UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): April 26, 2023
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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(Address of principal executive offices)(Zip Code)
(Registrant’s telephone number, including area code): (631 )
924-1135
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange
on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
EXPLANATORY NOTE
As previously announced, Chembio Diagnostics, Inc. (“Chembio”) entered into an Agreement and Plan of Merger, dated as of January 31, 2023 (the “Merger Agreement”), with Biosynex SA, a French société anonyme (“Biosynex”), and Project Merci Merger Sub, Inc., a Nevada corporation and wholly-owned indirect subsidiary of Biosynex (“Merger Sub”). Upon the terms and subject to the
conditions described in the Merger Agreement, on February 14, 2023, Merger Sub commenced a tender offer (the “Offer”) to purchase all of the outstanding shares of common
stock of Chembio, par value $0.01 per share (“Shares”), for $0.45 in cash without interest and less any applicable taxes required to be
deducted or withheld in respect thereof (the “Transaction Consideration”). The Offer was extended on March 15, 2023, March 29, 2023 and April
13, 2023 and expired on April 26, 2023 at 6:00 p.m., New York City time (the “Expiration Time”). Securities Transfer Corporation, in its capacity as depositary and paying agent for the Offer (“Depositary and Paying Agent”), has advised that, as of the Expiration Time, a total of 18,874,498 Shares had been validly tendered and not properly withdrawn pursuant to the Offer, representing approximately
50.93% of the issued and outstanding Shares as of the Expiration Time. Accordingly, the Minimum Condition (as defined in the Merger Agreement) has been satisfied. As a result of the satisfaction of the Minimum Condition and each of the other
conditions to the Offer, at the Expiration Time, Biosynex and Merger Sub accepted for payment the Shares that were validly tendered and not validly withdrawn prior to the Expiration Time. Biosynex has transmitted payment for such Shares to the
Depositary and Paying Agent, which will disburse the offer price to tendering Chembio stockholders whose Shares have been accepted for payment in accordance with the terms of the Offer.
Following the consummation of the Offer, subject to the terms and conditions of the Merger Agreement and in accordance with Section 92A.133 of the
Nevada Revised Statues (the “NRS”), on April 27, 2023, Merger Sub merged with and into Chembio (the “Merger”), with Chembio surviving the Merger as a wholly-owned and indirect subsidiary of Biosynex in accordance with the NRS. At the effective time of the Merger (the “Effective Time”), each Share that was not (a) validly tendered and irrevocably accepted for purchase pursuant to the Offer or (b) held by Chembio as a treasury share, owned by a wholly-owned Chembio
subsidiary or held by Biosynex or its Subsidiaries (as defined in the Merger Agreement), was converted into the right to receive cash in an amount equal to the Transaction Consideration, on the terms and subject to the conditions set forth in the
Merger Agreement. Each of Chembio’s unvested restricted stock unit award (the “RSUs”) that was outstanding immediately prior to the effective
time of the Merger (including each unvested RSU that became vested at the time of acceptance of payment related to the Offer or effective time of the Merger) was automatically canceled and converted into the right to receive an amount of cash
equal to the Transaction Consideration. Each stock option outstanding immediately prior to the effective time of the Merger was automatically terminated for no consideration.
| Item 1.02 |
Termination of a Material Definitive Agreement
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On April 27, 2023, effective as of the closing of the Merger,
Chembio terminated that certain Credit Agreement and Guaranty, dated as of September 3, 2019, by and among Chembio, the Guarantors from time to time party thereto, and Perceptive Credit Holdings II, LP and its successors and assigns party
thereto, and concurrently repaid all advances and other obligations outstanding thereunder. The information set forth in the Explanatory Note and Item 2.01 of this Current
Report on Form 8-K is incorporated by reference into this Item 1.02.
| Item 2.01 |
Completion of Acquisition or Disposition of Assets
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The disclosure set forth in the “Explanatory Note” above is incorporated into this Item 2.01 by reference.
The Merger was effected pursuant to NRS 92A.133, which permits completion of a merger without a stockholder vote as soon as practicable following the successful consummation of
an offer for all of the outstanding stock of a corporation that has a class of stock listed on a national securities exchange.
