DYNASIL CORPORATION OF AMERICA
385 Cooper Road
West Berlin, New Jersey 08091-9145
(856) 767-4600
NOTICE OF
ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD AT 11:00 AM,
ON FEBRUARY 5, 2008
To the Shareholders of Dynasil Corporation of America:
The annual meeting of shareholders of Dynasil Corporation of
America (the "Company"), a New Jersey corporation, will be
held at the corporate headquarters of the Company located at
385 Cooper Road, West Berlin, NJ, 08091 on February 5, 2008
beginning at 11:00 A.M. local time. At the meeting,
shareholders will act upon the following matters:
(1) Election of three (3) Directors, each for a term of one
year;
(2) To reincorporate the Company as a Delaware Corporation;
(2) Ratification of appointment of Haefele, Flanagan & Co.,
p.c., as the Company's independent accountants for
fiscal 2007; and
(4) Any other matters that properly come before the meeting.
Shareholders of record at the close of business on December
3, 2007 are entitled to vote at the meeting or any
postponement or adjournment.
The accompanying form of proxy is solicited by the Board of
Directors of the Company.
Shareholders (whether they own one or many shares and
whether they expect to attend the annual meeting or not) are
requested to vote, sign, date and promptly return the
accompanying proxy in the enclosed self-addressed stamped
envelope. A proxy may be revoked at any time prior to its
exercise (a) by notifying the secretary of the Company in
writing, (b) by delivering a duly executed proxy bearing a
later date, (c) or by attending the annual meeting and
voting in person.
By order of the Board of Directors:
Patricia L. Johnson,
Corporate Secretary
January 2, 2008
West Berlin, New Jersey
DYNASIL CORPORATION OF AMERICA
385 Cooper Road
West Berlin, New Jersey 08091-9145
(856) 767-4600
PROXY STATEMENT
This Proxy Statement contains information related to the annual
meeting of shareholders of Dynasil Corporation of America (the
"Company"), to be held on Tuesday, February 5, 2008, at 11:00 A.M.,
local time, at the corporate headquarters of the Company, 385 Cooper
Road, West Berlin, New Jersey, and at any adjournment or adjournments
thereof.
ABOUT THE MEETING
What is the purpose of the annual meeting?
At the Company's annual meeting, shareholders will act upon the
matters outlined in the accompanying notice of meeting, including the
election of directors, a proposal to reincorporate the Company in
Delaware and ratification of the Company's independent auditors. In
addition, the Company's management will report on the performance of
the Company during fiscal year 2007 and respond to questions from
shareholders.
Who is entitled to vote?
Shareholders of record at the close of business on the record
date, December 3, 2007, are entitled to receive notice of the annual
meeting and to vote the shares of common stock that they held on that
date at the meeting, or any postponement or adjournment of the meeting.
Each outstanding share entitles its holder to cast one vote on each
matter to be voted upon.
Who can attend the meeting?
All shareholders as of the record date, or their duly appointed
proxies, may attend the meeting.
Please note that if you hold your shares in "street name" (that
is, through a broker or other nominee), you will need to bring a copy
of a brokerage statement or similar document or record reflecting your
stock ownership as of the record date and check in at the registration
desk at the meeting.
What constitutes a quorum?
The presence at the meeting, in person or by proxy, of the holders
of a majority of the shares of common stock outstanding on the record
date will constitute a quorum, permitting the meeting to conduct its
business. As of the record date, 6,118,497 shares of common stock of
the Company were outstanding. Proxies received but marked as
abstentions and broker non-votes will be included in the calculation of
the number of shares considered to be present at the meeting.
How do I vote?
If you complete and properly sign the accompanying proxy card and
return it to the Company, it will be voted as you direct. If you are a
registered shareholder and attend the meeting, you may deliver your
completed proxy card in person. "Street name" shareholders who wish to
vote at the meeting will need to obtain a proxy form from the
institution that holds their shares.
Can I change my vote after I return my proxy card?
Yes. Even after you have submitted your proxy, you may change your
vote at any time before the proxy is exercised by filing with the
Secretary of the Company either a notice of revocation or a duly
executed proxy bearing a later date. The powers of the proxy holders
will be suspended if you attend the meeting in person and so request,
although attendance at the meeting will not by itself revoke a
previously granted proxy.
What are the board's recommendations?
Unless you give other instructions on your proxy card, the persons
named as proxy holders on the proxy card will vote in accordance with
the recommendations of the Board of Directors. The Board's
recommendation is set forth together with the description of each item
in this proxy statement. In summary, the Board recommends a vote:
- for election of the nominated slate of directors (see page
3);
- to reincorporate the Company as a Delaware corporation (see
page 9); and
- for ratification of the appointment of Haefele, Flanagan & Co.,
p.c., as the Company's independent auditors (see page 16).
With respect to any other matter that properly comes before the
meeting, the proxy holders will vote as recommended by the Board of
Directors or, if no recommendation is given, in their own discretion.
What vote is required to approve each item?
Election of directors. The affirmative vote of a majority of the
votes cast at the meeting is required for the election of directors. A
properly executed proxy marked "WITHHOLD AUTHORITY" with respect to the
election of one or more directors will not be voted with respect to the
director or directors indicated, although it will be counted for
purposes of determining whether there is a quorum. Accordingly, a
"WITHHOLD AUTHORITY" will have the effect of a negative vote.
Reincorporation in Delaware. The affirmative vote of a majority of
the votes cast at the meeting is required to authorize the Company's
reincorporation in Delaware. A properly executed proxy marked "ABSTAIN"
with respect to the reincorporation proposal will not be voted,
although it will be counted for purposes of determining whether there
is a quorum. Accordingly, an abstention will have the effect of a
negative vote.
Other items. For each other item, the affirmative vote of the
holders of a majority of the shares represented in person or by proxy
and entitled to vote on the item will be required for approval. A
properly executed proxy marked "ABSTAIN" with respect to any such
matter will not be voted, although it will be counted for purposes of
determining whether there is a quorum. Accordingly, an abstention will
have the effect of a negative vote.
If you hold your shares in "street name" through a broker or other
nominee, your broker or nominee may not be permitted to exercise voting
discretion with respect to some of the matters to be acted upon. Thus,
if you do not give your broker or nominee specific instructions, your
shares may not be voted on those matters and will not be counted in
determining the number of shares necessary for approval. Shares
represented by such "broker non-votes" will, however, be counted in
determining whether there is a quorum.
STOCK OWNERSHIP
Who are the largest owners of the Company's stock?
As of December 3, 2007, Mr. Craig Dunham, President, CEO and a
Director of the Company, owned 44.5% of the outstanding shares of the
common stock of the Company (including unexercised warrants and
convertible preferred stock), Saltzman Partners owned or controlled
4.0% of the outstanding shares of common stock of the Company; and
James Saltzman, Chairman of the Board of Directors of the Company,
owned 5.3% of the outstanding shares of the Company (including options
and convertible preferred stock). See the table and notes below.
How many shares of stock do the Company's directors and executive
officers own?
The following table and notes set forth the beneficial ownership
of the common stock of the Company as of December 3, 2007, by each
person who was known by the Company to beneficially own more than 5% of
the common stock, by each director and executive officer who owns
shares of common stock and by all directors and executive officers as a
group:
Title Name and Address No. of Shares and Percent
of Of Beneficial Owner nature of of
Class Beneficial Class
Ownership(1)
------ ------------------------- ------------------ -------
Common Craig Dunham (1) (4) 3,095,194 44.5%
Common Saltzman Partners (2) 243,206 4.0%
Common James Saltzman (1) (2) (3) 331,962 5.3%
Common Laura Lunardo 152,531 2.5%
Common Cecil Ursprung (1)(5) 85,164 1.4%
Common Megan Shay (1) (6) 79,800 1.3%
Common Bruce Leonetti (1) 8,254 0.1%
All Officers and Directors 3,752,905 52.2%
as a Group (1)
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(1)The numbers and percentages shown include shares of common stock
issuable to the identified person pursuant to stock options that may be
exercised within 60 days. In calculating the percentage of ownership,
such shares are deemed to be outstanding for the purpose of computing
the percentage of shares of common stock owned by such person, but are
not deemed to be outstanding for the purpose of computing the
percentage of share of common stock owned by any other stockholders.
The number of shares outstanding on December 3, 2007 was 6,118,497.
(2)James Saltzman disclaims beneficial ownership of the 243,206 shares
owned by Saltzman Partners.
(3)Includes options to purchase 90,000 shares of the Company's common
stock at $1.50 per share and options to purchase 40,000 shares of the
Company's common stock at $0.40 per share.
(4)Includes warrants to purchase 613,627 shares of the Company's common
stock at an exercise price of $0.225 per share and Series B preferred
stock which is convertible to 230,755 shares of common stock.
(5)Includes options to purchase 80,000 shares of the Company's stock at
$2.00 per share.
(6)Includes Series B preferred stock which is convertible to 79,800
shares of common stock.
ITEM 1
ELECTION OF DIRECTORS
Three (3) directors will be elected to hold office subject to the
provisions of the Company's by-laws until the next Annual Meeting of
Shareholders, and until their respective successors are duly elected
and qualified. The vote of a majority of the votes entitled to be cast
by shareholders present in person or by proxy, is required to elect
members of the Board of Directors. The following table sets forth the
name, age, position with the Company and respective director service
dates of each person who has been nominated to be a director of the
Company:
Positions(s)
Name Age With the Company Director Since
------------------ --- ----------------------- ---------------
Mr. James Saltzman 64 Chairman of the Board 1998
Mr. Craig Dunham 51 President, CEO, Director 2004
Mr. Cecil Ursprung 63 Director 2007
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THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE NOMINEES LISTED
HEREIN.
Business Experience of the Directors
Craig T. Dunham, 51, President and CEO, has been with the Company
since October 1, 2004 when he replaced John Kane as a Director. Prior
to joining the Company, he spent about one year partnering with a
private equity group to pursue acquisitions of mid-market manufacturing
companies. From 2000 to 2003, he was Vice President/ General Manager
of the Tubular Division at Kimble Glass Incorporated. From 1979 to
2000, he held progressively increasing leadership responsibilities at
Corning Incorporated in manufacturing, engineering, commercial, and
general management positions. At Corning, he delivered results in
various glass and ceramics businesses including optics and photonics
businesses. Mr. Dunham earned a B.S. in mechanical engineering and an
M.B.A. from Cornell University.
