing a quorum
for the transaction of business at the Special Meeting. Stockholders should
note that while votes to ABSTAIN will count toward establishing a quorum,
passage of any proposal considered at the Special Meeting will occur only if a
sufficient number of votes are cast FOR the proposal. Accordingly, votes to
ABSTAIN and votes AGAINST will have the same effect in determining whether the
proposal is approved. If a broker or other record holder indicates on a Proxy
Form that it does not have authority as to certain shares to vote on a
particular matter, those shares will not be considered as present and entitled
to vote with respect to that matter. Except as otherwise required by law or by
the Corporation's Certificate of Incorporation, all matters will be determined
by a majority of the shares represented at the Special Meeting.
Proxies solicited hereby will be returned to the Corporation, and will
be tabulated by inspectors of election designated by the Board, who will neither
be employed by nor be a director of the Corporation or any of its affiliates.
Solicitation of Proxies
The Corporation will bear the entire cost of preparing, assembling, and
mailing the Proxy Statement, the Proxy Form and any additional material
furnished to the stockholders in connection with the Special Meeting. Further
solicitation of proxies may be made by telephone or in person by officers,
Directors and regular employees of the Corporation.
VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF
As of October 8, 1998, the record date for the Special Meeting, the
total number of outstanding shares of Common Stock entitled to vote at the
Special Meeting is _________. Stockholders are entitled to one (1) vote for each
share of Common Stock. A majority of the issued and outstanding shares of Common
Stock present at the Special Meeting in person or by proxy constitutes a quorum
for the transaction of business at the Special Meeting. In the event that there
are not sufficient votes for a quorum or to approve or ratify any proposal at
the time of
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the Special Meeting, the Special Meeting may be adjourned in order to permit the
further solicitation of proxies.
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth, as of October 8, 1998, the record date
for the Special Meeting, the number of shares and percentage of outstanding
Common Stock beneficially owned by (i) each person known to the Corporation to
be the beneficial owner of more than five percent (5%) of the Corporation's
outstanding Common Stock, (ii) each Director and Nominee for the Board of
Directors, (iii) each executive officer of the Corporation, and (iv) all
Directors and executive officers of the Corporation as a group.
<TABLE>
<CAPTION>
Name and Address of Amount and Nature of
Title of Class Beneficial Owner Beneficial Ownership(1) Percent of Class(2)
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<S><C>
Common Stock Delmar J. Lewis _________(3) _____
Director and Officer
7680 Old Springhouse Road
Madison Bldg., First Floor
McLean, Virginia 22102
Common Stock Christopher J. Lewis _________ _____
Director and Officer
7680 Old Springhouse Road
Madison Bldg., First Floor
McLean, Virginia 22102
Common Stock Harry Katrivanos _________ _____
Acting Officer
7680 Old Springhouse Road
Madison Bldg., First Floor
McLean, Virginia 22102
Common Stock Claude H. Rumsey, Jr. _________(3) _____
Director
7680 Old Springhouse Road
Madison Bldg., First Floor
McLean, Virginia 22102
Common Stock Ronald C. Wilgenbusch _________ _____
Director
7680 Old Springhouse Road
Madison Bldg., First Floor
McLean, Virginia 22102
Common Stock All directors, nominees and _________(3) _____
executive officers as a group
(5 persons)
</TABLE>
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(1) Unless otherwise indicated, each person has sole voting and
investment power with respect to the shares beneficially owned.
(2) Calculated on the basis of _________ shares of the Corporation's
Common Stock outstanding on October 8, 1998.
(3) Includes [200,000] shares beneficially owned by Advanced Technology
Systems, Inc., of which Messrs. Delmar J. Lewis and Rumsey are the majority
stockholders.
PROPOSALS TO BE VOTED ON AT THE SPECIAL MEETING
PROPOSAL - AMENDMENT AND RESTATEMENT OF THE CORPORATION'S CERTIFICATE
OF INCORPORATION TO EFFECT A ONE-FOR-TWO
REVERSE STOCK SPLIT OF THE CORPORATION'S
ISSUED AND OUTSTANDING COMMON STOCK
Introduction
The Board has approved an amendment and restatement of the
Corporation's Certificate of Incorporation to effect a reverse stock split,
pursuant to which each two shares of Common Stock of the Corporation will become
one share of Common Stock (the "Reverse Split"). The stockholders are being
asked to approve this proposed amendment and restatement. The Reverse Split will
take effect, if at all, after it is approved by the stockholders of the
Corporation and after filing the amendment and restatement with the Secretary of
State of the State of Delaware (the "Effective Date"). Even if the Reverse Split
is approved by the stockholders it is within the discretion of the Board of
Directors not to carry out the Reverse Split.
