SCHEDULE 14C
(RULE 14C-101)
Information Statement Pursuant to Section 14(c) of the Securities Exchange Act
of 1934
Check the appropriate box:
[ ] Preliminary Information Statement
[X] Definitive Information Statement
[ ] Confidential, for Use of the Commission Only
(as permitted by Rule 14c-5(d)(2))
ARMITEC, INC.
(Name of Registrant As Specified in Its Charter)
Payment of Filing Fee (Check the Appropriate Box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction
applies:
(2) Aggregate number of securities to which the 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.:
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(4) Date Filed:
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ARMITEC, INC.
4479 Atlanta Road
Smyrna, Georgia 30080
INFORMATION STATEMENT
PURSUANT TO SECTION 14
OF THE SECURITIES EXCHANGE ACT OF 1934
AND REGULATION 14C AND SCHEDULE 14C THEREUNDER
WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY
INTRODUCTION
This information statement has been mailed on or about July 10, 2002 to
the stockholders of record on April 23, 2002 of Armitec, Inc., a Delaware
corporation ("Armitec") in connection with certain actions to be taken by
Armitec pursuant to the written consent by a majority of the stockholders of
Armitec, dated April 23, 2002. The action to be taken pursuant to the written
consent will be taken on or about July 30, 2002. The principal executive offices
of Armitec are located at 4479 Atlanta Road, Smyrna, Georgia 30080. Armitec's
telephone number is (770) 432-8140.
THIS IS NOT A NOTICE OF A SPECIAL MEETING OF STOCKHOLDERS AND NO
STOCKHOLDER MEETING WILL BE HELD TO CONSIDER ANY MATTER
WHICH WILL BE DESCRIBED HEREIN.
/s/ Bruce R. Davis
------------------
President, CEO
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NOTICE OF ACTION TO BE TAKEN PURSUANT THE WRITTEN CONSENT OF
A MAJORITY OF THE STOCKHOLDERS IN LIEU OF A SPECIAL MEETING OF THE
STOCKHOLDERS ON OR ABOUT JULY 30, 2002
To Our Shareholders:
NOTICE IS HEREBY GIVEN that the following action will be taken pursuant
to the written consent of a majority of stockholders in lieu of a special
Meeting of the stockholders of Armitec, Inc. ("Armitec") on or about July 30,
2002:
The adoption of an amended and restated
Certificate of Incorporation of Armitec to,
among other things, increase the number of
authorized shares of common stock of Armitec
from 50,000,000 to 300,000,000 shares, and
to create a class of blank check preferred
stock, par value $.001, with 10,000,000
authorized shares.
By order of the
Board of Directors,
Bruce R. Davis
President, CEO
July 10, 2002
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OUTSTANDING SHARES AND VOTING RIGHTS
As of April 23, 2002, Armitec's authorized capitalization consists of
50,000,000 shares of common stock, par value $.00167 per share. As of April 23,
2002, there were 39,828,628 shares of common stock issued and outstanding, all
of which were fully paid, non-assessable and entitled to vote. Holders of common
stock of Armitec have no preemptive rights to acquire or subscribe to any of the
additional shares of common stock.
Each share of common stock entitles its holder to one vote on each
matter submitted to the stockholders. However, because stockholders holding at
least a majority of the common stock issued and outstanding as of April 23,
2002, have voted in favor of the following proposals by written consent dated
April 23, 2002, and having sufficient voting power to approve the adoption of
the amended and restated certificate of incorporation through their ownership of
Armitec's common stock, no other shareholder consents will be solicited in
connection with this Information Statement.
Pursuant to Rule 14C-2 under the Exchange Act, the proposals will not
be adopted until a date at least twenty (20) days after the date on which this
Information Statement has been mailed to Armitec's stockholders. As this
Information Statement is being sent to the beneficial owners of the common stock
on or about July 10, 2002, which is more than twenty (20) days before the
effective date of the adoption of the proposal, we anticipate that the actions
contemplated herein will be effected on or about the close of business on July
30, 2002.
Armitec has asked brokers and other custodians, nominees and
fiduciaries to forward this Information Statement to the beneficial owners of
the common stock held of record by such persons and will reimburse such persons
for out-of-pocket expenses incurred in forwarding such material.
This Information Statement will serve as written notice to stockholders
pursuant to Section 228 of the General Corporation Law of the State of Delaware.