James Saltzman, Chairman, 64, has been a member of the Board since
February 1998. Mr. Saltzman has been involved in the investment
community since October 1969. He has invested in both public and
private corporations. He was on the Board of Directors of IMCS
Partmaker which was recently sold to Delcam, a public corporation
specializing in software for the machine tool industry. From January
1997 to June 2000, Mr. Saltzman served as Vice Chairman of the Board
and a director of Madison Monroe, Inc., a private company engaged in
investments.
Cecil Ursprung, 63, has been a member of the Board since February
1, 2007. Mr. Ursprung is the former Executive Chairman and CEO of
Reflexite Corporation, in Avon, Connecticut, a manufacturer of
reflective products to enhance safety and optical films used to manage
light in LCD displays. He has been with Reflexite since 1983 and led
the revenue growth of that company from $2.5 million to approximately
$100 million. His past experience includes marketing and management
positions with Marketing Displays, Inc., Container Corporation of
America and Anheuser Busch. He is currently on the Board of Directors
of Lewis Tree Service in Rochester, New York. He is a frequent speaker
on topics such as business strategy development, employee motivation,
business ethics, executive compensation, employee ownership and the
effective use of outside boards. His education includes a degree in
Economics and Finance from Baylor University, an MBA from Washington
University in St. Louis and postgraduate work at the University of
Michigan.
The Board held eight scheduled meetings in fiscal 2007. All
Directors attended all meetings during fiscal year 2007. .
How are directors compensated?
Directors Compensation. Members of the Board have the option to
split their compensation between the Company's common stock and cash.
Stock payments are made at the end of each quarter based on the ending
market price for that quarter. Fiscal year 2007 compensation for
serving on the Board is: Chairman of the Board, $1,250 per month and
all other non-employee directors, $1,000 per month. In addition, all
reasonable expenses incurred in attending meetings are reimbursed by
the Company and Directors are eligible for stock options and grants.
Effective October 1, 2007, Director compensation has been increased to:
Chairman of the Board, $1,500 per month and all other non-employee
directors, $1,250 per month.
Directors Compensation For Fiscal Year Ending September 30, 2007
Fees earned or
Paid in Stock Option All other
Name cash($) awards($) awards($) compensation($) Total ($)
James Saltzman 15,000 15,000
Cecil
Ursprung(1) 8,000 11,366 19,366
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David Manzi 4,000 4,000
(1) Mr. Ursprung elected to receive 100% of his Directors fees in stock
which was issued at each quarter ending market price which ranged from
$1.27 to $1.75 per share. A total of 5164 shares were issued with a
value of $8,000 and an average price per share of $1.55 per share. Mr.
Ursprung was issued 80,000 stock options on December 19, 2006 which
were contingent upon his election as a Director. The most recent
market price was $1.53, the option price is $2.00 per share, the
options have a three year exercise period, and were valued at $11,366.
What committees has the Board established?
Compensation Committee. The Compensation Committee is responsible
for negotiating and approving salaries and employment agreements with
officers of the Company. The committee consists of both outside
directors.
Audit Committee. The Audit Committee consists of both outside
directors. The Audit Committee is responsible for reviewing reports of
the Company's financial results, audits, internal controls, and
adherence to its Business Conduct Guidelines in compliance with federal
procurement laws and regulations. The Audit Committee recommends to
the Board of Directors the selection of the Company's outside auditors
and reviews their procedures for ensuring their independence with
respect to the services performed for the Company.
The Audit Committee is composed of outside directors who are not
officers or employees of the Company. In the opinion of the Board,
these directors are independent of management and free of any
relationship that would interfere with their exercise of independent
judgment as members of this committee.
The Board of Directors approved and adopted a formal written Audit
Committee Charter on March 5, 2001. This Charter was adopted in
accordance with listing standards promulgated by the National
Association of Securities Dealers ("NASD"). The Charter was filed with
the Securities and Exchange Commission as an exhibit to the Company's
Annual Report on Form 10-KSB for the year ended September 30, 2001.
The Company does not have the financial, managerial or management
resources to have an Audit Committee "financial expert".
REPORT OF THE AUDIT COMMITTEE OF DYNASIL CORPORATION OF AMERICA
December 14, 2007
To the Board of Directors of Dynasil Corporation of America:
We have reviewed and discussed with management the Company's
audited consolidated financial statements as of and for the fiscal year
ended September 30, 2007.
We have discussed with the independent accountants the matters
required to be discussed by Statement on Auditing Standards No. 61,
Communications with Audit Committees, as amended, of the Auditing
Standards Board of the American Institute of Certified Public
Accountants.
We have received and reviewed the written disclosures and the
letter from the independent accountants required by Independence
Standard No. 1, Independence Discussions with Audit Committees, as
amended, of the Independence Standards Board, and have discussed with
the accountants the accountants' independence.
Based on the reviews and discussions referred to above, we
recommend to the Board of Directors that the consolidated financial
statements referred to above be included in the Company's Annual Report
on Form 10-KSB for the fiscal year ended September 30, 2007.
The information contained in this report shall not be deemed to be
"soliciting material" or to be "filed" with the Securities and Exchange
Commission, nor shall such information be incorporated by reference
into any future filing under the Securities Act of 1933, as amended, or
the Securities Exchange Act of 1934, as amended, except to the extent
that we specifically incorporate it by reference in such filing.
By: /s/ James Saltzman
James Saltzman, Chairman
By: /s/ Cecil Ursprung
Cecil Ursprung
Audit Committee
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EXECUTIVE COMPENSATION
The following table sets forth information concerning total
compensation earned or paid to officers of the Company who served in
such capacities as of September 30, 2007 for services rendered to the
Company during each of the last two fiscal years.
Name and Stock Option All Other
Position Year Salary ($) Bonus ($) Awards ($) Awards ($) Compensation($) Total ($)
------------ ------ ----------- ---------- ----------- ----------- ---------------- ----------
Craig Dunham 2007 110,000 86,711 196,711
President 2006 110,000 82,881 192,881
And CEO
Laura Lunardo 2007 97,693 31,266 14,393 143,352
CFO, COO- 2006 92,689 16,514 14,209 123,412
Optometrics
Megan Shay 2007 95,400 25,000 120,400
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Executive Compensation
The employment agreement with Craig T. Dunham, President and CEO,
commenced on October 1, 2004 for a three-year period, after which the
agreement automatically renews for one-year terms, unless terminated by
either party upon ninety days written notice prior to the end of any
term, or for cause. Under the employment agreement, Mr. Dunham agreed
to work for us full time, and received an annual base salary of
$110,000. Mr. Dunham's agreement also provides for a performance bonus
of 20% of the Company net income above $100,000 and an additional
bonuses or stock options at the discretion of our Board of Directors.
The annual performance bonus is paid one third in cash and the other
two thirds is paid in stock where Mr. Dunham has the option to utilize
his existing warrants or options to set the share price. The agreement
also provides for standard Dynasil N.J. benefits and a company car (or
car allowance). Effective October 1, 2007, the Board of Directors
increased Mr. Dunham's base salary to $150,000, eliminated the company
car benefit, and reduced Mr. Dunham's bonus percentage for fiscal 2008
to 47% of a "Core Bonus" pool comprised of 15% of Dynasil's net profits
before taxes after subtracting an amount equal to an 8% annual return
on Dynasil's shareholders' equity.
The employment agreement with Laura Lunardo, CFO and COO
Optometrics, commenced on March 9, 2007 and continues for a one year
period, after which the agreement is subject to renewal. Under the
employment agreement, Ms. Lunardo has agreed to work for us full time,
and receives an annual base salary of $100,000. Ms. Lunardo's
agreement also provides for an annual performance bonus equal to 5% of
Optometrics net profit before tax, and additional bonuses or stock
options at the discretion of our Board of Directors. The agreement also
provides for a 9% contribution to her 401(k) pension plan and a company
car (or car allowance) in addition to standard Optometrics benefits.
The employment agreement with Megan Shay, former CEO of EMF,
commenced on October 2, 2006 for a one year period, and was amended on
June 15, 2007. Under the amended agreement, Ms. Shay has agreed to
work full time and receives an annual base salary of $95,400, an annual
incentive bonus based on 10% of EMF's Net Income, and standard EMF
benefits, as well as additional $25,000 for the Full Time Extension
Period of April 1, 2007 to September 30, 2007. Ms. Shay became an
employee at will effective October 1, 2007 in her new role as Corporate
Vice President at the same base salary and a bonus equal to 16.8% of a
"Core Bonus" pool comprised of 15% of Dynasil's net profits before
taxes after subtracting an amount equal to an 8% annual return on
Dynasil's shareholders' equity.
Option Grants in Last Fiscal Year
During the year ended September 30, 2007, 100,000 stock options
were granted at prices ranging from $1.66 to $2.00 per share. On
December 19, 2006, Mr. Ursprung was granted 80,000 stock options,
contingent upon his election as a Director. The most recent market
price was $1.53, the option exercise price is $2.00 per share, and the
options have a three year exercise period.
ITEM 2
REINCORPORATION IN DELAWARE
Dynasil's Board of Directors has unanimously approved and
recommended that the Shareholders also approve a proposal to
reincorporate Dynasil as a Delaware corporation. If adopted by the
shareholders, each share of Dynasil stock issued and outstanding
immediately prior to the effective time of the reincorporation merger
will be converted into the same number of common shares of the Delaware
corporation. As used in this Item 2, references to "we", "our", "us"
and similar terms and references to "Dynasil" refer to Dynasil as a New
Jersey corporation or a Delaware corporation as the context requires.
General
Our board of directors has unanimously approved and declared
advisable our Reincorporation to Delaware from New Jersey. The
Reincorporation will be effected by having Dynasil enter into a
migratory merger transaction with and into Dynasil Holdings Company, a
newly-formed wholly-owned Delaware corporate subsidary ("DHC"), in
accordance with the terms of an Agreement and Plan of Merger (the
"Reincorporation Agreement"), attached hereto as "Appendix A". As a
consequence of the Merger and pursuant to the Reincorporation
Agreement, DHC's name will change to "Dynasil Corporation of America".