The foregoing description of the Merger Agreement does not
purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which was filed as Exhibit 2.1 to Chembio’s Current Report on
Form 8-K, filed with SEC on January 31, 2023 and is incorporated herein by reference.
| Item 3.01 |
Notice of Delisting or Failure to Satisfy a Continuing Listing Rule or Standard; Transfer of Listing
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The information set forth in the Explanatory Note and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
On April 27, 2023, Chembio (i) notified The Nasdaq Stock Market LLC (“Nasdaq”) of the consummation of the
Merger and (ii) requested that Nasdaq suspend trading of the Shares and, following the Effective Time, file with the SEC a Form 25 Notification of Removal from Listing and/or Registration, to delist all of the Shares from Nasdaq and deregister the
Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Chembio common stock ceased trading on Nasdaq following the close of trading on April 27, 2023. Chembio also
intends to file a Certification and Notice of Termination of Registration on Form 15 with the SEC requesting the termination of registration of the Shares under Section 12(g) of the Exchange Act and the suspension of Chembio’s reporting obligations
under Section 13 and 15(d) of the Exchange Act.
| Item 3.03 |
Material Modification to Rights of Security Holders
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The information set forth in the Explanatory Note and Items 2.01, 3.01 and 5.03 of this Current Report on Form 8-K is incorporated
by reference into this Item 3.03.
| Item 5.01 |
Change in Control of Registrant
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As a result of the consummation of the Offer and the consummation
of the Merger in accordance with NRS 92A.133 on April 27, 2023, a change in control of Chembio occurred. At the Effective Time, Chembio became a wholly-owned and indirect subsidiary of Biosynex. The Transaction Consideration was funded through
cash on the balance sheet of Biosynex. The information contained in the Explanatory Note and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into
this Item 5.01.
| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
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The information set forth in the Explanatory Note and Item 2.01 of this Current Report on Form 8-K is incorporated herein by
reference.
In accordance with the terms of the Merger Agreement, each officer of Merger Sub immediately prior to the Effective
Time became an officer of Chembio effective as of the Effective Time. The officers of Merger Sub immediately prior to the Effective Time were Larry Abensur and Thierry Paper. In addition, in accordance with the terms of the Merger Agreement, the
sole member of Merger Sub’s board of directors immediately prior to the Effective Time became a member of Chembio’s board of directors effective as of the Effective Time. The member of Merger Sub’s board of directors immediately prior to the
Effective Time was Larry Abensur. Effective immediately following completion of the Merger, all of the incumbent officers and directors of Chembio, as of immediately prior to the effectiveness of the Merger, were removed as officers or directors
of Chembio. Biographical and other information with respect to Larry Abensur and Thierry Paper is set forth in Schedule I to the Offer to Purchase, a copy of which is attached as Exhibit (a)(1)(A) to the Tender Offer Statement on Schedule TO
filed with the SEC by Parent on February 14, 2023 and is incorporated herein by reference.
| Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
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Pursuant to the Merger Agreement, at the Effective Time, the
articles of incorporation of Chembio (the “Articles of Incorporation”) were amended and restated in their entirety. The Articles of Incorporation are filed as Exhibit 3.1 to this Current Report on Form 8-K and are incorporated herein by reference. In addition, pursuant to the
Merger Agreement, at the Effective Time, Chembio’s by-laws (“By-Laws”) were amended and restated in their entirety. The By-Laws are attached hereto as Exhibit 3.2 to this Current Report on Form 8-K and are incorporated herein by reference.
| Item 7.01 |
Regulation FD Disclosure
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On April 27, 2023, Biosynex issued a press release announcing the completion of the Merger. A copy of the press release is furnished herewith under the
Securities Exchange Act of 1934, as amended, as Exhibit 99.1 to this Form 8-K and is incorporated herein by reference.
The information in this Item 7.01, including Exhibit 99.1, is furnished and shall not be deemed “filed” for purposes of Section 18
of the Exchange Act, or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of Chembio under the Securities Act or the Exchange Act, regardless of any general incorporation
language in such filings.
| Item 9.01 |
Financial Statements and Exhibits
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Exhibit
No.
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Description
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Agreement and Plan of Merger, dated as of January 31, 2023, by and among Biosynex SA, Project Merci Merger Sub, Inc. and Chembio Diagnostic, Inc. (incorporated by reference to the copy included as Exhibit 2.1 to
Chembio’s Current Report on Form 8-K, filed on January 31, 2023).
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Amended and Restated Articles of Incorporation of Chembio Diagnostics, Inc.
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Amended and Restated By-laws of Chembio Diagnostics, Inc.
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Press Release dated April 27, 2023
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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* Schedules and Exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. Chembio hereby agrees to supplementally furnish to the SEC upon request any omitted schedule or exhibit to the Agreement and Plan of Merger.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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CHEMBIO DIAGNOSTICS, INC.
