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SCHEDULE 14C
(RULE 14C-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
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<S> <C>
[X] Preliminary Information Statement [ ] Confidential, for Use of the Commission
Only (as permitted by Rule 14c-5(d)(2))
[ ] Definitive Information Statement
</TABLE>
SDC INTERNATIONAL, INC.
--------------------------------------------------------------------------------
(Name of Registrant As Specified in Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No Fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
Copies to:
Andrew Hulsh, Esq.
Baker & McKenzie
1200 Brickell Ave.
Miami, FL 33131
Telephone: (305) 789-8985
Facsimile: (305) 789-8953
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SUBJECT TO COMPLETION, DATED NOVEMBER 22, 2000
SDC INTERNATIONAL, INC.
777 S. FLAGLER BLVD., SUITE 800-WEST
W. PALM BEACH, FL 33480
Dear Fellow Shareholder:
The purpose of this information statement is to inform you that on November
8, 2000, the Board of Directors of SDC International, Inc. (the "Company")
unanimously approved and recommended that the Company's Certificate of
Incorporation be amended and restated to include the following (the "Charter
Amendments"):
1. To increase the number of authorized shares of common stock, par
value $.001 (the "Common Stock"), of the Company from 10,000,000 shares to
25,000,000 shares; and
2. To authorize 25,000,000 shares of preferred stock, par value $.001
(the "Preferred Stock"), of the Company, which may be issued in one or more
series, with such rights, preferences, privileges and restrictions as shall
be fixed by the Company's Board of Directors from time to time.
On November 13, 2000, the holders of 55% of the outstanding shares of
Common Stock executed a written consent adopting these Charter Amendments.
Pursuant to the provisions of the Delaware General Corporations Law and the
Company's Certificate of Incorporation, the holders of at least a majority of
the outstanding voting shares are permitted to approve the Charter Amendments by
written consent in lieu of a meeting, provided that prompt notice of such action
is given to the other stockholders of the Company. This written consent assures
that the Charter Amendments will occur without your vote. Pursuant to the rules
and regulations promulgated by the Securities and Exchange Commission (the
"SEC") under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), an information statement must be sent to the holders of voting stock who
do not sign the written consent at least 20 days prior to the effective date of
the action. This notice, which is being sent to all holders of record on
November 13, 2000, is intended to serve as such notice under Delaware law and as
the information statement required by the Exchange Act.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
Please note that this is not an offer to purchase your shares.
The date of this information statement is November , 2000.
Sincerely,
Ronald A. Adams
Chairman of the Board
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TABLE OF CONTENTS TO SCHEDULE 14C INFORMATION STATEMENT
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SUBJECT PAGE
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INTRODUCTION................................................ 1
QUESTIONS AND ANSWERS ABOUT THE CHARTER AMENDMENTS.......... 2
AMENDMENT TO THE CERTIFICATE OF INCORPORATION PROPOSALS AND
BOARD RECOMMENDATION...................................... 3
DESCRIPTION OF SECURITIES................................... 5
Description of Common Stock............................ 5
Description of Preferred Stock......................... 5
Possible Anti-Takeover Effects......................... 5
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT................................................ 6
ANNEX A -- Form of Amended and Restated Certificate of
Incorporation............................................. A-1
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INTRODUCTION
On November 8, 2000, the Board of Directors of SDC International, Inc. (the
"Company") unanimously approved and recommended that the Company's Certificate
of Incorporation be amended and restated to include the following (the "Charter
Amendments"):
1. To increase the number of authorized shares of common stock, par
value $.001 (the "Common Stock"), of the Company from 10,000,000 shares to
25,000,000 shares; and
2. To authorize 25,000,000 shares of preferred stock, par value $.001
(the "Preferred Stock"), of the Company, which may be issued in one or more
series, with such rights, preferences, privileges and restrictions as shall
be fixed by the Company's Board of Directors from time to time.
On November 13, 2000, the holders of 55% of the outstanding shares of
Common Stock executed a written consent adopting these Charter Amendments. As of
the close of business on November 13, 2000, Company records indicated that
9,967,383 shares of its Common Stock were issued and outstanding.
The Charter Amendments are reflected in the Form of Amended and Restated
Certificate of Incorporation (the "Amended Certificate") which is attached
hereto as Annex A, and incorporated herein by reference.