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OWNERSHIP OF SECURITIES
The following table sets forth, as of April 23, 2002, the number of
shares of common stock of Armitec owned by (i) each person who is known by us to
own of record or beneficially five percent (5%) or more of Armitec's outstanding
shares, (ii) each director of Armitec, (iii) each of the executive officers, and
(iv) all directors and executive officers of Armitec as a group. The
stockholders listed in the table have sole voting and investment powers with
respect to the shares indicated. Except as otherwise indicated in the table, the
address of the stockholders listed below is that of the Company's principal
executive office. Directors not included in the table below do not hold Armitec
securities.
Number of Shares
Class of Name, Address and Title of Beneficially Owned
Security Stockholder (as of April 23, 2002) Percent
Common Stock Bruce R. Davis, President,
CEO and Chairman of the Board
17,640,785(1) 44.3%
Common Stock Sandra P. Davis, Secretary
and Director
17,640,785(2) 44.3%
Galt Capital Corporation
Common Stock 1295 West Garmon Road
Atlanta, GA 30327
17,640,785 44.3%
All Executive Officers and
Common Stock Directors as a group (2
persons) 17,640,785 44.3%
-----------------------
(1) Based on 17,640,785 shares of common stock owned by Galt Capital
Corporation. One hundred percent of the capital stock of Galt Capital
Corporation is owned by Sandra P. Davis, the wife of Bruce R. Davis.
(2) Based on 17,640,785 shares of common stock owned by Galt Capital
Corporation. One hundred percent of the capital stock of Galt Capital
Corporation is owned by Sandra P. Davis.
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APPROVAL REQUIRED
The approval of a majority of the outstanding stock entitled to vote is
necessary to approve the following proposals. However, as discussed above,
Armitec's Board of Directors has obtained the necessary approval for these
proposals from stockholders with voting authority or stock constituting in
excess of 50% of the total outstanding shares of Armitec's common stock entitled
to vote. As such, the Board of Directors does not intend to solicit any proxies
or consents from any other stockholders in connection with these actions.
AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF ARMITEC
Background
----------
On April 15, 2002, Armitec's Board of Directors unanimously authorized
an Amended and Restated Certificate of Incorporation that, among other things,
increases the number of authorized shares from 50,000,000 to 300,000,000 shares
of common stock, par value $.00167, and authorizes 10,000,000 shares of
preferred stock, par value $.001. The amendment was approved by a majority of
Armitec's stockholders on April 23, 2002.
A proposed form of the Amended and Restated Certificate of
Incorporation is included as Exhibit A to this Information Statement. A
Certificate in substantially the form of Exhibit A will be filed with the
Delaware Secretary of State on or about July 30, 2002.
The Amended and Restated Certificate of Incorporation was proposed to
the Board of Directors, and the Board of Directors has determined that the
adoption of the proposed amendments will be in the best interests of Armitec.
Reasons for the Authorized Actions
----------------------------------
The Board of Directors amended and restated the Certificate of
Incorporation of Armitec in order to consolidate the various amendments that
have been filed previously, and to comply with the terms and conditions of a
Convertible Note Purchase Agreement dated as of April 23, 2002, which Armitec
entered into with Stonestreet Limited Partnership. The Amended and Restated
Certificate of Incorporation completely supercedes the existing Certificate of
Incorporation, as amended.
Other than as set forth in this Information Statement, Armitec's
current Certificate of Incorporation and Bylaws do not presently contain
provisions having an anti-takeover effect. The amending and restating of the
Certificate of Incorporation is not part of a plan by management to adopt a
series of such amendments, and management does not presently intend to propose
other anti-takeover measures in future proxy solicitations.
Cumulative voting for members of the Board of Directors is not provided
pursuant to the current Certificate of Incorporation, the Bylaws or Delaware
corporate law.
The overall effect of the amendment and restatement of the Certificate
of Incorporation is to give the Board of Directors more flexibility to raise
capital for the operation of the business of Armitec, and to make more difficult
the accomplishment of mergers or acquisitions or the assumption of control by a
principal stockholder, and thus to make more difficult the removal of
management.
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Additionally, in connection with the Convertible Note Purchase
Agreement, Galt Capital Corporation agreed to pledge as security for the
conversion feature of the Convertible Note, all of its shares in Armitec. Upon
effectiveness of this Information Statement, the Security Agreement will
terminate and Stonestreet will release the shares of Armitec owned by Galt
Capital Corporation to Galt Capital Corporation. Accordingly, Sandra Davis, a
member of our Board of Directors and our Secretary and the owner of 100% of the
outstanding stock of Galt Capital Corporation, has an interest in the actions
described herein.
