<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 16, 1996
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACE*COMM CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 52-1283030
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
209 PERRY PARKWAY
GAITHERSBURG, MARYLAND 20877
(Address of Principal Executive Offices) (Zip Code)
ACE*COMM CORPORATION AMENDED AND RESTATED OMNIBUS STOCK PLAN
(Full title of the plan)
GEORGE T. JIMENEZ
ACE*COMM CORPORATION
209 PERRY PARKWAY
GAITHERSBURG, MARYLAND 20877
(Name and address of agent for service)
(301) 258-9850
(Telephone number, including area code, of agent for service)
Copy to:
ARIEL VANNIER, ESQ.
VENABLE, BAETJER AND HOWARD, LLP
1800 MERCANTILE BANK AND TRUST BUILDING
TWO HOPKINS PLAZA
BALTIMORE, MARYLAND 21201-2978
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Title of Securities to be registered Amount Proposed maximum Proposed maximum Amount of
to be offering price aggregate Registration Fee
registered per share* offering price*
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 2,200,000 $9.50 $20,900,000 $7,206.90
value $0.01 per share
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
* Calculated solely for the purpose of computing the registration fee
pursuant to Rules 457(c) and (h), based upon the average of the bid and
asked price as of September 9, 1996.
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by ACE*COMM Corporation,
the Registrant with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference:
(a) The Registrant's Prospectus dated August 13, 1996 filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended,
which contains audited financial statements for the Registrant's
latest fiscal year;
(b) Description of common stock, par value $0.01 per share, of the
Registrant contained or incorporated in the Registration
Statement on Form 8-A (File No. 21059) filed by the Registrant
under Section 12(g) of the Securities Exchange Act of 1934, as
amended, including any amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part of the Registration
Statement from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 2-418 of the Corporations and Associations Article of the
Annotated Code of Maryland permits a corporation to indemnify its present and
former directors, among others, against judgments, penalties, fines, settlements
and reasonable expenses actually incurred by them in connection with any
proceeding to which they may be made a party by reason of their
<PAGE>
services in those or other capacities, unless it is established that (a) the act
or omission of the director or officer was material to the matter giving rise to
such proceeding and (i) was committed in bad faith or (ii) was the result of
active and deliberate dishonesty; or (b) the director or officer actually
received an improper personal benefit in money, property, or services; or (c) in
the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. Maryland law permits a
corporation to indemnify a present and former officer to the same extent as a
director, and to provide additional indemnification to an officer who is not
also a director. In addition, Section 2-418(f) of the Corporations and
Associations Article of the Annotated code of Maryland permits a corporation to
pay or reimburse, in advance of the final disposition of a proceeding,
reasonable expenses (including attorney's fees) incurred by a present or former
director or officer made a party to the proceeding by reason of his service in
that capacity, provided that the corporation shall have received (a) a written
affirmation by the director or officer of his good faith belief that he has met
the standard of conduct necessary for indemnification by the corporation; and
(b) a written undertaking by or on his behalf to repay the amount paid or
reimbursed by the corporation if it shall ultimately be determined that the
standard of conduct was not met.
The Registrant has provided for indemnification of directors,
officers, employees, and agents in Article VII of its charter, as amended. This
provision reads as follows:
Section 1. Mandatory Indemnification.
The Corporation shall indemnify its currently acting and its former
directors and officers against any and all liabilities and expenses
incurred in connection with their services in such capacities to the
maximum extent permitted by the Maryland General Corporation Law, as from
time to time amended.
Section 2. Discretionary Indemnification.
If approved by the Board of Directors, the Corporation may indemnify
its employees, agents and persons who serve and have served, at its request
as a director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture or other enterprise or employee
<PAGE>
benefit plan to the extent determined to be appropriate by the Board of
Directors.
Section 3. Advancing Expenses Prior to a Decision.
The Corporation shall advance expenses to its directors and officers
entitled to mandatory indemnification to the maximum extent permitted by
the Maryland General Corporation Law, as from time to time amended, and may
in the discretion of the Board of Directors advance expenses to employees,
agents and others who may be granted indemnification.
Section 4. Other Provisions for Indemnification.
The Board of Directors may, by bylaw, resolution or agreement, make
further provision for indemnification of directors, officers, employees and
agents.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is assured by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
Under Maryland law, a corporation is permitted to limit by provision
in its charter the liability of directors and officers, so that no director or
officer of the corporation shall be liable to the corporation or to any
stockholder for money damages except to the extent that (i) the director or
officer actually received an improper benefit in money property, or services,
for the amount of the benefit or profit in money,
<PAGE>
property or services actually received, or (ii) a judgment or other final
adjudication adverse to the director or officer is entered in a proceeding
based on a finding in the proceeding that the director's or officer's action,
or failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding.