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Date: April 27, 2023
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By:
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/s/ Larry Abensur
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Name:
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Larry Abensur
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Title:
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President
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Exhibit 3.1
EXHIBIT C
AMENDED AND RESTATED
BYLAWS
OF THE SURVIVING CORPORATION
BY-LAWS
OF
CHEMBIO DIAGNOSTICS, INC.
(the “Corporation”)
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of the Corporation (the “Stockholders”) shall be held
either within or without the State of Nevada, at such place as the Board of Directors of the Corporation (the “Board of Directors”) may designate in the call or in a waiver of notice
thereof, at such date and time as shall be designated from time to time by the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting. Participation
of one or more Stockholders by conference telephone allowing all persons participating in the meeting to hear each other at the same time shall constitute presence at a meeting.
Section 2. Special Meetings. Special meetings of the Stockholders may be called by the Board of Directors or by the President, and shall be called by the President or by the
Secretary upon the written request of the holders of record of at least twenty-five per cent (25%) of the shares of stock of the Corporation, issued and outstanding and entitled to vote, at such times and at such place either within or without
the State of Nevada as may be stated in the call or in a waiver of notice thereof. Participation of one or more Stockholders by telephone conference allowing all persons participating in the meeting to hear each other at the same time shall
constitute presence at a meeting.
Section 3. Notice of Meetings. Notice of the time, place and purpose of every meeting of Stockholders shall be delivered personally or mailed not less than ten (10) days nor more than sixty
(60) days previous thereto to each Stockholder of record entitled to vote, at such Stockholder’s post office address appearing upon the records of the Corporation or at such other address as shall be furnished in writing by him or her to the
Corporation for such purpose. Such further notice shall be given as may be required by law or by these By-Laws. Any meeting may be held without notice if all Stockholders entitled to vote are present in person or by proxy, or if notice is waived
in writing, either before or after the meeting, by those not present.
Section 4. Quorum. The holders of record of at least a majority of the shares of the stock of the Corporation, issued and outstanding and entitled to vote, present in person or by proxy,
shall, except as otherwise provided by law or by these By-Laws, constitute a quorum at all meetings of the Stockholders; if there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from
time to time until a quorum shall have been obtained.
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Section 5. Organization of Meetings. Meetings of the Stockholders shall be presided over by the Chairman of the Board, if there be one, or if the Chairman of the Board is not
present by the President, or if the President is not present, by a chairman to be chosen at the meeting. The Secretary of the Corporation, or in the Secretary of the Corporation’s absence, an Assistant Secretary, shall act as Secretary of the
meeting, if present.
Section 6. Voting. At each meeting of Stockholders, except as otherwise provided by statute or the Articles of Incorporation of the Corporation (the “Articles of Incorporation”), every holder of record of stock entitled to vote shall be entitled to one vote in person or by proxy for each share of such stock standing in his or her name on the records of the
Corporation. Elections of directors shall be determined by a plurality of the votes cast and, except as otherwise provided by statute, the Articles of Incorporation, or these By-Laws, all other action shall be determined by a majority of the
votes cast at such meeting. Each proxy to vote shall be in writing and signed by the Stockholder or by such Stockholder’s duly authorized attorney.
At all elections of directors, the voting shall be by ballot or in such other manner as may be determined by the Stockholders
present in person or by proxy entitled to vote at such election. With respect to any other matter presented to the Stockholders for their consideration at a meeting, any Stockholder entitled to vote may, on any question, demand a vote by ballot.
A complete list of the Stockholders entitled to vote at each such meeting, arranged in alphabetical order, with the address of
each, and the number of shares registered in the name of each Stockholder, shall be prepared by the Secretary and shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also 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.
Section 7. Inspectors of Election. The Board of Directors in advance of any meeting of Stockholders may appoint one or more Inspectors of Election (“Inspectors of Elections”) to act at the meeting or any adjournment thereof. If Inspectors of Election are not so appointed, the chairman of the meeting may, and on the request of any Stockholder entitled to vote
shall, appoint one or more Inspectors of Election. Each Inspector of Election, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of an Inspector of Election at such meeting with strict
impartiality and according to the best of his or her ability. If appointed, Inspectors of Election shall take charge of the polls and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as
may be required by law.
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Section 8. Action by Consent. Any action required or permitted to be taken at any meeting of Stockholders,
including the annual meeting, may be taken without a meeting, without prior notice and without a vote, if, prior to such action, a written consent or consents thereto, setting forth such action, is signed by the holders of record of
shares of the stock of the Corporation, issued and outstanding and entitled to vote thereon, 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.