Purpose of Reverse Split
The Corporation was recently informed by the Nasdaq Stock Market
("Nasdaq") that the Corporation's stock price was not in compliance with the
minimum per share price requirement for stock traded on Nasdaq. The Corporation
will become in compliance if its stock trades at or above the minimum trading
price of $1.00 for at least ten consecutive trading days. If the Corporation
does not meet this requirement, Nasdaq will issue a delisting letter, at which
time the Corporation may request a hearing to appeal the delisting.
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If the Corporation's securities are delisted from Nasdaq, trading, if
any, of the Corporation's securities would thereafter have to be conducted in
the non-Nasdaq over-the-counter market. In such event, an investor could find it
more difficult to dispose of, or to obtain accurate quotations as to the market
value of, the Corporation's securities. In addition, if the Common Stock were to
become delisted from trading on Nasdaq and the trading price of the Common Stock
were to remain below $5.00 per share, trading in the Corporation's Common Stock
would also be subject to the requirements of certain rules promulgated under the
Securities Exchange Act of 1934, as amended, which require additional disclosure
by broker-dealers in connection with any trades involving a stock defined as a
penny stock (generally, any non-Nasdaq equity security that has a market price
of less than $5.00 per share, subject to certain exceptions). The additional
burdens imposed upon broker-dealers by such requirements could discourage
broker-dealers from effecting transactions in the Common Stock, which could
severely limit the market liquidity of the Common Stock and the ability of
investors to trade the Corporation's Common Stock. The Corporation believes
that, if the Reverse Split is approved, there is a greater likelihood that the
minimum bid price of the Common Stock will be maintained at a level over $1.00
per share.
Even though a reverse stock split, by itself, does not impact a
corporation's assets or prospects, reverse stock splits can result in a decrease
in the aggregate market value of a corporation's equity capital. The Board of
Directors, however, believes that this risk is off-set by the prospect that the
Reverse Split will improve the likelihood that the Corporation will be able to
maintain its Nasdaq SmallCap Market listing and may, by increasing the per share
price, make an investment in the Common Stock more attractive for certain
investors. There can be no assurance, however, that approval of the Reverse
Split will succeed in raising the bid price of the Corporation's Common Stock
above $1.00 per share, that such minimum price, if achieved, would be
maintained, or that even if the Nasdaq's minimum bid price requirements were
satisfied, the Corporation's Common Stock would not be delisted by the Nasdaq
for other reasons.
As a result of the Reverse Split, the _________ shares of Common Stock
outstanding on October 8, 1998 will become approximately _________ shares of
Common Stock and any other
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shares issued prior to the Effective Date will be similarly adjusted. In
addition, on the Effective Date each option and warrant to purchase Common Stock
and any other convertible security, outstanding on the Effective Date will be
adjusted so that the number of shares of Common Stock issuable upon their
exercise shall be divided by two (and corresponding adjustments will be made to
the number of shares vested under each outstanding option) and the exercise
price of each option and warrant shall be multiplied by two. No fractional
shares will be issued upon the Reverse Split. In lieu thereof, the Corporation
will pay each holder of a fractional interest an amount in cash equal to the
value of such fractional interest as described below.
The Reverse Split will have the effect of creating additional
authorized and unreserved shares of the Corporation's Common Stock. The
Corporation has no current plans to issue such shares. As of October 8, 1998,
the Corporation had [25,000,000] authorized shares of Common Stock of which
[_________] were issued and outstanding. An aggregate of _________ shares were
issued under the Corporation's Stock Option Plan, or for exercise of options
issued under such Plans. As of October 8, 1998, _________ shares of the
Corporation's Common Stock remained unissued and unreserved.
There can be no assurance that the market price of the Common Stock
after the Reverse Split will be equal to the market price before the Reverse
Split multiplied by the split number, or that the market price following the
Reverse Split will either exceed or remain in excess of the current market
price.