Other than as described above, the directors and executive do not have
any substantial interest in the matters to be acted upon.
The following is a summary comparison of the major changes to the
existing Certificate of Incorporation of Armitec. This summary does not purport
to be complete and is qualified in its entirety by reference to the Amended and
Restated Certificate of Incorporation attached as Exhibit A to this Information
Statement.
Proposed Amended
Subject Matter Current Certificate and Restated Certificate
of Change of Incorporation of Incorporation
1. Authorized Capital 50,000,000 shares of 310,000,000 total authorized
common stock, shares, consisting of
par value $.00167 300,000,000 shares of common
stock, par value $.00167,
and 10,000,000 shares of
preferred stock, par value
$.001.
Purpose: The Board of Directors believes that it is in the best interests of
Armitec to increase the number of authorized shares of common stock from
50,000,000 to 300,000,000 shares of common stock and to add 10,000,000 shares of
preferred stock, par value $.001, for among other reasons, to comply with an
agreement between Armitec and Stonestreet Limited Partnership ("Stonestreet").
As of April 23, 2002, Armitec had 39,828,628 shares issued and outstanding.
Under terms of its Convertible Note Purchase Agreement dated April 23, 2002,
with Stonestreet (the "Purchase Agreement"), Armitec agreed to reserve for
issuance 3,500,000 shares of common stock issuable upon exercise of outstanding
common stock purchase warrants and a sufficient number of shares for issuance
upon conversion of the Convertible Note. The Convertible Note is convertible
into our common stock at the lesser of $0.07 or 70% of our average per share
market value (as defined in the Convertible Note). Because of the floorless
conversion feature in the Convertible Note, the number of shares into which the
Convertible Note could be converted may exceed the current number of authorized
but unissued shares of Armitec. Presently, Armitec would have inadequate
authorized capital to issue shares upon exercise of all of the warrants and
conversion of the Convertible Note, which could result in a breach of the
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Purchase Agreement, Convertible Note and/or Warrant. Additionally, in the
Purchase Agreement with Stonestreet, Armitec agreed that it would increase the
number of authorized shares, and a breach of this agreement would have a
material adverse effect on Armitec. The Purchase Agreement provided working
capital for the growth of the business.
Furthermore, the increase in authorized shares will also benefit
Armitec by allowing for the continued equity financing of Armitec during its
development stage, as well as the issuance of shares of common stock as employee
compensation or through other strategic relationships or joint ventures with
other uniform manufacturing companies.
The newly authorized shares of common and preferred stock will be
issuable at any time and from time to time by action of the Board of Directors
without further authorization from Armitec's stockholders, except as otherwise
required by applicable law or rules and regulations to which Armitec may be
subject, to such persons and for such consideration (but not less than the par
value thereof) as the Board of Directors determines. Holders of common stock of
Armitec have no preemptive rights to acquire or subscribe to any of the
additional shares of common stock.
The terms of any preferred stock to be issued in the future, including
dividend or interest rates, conversion price, voting rights, redemption price,
maturity date and other terms shall be determined by the Board of Directors
without further authorization from Armitec's stockholders, except as otherwise
required by applicable law or rules and regulations to which Armitec may be
subject.
Effect: Issuance of additional common and preferred stock, directly or
upon exercise of warrants or options, if issued, has potentially dilutive
effects on each of the stockholders to the extent that any of the authorized but
unissued shares are subsequently issued. The issuance of such shares of common
or preferred stock (or even the potential issuance) may have a depressive effect
on the market price of Armitec's securities. Moreover, an increase in the number
of authorized shares would have a dilutive effect on the voting power of the
outstanding common stock of Armitec. The issuance of any of the additional
shares of common or preferred stock, or options to purchase shares at prices
below the current market price, would also have a dilutive effect on
stockholders' equity in Armitec and may thereby reduce their voting power and
reduce their rights to the net assets of Armitec upon dissolution.
This also is an anti-takeover measure. The Board of Directors has
exclusive discretion to issue preferred stock with rights that may trump those
of common stock. Preferred stock can delay or hinder a change in control of the
Board of Directors and management.
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2. Nature of the The provision of management, To engage in any lawful act
Business administrative and or activity for which
consulting services in the corporations may be
medical and dental fields, organized under the General
and to engage in any lawful Corporation Law of the State
act or activity for which of Delaware.
corporations may be
organized under the General
Corporation Law of the State
of Delaware.