Upon the effective date of the Reincorporation, every outstanding
share of our common and preferred stock will be automatically exchanged
for 1 share of the common and preferred stock of DHC, as the case may
be, on a 1 for 1 basis. The Company will cease to exist as a New Jersey
corporation, and DHC will be the continuing or surviving corporation
after the Reincorporation, holding and operating under the Company's
current name. Thus, DHC will succeed to all of the business and
operations, own all of the assets and other properties and will assume
and become responsible for all of Dynasil's liabilities and
obligations. The Reincorporation, therefore, will not involve any
change in the Company's business, properties or management. The name of
the surviving company will be "Dynasil Corporation of America". The
persons serving as officers and directors of Dynasil will serve as its
officers and directors after the Reincorporation.
The board of directors caused the formation of DHC as a wholly-
owned subsidiary of Dynasil for the sole purpose of the
Reincorporation. The only activities that DHC will engage in prior to
the Reincorporation are formation and organizational matters.
Purpose of the Reincorporation
The purpose of the Reincorporation is to change the state of
incorporation and legal domicile of Dynasil from New Jersey to
Delaware. The board of directors believes that this change in the
domicile is in the best interests of Dynasil and its shareholders. In
reaching this conclusion, the board of directors took into
consideration that while, as explained below, there are some
differences between the Delaware General Corporation Law ("DGCL") and
the New Jersey General Corporation Act (the "NJBCA"), there is greater
certainty in application and interpretation of the DGCL because of
substantially more court decisions under and legal articles on the
DGCL. This certainty should provide Company with greater predictability
with respect to corporate legal matters and allow it to be managed and
operated more efficiently. Further, based upon the large number of
public companies incorporated in Delaware, being a Delaware corporation
may facilitate future financings and investor recognition for the
Company. The board of directors believes that these advantages are
significant and justify the Reincorporation.
Following the Reincorporation, Dynasil will be governed by the
Certificate of Incorporation and Bylaws of DHC. Copies of the DHC
Certificate of Incorporation and Bylaws are attached as Exhibits A and
B, respectively, to the Reincorporation Agreement, which is attached
hereto as "Appendix A" to this Proxy Statement.
Authorized Shares of Stock
The Reincorporation has been structured so that there will be no
change in the Company's authorized capital stock as a result of the
Reincorporation. The Company's authorized capital stock currently
consists of 25,000,000 shares of common stock, par value $.0005 per
share, of which 6,926,683 shares were outstanding as of September 30,
2007, 10,000,000 shares of preferred stock, par value $0.001 per share,
of which 710,000 shares were outstanding as of September 30, 2007.
Dynasil currently has outstanding the options and warrants described
elsewhere in this Proxy Statement. Those options and warrants will
continue to be outstanding after the Reincorporation.
Exchange of the Stock
Assuming stockholder approval of this Proposal, pursuant to the
terms of the Reincorporation Agreement, as soon as the Reincorporation
becomes effective, each outstanding share of Dynasil common and
preferred stock will automatically convert into and be exchangeable for
one share of DHC common or preferred stock, as the case may be. The
exchange will occur automatically on the effective date of the
Reincorporation without any action on the part of the Dynasil
stockholders and without regard to the date certificates representing
shares of Dynasil common stock are physically surrendered for new
certificates representing shares of DHC common stock.
The percentage interests in Dynasil held by its shareholders prior
to the Reincorporation will not change as a result of the
Reincorporation. Stockholders do not need to take any action to
exchange their stock certificates for DHC stock certificates prior to
the Dynasil annual meeting. Upon completion of the Reincorporation, the
Company will send a notice to its stockholders as of the effective date
of the Reincorporation, notifying them of the Reincorporation and
advising them how to exchange their certificates for shares of
Dynasil's common stock for stock certificates representing shares of
the Company after the Reincorporation. Stockholders should not destroy
their old certificates. After the Reincorporation, stockholders may
continue to make sales or transfers using their Dynasil stock
certificates. New certificates will be issued representing shares of
Dynasil common stock for transfers occurring after the Reincorporation.
On request, the Company will issue new certificates to anyone who holds
Dynasil stock certificates in exchange therefor. Any request for new
certificates into a name different from that of the registered holder
will be subject to normal stock transfer requirements, including proper
endorsement and signature guarantee, if required.
Transferability of Shares
Stockholders whose shares of Dynasil common stock are freely
tradable before the Reincorporation will own shares of DHC common stock
that are freely tradable after the Reincorporation. Similarly, any
stockholders holding securities with transfer restrictions before the
Reincorporation will hold shares of common stock that have the same
transfer restrictions after the Reincorporation. For purposes of
computing the holding period under Rule 144 of the Securities Act of
1933, those who hold post-Reincorporation Dynasil stock certificates
will be deemed to have acquired their shares on the date they
originally acquired their pre-Reincorporation shares.
After the Reincorporation, Dynasil's status as a publicly held
company will continue, and its shares will be quoted on the OTC
Bulletin Board. The Company will continue to file periodic reports and
proxy materials with the United States Securities and Exchange
Commission and provide to its stockholders the same types of
information as before.
Federal Income Tax Consequences of the Reincorporation
The discussion of U.S. federal income tax consequences set forth
below is for general information only and does not purport to be a
complete discussion or analysis of all potential tax consequences that
may apply to a stockholder. Stockholders are urged to consult their tax
advisors to determine the particular tax consequences of the
Reincorporation, including the applicability and effect of federal,
state, local, foreign and other tax laws.
The following discussion sets forth the principal U.S. federal
income tax consequences of the Reincorporation to Dynasil stockholders
who hold their shares as a capital asset. It does not address all of
the federal income tax consequences that may be relevant to particular
stockholders based upon their individual circumstances or to
stockholders who are subject to special rules, such as financial
institutions, tax-exempt organizations, insurance companies, dealers in
securities, foreign holders or holders who acquired their shares
pursuant to the exercise of employee stock options or otherwise as
compensation.
The following disclosure is based on the Code, laws, regulations,
rulings and decisions in effect as of the date of this Proxy Statement,
all of which are subject to change, possibly with retroactive effect,
and to differing interpretations. The following disclosure does not
address the tax consequences to Dynasil's stockholders under state,
local and foreign laws. Dynasil has neither requested nor received a
tax opinion from legal counsel with respect to the consequences of the
Reincorporation. No rulings have been or will be requested from the IRS
with regard to the consequences of Reincorporation. There can be no
assurance that future legislation, regulations, administrative rulings
or court decisions would not alter the consequences set forth below.
The Reincorporation provided for in the Merger Agreement is
intended to be a tax-free reorganization under the Code. Assuming the
Reincorporation qualifies as a reorganization, no gain or loss will be
recognized to the holders of Dynasil's capital stock (other than those
who seek their statutory appraisal rights) as a result of consummation
of the Reincorporation, and no gain or loss will be recognized by
Dynasil. You will have the same basis in the DHC common stock received
by you pursuant to the Reincorporation as you have in our shares held
by you at the time the Reincorporation is consummated. Your holding
period with respect to the DHC common stock will include the period
during which you held the corresponding Dynasil common stock, provided
the latter was held by you as a capital asset at the time of
consummation of the Reincorporation was consummated.
Accounting Treatment
In accordance with generally accepted accounting principles,
Dynasil expects that the Reincorporation will be accounted for as a
reorganization of entities under common control and recorded at
historical cost.
Regulatory Approvals
The Reincorporation will not be consummated until after
stockholder approval. We will obtain all required consents of
governmental authorities, including the filing of Certificates of
Merger with the Secretaries of State of the States of Delaware and New
Jersey.
Significant Changes Caused by the Reincorporation
The following discussion briefly summarizes some of the changes
resulting from the Reincorporation and the significant differences
between the corporate laws of Delaware and New Jersey and does not
purport to be a complete statement of such laws. If the Reincorporation
proposal is approved, Delaware law will govern and the Certificate of
Incorporation and Bylaws in effect will be those of DHC, which is a
Delaware corporation.
Term of Directors
The directors of Dynasil are elected annually for 1 year terms.
Likewise, the DHC Certificate of Incorporation provides for the
election of directors annually and each director serving a 1 year term.
Fiduciary Duties of Directors
Both Delaware and New Jersey law provide that the board of
directors has the ultimate responsibility for managing the business and
affairs of a corporation. In discharging this function, directors of
New Jersey and Delaware corporations owe fiduciary duties of care and
loyalty to the corporations they serve and the stockholders of those
corporations.
With respect to fiduciary duties, New Jersey corporate law may
provide broader discretion, and increased protection from liability, to
directors in exercising their fiduciary duties, particularly in the
context of a change in control. Delaware courts have held that the
directors of a Delaware corporation are required to exercise an
informed business judgment in performing their duties. An informed
business judgment means that the directors have informed themselves of
all material information reasonably available to them. Delaware courts
have also imposed a heightened standard of conduct on directors in
matters involving a contest for control of the corporation. A director
of a New Jersey business corporation must perform his or her duties as
a director in good faith and with a view to the interests of the
corporation.
Delaware corporate law does not contain any statutory provision
permitting the board of directors, committees of the board and
individual directors, when discharging their duties, to consider the
interests of any constituencies other than the corporation or its
stockholders. As set forth below, New Jersey corporate law provides
that in discharging their duties, the board of directors, committees of
the board and individual directors may, in exercising their respective
powers with a view to the interests of the corporation, choose, to the
extent they deem appropriate, to subordinate the interests of
stockholders to the interests of employees, suppliers, customers or
creditors of the corporation or to the interests of the communities
served by the corporation. Furthermore, the officers and directors may
consider the long-term and short-term interests of the corporation and
its stockholders.
Under Delaware corporate law, directors of a Delaware corporation
are presumed to have acted on an informed basis, in good faith and in
the honest belief that their actions were in the best interest of the
corporation. This presumption may be overcome, if a preponderance of
the evidence shows that the directors' decision involved a breach of
fiduciary duty such as fraud, overreaching, lack of good faith, failure
of the board to inform itself properly or actions by the board to
entrench itself in office. Delaware courts have imposed a heightened
standard of conduct upon directors of a Delaware corporation who take
any action designed to defeat a threatened change in control of the
corporation. The heightened standard has two elements: the board must
demonstrate some basis for concluding that a proper corporate purpose
is served by implementation of any defensive measure and that measure
must be reasonable in relation to the
perceived threat posed by the change in control.