ARTICLE II
DIRECTORS
Section 1. Number, Quorum, Term, Vacancies, Removal. The Board of Directors shall consist of one person, as determined by the Board of Directors. The number of directors may be
changed by a resolution passed by a majority of the whole Board of Directors or by a vote of the holders of record of at least a majority of the shares of stock of the Corporation, issued and outstanding and entitled to vote.
A majority of the members of the Board of Directors then holding office (but not less than one-third of the total number of
directors) shall constitute a quorum for the transaction of business provided, that if at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a
quorum shall have been obtained.
Directors shall hold office until the next annual election and until their successors shall have been elected and shall have
qualified, unless sooner displaced.
Whenever any vacancy shall have occurred in the Board of Directors, by reason of death, resignation, or otherwise, other than
removal of a director with or without cause by a vote of the Stockholders, it shall be filled by a majority of the remaining directors, though less than a quorum (except as otherwise provided by law), or by the Stockholders, and the person so chosen
shall hold office until the next annual election and until a successor is duly elected and has qualified.
Any one or more of the directors of the Corporation may be removed either with or without cause at any time by a vote of the
holders of record of at least two-thirds of the shares of stock of the Corporation, issued and outstanding and entitled to vote, and thereupon the term of the director or directors who shall have been so removed shall forthwith terminate and there
shall be a vacancy or vacancies in the Board of Directors, to be filled by a vote of the Stockholders as provided in these By-Laws.
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Section 2. Meetings, Notice. Meetings of the Board of Directors shall be held at such place either within or
without the State of Nevada, as may from time to time be fixed by resolution of the Board of Directors, or as may be specified in the call or in a waiver of notice thereof. Regular meetings of the Board of Directors shall be held at such times as
may from time to time be fixed by resolution of the Board of Directors, and special meetings may be held at any time upon the call of one director, the Chairman of the Board, if one be elected, or the President, by oral, telegraphic
or written notice, duly served on or sent or mailed to each director not less than two days before such meeting. A meeting of the Board of Directors may be held without notice immediately after the annual meeting of Stockholders at the same place at
which such meeting was held. Notice need not be given of regular meetings of the Board of Directors. Any meeting may be held without notice, if all directors are present, or if notice is waived in writing, either before or after the meeting, by those
not present. Participation of one or more directors by conference telephone allowing all persons participating in the meeting to hear each other at the same time shall constitute presence at a meeting.
Section 3. Committees. The Board of Directors may, in its discretion, by resolution passed by a majority of the whole Board of Directors, designate from among its members one or more
committees which shall consist of one or more directors. The Board of Directors may designate one or more directors as alternate members of any such committee, who may replace any absent or disqualified member at any meeting of the committee.
Such committees shall have and may exercise such powers as shall be conferred or authorized by the resolution appointing them. A majority of any such committee may determine its action and fix the time and place of its meetings, unless the Board
of Directors shall otherwise provide. The Board of Directors shall have power at any time to change the membership of any such committee, to fill vacancies in it, or to dissolve it.
Section 4. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if
prior to such action a written consent or consents thereto is signed by all members of the Board of Directors, or of such committee as the case may be, and such written consent or consents is filed with the minutes of proceedings of the Board of
Directors or committee, as applicable.
Section 5. Compensation. The Board of Directors may determine, from time to time, the amount of compensation which shall be paid to its members. The Board of Directors shall also
have power, in its discretion, to allow a fixed sum and expenses for attendance at each regular or special meeting of the Board of Directors, or of any committee of the Board of Directors. In addition, the Board of Directors shall also have
power, in its discretion, to provide for and pay to directors rendering services to the Corporation not ordinarily rendered by directors, as such, special compensation appropriate to the value of such services, as determined by the Board of
Directors from time to time.
ARTICLE III
OFFICERS
Section 1. Titles and Election. The officers of the Corporation, who shall be chosen by the Board of
Directors at its first meeting after each annual meeting of Stockholders, shall be a President, a Treasurer and a Secretary. The Board of Directors from time to time may elect a Chairman of the Board, one or more Vice Presidents,
Assistant Secretaries, Assistant Treasurers and such other officers and agents as it shall deem necessary, and may define their powers and duties. Any number of offices may be held by the same person.
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Section 2. Terms of Office. Officers shall hold office until their successors are chosen and qualify.
Section 3. Removal. Any officer may be removed, either with or without cause, at any time, by the affirmative vote of a majority of the Board of Directors.
Section 4. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors or to the Secretary. Such resignation shall take effect at the time
specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 5. Vacancies. If the office of any officer or agent becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the directors may
choose a successor, who shall hold office for the unexpired term in respect of which such vacancy occurred.