The Board of Directors determined that the increase of Common Stock and the
authorization of the Preferred Stock would allow the Company to meet its future
financing requirements and the ability to utilize equity, rather than cash, to
complete strategic acquisitions. In addition, by authorizing the Board of
Directors to create and issue various series of Preferred Stock without
additional stockholder approval, the Company will have flexibility to take
advantage of financing opportunities in a competitive environment.
This information statement is being mailed on or about December 4, 2000 to
holders of record of Common Stock at the close of business on November 13, 2000
pursuant to Section 14(c) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Regulation 14C promulgated thereunder. Pursuant to
federal securities laws, none of the Charter Amendments will be effective until
at least twenty (20) days following the mailing of this information statement.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
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QUESTIONS AND ANSWERS ABOUT THE AMENDMENTS
Q. WHY DID I RECEIVE THIS INFORMATION STATEMENT?
A. Applicable laws require us to provide you information regarding the Charter
Amendments even though your vote is neither required nor requested for the
Charter Amendments to become effective.
Q. WHAT WILL I RECEIVE IF THE CHARTER AMENDMENTS IS COMPLETED?
A. Nothing. The Charter Amendments will only modify the Certificate of
Incorporation.
Q. WHEN DO YOU EXPECT THE AMENDMENTS TO BECOME EFFECTIVE?
A. The Charter Amendments will become effective upon the filing of the Amended
Certificate with the Delaware Department of State. A copy of the Form of
Amended Certificate is attached to this information statement in Annex A. We
expect to file the Amended Certificate with the Delaware Department of State
at least 20 days after this information statement has been sent to you.
Q. WHY AM I NOT BEING ASKED TO VOTE?
A. The holders of a majority of the issued and outstanding shares of Common
Stock have already approved the Charter Amendments pursuant to a written
consent in lieu of a meeting. Such approval, together with the approval of
the Company's Board of Directors, is sufficient under Delaware law, and no
further approval by our stockholders is required.
Q. WHAT DO I NEED TO DO NOW?
A. Nothing. This information statement is purely for your information, and does
not require or request you to do anything. If you need information about the
Amendments, please contact the Information Agent.
Q. WHOM CAN I CALL WITH QUESTIONS?
A. If you have any questions about the Amendments, please contact Frank Hawkins
at (305) 852-2383 (the "Information Agent").
For more detailed information about the Company, including financial
statements, you may refer to the Company's Form 10K-SB, filed with the SEC on
August 2, 2000, or to the Company's Form 10-QSB filed with the SEC on November
16, 2000. These documents are available on the SEC's EDGAR database at
www.sec.gov or can be requested without cost by calling the Information Agent.
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AMENDMENT TO THE CERTIFICATE OF INCORPORATION
PROPOSALS AND BOARD RECOMMENDATION
On November 8, 2000, our Board of Directors, believing it to be in the best
interests of the Company and its stockholders, approved, and recommended that
the stockholders of the Company approve an amendment to the Company's
Certificate of Incorporation to: (i) increase the number of authorized shares of
Common Stock of the Company to 25,000,000 shares from 10,000,000 shares, with
certain voting and dividend rights; and, (ii) authorize a class of blank check
preferred stock, par value $.001, of the Company, consisting of 25,000,000
authorized shares, which may be issued in one or more series, with such rights,
preferences, privileges and restrictions as shall be fixed by the Company's
Board of Directors from time to time in a certificate of designations which the
Board of Directors shall have authority to file from time to time as required by
law. A copy of the Form of Amended Certificate is included in Annex A.
(A) Increase in Authorized Common Stock of the Company. The Company's
Certificate of Incorporation currently authorizes the Company to issue up to
10,000,000 shares of Common Stock. As of November 13, 2000, Company records
indicate that the Company had issued and outstanding 9,967,383 shares of Common
Stock. As a result, the number of authorized, non-designated shares of Common
Stock available for issuance by the Company in the future has been reduced, and
the Company's flexibility with respect to possible future stock splits, equity
financings, stock-for-stock acquisitions, stock dividends or other transactions
that involve the issuance of Common Stock has been diminished. The Board of
Directors believes that by increasing the number of shares of authorized Common
Stock to 25,000,000 shares from 10,000,000 shares, the Company will improve its
ability to take such actions. The Board of Directors also believes that it would
be beneficial to state the voting, dividends and liquidation rights of the
Common Stock in the Certificate of Incorporation.