The Registrant has limited the liability of its directors and officers
for money damages in Article VIII of its charter, as amended. This provision
reads as follows:
Section 5. Limitation of Liability of Directors and Officers.
To the fullest extent that limitations on the liability of directors
and officers are permitted by the Maryland General Corporation Law, no director
or officer of the Company shall have any liability to the Company or its
stockholders for damages. This limitation on liability applies to events
occurring at the time a person serves as a director or officer of the Company,
whether or not such person is serving as such at the time of any proceeding in
which liability is asserted.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1* Articles of Amendment and Restatement dated August 19, 1996.
4.2* Amended and Restated Bylaws, as amended through July 26, 1996.
5* Opinion of Venable, Baetjer and Howard, LLP.
23.1* Consent of Price Waterhouse LLP.
23.2* Consent of Venable, Baetjer and Howard, LLP (included in their
opinion filed as Exhibit 5).
24* Powers of Attorney (included in signature page).
___________
* filed herewith
<PAGE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
which, individually or together, represent a fundamental change in the
information in the Registration Statement;
(iii) To include any additional or changed material
information on the plan of distribution;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Sections 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Act of 1934)
that is incorporated by reference in the Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of
<PAGE>
such securities at that time shall be deemed to be the initial BONA FIDE
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, ACE*COMM Corporation, certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, in Gaithersburg, Maryland, on this 16th
day of September, 1996.
ACE*COMM CORPORATION
By: /s/ George T. Jimenez
------------------------------
George T. Jimenez
President and
Chief Executive Officer
(PRINCIPAL EXECUTIVE OFFICER)
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints George T. Jimenez or S. Joseph Dorr, or any one of them
acting singly, his or her true and lawful agents and attorneys-in-fact with full
power and authority in said agents and attorneys-in-fact, or any of them, to
sign for the undersigned and in his or her name, in the capacity indicated
opposite his or her name, this Registration Statement of ACE*COMM Corporation on
Form S-8 (and any pre-effective or post-effective amendment or supplement to
such Registration Statement) to be filed under the Securities Act of 1933, with
the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ George T. Jimenez President, Chief Executive September 16, 1996
- --------------------- Officer, and Director
George T. Jimenez (PRINCIPAL EXECUTIVE OFFICER)
/s/ Paul G. Casner, Jr. Director September 16, 1996
- -----------------------
Paul G. Casner, Jr.
/s/ Gary P. Golding Director September 16, 1996
- -------------------
Gary P. Golding
/s/ Gilbert A. Wetzel Director September 16, 1996
- ---------------------
Gilbert A. Wetzel
/s/ Jeffrey S. Simpson Vice President - Finance September 16, 1996
- ---------------------- (PRINCIPAL FINANCIAL OFFICER)
Jeffrey S. Simpson
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
4.1 Articles of Amendment and Restatement dated August 19, 1996.
4.2 Amended and Restated Bylaws, as amended through
July 26, 1996.
5 Opinion of Venable, Baetjer and Howard, LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Venable, Baetjer and Howard, LLP (included in their
opinion filed as Exhibit 5).
24 Powers of Attorney (included in signature page).
<PAGE>
Exhibit 4.1
ACE*COMM CORPORATION
ARTICLES OF AMENDMENT AND RESTATEMENT
ACE*COMM Corporation, a Maryland corporation (hereinafter referred to
as the "Corporation"), hereby certifies to the State Department of Assessments
and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended and
restated by striking out Articles SECOND through NINTH and substituting in lieu
thereof the following:
ARTICLE II
NAME
The name of the corporation (which is hereafter referred to as the
"Corporation") is:
ACE*COMM CORPORATION
ARTICLE III
PURPOSES FOR WHICH CORPORATION IS FORMED
The purposes for which the Corporation is formed are as follows:
(a) To design, create and produce computer software and
related products and to manufacture and sell computer peripheral equipment and
related electronic and telecommunications equipment.
(b) To provide consulting services, computer software and
electronics design services, data processing services, and all other types of
related services, and engage in all other related activities.
(c) To buy and sell real and personal property and
investments in contracts and securities.
(d) To carry on any and all business, transactions and
activities permitted by the Maryland General Corporation Law which may be deemed
desirable by the Board of Directors of the Corporation, whether or not identical
with or related to the business described in the foregoing paragraphs of this
Article, as well as all activities and things necessary and incidental thereto,
to the full extent empowered by such laws.