Purpose: Armitec no longer provides management, administrative and consulting
services in the medical and dental fields.
Effect: No material change.
3. Insolvency A Delaware court having None.
jurisdiction may call a
meeting of creditors and/or
stockholders if Armitec
reaches a compromise with
its creditors and/or
stockholders upon its
insolvency. If creditors
and/or stockholders
representing three-fourths
in value of the creditors
and/or stockholders, as
applicable, agree to a
compromise and to a
reorganization of Armitec,
the compromise or
reorganization will be
binding on the creditors
and/or the stockholders and
Armitec if the court
approves the compromise or
reorganization.
Purpose: This provision is not required to be included in the Certificate of
Incorporation pursuant to the General Corporation Law of the State of Delaware.
Effect: Removal of this provision may eliminate the ability of Armitec, its
creditors and stockholders to petition the Delaware Court of Chancery to bind
all creditors and/or stockholders to a plan of reorganization which has been
approved by creditors and/or stockholders representing three-fourths in value of
the creditors and/or stockholders.
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4. Breach of Fiduciary None. A director of Armitec shall
Duty of Director not be liable to Armitec or
its stockholders for breach
of a fiduciary duty as a
director, to the fullest
extent permitted under
Delaware law.
Purpose: Protects the members of the Board of Directors from liability for
breach of fiduciary duty to the stockholders of Armitec.
Effect: Limits the liability of members of the Board of Directors for breach of
fiduciary duty. However, the General Corporation Law of the State of Delaware
does not allow the elimination or limitation of liability for breach of
fiduciary duty involving (i) breach of duty of loyalty to Armitec and its
stockholders, (ii) acts or omissions not made in good faith involving
intentional misconduct or knowing violation of the law, (iii) unlawful payment
of a dividend or unlawful stock purchase or redemption, (iv) any transaction in
which the director received an improper personal benefit, or (v) any act or
omission occurring prior to the date the provision becomes effective.
5. Indemnification Extends the right of Includes the right to be
indemnification to the heirs paid by Armitec for expenses
and personal representatives incurred in advance of the
of a person being final disposition of the
indemnified. proceeding.
Allows Armitec to purchase
insurance on behalf of
someone being indemnified.
The right of indemnification
does not exclude other
rights that a person being
indemnified may have.
All other indemnification rights are the same in the existing Certificate of
Incorporation and the Amended and Restated Certificate of Incorporation.
Purpose: Provides indemnification by Armitec to members of the Board of
Directors for lawsuits or other proceedings in which the member may be involved
because of his or her position as a member of the Board of Directors.
Effect: No material change because the General Corporation Law of the State of
Delaware (i) provides that the right of indemnification inures to the heirs,
executors and assigns of the person being indemnified, (ii) allows Armitec to
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pay for expenses incurred in advance of the final disposition of the proceeding,
(iii) allows Armitec to purchase insurance on behalf of someone being
indemnified., and (iv) provides that the right of indemnification does not
exclude other rights that a person being indemnified may have
6. Stockholder Action None. Stockholder action may be
by Written Consent. taken without a meeting if a
written consent is signed by
stockholders having voting
power to cast not less than
the minimum number of votes
necessary to authorize an
action at a meeting at which
all of the shares of Armitec
are present and voted.
Purpose: Allows an action to be taken by the stockholders by written consent in
lieu of calling a meeting of the stockholders.
Effect: There is no material change, as the General Corporation Law of the State
of Delaware allows stockholder action by written consent.
7. Number of Directors None. The number of directors
shall be at least two, the
exact number to be
determined from time to time
by the Board of Directors.
Purpose: To set the number of directors which may comprise the Board of
Directors.
Effect: Sets the number of directors to at least two members.
8. Term of Office of None. Each director shall hold
Directors office until the director's
successor is duly elected
and qualified or until the
director's earlier death,
resignation or removal.
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Purpose: To set the term of office of each member of the Board of Directors.
Effect: No material change, as the General Corporation Law of the State of
Delaware governs the term of members of the Board of Directors.
9. Vacancies on None. Vacancies on the Board of
Board of Directors Directors and newly created
directorships may be filled
solely by a majority of
directors then in office,
even if less than a quorum,
or by the sole remaining
director.
This provision is also
included in the Bylaws of
Armitec.