Section 6. Chairman of the Board. The Chairman of the Board of the Board of Directors (the “Chairman of the Board”), if
one be elected, shall preside at all meetings of the Board of Directors and of the Stockholders, and the Chairman of the Board shall have and perform such other duties as from time to time may be assigned to the Chairman of the Board by the Board
of Directors.
Section 7. President. The President of the Corporation (the “President”) shall be the chief executive officer of the
Corporation and, in the absence of the Chairman of the Board, shall preside at all meetings of the Board of Directors, and of the Stockholders. The President shall exercise the powers and perform the duties usual to the chief executive officer
and, subject to the control of the Board of Directors, shall have general management and control of the affairs and business of the Corporation; the President shall appoint and discharge employees and agents of the Corporation (other than
officers elected by the Board of Directors) and fix their compensation; and the President shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall have the power to execute bonds, mortgages
and other contracts, agreements and instruments of the Corporation, and shall do and perform such other duties as from time to time may be assigned to the President by the Board of Directors.
Section 8. Vice Presidents. If chosen, the Vice Presidents of the Corporation (the “Vice President”), in the order of
their seniority, shall, in the absence or disability of the President, exercise all of the powers and duties of the President. The Vice Presidents shall have the power to execute bonds, notes, mortgages and other contracts, agreements and
instruments of the Corporation, and shall do and perform such other duties incident to the office of Vice President and as the Board of Directors, or the President shall direct.
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Section 9. Secretary. The Secretary of the Corporation (the “Secretary”) shall attend all sessions of the Board of
Directors and all meetings of the Stockholders and record all votes and the minutes of proceedings in a book to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the Stockholders and of the Board
of Directors, and shall perform such other duties as may be prescribed by the Board of Directors. The Secretary shall affix the corporate seal to any instrument requiring it, and when so affixed, it shall be attested by the signature of the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer who may affix the seal to any such instrument in the event of the absence or disability of the Secretary. The Secretary shall have custody of the stock records and all
other books, records and papers of the Corporation (other than financial) and shall see that all books, reports, statements, certificates and other documents and records required by law are properly kept and filed.
Section 10. Treasurer. The Treasurer of the Corporation (the “Treasurer”) shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys, and other valuable effects in the name and to the credit of the Corporation, in such
depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the directors
whenever they may require it, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation.
Section 11. Duties of Officers may be Delegated. In case of the absence or disability of any officer of the Corporation, or for any other reason that the Board of Directors may
deem sufficient, the Board of Directors may delegate, for the time being, the powers or duties, or any of them, of such officer to any other officer, or to any director.
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ARTICLE IV
INDEMNIFICATION; INSURANCE
Section 1. Indemnification
a. Actions Other than Those Actions by or in the Right of the
Corporation. To the maximum extent permitted by Nevada law from time to time in effect and, subject to the provisions of paragraph (c) of this Section 1, the Corporation shall indemnify any person (the “Indemnitee”) who was or is a
party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact
that the Indemnitee is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection with such action, suit or proceeding if the Indemnitee acted in good
faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation (or such other corporation or organization), and, with respect to any criminal action or proceeding, had no reasonable cause to
believe the Indemnitee’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the
Indemnitee did not act in good faith and in a manner which the Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation; and with respect to any criminal action or proceeding, any such termination shall not
create a presumption that the Indemnitee had reasonable cause to believe that the Indemnitee’s conduct was unlawful.
b. Actions by or in the Right of the Corporation. To the maximum extent permitted by Nevada law from time to time in effect and subject to the provisions of paragraph (c) of this
Section 1, the Corporation shall indemnify any person (the “Indemnitee”) who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that the Indemnitee is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the Indemnitee in connection with the defense or settlement of such action or suit if the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation (or such other corporation or organization) and except that no indemnification shall be made in respect of any claim,
issue or matter as to which the Indemnitee shall have been adjudged to be liable to the Corporation unless - and only to the extent that - the court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such other court shall deem proper.
c. Successful Defense of Action. Notwithstanding, and without limitation of, any other provision of this Section 1, to the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in sub-paragraph (a) or (b) of this Section 1, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.