(B) Authorization of "Blank Check" Preferred Stock. The term "blank check"
preferred stock refers to stock for which the designations, preferences,
conversion rights, cumulative, relative, participating, optional or other
rights, including voting rights, qualifications, limitations or restrictions
thereof are determined by the Board of Directors of a company. Upon
effectiveness of the Charter Amendments, the Board of Directors of the Company
will be entitled to authorize the designation and issuance of up to 25,000,000
shares of Preferred Stock in one or more series with such limitations and
restrictions as may be determined in the board's sole discretion, with no
further authorization by stockholders required for the creation and issuance
thereof. When required by law and in accordance with the provisions of Section
151 of the General Corporation Law of the state of Delaware, the Board of
Directors of the Company shall have the express authority to execute,
acknowledge and file a certificate of designations setting forth, any and all
powers, designations, preferences, rights, qualifications, limitations or
restrictions on the stock. The Board of Directors believes that having such
blank check Preferred Stock available for, among other things, proposed
financing transactions, as well as possible issuances in connection with such
activities as public or private offerings of shares for cash, dividends payable
in stock of the Company, acquisitions of other companies or businesses, and
otherwise, is in the best interest of the Company and its stockholders.
Approval by Stockholders. As of November 13, 2000, the Company had
9,967,383 shares of its Common Stock issued and outstanding. As of this same
date, stockholders representing 5,491,015 shares of Common Stock, or 55% of the
issued and outstanding shares of Common Stock, approved the proposals to amend
the Company's Certificate of Incorporation to: (i) increase the number of
authorized shares of Common Stock of the Company to 25,000,000 shares from
10,000,000 shares; with certain voting, dividend and liquidation rights; and,
(ii) authorize a class of blank check Preferred Stock, par value $.001, of the
Company, consisting of 25,000,000 authorized shares, which may be issued in one
or more series, with such rights, preferences, privileges and restrictions as
shall be fixed by the Company's Board of Directors from time to time. The full
text of the Charter Amendments is reflected in the form of Amended Certificate
which is attached as Annex A of this information statement. Pursuant to the
provisions of Delaware law and the Company's Certificate of Incorporation, the
holders of at least a majority of the outstanding voting shares are permitted to
approve the Charter Amendments by written consent in lieu of a meeting, provided
that prompt notice of such action is given to the other stockholders. Pursuant
to the rules and regulations promulgated by
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the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), an information statement must be sent to
the holders of voting stock who do not sign the written consent at least 20 days
prior to the effective date of the action. This notice, which is being sent to
all holders of record on November 13, 2000, is intended to serve as such notice
under Delaware law and as the information statement required by the Exchange
Act.
The Company anticipates that the Charter Amendments will be effective 20
days after the mailing of this Information Statement, December 26, 2000 or
shortly thereafter.
THE CHARTER AMENDMENTS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION PASSED UPON THE FAIRNESS OR MERIT OF THE CHARTER AMENDMENTS NOR UPON
THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS INFORMATION
STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
PLEASE NOTE THAT THIS IS NEITHER A REQUEST FOR YOUR VOTE NOR A PROXY
STATEMENT, BUT RATHER AN INFORMATION STATEMENT (THE "INFORMATION STATEMENT")
DESIGNED TO INFORM YOU OF THE AMENDMENTS THAT WILL OCCUR IF THE AMENDMENTS ARE
COMPLETED AND TO PROVIDE YOU WITH INFORMATION ABOUT THE AMENDMENTS AND THE
BACKGROUND OF THESE TRANSACTIONS.
PLEASE NOTE ALSO THAT THIS IS NOT AN OFFER TO PURCHASE YOUR SHARES.
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DESCRIPTION OF SECURITIES
DESCRIPTION OF COMMON STOCK
Number of Authorized and Outstanding Shares. After adoption of the Charter
Amendments, the Company's Certificate of Incorporation will authorize the
issuance of 25,000,000 shares of Common Stock, $.001 par value per share, of
which 9,967,383 shares were outstanding on November 13, 2000. All of the
outstanding shares of Common Stock are fully paid and non-assessable.
Voting Rights. Holders of shares of Common Stock are entitled to one vote
for each share on all matters to be voted on by the stockholders. Holders of
Common Stock have no cumulative voting rights. Accordingly, the holders of in
excess of 50% of the aggregate number of shares of Common Stock outstanding will
be able to elect all of the directors of the Company and to approve or
disapprove any other matter submitted to a vote of all stockholders.
Dividends; Liquidation. Holders of shares of Common Stock are entitled to
share ratably in dividends, if any, as may be declared, from time to time, by
the Board of Directors in its discretion, from funds legally available therefor.