Exchange of Stock Certificates
If the Reverse Split is approved by the Corporation's stockholders, the
Corporation will instruct its transfer agent to act as its exchange agent (the
"Exchange Agent") in implementing the exchange of certificates representing
outstanding Common Stock. As soon as practicable after the Effective Date,
holders of Common Stock will be notified and requested to surrender their
certificates representing shares of Common Stock to the Exchange Agent in
exchange for certificates representing post-reverse split Common Stock.
Beginning on the Effective Date, each certificate representing shares of the
Corporation's Common Stock will be deemed for all corporate purposes to evidence
ownership of as many shares of post-reverse split Common Stock
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after applying the split factor and otherwise making adjustments for fractional
shares as described below.
Fractional Shares
No fractional shares of Common Stock will be issued as a result of the
Reverse Split. In lieu of receiving fractional shares, stockholders who hold a
number of shares not evenly divisible immediately prior to the Reverse Split
will be entitled to receive a cash payment (without interest) determined by
multiplying two times such fractional share of Common Stock by the average of
the bid and asked price per share of Common Stock as quoted on Nasdaq for the
five trading days immediately preceding the Effective Date.
Federal Income Tax Consequences of the Reverse Split
The following is a summary of the material U.S. federal income tax
consequences of the Reverse Split to a U.S. citizen or individual resident in
the U.S. for federal income tax purposes, a corporation or partnership organized
under the laws of the U.S. or a state of the U.S., a trust in which one or more
U.S. persons have the authority to control all substantial decisions of the
trust and a U.S. court is able to exercise primary supervision over the
administration of the trust, or an estate subject to U.S. federal income tax on
all of its income regardless of source (each, a "U.S. Holder"). The discussion
is based on the provisions of the U.S. federal income tax law as of the date
hereof, which is subject to change retroactively as well as prospectively. The
discussion is for general information only and does not purport to address all
relevant concerns to a U.S. Holder. In addition, it does not discuss any state,
local, foreign or alternative minimum income or other U.S. federal tax
consequences.
THE FOLLOWING DISCUSSION IS NOT TAX ADVICE. EACH STOCKHOLDER SHOULD CONSULT WITH
HIS OR HER OWN TAX ADVISOR WITH RESPECT TO THE CONSEQUENCES OF THE REVERSE
SPLIT.
No gain or loss should be recognized by a stockholder of the
Corporation upon his or her exchange of shares of Common Stock pursuant to the
Reverse Split (except to the extent of any cash received in lieu of fractional
shares of post-reverse split Common Stock). Cash payments in lieu of fractional
shares should be treated as if the fractional shares were issued to the
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stockholder and then redeemed by the Corporation for cash. A stockholder
receiving such payment should recognize gain or loss equal to the difference, if
any, between the amount of cash received and the stockholder's basis in the
fractional share.
The holding period of the shares of post-reverse split Common Stock
will include the stockholders' respective holding periods for the shares of
pre-reverse split Common Stock exchanged therefor, provided that the shares of
Common Stock were held as a capital asset. The adjusted basis of the shares of
post-reverse split Common Stock (including any fractional shares thereof) will
be the same as the adjusted basis of the Common Stock exchanged therefor.
Accounting Effects of the Reverse Split
Following the Effective Date, the par value of the Corporation's Common
Stock will remain at $0.01 per share. As a result, the Corporation's stated
capital will be reduced and capital in excess of par value (paid-in capital)
increased accordingly. [Stockholders' equity will remain unchanged.]
No Dissenter's Rights
Under Delaware law, stockholders are not entitled to dissenter's rights
of appraisal with respect to the Reverse Split.
Miscellaneous
The Board of Directors may abandon the Reverse Split at any time before
or after the Special Meeting and prior to the filing of the amended and restated
Certificate of Incorporation related thereto with the Delaware Secretary of
State if for any reason the Board of Directors deems it advisable to do so.
Approval Required
Approval of the Proposal requires the affirmative vote of a majority
votes cast by holders of Common Stock present in person or by proxy and entitled
to vote at the Special Meeting, a quorum being present.
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Recommendation of the Board
THE BOARD RECOMMENDS A VOTE FOR APPROVAL OF THE PROPOSED AMENDMENT AND
RESTATEMENT OF THE CERTIFICATE OF INCORPORATION EFFECTING A REVERSE COMMON STOCK
SPLIT.