Under New Jersey corporate law, unless there is a breach of
fiduciary duty or a lack of good faith, any act of the board of
directors, any committee of the board or any individual director is
presumed to be in the corporation's best interest. No higher burden of
proof or greater obligation to justify applies to any act relating to
or affecting an acquisition or a potential or proposed acquisition of
control of the corporation than to any other action. New Jersey
corporate law imposes a heightened standard of conduct upon directors
who take action to resist a change or potential change in control of a
corporation, if such action impedes the exercise of the stockholders'
right to vote for or remove directors.
Anti-Takeover Laws
Section 203 of the DGCL contains certain "anti-takeover"
provisions that apply to a Delaware corporation, unless the corporation
elects not to be governed by such provisions in its Certificate of
Incorporation or by-laws. Section 203 prohibits a corporation from
engaging in any "business combination" with any person that owns 15% or
more of its outstanding voting stock for a period of three years
following the time that such stockholder obtained ownership of more
than 15% of the outstanding voting stock of the corporation. A business
combination includes any merger, consolidation, or sale of
substantially all of a corporation's assets. The 3-year waiting period
does not apply, however, if any of the following conditions are met:
(a) the board of directors of the corporation approved either the
business combination or the transaction which resulted in such
stockholder owning more than 15% of such stock before the stockholder
obtained such ownership; (b) after the transaction which resulted in
the stockholder owning more than 15% of the outstanding voting stock of
the corporation is completed, such stockholder owns at least 85% of the
voting stock of the corporation outstanding at the time that the
transaction commenced; or (c) at or after the time the stockholder
obtains more than 15% of the outstanding voting stock of the
corporation, the business combination is approved by the board of
directors and authorized at an annual or special meeting of
stockholders (and not by written consent) by the affirmative vote of at
least 66 2/3% of the outstanding voting stock that is not owned by the
acquiring stockholder. In addition, Section 203 does not apply to any
person who became the owner of more than 15% of a corporation's stock
if it was as a result of action taken solely by the corporation.
New Jersey corporate law contains certain "anti-takeover"
provisions that apply to a New Jersey corporation, unless the
corporation elects not to be governed by such provisions in its
Articles of Incorporation or By-laws (which Dynasil has not so
elected). New Jersey corporate law prohibits a corporation from
engaging in any "business combination" with any person that owns 10% or
more of its outstanding voting stock for a period of 5 years following
the time that such stockholder obtained ownership of more than 10% of
the outstanding voting stock of the corporation. A business combination
includes any merger, consolidation, or sale of substantially all of a
corporation's assets. The 5-year waiting period does not apply,
however, if the board of directors of the corporation approved the
business combination prior to the date of the acquisition of such 10%
stock ownership. Pursuant to the NJBCA, Dynasil's certificate of
incorporation includes provisions that prohibit similar transactions
with interested stockholders holding more than 20% of the outstanding
shares of stock.
Dividend Rights and Repurchase of Shares
Under the DGCL, a corporation may declare and pay dividends out of
surplus or, if no surplus exists, out of net profits, for the fiscal
year in which the dividends are declared and/or for its preceding
fiscal year. Dividends may not be paid out of net profits if the
capital of the corporation is less than the aggregate amount of capital
represented by the outstanding stock of all classes having a preference
upon the distribution of assets. Surplus is defined as net assets minus
stated capital. Delaware corporate law applies different tests to the
payment of dividends and the repurchase of shares. Delaware corporate
law generally provides that a corporation may redeem or repurchase its
shares only if such redemption or repurchase would not impair the
capital of the corporation.
Under New Jersey corporate law, a corporation is prohibited from
making a distribution (including dividends on, the purchase or
redemption or other acquisition of shares of its stock) to its
stockholders if, after giving effect to the distribution (a) the
corporation would be unable to pay its debts as they become due in the
usual course of business or (b) the total assets of the corporation
would be less than its total liabilities (as determined based on
financial statements prepared on the basis of generally accepted
accounting principles, other reasonable accounting practices and
principles or a valuation or other method that is fair and reasonable
under the circumstances).
Liability of Directors and Officers
The DGCL permits a corporation to include in its certificate of
incorporation a provision limiting or eliminating the personal
liability of its directors to the corporation or its stockholders for
monetary damages arising from a breach of fiduciary duty, except for: a
breach of the duty of loyalty to the corporation or its stockholders;
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; a declaration of a dividend
or the authorization of the repurchase or redemption of stock in
violation of Delaware corporate law; or any transaction from which the
director derived an improper personal benefit.
The NJBCA requires directors to be at least 18 years old and need
not be United States or New Jersey citizens or residents unless
required by the certificate of incorporation or bylaws. Generally
speaking, directors much discharge their duties in good faith and with
the degree of diligence, care and skill that ordinarily prudent people
in like positions exercise under similar circumstances. Those directors
are not personally liable for good faith reliance on the opinion of
counsel for the corporation, written financial reports for the
corporation prepared by independent or certified public accountants or
firms, financial statements prepared by certain persons, written board
committee reports or if personal liability of directors has been
eliminated or limited by a provision of the certificate of
incorporation in instances other than a breach of duty for (a) an act
or omission involving the breach of the director's duty of loyalty to
the corporation or its shareholders, (b) not in good faith or involving
a knowing violation of law or (c) receiving an improper personal
benefit. The NJBCA also permits directors to discharge their obligation
to act in the best interest of the corporation to consider, in addition
to shareholder interests, the effect of any action on: (a) the
corporation's employees, suppliers, creditors and customers; (b) the
community in which the corporation operates; and (c) the long-term as
well as the short-term interests of the corporation and its
shareholders, including the possibility that those interests may best
be served by the continued independence of the corporation. If based on
these factors, the board of directors determines that a proposal or
offer to acquire the corporation is not in its best interests, the
board may reject the proposal or offer. In that event, the board has no
obligation to facilitate, remove any barriers to, or refrain from,
impeding the proposal or offer.
Under the NJBCA, directors may not, without becoming personally
liable, declare any dividend or other assets distribution to
shareholders or purchase the corporation's shares if the declaration or
purchase is contrary to the provisions of the NJBCA or restrictions
contained in the certificate of incorporation. Directors also may not
distribute (without personal liability to the extent of such
distribution) assets to shareholders as part of the corporation's
dissolution or liquidation without adequately providing for the payment
of the corporation's known (and unbarred) debts, obligations and
liabilities (in the case of its dissolution) and its fees, taxes and
incidental expenses (in the case of its liquidation without
dissolution). Further, the NJBCA permits a corporation to set forth in
its certificate of incorporation any provision that is not inconsistent
with the NJBCA or other statute relating to the management of the
corporation or creating, defining, limiting or regulating the powers of
the corporation, its directors and shareholders (or classes of
shareholders), including any provision that must or maybe set for the
in the corporation's bylaws.
Indemnification of Directors and Officers
Both Delaware and New Jersey, in a substantially similar manner,
permit a corporation to indemnify officers, directors, employees and
agents for actions taken in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the
corporation, and with respect to any criminal action, which they had no
reasonable cause to believe that their conduct was unlawful. Both
statutes also provide for mandatory indemnification to the extent that
a person entitled to indemnity is successful on the merits in an
applicable proceeding.
Annual Meetings
Under the DGCL, if the annual meeting for the election of
directors is not held on the designated date, or action by written
consent to elect directors in lieu of an annual meeting has not been
taken, the directors are required to cause that meeting to be held as
soon as is convenient. If there is a failure to hold the annual meeting
or to take action by written consent to elect directors in lieu of an
annual meeting for a period of 30 days after the designated date for
the annual meeting, or if no date has been designated for a period of
13 months after the latest to occur of the organization of the
corporation, its last annual meeting or the last action by written
consent to elect directors in lieu of an annual meeting, the Court of
Chancery may summarily order a meeting to be held upon the application
of any stockholder or director.
Under the NJBCA, if the annual meeting is not held within 13
months after the last annual meeting, the Superior Court may order a
meeting to be held on the application of any shareholder. At such a
meeting, the shareholders present constitute a quorum for the
transaction of business.
Adjournment of Stockholder Meetings
Under the DGCL, if a meeting of stockholders is adjourned due to
lack of a quorum and the adjournment is for more than 30 days, or if
after the adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting must be given to each
stockholder of record entitled to vote at the meeting. At the adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting.
Under the NJBCA, a corporation is not required to give any notice
of an adjourned meeting or of the business to be transacted at an
adjourned meeting, other than by announcement at the meeting at which
the adjournment is taken, unless the board fixes a new record date for
the adjourned meeting.
Amendments to Bylaws
Under the DGCL, bylaws may be adopted, amended or repealed by the
stockholders entitled to vote thereon. A corporation may, in its
certificate of incorporation, confer this power upon the directors,
although the power vested in the stockholders is not divested or
limited where the board of directors also has such power. The
Certificate of Incorporation of DHC gives the board of directors
authority to adopt, amend or repeal the Bylaws.
The NJBCA provides that the board of directors of a corporation
may make, amend or repeal the bylaws, unless those powers have been
reserved to the shareholders. Further, shareholders have the right to
adopt, amend or repeal bylaws adopted by the board of directors and to
prohibit the directors from amending or repealing bylaws adopted by the
shareholders.
Interested Director Transactions
Under the DGCL, contracts or transactions in which one or more of
a corporation's directors has an interest are not void or voidable
because of such interest, if certain conditions are met. To meet these
conditions, either (i) the stockholders or the disinterested directors
must approve any such contract or transaction after the full disclosure
of material facts, or (ii) the contract or transaction must have been
fair as to the corporation at the time it was approved. Under the DGCL,
if board approval is sought, the contract or transactions must be
approved by a majority of the disinterested directors (even though less
than a quorum).