Purpose: To allow the remaining members of the Board of Directors to fill
vacancies on the Board of Directors created by resignation or removal of a
director, or an increase in the number of members of the Board of Directors.
Effect: Allows the directors to fill vacancies on the Board of Directors. This
provision provides the Board of Directors with the ability to maintain control
over its membership and prevent the removal of management. This provision also
allows the Board of Directors to maintain a sufficient number of members without
having to request a stockholder vote to fill vacancies.
Required Vote
The adoption of the above described Amended and Restated Certificate of
Incorporation requires the affirmative vote of not less than a majority of the
votes entitled to be cast by all shares of common stock issued and outstanding
on April 23, 2002. As discussed above, of majority stockholders have approved
the foregoing amendment.
No Right of Appraisal
---------------------
Under the General Corporation Law of the State of Delaware, the state
in which Armitec is incorporated, the increase in the number of authorized
shares and the creation of the preferred stock does not require Armitec to
provide dissenting stockholders with a right of appraisal and Armitec will not
provide stockholders with such right.
Where You Can Find More Information
-----------------------------------
Armitec is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and, in accordance therewith, files reports
and other information with the Securities and Exchange Commission (the "SEC").
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You can read and copy any materials that Armitec files with the SEC at the SEC's
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C., 20549. You
can obtain information about the operation of the SEC's Public Reference Room by
calling the SEC at 1-800-SEC-0330. The SEC also maintains a website that
contains information which Armitec files electronically with the SEC, which you
can access over the Internet at http://www.sec.gov. Copies of these materials
may also be obtained by mail from the Public Reference Section of the SEC, 450
Fifth Street, N.W., Washington, D.C., 20549 at prescribed rates.
ARMITEC, INC.
/s/ Bruce R. Davis
--------------------------
Bruce R. Davis, President
and Chief Executive Officer
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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARMITEC, INC.
ARTICLE I
NAME
The name of the Corporation is Armitec, Inc. (the "Corporation").
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 25 Greystone Manor, Lewes, Delaware 19958. The registered agent at
this address is the Harvard Business Services, Inc.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended (
"Delaware Law").
ARTICLE IV
CAPITAL STOCK
4.1 Authorized Capital Stock. The total number of shares of capital
stock of all classes which the Corporation has authority to issue is three
hundred ten million (310,000,000), three hundred million (300,000,000) shares of
which shall be Common Stock, par value $0.00167 per share, and ten million
(10,000,000) shares of which shall be Preferred Stock, par value $0.001 per
share.
4.2 Preferred Stock.
(a) The Preferred Stock may be issued at any time and from time to
time, in one or more classes or series. The Board of Directors is hereby
authorized to provide for the issuance of shares of Preferred Stock in series or
classes and, by filing a certificate of designation pursuant to the applicable
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provisions of the Delaware Law (hereinafter referred to as a "Preferred Stock
Certificate of Designation"), to establish from time to time the number of
shares to be included in each such series or class, and to fix the designation,
powers, preferences and relative, participating, optional or other rights of
shares of each such series or class and the qualifications, limitations and
restrictions thereof, if any.
(b) The authority of the Board of Directors with respect to each series
of Preferred Stock shall include, but not be limited to, determination of the
following:
(i) the designation of the series or class, which may be by
distinguishing number, letter or title;
(ii) the number of shares of the series or class, which number the
Board of Directors may thereafter (except where otherwise provided in the
applicable Preferred Stock Certificate of Designation) increase or decrease (but
not below the number of shares thereof then outstanding);
(iii) whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series or class;
(iv) whether dividends, if any, shall be payable in cash, in kind
or otherwise;
(v) the dates on which dividends, if any, shall be payable;
(vi) the redemption rights and price or prices, if any, for shares
of the series or class;
(vii) the terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series or class;
(viii) the amounts payable on shares of the series or class in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation;
(ix) whether the shares of the series or class shall be
convertible or exchangeable into shares of any other class or series, or any
other security, of the Corporation or any other corporation, and, if so, the
specification of such other class or series or such other security, the
conversion or exchange price or prices or rate or rates, any adjustments
thereof, the date or dates as of which such shares shall be convertible or
exchangeable and all other terms and conditions upon which such conversion or
exchange may be made;
(x) restrictions on the issuance of shares of the same series or
class or of any other class or series; and
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(xi) whether or not the holders of the shares of such series or
class shall have voting rights, in addition to the voting rights provided by
law, and if so, the terms of such voting rights, which may provide, among other
things and subject to the other provisions of this Certificate of Incorporation,
that each share of such series or class shall carry one vote or more or less
than one vote per share, that the holders of such series or class shall be
entitled to vote on certain matters as a separate class (which for such purpose
may be comprised solely of such series or class or of such series or class and
one or more other series or classes of stock of the Corporation) and that all
the shares of such series or class entitled to vote on a particular matter shall
be deemed to be voted on such matter in the manner that a specified portion of
the voting power of the shares of such series or class or separate class are
voted on such matter.