OTHER MATTERS
At the date of this Proxy Statement the Corporation does not know of
any business to be presented for consideration at the Special Meeting other than
stated in the Notice of this Meeting. It is intended, however, that the persons
authorized by Management to hold proxies solicited by this Proxy Statement may,
in the absence of instruction to the contrary, vote or act in accordance with
their best judgment with respect to any other proposal presented for action at
this Special Meeting.
BY ORDER OF THE BOARD OF DIRECTORS
/s/ Christopher J. Lewis
_______________________________
Christopher J. Lewis
Secretary
October 19, 1998
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[FRONT SIDE]
REVOCABLE PROXY
N-VISION, INC.
SPECIAL MEETING OF STOCKHOLDERS
November 9, 1998
10:00 a.m. Eastern Time
The undersigned hereby appoints Christopher J. Lewis and Claude H.
Rumsey, each with full power of substitution, to act as attorneys and proxies
for the undersigned, and to vote all shares of Common Stock of the Corporation
which the undersigned is entitled to vote only at the Special Meeting of
Stockholders, to be held on November 9, 1998, at 10:00 a.m. Eastern Time, at
7680 Old Springhouse Road, Madison Bldg., First Floor, McLean, Virginia 22102,
and at any and all adjournments thereof, as follows:
The adoption and approval of an amendment and restatement of
the Corporation's Certificate of Incorporation to effect a
one-for-two reverse stock split of the issued and outstanding
shares of the Common Stock, par value $0.01 per share, of the
Corporation.
FOR AGAINST ABSTAIN
--- ------- -------
[ ] [ ] [ ]
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR"
THE LISTED PROPOSAL.
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[BACK SIDE]
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
This proxy is revocable and will be voted as directed, but if no
instructions are specified, this proxy will be voted FOR the proposal listed. If
any other business is presented at the Special Meeting, including whether or not
to adjourn the meeting, this proxy will be voted by those named in this proxy in
their best judgment. At the present time, the Board of Directors knows of no
other business to be presented at the Special Meeting.
The undersigned acknowledges receipt from the Corporation prior to the
execution of this proxy of a Notice of Special Meeting of Stockholders and of a
Proxy Statement dated October 19, 1998, relating to this meeting.
Please sign exactly as your name appears on this card. When signing as attorney,
executor, administrator, trustee or guardian, please give your full title. If
shares are held jointly, each holder may sign but only one signature is
required.
Dated: ______________________________
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SIGNATURE OF STOCKHOLDER
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SIGNATURE OF STOCKHOLDER
--------------------------------
PLEASE COMPLETE, DATE, SIGN AND MAIL THIS PROXY PROMPTLY
IN THE ENCLOSED POSTAGE-PAID ENVELOPE
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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
N-VISION, INC.
N-VISION, INC., (the "Corporation"), organized and existing under and by
virtue of the Delaware General Corporation Law, the original Certificate of
Incorporation of which was filed on September 16, 1994, under the name n-Vision,
Inc., with the Secretary of State of Delaware,
DOES HEREBY CERTIFY:
1. That the Board of Directors of said corporation, by unanimous written consent
of its members, filed with the minutes of the Board and adopted, in accordance
with the provisions of Sections 242 and 245 of the General Corporation Law of
the State of Delaware, the Amended and Restated Certificate of Incorporation as
set forth below.
2. Holders of a majority of the outstanding common stock of said corporation
entitled to vote thereon adopted the Amended and Restated Certificate of
Incorporation at a special meeting of stockholders of the Corporation in
accordance with the provisions of Section 242 and 245 of the General Corporation
Law of the State of Delaware.
3. Pursuant to Section 242 and 245 of the General Corporation Law of the State
of Delaware, this Amended and Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Certificate of Incorporation
of the Corporation.
4. The text of the Amended and Restated Certificate of Incorporation is hereby
restated and further amended to read in its entirety as follows:
FIRST: The name of the corporation is n-Vision, Inc. (the
"Corporation").
SECOND: The location of the Registered Office of the Corporation in the
State of Delaware is at 1209 Orange Street, City of Wilmington, County of New
Castle. The name and address of its Registered Agent in the State of Delaware is
the Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801.
THIRD: The purpose for which the Corporation is organized is to engage
in any lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is Twenty-five Million (25,000,000)
shares of voting common stock, having a par value of One Cent ($0.01) per share
(the "Common Stock"). Shares of Common Stock of the Corporation may be issued
for such consideration and for such corporate purposes as the Board of Directors
of the Corporation may from time to time determine by resolution.