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d. Advancement of Expenses; Nonexclusivity; Duration. Expenses (including attorneys’ fees) incurred by an officer
or director in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or
on behalf of such officer or director to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation pursuant to this Section 1. Such expenses (including attorneys’
fees) incurred by other employees and agents may be so paid by the Corporation upon such terms and conditions, if any, as the Board deems appropriate. The indemnifications, advancement of expenses and rights provided by, or granted pursuant to, this
Article IV shall not be deemed exclusive of any other indemnifications, advancement of expenses, rights or limitations of liability to which any person seeking indemnification or advancement of expenses may be entitled under any Bylaw, agreement,
vote of Stockholders or disinterested directors or otherwise, either as to action in such person’s official capacity or as to action in another capacity while holding office, and any such indemnifications, advancements of expenses, rights, and
limitations of liability shall continue although such person has ceased to be a director, officer, employee or agent, and shall inure to the benefit of such person’s heirs, executors and administrators. The authorization to purchase and maintain
insurance set forth in Section 2 below shall likewise not be deemed exclusive.
e. Determination Required. Any indemnification under Section 1 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent is proper in the circumstances because such director, officer, employee or agent has met the applicable standard of conduct set forth in this Section 1. Such
determination shall be made: (i) by the Board by a majority vote of those directors who were not parties to the particular action, suit or proceeding, or (ii) if there are no such non-party directors, or , even if there are, and a majority of
such non-party directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders.
f. Right of Indemnitee to bring Suit. If a claim for which the Corporation is responsible under Section 1 is not paid in full by the Corporation within 60 days after a written claim
therefor has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee also shall be
entitled to be paid the expense of prosecuting or defending such suit. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances nor an actual determination by the Corporation (including its Board, independent legal
counsel, or its stockholders) that the Indemnitee is not entitled to indemnification shall create a presumption that the Indemnitee is not so entitled or in the case of such a suit brought by the Indemnitee, shall be a defense to such suit. In
any suit brought by the Indemnitee to enforce a right to indemnification or to advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the
Indemnitee is not entitled to be indemnified, or to such advancement of expenses, shall be on the Corporation.
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Section 2. Insurance. The Corporation may, when authorized by the Board, purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify that person against such liability under the provisions of this Article IV. The
risks insured under any insurance policies purchased and maintained on behalf of any person as aforesaid or on behalf of the Corporation shall not be limited in any way by the terms of this Article IV, and to the extent compatible with the
provisions of such policies, the risks insured shall extend to the fullest extent permitted by law, both statutory and common.
Section 3. Amendments. Any repeal or amendment of this Article IV by the Board or the stockholders of the Corporation or by changes in applicable law, or the adoption of any other
provision of these Bylaws inconsistent with this Article IV, will, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide broader
indemnification rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such
repeal or amendment or adoption of such inconsistent provision.
Section 4. Procedures for the Submission of Claims. The
Board may
establish additional reasonable procedures pursuant to this Article IV for the submission of claims for indemnification, determination of the
entitlement of any person thereto, and review of any such determination.
ARTICLE V
CAPITAL STOCK
Section 1. Certificates. The interest of each Stockholder shall be evidenced by certificates for shares of stock in such form as the Board of Directors may from time to time
prescribe. The certificates of stock shall be signed by the President or a Vice President and by the Secretary, or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed with the seal of the Corporation or a facsimile
thereof, and countersigned and registered in such manner, if any, as the Board of Directors may by resolution prescribe. Where any such certificate is countersigned by a transfer agent other than the Corporation or its employee, or registered by
a registrar other than the Corporation or its employee, the signature of any such officer may be a facsimile signature. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any
such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the Corporation.
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Section 2. Transfer. The shares of stock of the Corporation shall be transferred only upon the books of the Corporation by the holder thereof in person or by his or her attorney,
upon surrender for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Corporation
or its agents may reasonably require.
Section 3. Record Dates. The Board of Directors may fix in advance a date, not less than ten (10) nor more than sixty (60) days preceding the date of any meeting of Stockholders, or
the date for the payment of any dividend, or the date for the distribution or allotment of any rights, or the date when any change, conversion or exchange of capital stock shall go into effect, as a record date for the determination of the
Stockholders entitled to notice of, and to vote at, any such meeting, or entitled to receive payment of any such dividend, or to receive any distribution or allotment of such rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, and in such case only such Stockholders as shall be Stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend, or
to receive such distribution or allotment or rights or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid.
Section 4. Lost Certificates. In the event that any certificate of stock is lost, stolen, destroyed or mutilated, the Board of Directors may authorize the issuance of a new certificate of
the same tenor and for the same number of shares in lieu thereof. The Board of Directors may in its discretion, before the issuance of such new certificate, require the owner of the lost, stolen, destroyed or mutilated certificate, or the legal
representative of the owner to make an affidavit or affirmation setting forth such facts as to the loss, destruction or mutilation as it deems necessary, and to give the Corporation a bond in such reasonable sum as it directs to indemnify the
Corporation.