<PAGE>
ARTICLE IV
RESIDENT AGENT AND PRINCIPAL OFFICE
The post office address of the principal office of the Corporation in
this State is 209 Perry Parkway, Gaithersburg, Maryland 20877. The name of the
Resident Agent of the Corporation in this State is CSC - Lawyers Incorporating
Service Company, 11 East Chase Street, Baltimore, Maryland 21202. Said Resident
Agent is a corporation organized under the laws of the State of Maryland.
ARTICLE V
AUTHORIZED STOCK
The total number of shares of stock of all classes which the
Corporation has authority to issue is Fifty Million (50,000,000) shares,
consisting of Forty-Five Million (45,000,000) shares of Common Stock, par value
$.01 per share (the "Common Stock"), and 5,000,000 shares of Preferred Stock,
par value $.01 per share (the "Preferred Stock"). The aggregate par value of
all shares having par value is Five Hundred Thousand Dollars ($500,000.00).
ARTICLE VI
BOARD OF DIRECTORS
Section 1. Number of Directors.
The Corporation shall have five (5) directors, which number may be
increased or decreased pursuant to the Bylaws, but the number of directors shall
not be less than the lesser of three (3) or the number of stockholders. The
directors shall be divided into three classes (denominated as Class I, Class II
and Class III), as nearly equal in number as reasonably possible, with the term
of office of the Class I directors to expire at the 1997 annual meeting of
stockholders, the term of office of the Class II directors to expire at the 1998
annual meeting of stockholders and the term of office of the Class III directors
to expire at the 1999 annual meeting of stockholders. At each annual meeting of
stockholders following such initial classification and election, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting of stockholders
after their election, provided that the stockholders electing new or replacement
directors may from time to time specify a term of less than three years in order
to maintain the number of directors in each class as nearly equal as possible.
Section 2. Initial Directors.
The following individuals shall serve as the initial directors, in the
classes specified below.
<PAGE>
Class I directors - Gilbert A. Wetzel and Gary P. Golding
Class II directors - Paul G. Casner, Jr.
Class III directors - George T. Jimenez
Section 3. Board Authorization of Stock Issuance.
The Board of Directors of the Corporation is hereby empowered to
authorize by resolutions from time to time the issuance of shares of its stock
of any class, whether now or hereafter authorized, and securities convertible
into shares of its stock, of any class or classes, whether now or hereafter
authorized, for such consideration as the Board of Directors may deem advisable.
Section 4. Classification of Stock.
The Board of Directors shall have the power to classify or reclassify
any unissued stock, whether now or hereafter authorized, by setting or changing
the preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, or terms or conditions of
redemption of such stock.
Section 5. Conflict of Interest.
No contract or other transaction between this Corporation and any
other corporation, partnership, individual or other entity and no act of this
Corporation shall in any way be affected or invalidated by the fact that any of
the directors of this Corporation are directors, principals, partners or
officers of such other entity, or are pecuniarily or otherwise interested in
such contract, transaction or act; provided that (i) the existence of such
relationship or such interest shall be disclosed or known to the Board of
Directors or to a committee of the Board of Directors if the matter involves a
committee decision, and the contract, transaction or act shall be authorized,
approved or ratified by a majority of disinterested directors on the Board or on
such committee, as the case may be, even if the number of disinterested
directors constitutes less than a quorum or (ii) the contract, transaction or
act shall be authorized, ratified or approved in any other manner permitted by
the Maryland General Corporation Law.
Section 6. Removal of Directors.
Any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause and then only by the affirmative vote of
the holders of at least 80% of the aggregate combined voting power of all
classes of capital stock entitled to vote in the election of directors, voting
as one class, and only at a special meeting of stockholders called for such
purpose. For purposes of this Section, "cause" shall mean the willful and
continuous failure of a director to perform duties to the Corporation (other
than any such failure resulting from temporary incapacity due to physical or
mental illness) or gross misconduct materially and demonstrably injurious to the
Corporation.
<PAGE>
ARTICLE VII
PROVISIONS CONCERNING CERTAIN RIGHTS
OF THE CORPORATION AND THE SHAREHOLDERS
Section 1. Right to Amend Charter.
The Corporation reserves the right to make, from time to time, any
amendments of its charter which may now or hereafter be authorized by law,
pursuant to the vote of stockholders required by law, including any amendments
which alter the contract rights of any class of outstanding stock as expressly
set forth in the charter; provided, however, that any amendment to, repeal of or
adoption of any provision inconsistent with Section 1 of Article VI, Section 6
of Article VI, Section 4 of this Article, Section 5 of this Article, or this
Section 1 of this Article, shall be effective only if it is approved by the
affirmative vote of the holders of at least 80% of the aggregate combined voting
power of all classes of capital stock entitled to vote thereon, voting as one
class.
Section 2. Elimination of Preemptive Rights.