The NJBCA does not automatically void contracts or transactions
between a corporation and one of the corporation's directors. Under New
Jersey corporate law, a contract or transaction may not voided solely
because: the contract is between the corporation and a director of the
corporation or an entity in which a director of the corporation is also
a director or has a financial interest; an interested director is
present at the meeting of the board of directors that authorizes or
approves the contract or transaction; or the vote or votes of the
interested director are counted for purposes of authorizing or
approving the contract or transaction involving the interested
transaction if the contract or other transaction is fair and reasonable
to the corporation when authorized approved or ratified, the fact of
the common directorship or interest is disclosed and the contract or
transaction is approved by unanimous written consent if at least one
consenting director is disinterested or by directors' vote if a
majority of disinterested directors votes in favor of the contract or
transaction or the shareholders approve the contract or transaction
after disclosure of the common directorship or interest.
Removal of Directors
Under the DGCL, any director or the entire board of directors may
be removed, with or without cause, by the majority vote of the
stockholders then entitled to vote at an election of directors.
However, if the corporation has a classified board, directors may only
be removed without cause if the certificate of incorporation so
provides. The DHC Certificate of Incorporation does not contain such a
provision.
A director of a New Jersey corporation or the entire board of
directors may be removed with or (unless prohibited by the certificate
of incorporation) without cause by a majority vote of the voting power
of the then outstanding shares entitled to vote in an election of
directors; except that if cumulative voting for directors is permitted
and less than the full board is removed, a director who receives enough
votes to elect him or her pursuant to cumulative voting may not be
removed. The certificate of incorporation may require a greater than
plurality vote to remove directors whether or not for cause.
Stockholders' Rights to Examine Books and Records
Subject to certain limitations relating to subsidiary
corporations, the DGCL provides that any stockholder of record may, in
a written demand made under oath, demand to examine a corporation's
books and records for a proper purpose and to make copies and extracts.
If management of the corporation refuses, the stockholder can compel an
examination by court order.
The NJBCA permits any person who has been a stockholder of record
for at least 6 months, or any person holding at least 5% of all
outstanding shares, to inspect and copy the minutes of shareholder
meetings and list of shareholders if the stockholder gives at least 5
business days' prior written notice. On written request of a
shareholder, the corporation must furnish the shareholder with copies
of the corporation's balance sheet and statements of profit and loss
and surplus for the preceding fiscal year. Without regard to the
holding period, any shareholder may petition a court for access to the
books of account and board and shareholder minutes.
Duration of Proxies
Under the DGCL, a proxy executed by a stockholder will remain
valid for a period of 3 years, unless the proxy provides for a longer
period. Under the NJBCA, a proxy is not effective for more than 11
months unless provided in the proxy.
Certain Significant Transactions
Under the NJBCA, an approving shareholder vote is required for
certain significant transactions, including so-called "de facto"
mergers, in which the number of shares of outstanding common stock
increases by more than 40% as a result of the transaction. The DGCL has
no similar requirement.
Differences in Franchise Taxes
New Jersey does not have a corporate franchise tax. After the
merger contemplated by the Reincorporation is accomplished, Dynasil
will pay annual franchise taxes to Delaware. The Delaware franchise tax
is based on a formula involving the number of authorized shares or the
asset value of the corporation, whichever would impose a lesser tax.
Blank Check Preferred Stock
The certificates of incorporation of both Dynasil and DHC
authorize their respective boards of directors to issue shares of
preferred stock in series with such preferences as designated at the
time of issuance. Dynasil's board of directors does not currently
intend to seek stockholder approval prior to any issuance of shares of
preferred stock if the Reincorporation is approved, except as required
by law or regulation.
It should be noted that the voting rights and other rights to be
accorded to any unissued series of preferred stock of DHC remain to be
fixed by the board. Accordingly, if the board of directors so
authorizes, the holders of preferred stock may be entitled to vote
separately as a class in connection with approval of certain
extraordinary corporate transactions or might be given a
disproportionately large number of votes. Such preferred stock could
also be convertible into a large number of shares of DHC common stock
under certain circumstances or have other terms that might make
acquisition of a controlling interest in DHC more difficult or more
costly, including the right to elect additional directors to the board
of directors. Potentially, preferred stock could be used to create
voting impediments or to frustrate persons seeking to effect a merger
or otherwise to gain control of DHC. Also, preferred stock could be
privately placed with purchasers who might side with the management of
DHC opposing a hostile tender offer or other attempt to obtain control.
Recommendation
The Dynasil board of directors unanimously recommends that
stockholders vote FOR the proposal set forth under this Item 2.
ITEM 3
RATIFICATION OF APPOINTMENT OF INDEPENDENT ACCOUNTANTS
Subject to approval of the Company's shareholders, the Board of
Directors has decided that Haefele, Flanagan & Co., p.c., which firm
has been the independent certified public accountants of the Company
for the fiscal year ended September 30, 2007, be continued as
independent accountants for the Company. The shareholders are being
asked to approve the Board's decision to retain Haefele, Flanagan &
Co., p.c. for the fiscal year ending September 30, 2008.
Representatives of Haefele, Flanagan & Co., p.c. will be present
at the annual meeting and will have the opportunity to make a statement
if he or she desires to do so and to respond to appropriate questions
from shareholders.
Accountants Fees
(a) Audit Fees
The aggregate fees billed or to be billed for
professional services rendered by the Company's
principal accountant for the audit of the Company's
annual financial statements for the fiscal years ended
September 30, 2007 and 2006 and the reviews of the
financial statements included in the Company's Forms 10-
QSB during those fiscal years are $67,750 and $54,000,
respectively.
(b) Audit Related Fees
The aggregate fees billed or to be billed for
professional services rendered by the Company's
principal accountant for audit related fees for the
fiscal years ended September 30, 2007 and 2006 were -0-
and $33,000, respectively. The fiscal year 2006 fees
related to due diligence fees of $13,500 for the EMF
acquisition and EMF audit fees of $19,500.
(c) Tax Fees
The Company incurred fees of $6,500 and $ 4,700 during
the last two fiscal years for professional services
rendered by the Company's principal accountant for tax
compliance, tax advice and tax planning.
(d) All Other Fees
The Company incurred no other fees during the last two
fiscal years for products and services rendered by the
Company's principal accountant.
(e) Pre-approval Policies and Procedures
The Board of Directors has adopted a pre approval policy
requiring that the Audit Committee pre-approve the audit
and non-audit services performed by the independent
auditor in order to assure that the provision of such
services do not impair the auditor's independence.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE "FOR" RATIFICATION
OF THE APPOINTMENT OF HAEFELE, FLANAGAN & CO., P.C. AS THE COMPANY'S
INDEPENDENT ACCOUNTANTS FOR FISCAL YEAR ENDING SEPTEMBER 30, 2008.
OTHER MATTERS
As of the date of this Proxy Statement, the Company knows of no
business that will be presented for consideration at the annual meeting
other than the items referred to above. In the event that any other
matter is properly brought before the meeting for action by the
shareholders, proxies in the enclosed form returned to the Company will
be voted in accordance with the recommendation of the Board of
Directors or, in the absence of such a recommendation, in accordance
with the judgment of the proxy holder.
ADDITIONAL INFORMATION
Shareholder Proposals for the Annual Meeting. Shareholders
interested in presenting a proposal for consideration at the Company's
annual meeting of shareholders in 2009 may do so by following the
procedures prescribed in Rule 14a-8 under the Securities Exchange Act
of 1934 and the Company's by-laws. To be eligible for inclusion,
shareholder proposals must be received by the Company's Corporate
Secretary no later than August 31, 2008.
Proxy Solicitation Costs. The proxies being solicited hereby are
being solicited by the Company. The cost of soliciting proxies in the
enclosed form will be borne by the Company. Officers and regular
employees of the Company may, but without compensation other than their
regular compensation, solicit proxies by further mailing or personal
conversations, or by telephone, telex, facsimile or electronic means.
The Company will, upon request, reimburse brokerage firms and others
for their reasonable expenses in forwarding solicitation material to
the beneficial owners of stock.
By order of the Board of Directors:
Patricia L. Johnson, Corporate Secretary
January 2, 2008
West Berlin, New Jersey
APPENDIX A
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (this "Agreement"), dated as of
January 2, 2008, is made and entered into by and between DYNASIL
CORPORATION OF AMERICA, a New Jersey corporation ("Dynasil"), and
DYNASIL HOLDINGS COMPANY, a Delaware corporation and wholly owned
subsidiary of Dynasil ("DHC").
W I T N E S S E T H:
WHEREAS, DHC is a corporation duly organized and existing under
the laws of the State of Delaware;
WHEREAS, Dynasil is a corporation duly organized and existing
under the laws of the State of New Jersey; and
WHEREAS, the Board of Directors and stockholders of DHC and
Dynasil have approved this Agreement under which Dynasil shall be
merged with and into DHC with DHC being the surviving corporation (the
"Merger").
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that Dynasil shall be merged with and into DHC on
the terms and conditions hereinafter set forth.
ARTICLE I
MERGER
Effective the time the Articles of Merger are accepted for filing
in New Jersey and the Certificate of Merger is accepted for filing in
Delaware (the "Effective Time"), Dynasil shall be merged with and into
DHC in accordance with the Delaware General Corporation Law ("DGCL")
and the New Jersey Business Corporation Act ("NJBCA"), and the separate
existence of Dynasil shall cease and DHC (hereinafter sometimes
referred to as the "Surviving Corporation") shall continue to exist
under the name of Dynasil Corporation of America by virtue of, and
shall be governed by, the laws of the State of Delaware. The address of
the registered office of the Surviving Corporation in the State of
Delaware will be 2711 Centerville Road, Suite 400, in the City of
Wilmington, County of New Castle, 19808. The name of the Corporation's
registered agent at such address is Corporation Service Company.
ARTICLE II
CERTIFICATE OF INCORPORATION
OF THE SURVIVING CORPORATION
The Certificate of Incorporation of the Surviving Corporation
shall be the Certificate of Incorporation of DHC without change, as in
effect immediately prior to the Effective Time, unless and until
thereafter amended as provided by applicable law. A copy of the
Certificate of Incorporation of DHC is attached hereto as Exhibit A.
ARTICLE III
BYLAWS OF THE SURVIVING CORPORATION
The Bylaws of DHC shall be the Bylaws of the Surviving Corporation
as in effect immediately prior to the Effective Time without change,
unless and until amended or repealed in accordance with applicable law.