The Company does not currently anticipate paying any dividends on its Common
Stock. In the event of a liquidation, dissolution or winding up of the Company,
the holders of shares of Common Stock are entitled to share pro rata all assets
remaining after payment in full of all liabilities and of any obligations to
holders of preferred stock (see "Description of Preferred Stock" below).
Other. Holders of Common Stock have no preemptive rights to purchase the
Company's Common Stock. There are no conversion rights or redemption or sinking
fund provisions with respect to the Common Stock.
Transfer Agent. Shares of Common Stock are registered at the transfer
agent and are transferable at such office by the registered holder (or duly
authorized attorney) upon surrender of the Common Stock certificate, properly
endorsed. No transfer shall be registered unless the Company is satisfied that
such transfer will not result in a violation of any applicable federal or state
securities laws. The Company's transfer agent for its Common Stock is Transfer
Online, 227 S. W. Pine Street, Suite 300, Portland, OR 97204.
Registration Rights. The Company may enter into any registration rights
agreement obligating the Company to register the resale of any shares of Common
Stock.
DESCRIPTION OF PREFERRED STOCK
Number of Authorized Shares. After adoption of the Charter Amendments, the
Company's Certificate of Incorporation will authorize the issuance of up to
25,000,000 shares of preferred stock, par value $.001 per share ("Preferred
Stock") in one or more series with such limitations and restrictions as may be
determined in the board's sole discretion, with no further authorization by
stockholders required for the creation and issuance thereof. Shares of Preferred
Stock will be registered on the books of the Company. The Company currently
anticipates that the Preferred Stock will not be registered with the SEC
pursuant to the Exchange Act. No transfer shall be registered unless the Company
is satisfied that such transfer will not result in a violation of any applicable
federal or state securities laws.
POSSIBLE ANTI-TAKEOVER EFFECTS
In addition to financing purposes, the Company could also issue shares of
Common Stock or Preferred Stock that may, depending on the terms of such series,
make more difficult or discourage an attempt to obtain control of the Company by
means of a merger, tender offer, proxy contest or other means. When, in the
judgment of the Board of Directors, this action will be in the best interest of
the stockholders and the Company, such shares could be used to create voting or
other impediments or to discourage persons seeking to gain control of the
Company. Such shares also could be privately placed with purchasers favorable to
the Board of Directors in opposing such action. In addition, the Board of
Directors could authorize holders of a series of Common or Preferred Stock to
vote either separately as a class or with the holders of the Company's Common
Stock, on any merger, sale or exchange of assets by the Company or any other
extraordinary
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corporate transaction. The existence of the additional authorized shares could
have the effect of discouraging unsolicited takeover attempts. The issuance of
new shares also could be used to dilute the stock ownership of a person or
entity seeking to obtain control of the Company should the Board of Directors
consider the action of such entity or person not to be in the best interest of
the stockholders of the Company.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the beneficial
ownership of Common Stock as of November 13, 2000, by (i) each person who is
known by the Company to beneficially own 5% or more of the Common Stock, (ii)
each director of the Company, (iii) the Named Executive Officers, and (iv) all
directors and executive officers of the Company as a group.
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NUMBER OF SHARES PERCENTAGE OF
NAME OWNED(1) OUTSTANDING SHARES(2)
---- ---------------- ---------------------
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Ronald A. Adams(3)......................................... 650,000 6.52
Milota K. Srkal(4)......................................... 650,000 6.52
Henry S. Green, Jr.(5)..................................... 402,000 4.03
Emanon Partners(6)......................................... 1,119,972 11.24
Mayweather, BelAir, Paramour Group(7)...................... 852,193 8.55
Sam Eyde(8)................................................ 744,722 7.47
All Officers and Directors................................. 1,702,000 17.08
</TABLE>
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(1) Except as otherwise indicated, the Company believes that the beneficial
owners of Common Stock listed above, based on information furnished by such
owners, have sole investment and voting power with respect to such shares,
subject to community property laws where applicable. Beneficial ownership is
determined in accordance with the rules and regulations of the SEC and
generally includes voting or investment power with respect to securities.
All Shares of Common Stock subject to options or warrants are deemed
outstanding for purposes of computing the percentage of any other person.
(2) These percentages are calculated based upon the shares of the Company's
Common Stock which were issued and outstanding on November 13, 2000, the
Record Date.