ARTICLE VI
CHECKS, NOTES, ETC.
Section 1. Checks, Notes, Etc. All checks and drafts on the Corporation’s bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other
instruments for the payment of money, may be signed by any director of the Corporation, the President, any Vice President or the Treasurer and may also be signed by such other officer or officers, agent or agents, as shall be thereunto authorized
from time to time by the Board of Directors.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. Offices. The registered office of the Corporation shall be located at C T Corporation System, 701 South Carson Street, Suite 200, Carson City, Nevada 89701 and the
C T Corporation System shall be the registered agent of this Corporation in charge thereof. The Corporation may have other offices either within or without the State of Nevada at such places as shall be determined from time to time by the Board
of Directors or the business of the Corporation may require.
Section 2. Fiscal Year. The fiscal year of the Corporation shall end on December 31st of each year.
Section 3. Corporate Seal. The seal of the Corporation shall be circular in form and contain the name of the Corporation, and the year and state of its incorporation. Such seal may
be altered from time to time at the discretion of the Board of Directors.
Section 4. Books. There shall be kept at such office of the Corporation as the Board of Directors shall determine, within or without the State of Nevada, correct books and records of
account of all its business and transactions, minutes of the proceedings of its Stockholders, Board of Directors and committees, and the stock book, containing the names and addresses of the Stockholders, the number of shares held by them,
respectively, and the dates when they respectively became the owners of record thereof, and in which the transfer of stock shall be registered, and such other books and records as the Board of Directors may from time to time determine.
Section 5. Voting of Stock. Unless otherwise specifically authorized by the Board of Directors, all stock owned by the Corporation, other than stock of the Corporation, shall be voted, in
person or by proxy, by the President or any Vice President of the Corporation on behalf of the Corporation.
Section 6. Election Not to Be Governed by Certain Provisions of Nevada Revised Statutes. The Corporation elects not to be governed by the provisions of Nevada Revised Statutes 78.378
to 78.3793, inclusive, and Nevada Revised Statutes 78.378 to 78.3793, inclusive, do not apply to the Company or to an acquisition of a controlling interest in the Company by all existing stockholders and classes of stockholders of the Company and
all future stockholders and classes of stockholders of the Company.
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ARTICLE VIII
AMENDMENTS
Section 1. Amendments. The vote of the holders of at least a majority of the shares of stock of the Corporation, issued and outstanding and entitled to vote, shall be necessary at
any meeting of Stockholders to amend or repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended or repealed, or new by-laws adopted, at any meeting of the Board of Directors by the vote of at least a majority of the entire
Board of Directors; provided that any by-law adopted by the Board of Directors may be amended or repealed by the Stockholders in the manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new by-laws shall be stated in the notice of the meeting of the Board
of Directors or the Stockholders, or in the waiver of notice thereof, as the case may be, unless all of the directors or the holders of record of all of the shares of stock of the Corporation, issued and outstanding and entitled to vote, are present
at such meeting.
* * *
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Exhibit 99.1
Biosynex Completes Acquisition of Chembio Diagnostics, Inc.
Chembio Diagnostics, Inc. becomes the first North American structure
controlled by Biosynex in North America.
STRASBOURG, France, April 27, 2023 (GLOBE NEWSWIRE) -- Biosynex SA
(“Biosynex”) (EPA: ALBIO), a French market leader specializing in the design and distribution of rapid tests, today announced it has completed its acquisition of Chembio Diagnostics, Inc. (“Chembio”), a leading point-of-care diagnostics company
focused on infectious diseases. Chembio is now part of Biosynex Group. The complementary nature of the technologies and product portfolio as well as the combination of market opportunities will be important growth drivers for the combined company.
In addition, significant operational synergies are anticipated in procurement, R&D logistics and production.
“The success of the Chembio acquisition marks a major step in the history of Biosynex, remarked Larry Abensur, CEO of Biosynex. “The integration of this structure
into the Biosynex Group gives us direct access to the American market, which we believe is the most important in terms of turnover for the in vitro diagnostics industry. Chembio already benefits from numerous FDA approved products (510k, PMA and
CLIA waived products). It is also recognized in the rapid HIV test market with WHO prequalified products that will open up new business opportunities for us internationally. In addition, we plan to exploit the many strong synergies between our
businesses to create significant cost savings in an integrated organization. We are excited about becoming a global player in the rapid diagnostic test market.”