EVERY TWO ISSUED AND OUTSTANDING SHARES OF COMMON STOCK OF THE
CORPORATION SHALL, UPON THE FILING DATE OF THIS AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION, AUTOMATICALLY BE COMBINED INTO ONE ISSUED AND OUTSTANDING
SHARE OF COMMON STOCK; PROVIDED, HOWEVER, THAT FRACTIONAL SHARES OF COMMON STOCK
SHALL RECEIVE IN LIEU THEREOF A CASH PAYMENT FROM THE CORPORATION DETERMINED BY
MULTIPLYING TWO TIMES SUCH FRACTIONAL SHARE OF COMMON STOCK BY THE AVERAGE OF
THE BID AND ASKED PRICE PER SHARE OF COMMON STOCK AS QUOTED ON NASDAQ FOR THE
FIVE TRADING DAYS IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION.
Each share of issued capital stock of the Corporation shall bear such
transfer restrictions as may be set forth in the Bylaws of the Corporation or in
any agreement entered into by the Corporation and its stockholders.
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FIFTH: The Corporation is to have perpetual existence.
SIXTH: The Board of Directors of the Corporation shall have the power to
make, alter and repeal the Bylaws of the Corporation, subject to the reserved
power of the stockholders to make, alter and repeal Bylaws.
SEVENTH: Unless otherwise provided in the Bylaws of the Corporation,
elections of directors need not be by written ballot.
EIGHTH: Each person who at any time is or shall have been a director or
officer of the Corporation, and who is threatened to be or is made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is, or
was, a director or officer of the Corporation or served at the request of the
Corporation as a director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified by the Corporation against, and may be advanced, the expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any such action, suit
or proceeding to the fullest extent provided under Section 145 of the General
Corporation Law of the State of Delaware, as the same shall be amended or
supplemented from time to time, or any successor statute. The foregoing right of
advancement and indemnification shall in no way be exclusive of any rights of
advancement or indemnification, or any other rights, to which such director,
officer, employee or agent may be entitled under any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in their
official capacities and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director or
officer, and shall inure to the benefit of the heirs, executors and
administrators of such a person.
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of
Delaware, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal benefit.
If the General Corporation Law of Delaware 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 provided herein, shall be limited to the
fullest extent permitted by the amended General Corporation Law of Delaware at
that time in force. Any repeal or modification of this paragraph by the
stockholders shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
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NINTH: A director may hold any office of profit in the Corporation in
conjunction with the office of director, and may enter into contracts or
arrangements or have dealings with the Corporation, and shall not be
disqualified from the office of director thereby, nor shall he be liable to
account to the Corporation for any profit arising out of any such contracts,
arrangements or dealings to which he is a party or in which he is interested by
reason of his being at the same time a director of the Corporation, regardless
of whether he is present at or participates in the meeting of the Board of
Directors, or a committee thereof, which authorizes any such contract or
transaction, or whether his vote is counted for such purpose, provided that (i)
the material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof, or the stockholders.
TENTH: Any and all right, title, interest and claim in or to any
dividends declared by the Corporation, whether in cash, stock or otherwise,
which are unclaimed by the stockholder entitled thereto for a period of six
years after the close of business on the payment date, shall be and is deemed to
be extinguished and abandoned, and such unclaimed dividends in the possession of
the Corporation, its transfer agents or other agents or depositories shall at
such time become the absolute property of the Corporation, free and clear of any
and all claims of any person whatsoever.
ELEVENTH: Whenever the vote of the stockholders at a meeting thereof is
required or permitted to be taken for or in connection with any corporate
action, in lieu of holding a stockholders' meeting, such action may be taken
without a meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the actions so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted.
TWELFTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THIRTEENTH: The Board of Directors shall be fixed as set forth in the
Bylaws of the Corporation.
IN WITNESS WHEREOF, n-Vision, Inc. has caused this Amended and Restated
Certificate of Incorporation, which restates and integrates and amends the
provisions of the Certificate of Incorporation and which has been duly adopted
by the Board of Directors of the Corporation and approved by the stockholders of
the Corporation in accordance with the provisions of Section 242 and 245 of the
General Corporation Law of the State of Delaware, to be executed and attested by
its duly authorized officers this __ day of November, 1998.
n-Vision, Inc.
By: /s/ Delmar J. Lewis
_____________________
Delmar J. Lewis
Chairman and
Chief Executive Officer