(3) Mr. Adams serves as the Company's Chairman of the Board and Chief Executive
Officer. His holdings include shares of Common Stock held in the name of WCG
Holdings, Inc., which is majority owned by him. The address of this person
is 777 S. Flagler, Suite 800-West, West Palm Beach, Florida 33480.
(4) Mr. Srkal serves as the Company's President and Chief Operating Officer. He
is also a member of the Company's Board of Directors. The address of this
person is 777 S. Flagler, Suite 800-West, West Palm Beach, Florida 33480.
(5) Mr. Green serves as the Company's Secretary and is a member of its Board of
Directors. His holdings include shares owned by Double Seal Ring Company,
Inc., which is controlled by his family members.
(6) The address of this person is c/o Somerset Capital Management, 200 Park
Avenue #3900, New York, New York 10166.
(7) The address of this person is c/o Ronald Marini, Esq., One Biscayne Tower,
Suite 3580, Miami, Florida 33131.
(8) The address of this person is 2800 Bryon Circle, Langing, Michigan 48912.
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ANNEX A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SDC INTERNATIONAL, INC.
1. The name of this corporation is SDC International, Inc. (the
"Corporation").
2. The Corporation's original Certificate of Incorporation was filed with
the Delaware Secretary of State on June 30, 1994.
3. This Amended and Restated Certificate of Incorporation was duly adopted
in accordance with Sections 242 and 245 of the Delaware General Corporation Law.
4. The Certificate of Incorporation of the Corporation is hereby amended
and restated to read in its entirety as follows:
ARTICLE I
NAME OF CORPORATION
The name of the corporation is SDC International, Inc. (the "Corporation").
ARTICLE II
REGISTERED OFFICE
The Corporation's registered office in the State of Delaware is at 1050 S.
State Street, Dover, Delaware 19901 The name of its registered agent at such
address is CorpAmerica, Inc.
ARTICLE III
PURPOSE
The nature of the business of the Corporation and its purpose is to engage
in any lawful act or activity for which corporations may be engaged under the
General Corporation Law of the State of Delaware.
ARTICLE IV
CAPITAL STOCK
A. The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 50,000,000 shares consisting of:
(1) 25,000,000 shares of Common Stock, par value $.001 per share (the "Common
Stock"), and (2) 25,000,000 shares of Preferred Stock, par value $.001 per share
(the "Preferred Stock").
B. The Board of Directors shall have the full authority permitted by law,
at any time and from time to time, to provide for the issuance of shares of
Preferred Stock in one or more series and to determine by resolution or
resolutions the following provisions, designations, powers, preferences and
relative, participating, optional and other special rights, and the
qualifications, limitations or restrictions, of the shares of any such series of
Preferred Stock:
(1) the designation of such series (which may be by distinguishing
number, letter or title), the number of shares to constitute such series
(which number the Board of Directors may thereafter increase or decrease
(but not below the number of shares thereof then outstanding) and the
stated or liquidation value thereof, if different from the par value
thereof;
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(2) whether the shares of such series shall have voting rights in
addition to any voting rights provided by law, and, if so, the terms of
such voting rights, which may be full or limited;
(3) the dividends, if any, payable on such series, whether any such
dividends shall be cumulative and, if so, from what dates, the conditions
and dates upon which such dividends shall be payable, the preference or
relation which such dividends shall bear to the dividends payable on any
shares of any other class of capital stock or any other series of Preferred
Stock;
(4) whether the shares of such series shall be subject to redemption
at the election of the Corporation or the holders of such series, or upon
the occurrence of a specified event and, if so, the times, prices and other
terms and conditions of such redemption, including the manner of selecting
shares for redemption if less than all shares are to be redeemed and the
securities or other property payable on such redemption, if any;
(5) the amount or amounts payable on, if any, and the preferences, if
any, of shares of such series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of, or upon any
distribution of the assets of, the Corporation;
(6) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and
manner in which any such retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for retirement or other
corporate purposes and the terms and provisions relative to the operation
thereof;
(7) whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class of capital stock or any other
series of Preferred Stock or any other securities (whether or not issued by
the Corporation) and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same, and
any other terms and conditions of conversion or exchange;
(8) the limitations and restrictions, if any, to be effective while
any shares of such series are outstanding upon the payment of dividends or
the making of other distributions on, or upon the purchase, redemption or
other acquisition by the Corporation of, the Common Stock or shares of any
other class of capital stock or any other series of Preferred Stock;
(9) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issuance of any additional
stock, including additional shares of any other series of Preferred Stock
or of any other class of capital stock;
(10) the ranking (be it pari passu, junior or senior) of each series
vis-a-vis any other class of capital stock or series of Preferred Stock as
to the payment of dividends, the distribution of assets and all other
matters; and
(11) any other powers, preferences and relative, participating,
optional or other special rights, and any qualifications, limitations or
restrictions of such series of Preferred Stock, insofar as they are not
inconsistent with the provisions of this Certificate of Incorporation, to
the full extent permitted in accordance with the General Corporation Law of
the State of Delaware.