A copy of the Bylaws of DHC are attached hereto as Exhibit B.
ARTICLE IV
EFFECT OF MERGER ON STOCK
OF CONSTITUENT CORPORATIONS
4.01 At the Effective Time, every outstanding share of Common
Stock of Dynasil, par value $.0005 per share (the "New Jersey Common
Stock"), and every outstanding share of Preferred Stock, par value
$.001 per share, (the New Jersey Preferred Stock") shall be converted
into, respectively, one share of Common Stock, par value $.0005 per
share (the "Delaware Common Stock") and one share of Preferred Stock,
par value $.001 per share (the "Delaware Preferred Stock"), of the
Surviving Corporation.
4.02 At and after the Effective Time, (1) each share of New Jersey
Common Stock shall be cancelled and retired and, by virtue of the
Merger and without further action, shall cease to exist; and (2) each
share of Delaware Common Stock issued and outstanding immediately prior
to the Effective Time shall be cancelled and, by virtue of the Merger
and without further action, shall cease to exist and returned to the
status of authorized but unissued shares.
4.03 At and after the Effective Time, all documentation which
prior to that time evidenced and represented New Jersey Common Stock or
New Jersey Preferred Stock shall be deemed for all purposes to evidence
ownership of and to represent those shares of Delaware Common Stock or
Delaware Preferred Stock into which the New Jersey Common Stock or New
Jersey Preferred Stock, as the case may be, represented by such
documentation has been converted as herein provided and shall be so
registered on the books and records of the Surviving Corporation. The
registered owner of any outstanding stock certificate evidencing New
Jersey Common Stock or New Jersey Preferred Stock shall, until such
certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to DHC or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of
Delaware Common Stock or Delaware Preferred Stock , as the case may be,
evidenced by such outstanding certificate as above provided.
4.04 At and after the Effective Time, all outstanding options and
warrants to purchase New Jersey Common Stock and all instruments
convertible into New Jersey Common Stock (collectively, "Derivative
Securities") shall be assumed by the Surviving Corporation, which shall
continue the stock option plans and all other employee benefit and
compensation plans and agreements of Dynasil. Each outstanding and
unexercised Derivative Security of Dynasil shall become a Derivative
Security of the Surviving Corporation on the basis of and otherwise on
the same terms and conditions, including exercise or conversion price
or terms, applicable to any such Dynasil Derivative Security at the
Effective Time. No fractional Derivative Security shall be issued upon
the exchange of any Derivative Security of Dynasil for a Derivative
Security of the Surviving Corporation. A number of shares of the DHC's
Common Stock shall be reserved for issuance upon the exercise of
Derivative Securities equal to the number of shares of New Jersey
Common Stock so reserved immediately prior to the Effective Time.
ARTICLE V
CORPORATE EXISTENCE, POWERS AND
LIABILITIES OF SURVIVING CORPORATION
5.01 On the Effective Time, the separate existence of Dynasil
shall cease and Dynasil shall be merged with and into the Surviving
Corporation, which shall thereby change its name to "Dynasil
Corporation of America", in accordance with the provisions of this
Agreement. Thereafter, the Surviving Corporation shall possess all of
the rights, privileges, powers and franchises as well of a public as of
a private nature, and shall be subject to all the restrictions,
disabilities and duties of Dynasil; and all rights, privileges, powers
and franchises of Dynasil, and all property, real, personal and mixed,
and all debts due to each of them on whatever account, as well as stock
subscriptions and all other things in action or belonging to Dynasil,
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest
shall be thereafter effectually the property of the Surviving
Corporation as they were of Dynasil, and the title to any real estate,
whether by deed or otherwise, vested in Dynasil shall not revert or be
in any way impaired by reason of the Merger; but all rights of
creditors and all liens upon any property of Dynasil shall be preserved
unimpaired, and all debts, liabilities and duties shall thenceforth
attach to the Surviving Corporation and may be enforced against it to
the same extent as if said debts, liabilities and duties had been
incurred or contracted by it.
5.02 Dynasil agrees that it will execute and deliver (or cause to
be executed and delivered) all such deeds, assignments and other
instruments, and will take or cause to be taken such further or other
action as the Surviving Corporation may deem necessary or desirable in
order to vest in and confirm to the Surviving Corporation title to and
possession of all the property, rights, privileges, immunities, powers,
purposes and franchises, and all and every other interest, of Dynasil
and otherwise to carry out the intent and purposes of this Agreement.
ARTICLE VI
OFFICERS AND DIRECTORS
OF SURVIVING CORPORATION
At the Effective Time, the officers and directors of Dynasil shall
become the officers and directors of the Surviving Corporation, and
such persons shall hold office in accordance with the Bylaws of the
Surviving Corporation or until their respective successors shall have
been appointed or elected and qualified.
ARTICLE VII
APPROVAL BY STOCKHOLDERS;
AMENDMENT; EFFECTIVE TIME
7.01 This Agreement and the Merger contemplated hereby are subject
to approval by the requisite vote of the stockholders of Dynasil in
accordance with New Jersey law. As promptly as practicable after
approval of this Agreement by such stockholders in accordance with
applicable law, duly authorized officers of DHC and Dynasil shall make
and execute a Certificate of Merger and Articles of Merger or other
applicable certificates or documentation effecting this Agreement and
shall cause such document or documents to be filed with the Secretaries
of State of Delaware and New Jersey, respectively, in accordance with
the applicable Delaware and New Jersey laws.
7.02 The respective Boards of Directors of DHC and Dynasil may
amend this Agreement at any time prior to the Effective Time, provided
that an amendment made subsequent to the approval of the Merger by the
stockholders of Dynasil shall not (1) alter or change the amount or
kind of shares, securities, cash, property or rights to be received in
exchange for or on conversion of all or any New Jersey Common Stock;
(2) alter or change any term of the Certificate of Incorporation of the
Surviving Corporation; or (3) alter or change any of the terms and
conditions of this Agreement if such alteration or change would
adversely affect the holders of any New Jersey Common Stock.
ARTICLE VIII
PAYMENT OF FEES AND FRANCHISE TAXES
The Surviving Corporation shall be responsible for the payment of
all fees and franchise taxes of Dynasil relating to or required to be
paid in connection with the Merger.
ARTICLE IX
TERMINATION OF MERGER
This Agreement may be terminated and the Merger abandoned at any
time prior to the Effective Time, whether before or after stockholder
approval of this Agreement, by the consent of the Board of Directors of
DHC and the Board of Directors of Dynasil.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers as of the date first above
written.
DYNASIL CORPORATION OF AMERICA
a New Jersey corporation
By:/s/ Craig T. Dunham
Craig T. Dunham, President
DYNASIL HOLDINGS COMPANY,
a Delaware corporation
By:/s/ Craig T. Dunham
Craig T. Dunham, President
|
EXHIBIT A
CERTIFICATE OF INCORPORATION
FIRST: The name of this corporation shall be: DYNASIL
HOLDINGS COMPANY.
SECOND: Its registered office in the State of Delaware is to
be located at 3411 Silverside Road, Rodney Bldg., Suite 104,
Wilmington, DE 19810. The name of its registered agent at such
address is WORLDWIDE INCORPORATORS LTD.
THIRD: The purpose or purposes of the corporation shall be:
To engage in any lawful act or activity
for which corporations may be organized under
the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which this
corporation is authorized to issue consists of an aggregate of
35,000,000 shares, consisting of two classes, as follows: One
class of stock shall be 25,000,000 authorized shares of Common
Stock, par value $0.0005 per share. The other class of stock
shall be 10,000,000 authorized shares of Preferred Stock, par
value $0.001 per share. The Preferred Stock, or any series
thereof, shall have such designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof as shall be
expressed in the certificate of incorporation or of any amendment
thereto, or in the resolution or resolutions providing for the
issue of such stock adopted by the board of directors and may be
made dependent upon facts ascertainable outside the certificate
of incorporation or of any amendment thereto, or outside such
resolution or resolutions of the board of directors, provided
that the matter in which such facts shall operate upon such
designations, preferences, rights and qualifications, limitations
or restrictions of such class or series of stock is clearly and
expressly set forth in the certificate of incorporation or in the
resolution or resolutions providing for the issuance of such
stock by the board of directors. As used herein, the term "facts"
includes, but is not limited to, the occurrence of any event,
including a determination or action by any person or body,
including the corporation.
FIFTH: The name and address of the incorporator is as
follows:
Jennifer Toscano-Goetz
3411 Silverside Road
Rodney Bldg.
Suite 104
Wilmington, Delaware 19810
SIXTH: The Board of Directors shall have the power to adopt,
amend or repeal the by-laws.
SEVENTH: No director shall be personally liable to the
Corporation or its stockholders for monetary damages for any
breach of fiduciary duty by such director as a director.
Notwithstanding the foregoing sentence, a director shall be
liable to the extent provided by applicable law, (i) for 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) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. No amendment to
or repeal of this Article Seventh shall apply to or have any
effect on the liability or alleged liability of any director of
the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment.
IN WITNESS WHEREOF, the undersigned, being the incorporator
herein before named, has executed signed and acknowledged this
certificate of incorporation this __ day of January, A.D. 2008.
Name:
Incorporator
EXHIBIT B
BYLAWS
OF
DYNASIL HOLDINGS COMPANY
(a Delaware corporation)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Certificates representing
stock in the corporation shall be signed by, or in the name of, the
corporation by the Chairperson or Vice-Chairperson of the Board of
Directors, if any, or by the President or a Vice-President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the corporation. Any or all the signatures on any such
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent,
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if such person were such officer,
transfer agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than
one class of stock or more than one series of any class of stock, and
whenever the corporation shall issue any shares of its stock as partly
paid stock, the certificates representing shares of any such class or
series or of any such partly paid stock shall set forth thereon the
statements prescribed by the General Corporation Law. Any restrictions
on the transfer or registration of transfer of any shares of stock of any
class or series shall be noted conspicuously on the certificate
representing such shares.
The corporation may issue a new certificate of stock or
uncertificated shares in place of any certificate theretofore issued by
it, alleged to have been lost, stolen, or destroyed, and the Board of
Directors may require the owner of the lost, stolen, or destroyed
certificate, or such owner's legal representative, to give the
corporation a bond sufficient to indemnify the corporation against any
claim that may be made against it on account of the alleged loss, theft,
or destruction of any such certificate or the issuance of any such new
certificate or uncertificated shares.