(c) The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof.
ARTICLE V
BOARD OF DIRECTORS; MANAGEMENT OF THE CORPORATION
The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for the
purpose of creating, defining, limiting and regulating the powers of the
Corporation and its directors and stockholders:
5.1 Management of Business.
(a) All corporate powers and authority of the Corporation (except
as at the time otherwise provided by law or by this Certificate of
Incorporation) shall be vested in and exercised by or under the direction of the
Board of Directors.
(b) The Board of Directors shall have the power without the assent
or vote of the stockholders to adopt, amend, alter or repeal the By-Laws of the
Corporation.
5.2 Number. The number of directors shall be at least two, the exact
number of directors to be determined from time to time solely by resolution
adopted by the affirmative vote of a majority of the entire Board of Directors.
5.3 Term of Office. Each director shall hold office until such
director's successor shall have been duly elected and qualified or until such
director's earlier death, resignation or removal.
5.4 Voting; Nomination. There shall be no cumulative voting in the
election of directors. Election of directors need not be by written ballot.
Advance notice of nominations for the election of directors shall be given in
the manner and to the extent provided in the By-laws of the Corporation.
5.5 Vacancies. Vacancies on the Board of Directors resulting from
death, resignation, removal or otherwise and newly created directorships
16
resulting from any increase in the number of directors may be filled solely by a
majority of the directors then in office (although less than a quorum) or by the
sole remaining director.
5.6 Liability. A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, to the fullest extent permitted by Delaware Law. Neither the
amendment nor repeal of Section 5.6 or 5.7, nor the adoption of any provision of
this Certificate of Incorporation or the By-laws of the Corporation, nor, to the
fullest extent permitted by Delaware Law, any modification of law, shall
eliminate or reduce the effect of Section 5.6 or 5.7 in respect of any acts or
omissions occurring prior to, and shall not adversely affect any right or
protection of a director of the Corporation existing prior to such amendment,
repeal, adoption or modification.
5.8 Indemnification. Each person (and the heirs, executors or
administrators of such person) who was or is a party or is threatened to be made
a party to, or is involved in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by Delaware Law. The right to indemnification conferred
in this Section 5.7 shall also include the right to be paid by the Corporation
the expenses incurred in connection with any such proceeding in advance of its
final disposition to the fullest extent authorized by Delaware Law. The right to
indemnification conferred in this Section 5.7 shall be a contract right.
The Corporation may, by action of its Board of Directors, provide
indemnification to such of the officers, employees and agents of the Corporation
to such extent and to such effect as the Board of Directors shall determine to
be appropriate and authorized by Delaware Law.
The Corporation shall have the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
The rights and authority conferred in this Section 5.7 shall not be
exclusive of any other right which any person may otherwise have or hereafter
acquire.
5.8 Stockholder Action by Written Consent. To the extent allowed by
law, any action that is required to be or may be taken at a meeting of the
stockholders of the corporation may be taken without a meeting if written
consent, setting forth the action, shall be signed by persons who would be
entitled to vote at a meeting those shares having voting power to cast not less
than the minimum number (or numbers, in the case of voting by classes) of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote were present and voted. Prompt notice shall be given
of the taking of corporate action without a meeting by less than unanimous
written consent to those stockholders on the record date whose shares were not
represented on the written consent.
17
ARTICLE VI
AMENDMENT
The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner now or hereafter
prescribed by the laws of the State of Delaware, and with the sole exception of
those rights and powers conferred under the above Sections 5.6 or 5.7, all
rights herein conferred upon stockholders or directors (in the present form of
this Certificate of Incorporation or as hereafter amended) are granted subject
to this reservation.
I, being the President and Chief Executive Officer, hereby sign this
Amended and Restated Certificate of Incorporation this _____ day of
________________, 2002.
ARMITEC, INC.
/s/ Bruce R. Davis
-------------------------------------
Bruce R. Davis
President and Chief Executive Officer