C. The powers, preferences and relative, participating, optional or other
special rights, if any, of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series of Preferred Stock at any time outstanding.
All shares of any one series of Preferred Stock shall be identical in all
respects with all other shares of such series, except that shares of any one
series issued at different times may differ as to the dates from which dividends
thereon shall be cumulative.
D. Subject to the other provisions of this Article FOURTH and actions taken
by the Board of Directors pursuant to this Article FOURTH:
(1) Except as may be designated by the Board of Directors with respect
to any Preferred Stock issued by the Corporation, the voting power of the
Corporation shall be exclusively vested in the Common Stock.
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(2) Except as may be designated by the Board of Directors with respect
to any Preferred Stock issued by the Corporation, holders of Preferred
Stock and holders of Common Stock shall not have any preemptive,
preferential or other right to subscribe for or purchase or acquire any
shares of any class or series of capital stock or any other securities of
the Corporation, whether now or hereafter authorized, and whether or not
convertible into, or evidencing or carrying the right to purchase, shares
of any class or series of capital stock or any other securities now or
hereafter authorized and whether the same shall be issued for cash,
services or property, or by way of dividend or otherwise, other than such
right, if any, as the Board of Directors in its discretion from time to
time may determine. If the Board of Directors shall offer to the holders of
the Preferred Stock or the holders of the Common Stock, or any of them, any
such shares or other securities of the Corporation, such offer shall not in
any way constitute a waiver or release of the right of the Board of
Directors subsequently to dispose of other portions of said shares or
securities without so offering the same to said holders.
(3) The shares of Preferred Stock may be issued for such consideration
and for such corporate purposes as the Board of Directors may from time to
time determine.
(4) With respect to all matters upon which holders of Common Stock are
entitled to vote or to which holders of Common Stock are entitled to give
consent, except as may be provided in this Certificate of Incorporation or
by applicable law, every holder of Common Stock shall be entitled to cast
thereon one vote in person or by proxy for each share of Common Stock
standing in such holder's name on the transfer books of the Corporation.
ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator is as follows:
CorpAmerica, Inc.
1050 S. State Street
Dover, Delaware 19901
ARTICLE VI
MANAGEMENT OF THE CORPORATION
The following provisions are inserted for the management of the business,
for the conduct of the affairs of the Corporation and for the purpose of
creating, defining, limiting and regulating the powers of the Corporation and
its directors and stockholders:
(A) The number of directors of the Corporation shall be fixed and may
be altered from time to time in the manner provided in the By-Laws, and
vacancies in the Board of Directors and newly created directorships
resulting from any increase in the authorized number of directors may be
filled, and directors may be removed, as provided in the By-Laws.
(B) The election of directors may be conducted in any manner approved
by the stockholders at the time when the election is held and need not be
by written ballot.
(C) All corporate powers and authority of the Corporation (except as
at the time otherwise provided by law, by this Certificate of Incorporation
or by the By-Laws) shall be vested in and exercised by the Board of
Directors.
(D) The Board of Directors shall have the power without the assent or
vote of the stockholders to adopt, amend, alter or repeal the By-Laws of
the Corporation, except to the extent that the By-Laws or this Certificate
of Incorporation otherwise provide.
(E) No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for breach of his or her fiduciary
duty as a director, provided that nothing contained in
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this Article shall eliminate or limit the liability of a director (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware or (iv)
for any transaction from which the director derived an improper personal
benefit.
ARTICLE VII
AMENDMENT
The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner now or hereafter
prescribed by the laws of the State of Delaware, and all rights herein conferred
upon stockholders or directors are granted subject to this reservation.
IN WITNESS WHEREOF, I, THE UNDERSIGNED, being the Chairman of the Board and
Chief Executive Officer of the Corporation, do make and file this Certificate,
hereby declaring and certifying that the facts herein stated are true, and
accordingly have hereunto set my hand this day of , 2000.
--------------------------------------
Ronald Adams
Chairman of the Board and
Chief Executive Officer
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