2. UNCERTIFICATED SHARES. Subject to any conditions imposed
by the General Corporation Law, the Board of Directors of the corporation
may provide by resolution or resolutions that some or all of any or all
classes or series of the stock of the corporation shall be uncertificated
shares. Within a reasonable time after the issuance or transfer of any
uncertificated shares, the corporation shall send to the registered owner
thereof any written notice prescribed by the General Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall
not be required to, issue fractions of a share. If the corporation does
not issue fractions of a share, it shall (1) arrange for the disposition
of fractional interests by those entitled thereto, (2) pay in cash the
fair value of fractions of a share as of the time when those entitled to
receive such fractions are determined, or (3) issue scrip or warrants in
registered form (either represented by a certificate or uncertificated)
or bearer form (represented by a certificate) which shall entitle the
holder to receive a full share upon the surrender of such scrip or
warrants aggregating a full share. A certificate for a fractional share
or an uncertificated fractional share shall, but scrip or warrants shall
not unless otherwise provided therein, entitle the holder to exercise
voting rights, to receive dividends thereon, and to participate in any of
the assets of the corporation in the event of liquidation. The Board of
Directors may cause scrip or warrants to be issued subject to the
conditions that they shall become void if not exchanged for certificates
representing the full shares or uncertificated full shares before a
specified date, or subject to the conditions that the shares for which
scrip or warrants are exchangeable may be sold by the corporation and the
proceeds thereof distributed to the holders of scrip or warrants, or
subject to any other conditions which the Board of Directors may impose.
4. STOCK TRANSFERS. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of stock,
if any, transfers or registration of transfers of shares of stock of the
corporation shall be made only on the stock ledger of the corporation by
the registered holder thereof, or by the registered holder's attorney
thereunto authorized by power of attorney duly executed and filed with
the Secretary of the corporation or with a transfer agent or a registrar,
if any, and, in the case of shares represented by certificates, on
surrender of the certificate or certificates for such shares of stock
properly endorsed and the payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. In order that the
corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board
of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date shall not be more than
sixty nor less than ten days before the date of such meeting. If no
record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding
the day on which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting. In order that the corporation may
determine the stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which
date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors.
If no record date has been fixed by the Board of Directors, the record
date for determining the stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by the General Corporation Law, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery to its
principal place of business or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded. If no record date has been fixed by the Board
of Directors and prior action by the Board of Directors is required by
the General Corporation Law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting
shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action. In order that
the corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of any
change, conversion, or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than
sixty days prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
6. MEANING OF CERTAIN TERMS. As used herein in respect of the
right to notice of a meeting of stockholders or a waiver thereof or to
participate or vote thereat or to consent or dissent in writing in lieu
of a meeting, as the case may be, the term "share" or "shares" or "share
of stock" or "shares of stock" or "stockholder" or "stockholders" refers
to an outstanding share or shares of stock and to a holder or holders of
record of outstanding shares of stock when the corporation is authorized
to issue only one class of shares of stock, and said reference is also
intended to include any outstanding share or shares of stock and any
holder or holders of record of outstanding shares of stock of any class
upon which or upon whom the certificate of incorporation confers such
rights where there are two or more classes or series of shares of stock
or upon which or upon whom the General Corporation Law confers such
rights notwithstanding that the certificate of incorporation may provide
for more than one class or series of shares of stock, one or more of
which are limited or denied such rights thereunder; provided, however,
that no such right shall vest in the event of an increase or a decrease
in the authorized number of shares of stock of any class or series which
is otherwise denied voting rights under the provisions of the certificate
of incorporation, except as any provision of law may otherwise require.
7. STOCKHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date and at
the time fixed, from time to time, by the directors, provided, that the
first annual meeting shall be held on a date within thirteen months after
the organization of the corporation, and each successive annual meeting
shall be held on a date within thirteen months after the date of the
preceding annual meeting. A special meeting shall be held on the date
and at the time fixed by the directors.
- PLACE. Annual meetings and special meetings may be held at
such place, either within or without the State of Delaware, as the
directors may, from time to time, fix. Whenever the directors shall fail
to fix such place, the meeting shall be held at the registered office of
the corporation in the State of Delaware. The board of directors may
also, in its sole discretion, determine that the meeting shall not be
held at any place, but may instead be held solely by means of remote
communication as authorized by Section 211(a)(2) of the Delaware General
Corporation Law. If a meeting by remote communication is authorized by
the board of directors in its sole discretion, and subject to guidelines
and procedures as the board of directors may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by
means of remote communication participate in a meeting of stockholders
and be deemed present in person and vote at a meeting of stockholders
whether such meeting is to be held at a designated place or solely by
means of remote communication, provided that (a) the corporation shall
implement reasonable measures to verify that each person deemed present
and permitted to vote at the meeting by means of remote communication is
a stockholder or proxyholder, (b) the corporation shall implement
reasonable measures to provide such stockholders and proxyholders a
reasonable opportunity to participate in the meeting and to vote on
matters submitted to the stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with
such proceedings, and (c) if any stockholder or proxyholder votes or
takes other action at the meeting by means of remote communication, a
record of such vote or other action shall be maintained by the
corporation.
- CALL. Annual meetings and special meetings may be called by
the directors or by any officer instructed by the directors to call the
meeting.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, which shall state the place, if any, date, and hour of
the meeting, the means of remote communication, if any, by which
stockholders and proxyholders may be deemed to be present in person and
vote at such meeting, and in the case of a special meeting, the purpose
or purposes for which the meeting is called. The notice of an annual
meeting shall state that the meeting is called for the election of
directors and for the transaction of other business which may properly
come before the meeting, and shall (if any other action which could be
taken at a special meeting is to be taken at such annual meeting) state
the purpose or purposes. The notice of any meeting shall also include, or
be accompanied by, any additional statements, information, or documents
prescribed by the General Corporation Law. Except as otherwise provided
by the General Corporation Law, the written notice of any meeting shall
be given not less than ten days nor more than sixty days before the date
of the meeting to each stockholder entitled to vote at such meeting. If
mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the corporation. If a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting
if the time, place, if any, thereof, and the means of remote
communications, if any, by which stockholders and proxyholders may be
deemed to be present in person and vote at such adjourned meeting are
announced at the meeting at which the adjournment is taken. At the
adjourned meeting the corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Whenever notice is required to be given under the Delaware General
Corporation Law, certificate of incorporation or bylaws, a written waiver
signed by the person entitled to notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance
of a stockholder at a meeting of stockholders shall constitute a waiver
of notice of such meeting, except when the stockholder attends the
meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders
need be specified in any written waiver of notice or any waiver by
electronic transmission unless so required by the certificate of
incorporation or these bylaws.
- STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the
meeting for a period of at least ten days prior to the meeting on a
reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the
meeting or during ordinary business hours at the principal place of
business of the corporation. In the event that the corporation
determines to make the list available on an electronic network, the
corporation may take reasonable steps to ensure that such information is
available only to stockholders of the corporation. If the meeting is to
be held at a place, then the list shall be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. If the meeting is to be
held solely by means of remote communication, then the list shall also be
open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the
notice of the meeting. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list
required by this section or the books of the corporation, or to vote in
person or by proxy at any meeting of stockholders.
- CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority
and if present and acting - the Chairperson of the Board, if any, the
Vice-Chairperson of the Board, if any, the President, a Vice-President,
or, if none of the foregoing is in office and present and acting, by a
chairperson to be chosen by the stockholders. The Secretary of the
corporation, or in such Secretary's absence, an Assistant Secretary,
shall act as secretary of every meeting, but if neither the Secretary nor
an Assistant Secretary is present the chairperson of the meeting shall
appoint a secretary of the meeting.
- PROXY REPRESENTATION. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or
persons to act for such stockholder by proxy, but no such proxy shall be
voted or acted upon after 3 years from its date, unless the proxy
provides for a longer period. A stockholder may execute a writing
authorizing another person or persons to act for such stockholder as
proxy. Execution may be accomplished by the stockholder or such
stockholder's authorized officer, director, employee or agent signing
such writing or causing such person's signature to be affixed to such
writing by any reasonable means including, but not limited to, by
facsimile signature. A stockholder may also authorize another person or
persons to act for such stockholder as proxy by transmitting or
authorizing the transmission of a telegram, cablegram, or other means of
electronic transmission to the person who will be the holder of the proxy
or to a proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of the
proxy to receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either set forth
or be submitted with information from which it can be determined that the
telegram, cablegram or other electronic transmission was authorized by
the stockholder. If it is determined that such telegrams, cablegrams or
other electronic transmissions are valid, the inspectors or, if there are
no inspectors, such other persons making the determination shall specify
the information upon which they relied. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or
transmission created pursuant to Section 212(c) of the Delaware General
Corporation Law may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction
of the entire original writing or transmission. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, if, and
only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless
of whether the interest with which it is coupled is an interest in the
stock itself or an interest in the corporation generally.
- INSPECTORS. The directors, in advance of any meeting, may,
but need not, appoint one or more inspectors of election to act at the
meeting or any adjournment thereof. If an inspector or inspectors are
not appointed, the person presiding at the meeting may, but need not,
appoint one or more inspectors. In case any person who may be appointed
as an inspector fails to appear or act, the vacancy may be filled by
appointment made by the directors in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, if any, before
entering upon the discharge of duties of inspector, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of such inspector's
ability. The inspectors, if any, shall determine the number of shares of
stock outstanding and the voting power of each, the shares of stock
represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots, or consents, hear
and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots, or consents,
determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the
person presiding at the meeting, the inspector or inspectors, if any,
shall make a report in writing of any challenge, question, or matter
determined by such inspector or inspectors and execute a certificate of
any fact found by such inspector or inspectors. Except as may otherwise
be required by subsection (e) of Section 231 of the General Corporation
Law, the provisions of that Section shall not apply to the corporation.
- QUORUM. The holders of a majority of the outstanding shares
of stock shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the
meeting despite the absence of a quorum.