Biosynex conducted a tender offer by its wholly-owned indirect subsidiary, Project Merci Merger Sub, Inc. (“Purchaser”) for all of the issued and outstanding shares of
common stock of Chembio. The consideration was $0.45 per share payable in cash, subject to the terms of the merger agreement, for a transaction value of approximately $17.2 million. The tender offer expired at 6:00 p.m., New York City time, on
April 26, 2023. Securities Transfer Corporation, the depositary for the tender offer, has advised Biosynex that approximately 18,874,498 shares of Chembio common stock were validly tendered and not properly withdrawn in the tender offer,
representing approximately 50.9% of the outstanding shares of Chembio’s common stock as of April 26, 2023. All of the conditions to the tender offer have been satisfied, and on April 26, 2023, Purchaser, accepted for payment, and will as promptly
as practicable pay for, all shares validly tendered and not properly withdrawn in the tender offer.
Following the acceptance of the tendered shares, Purchaser completed the acquisition of Chembio on April 27, 2023 through the merger of Purchaser with and into Chembio
in accordance with Nevada Revised Statute 92A.133 without a vote of Chembio stockholders. In connection with the merger, shares of Chembio that were not tendered in the tender offer were converted into the right to receive $0.45 per share in cash.
As a result of the merger, Chembio became a wholly-owned indirect subsidiary of Biosynex. In connection with the completion of the transaction, Chembio’s common stock ceased trading on Nasdaq.
White & Case LLP served as legal counsel to Biosynex and K&L Gates LLP served as legal counsel to Chembio.
About Biosynex
Founded in 2005 and based in Illkirch-Graffenstaden in Alsace, France, Biosynex is a major player in public health with 550 employees. Biosynex designs, manufactures
and distributes Rapid Diagnostic Tests (RDTs) as well as diagnostic equipment for healthcare professionals and the general public, aiming to improve patient care through rapid results and ease of use. As the leader in the RDT market in France,
Biosynex has complete control over its value chain thanks to its technological platform, which can be adapted to numerous applications and is suitable for different types of users such as laboratories, hospitals, doctors and consumers. Driven by
strong values of innovation, Biosynex has a proactive vision of tomorrow’s medicine focused on prevention, screening, emergency diagnosis and rapid treatment. Learn more at www.biosynex.com.
Forward Looking Statements
This press release contains forward-looking statements regarding the acquisition of Chembio Diagnostics, Inc. by Biosynex SA. Forward-looking statements involve
inherent risks and uncertainties and you are cautioned that a number of important factors could cause actual results to differ materially from those contained in any such forward-looking statement. These statements can otherwise be identified by
the use of words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “feel,” “forecast,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “seek,” “should,” “would,” “will,” and similar expressions intended to identify
forward-looking statements, although not all forward-looking statements contain these identifying words. The forward-looking statements contained in this press release include, but are not limited to, statements related to Biosynex’s plans,
objectives, expectations and intentions with respect to the combined company, and the potential impact the transaction will have on Chembio or Biosynex and other matters related to either or both of them. The forward-looking statements are based on
assumptions regarding current plans and estimates of management of Biosynex. Biosynex management believes these assumptions to be reasonable, but there is no assurance that they will prove to be accurate.
Factors that could cause actual results to differ materially from those described in this press release include, among others: the expected synergies and cost savings
are not achieved or achieved at a slower pace than expected; integration problems, delays or other related costs; retention of customers and suppliers; unanticipated changes in laws, regulations, or other industry standards affecting the companies;
and other risks and important factors contained and identified in Chembio’s and Biosynex’s filings with the SEC, including Chembio’s Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K.
The foregoing list of factors is not exhaustive. Readers are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date
hereof. Readers are urged to carefully review and consider the various disclosures, including but not limited to risk factors contained in Chembio’s Annual Reports on Form 10-K and its quarterly reports on Form 10-Q, as well as Biosynex’s filings
with the SEC. Forward-looking statements reflect the analysis of management of Biosynex and Chembio as of the date of this press release. Neither Biosynex nor Chembio undertakes to update or revise any of these statements in light of new
information or future events, except as expressly required by applicable law.
Biosynex Contacts:
Larry Abensur
Président-Directeur Général
investisseurs@biosynex.com
Julia Bridger
Listing Sponsor
+33 1 44 70 20 84
jbridger@elcorp.com
Gilles Broquelet
Communication financière
+ 33 1 80 81 50 00
gbroquelet@capvalue.fr
Chembio Contact:
Philip Taylor
Gilmartin Group
415-937-5406
investor@chembio.com