- VOTING. Each share of stock shall entitle the holder thereof
to one vote. Directors shall be elected by a plurality of the votes of
the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. Any other action shall be
authorized by a majority of the votes cast except where the General
Corporation Law prescribes a different percentage of votes and/or a
different exercise of voting power, and except as may be otherwise
prescribed by the provisions of the certificate of incorporation and
these Bylaws. In the election of directors, and for any other action,
voting need not be by ballot.
8. STOCKHOLDER ACTION WITHOUT MEETINGS. Except as any
provision of the General Corporation Law may otherwise require, any
action required by the General Corporation Law to be taken at any annual
or special meeting of stockholders, or any action which may be taken at
any annual or special meeting of stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action 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. A telegram, cablegram or other electronic transmission consenting
to an action to be taken and transmitted by a stockholder or proxyholder,
or by a person or persons authorized to act for a stockholder or
proxyholder, shall be deemed to be written, signed and dated for the
purposes of this section, provided that any such telegram, cablegram or
other electronic transmission sets forth or is delivered with information
from which the corporation can determine that the telegram, cablegram or
other electronic transmission was transmitted by the stockholder or
proxyholder or by a person or persons authorized to act for the
stockholder or proxyholder and the date on which such stockholder or
proxyholder or authorized person or persons transmitted such telegram,
cablegram or electronic transmission. The date on which such telegram,
cablegram or electronic transmission is transmitted shall be deemed to be
the date on which such consent was signed. No consent given by telegram,
cablegram or other electronic transmission shall be deemed to have been
delivered until such consent is reproduced in paper form and until such
paper shall be delivered to the corporation by delivery to its principal
place of business or an officer or agent of the corporation having
custody of the book in which the proceedings of meetings of stockholders
are recorded, to the extent and in the manner provided by resolution of
the board of directors of the corporation.. Any copy, facsimile or
other reliable reproduction of a consent in writing may be substituted or
used in lieu of the original writing for any and all purposes for which
the original writing could be used, provided that such copy, facsimile or
other reproduction shall be a complete reproduction of the entire
original writing. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing. Action taken
pursuant to this paragraph shall be subject to the provisions of Section
228 of the General Corporation Law.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and affairs of the
corporation shall be managed by or under the direction of the Board of
Directors of the corporation. The Board of Directors shall have the
authority to fix the compensation of the members thereof. The use of the
phrase "whole board" herein refers to the total number of directors which
the corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, a citizen of the United States, or a resident of the State
of Delaware. The initial Board of Directors shall consist of one person.
Thereafter the number of directors constituting the whole board shall be
at least one. Subject to the foregoing limitation and except for the
first Board of Directors, such number may be fixed from time to time by
action of the stockholders or of the directors, or, if the number is not
fixed, the number shall be three. The number of directors may be
increased or decreased by action of the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors, unless
the members thereof shall have been named in the certificate of
incorporation, shall be elected by the incorporator or incorporators and
shall hold office until the first annual meeting of stockholders and
until their successors are elected and qualified or until their earlier
resignation or removal. Any director may resign at any time upon notice
given in writing or by electronic transmission to the corporation.
Thereafter, directors who are elected at an annual meeting of
stockholders, and directors who are elected in the interim to fill
vacancies and newly created directorships, shall hold office until the
next annual meeting of stockholders and until their successors are
elected and qualified or until their earlier resignation or removal.
Except as the General Corporation Law may otherwise require, in the
interim between annual meetings of stockholders or of special meetings of
stockholders called for the election of directors and/or for the removal
of one or more directors and for the filling of any vacancy in that
connection, newly created directorships and any vacancies in the Board of
Directors, including unfilled vacancies resulting from the removal of
directors for cause or without cause, may be filled by the vote of a
majority of the remaining directors then in office, although less than a
quorum, or by the sole remaining director.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall
fix, except that the first meeting of a newly elected Board shall be held
as soon after its election as the directors may conveniently assemble.
- PLACE. Meetings shall be held at such place within or
without the State of Delaware as shall be fixed by the Board.
- CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called
by or at the direction of the Chairperson of the Board, if any, the Vice-
Chairperson of the Board, if any, of the President, or of a majority of
the directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been
fixed. Written, oral, or any other mode of notice of the time and place
shall be given for special meetings in sufficient time for the convenient
assembly of the directors thereat. Whenever notice is required to be
given under the Delaware General Corporation Law, certificate of
incorporation or bylaws, a written waiver signed by the person entitled
to notice, or a waiver by electronic transmission by the person entitled
to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of any such person at a meeting
shall constitute a waiver of notice of such meeting, except when such
person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
directors need be specified in any written waiver of notice.
- QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such
majority, whereupon a majority of the directors in office shall
constitute a quorum, provided, that such majority shall constitute at
least one-third of the whole Board. A majority of the directors present,
whether or not a quorum is present, may adjourn a meeting to another time
and place. Except as herein otherwise provided, and except as otherwise
provided by the General Corporation Law, the vote of the majority of the
directors present at a meeting at which a quorum is present shall be the
act of the Board. The quorum and voting provisions herein stated shall
not be construed as conflicting with any provisions of the General
Corporation Law and these Bylaws which govern a meeting of directors held
to fill vacancies and newly created directorships in the Board or action
of disinterested directors.
Any member or members of the Board of Directors or of any
committee designated by the Board, may participate in a meeting of the
Board, or any such committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other.
- CHAIRPERSON OF THE MEETING. The Chairperson of the Board, if
any and if present and acting, shall preside at all meetings. Otherwise,
the Vice-Chairperson of the Board, if any and if present and acting, or
the President, if present and acting, or any other director chosen by the
Board, shall preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise be provided
by the General Corporation Law, any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors.
6. COMMITTEES. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the
directors of the corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the
absence or disqualification of any member of any such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the corporation with the exception of any power or authority
the delegation of which is prohibited by Section 141 of the General
Corporation Law, and may authorize the seal of the corporation to be
affixed to all papers which may require it.
7. WRITTEN ACTION. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof
may be taken without a meeting if all members of the Board or committee,
as the case may be, consent thereto in writing or electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board or
committee. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the minutes
are maintained in electronic form.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a President, a
Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable
by the Board of Directors, a Chairperson of the Board, a Vice-Chairperson
of the Board, an Executive Vice-President, one or more other Vice-
Presidents, one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other officers with such titles as the resolution of
the Board of Directors choosing them shall designate. Except as may
otherwise be provided in the resolution of the Board of Directors
choosing such officer, no officer other than the Chairperson or Vice-
Chairperson of the Board, if any, need be a director. Any number of
offices may be held by the same person, as the directors may determine.
Unless otherwise provided in the resolution choosing such
officer, each officer shall be chosen for a term which shall continue
until the meeting of the Board of Directors following the next annual
meeting of stockholders and until such officer's successor shall have
been chosen and qualified.
All officers of the corporation shall have such authority and
perform such duties in the management and operation of the corporation as
shall be prescribed in the resolutions of the Board of Directors
designating and choosing such officers and prescribing their authority
and duties, and shall have such additional authority and duties as are
incident to their office except to the extent that such resolutions may
be inconsistent therewith. The Secretary or an Assistant Secretary of
the corporation shall record all of the proceedings of all meetings and
actions in writing of stockholders, directors, and committees of
directors, and shall exercise such additional authority and perform such
additional duties as the Board shall assign to such Secretary or
Assistant Secretary. Any officer may be removed, with or without cause,
by the Board of Directors. Any vacancy in any office may be filled by
the Board of Directors.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of
Directors shall prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be
subject to change, by the Board of Directors.
ARTICLE VI
INDEMNIFICATION
The corporation shall indemnify its directors, officers,
employees and agents to the fullest extent permitted by the General
Corporation Law.
ARTICLE VII
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of incorporation
and the provisions of the General Corporation Law, the power to amend,
alter, or repeal these Bylaws and to adopt new Bylaws may be exercised by
the Board of Directors or by the stockholders.
PROXY FORM DYNASIL CORPORATION OF AMERICA PROXY FORM
Annual Meeting of Shareholders - To Be Held February 5, 2008
THE BOARD OF DIRECTORS SOLICITS THIS PROXY
The undersigned hereby appoint(s) CRAIG DUNHAM and JAMES SALTZMAN, or
either of them, as attorney-in-fact, agent and proxy of the undersigned,
with full power of substitution, to vote all shares of common stock of
Dynasil Corporation of America that the undersigned would be entitled to
cast if personally present at the Annual Meeting of Shareholders of the
Company, and at any postponement or adjournment thereof.
THIS PROXY WILL BE VOTED AS SPECIFIED BY THE UNDERSIGNED. IF NO CHOICE IS
SPECIFIED, THE PROXY WILL BE VOTED FOR EACH OF THE BELOW LISTED PERSONS AND
PROPOSALS.
Please date, sign exactly as your name appears on the form and mail the
proxy promptly. When signing as an attorney, executor, administrator,
trustee or guardian, please give your full title as such. If shares are
held jointly, both owners must sign.
Director Nominees: (1) James Saltzman, (2) Craig Dunham, and
(3) Cecil Ursprung
The Board of Directors Recommends a Vote For All Three Items:
(1) ELECTION OF DIRECTORS: James Saltzman, Craig Dunham, and
Cecil Ursprung
FOR WITHHOLD WITHHOLD authority to vote for the
All nominees Authority to vote individual nominee(s) identified
(except as marked for all nominees in the space provided below
to the contrary)
[ ] [ ] _________________________________
FOR AGAINST ABSTAIN
(2) To reincorporate the Company as a
Delaware corporation. [ ] [ ] [ ]
(3) To ratify the appointment of Haefele,
Flanagan & Company as the Company's [ ] [ ] [ ]
independent public accountants for
the 2007 fiscal year
(4) To transact such other business as
may properly come before the
meeting or any adjournments thereof [ ] [ ] [ ]
--------------------------------
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SIGNATURE DATE
SIGNATURE DATE
Grafico Azioni Dynasil Corp of America (CE) (USOTC:DYSL)
Storico
Da Giu 2024 a Lug 2024
Grafico Azioni Dynasil Corp of America (CE) (USOTC:DYSL)
Storico
Da Lug 2023 a Lug 2024