Unless otherwise provided by the Board of Directors, no holder of
stock of any class shall be entitled to preemptive rights to subscribe for or
purchase or receive any part of any new or additional issue of stock of any
class of the Corporation or securities convertible into stock of any class of
the Corporation.
Section 3. Required Stockholder Vote.
Notwithstanding any provision of law requiring any action to be taken
or authorized by the affirmative vote of the holders of a greater proportion of
the votes of all classes or of any class of stock of the Corporation, such
action shall be effective and valid if taken or authorized by the affirmative
vote of a majority of the total number of votes entitled to be cast thereon,
except as otherwise provided in this charter.
Section 4. Bylaws.
The Board of Directors, and not the stockholders, shall have the
exclusive power to make, alter, amend or repeal the Bylaws of the Corporation.
<PAGE>
ARTICLE VIII
INDEMNIFICATION AND LIMITATION OF LIABILITY
Section 1. Mandatory Indemnification.
The Corporation shall indemnify its currently acting and its former
directors and officers against any and all liabilities and expenses incurred in
connection with their services in such capacities to the maximum extent
permitted by the Maryland General Corporation Law, as from time to time amended.
Section 2. Discretionary Indemnification.
If approved by the Board of Directors, the Corporation may indemnify
its employees, agents and persons who serve and have served, at its request as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture or other enterprise or employee benefit plan to the
extent determined to be appropriate by the Board of Directors.
Section 3. Advancing Expenses Prior to a Decision.
The Corporation shall advance expenses to its directors and officers
entitled to mandatory indemnification to the maximum extent permitted by the
Maryland General Corporation Law, as from time to time amended, and may in the
discretion of the Board of Directors advance expenses to employees, agents and
others who may be granted indemnification.
Section 4. Other Provisions for Indemnification.
The Board of Directors may, by bylaw, resolution or agreement, make
further provision for indemnification of directors, officers, employees and
agents.
<PAGE>
Section 5. Limitation of Liability of Directors and Officers.
To the maximum extent that limitations on the liability of directors
and officers are permitted by the Maryland General Corporation Law, as from time
to time amended, no director or officer of the Corporation shall have any
liability to the Corporation or its stockholders for money damages. This
limitation on liability applies to events occurring at the time a person serves
as a director or officer of the Corporation whether or not such person is a
director or officer at the time of any proceeding in which liability is
asserted.
Section 6. Effect of Amendment or Repeal.
No amendment, modification or repeal of this charter, nor the adoption
of any additional provision of this charter or the By-laws nor, to the fullest
extent permitted by the Maryland General Corporation Law, any amendment,
modification or repeal of law shall eliminate or reduce the effect of the
provisions in this charter limiting liability or indemnifying certain persons or
adversely affect any right or protection then existing thereunder in respect of
any acts or omissions occurring prior to such amendment, modification, repeal,
or adoption.
SECOND: The Amendment and Restatement of the charter of the
Corporation herein was duly and unanimously approved and advised by the Board of
Directors on June 23, 1996, and was approved by the affirmative vote of the
stockholders of the Corporation as required by the Maryland General Corporation
Law on August 5, 1996.
THIRD: The Amendment and Restatement of the charter of the
Corporation as hereinabove set forth has been duly advised by the Board of
Directors and approved by the stockholders of the Corporation in the manner and
by the vote required by law.
FOURTH: (a) The total number of shares of all classes of stock of
the Corporation authorized prior to this amendment, and the number and par value
of each class, were as follows:
45,341,211 shares with an aggregate par value of Two Million One
Hundred Ninty-Nine Thousand Six Hundred Eighty-Four Dollars and Fifty-Four Cents
($2,199,684.54), of which 45,000,000 are common stock with a par value of $.01
per share and an aggregate par value of Four Hundred Fifty Thousand Dollars
($450,000.00), 1,000 shares are Class B Preferred with a par value of $1.00 per
share and an aggregate par value of One Thousand Dollars ($1,000.00), 211,727
shares are Class C Convertible Preferred, Series 1, with a par value of $5.14
per share and an aggregate par value of One Million Eighty-Eight Thousand Two
Hundred Seventy-Six Dollars and Seventy-Eight Cents ($1,088,276.78), and 128,484
shares are Class C Convertible Preferred, Series 2,
<PAGE>
with a par value of $5.14 per share and an aggregate par value of Six Hundred
Sixty Thousand Four Hundred Seven Dollars and Seventy-Six Cents ($660,407.76).
(b) The total number of shares of all classes of stock of
the Corporation as increased, and the number and par value of the shares of each
class, are as follows:
Fifty Million (50,000,000) shares, consisting of Forty-Five Million
(45,000,000) shares of Common Stock, par value $.01 per share (the "Common
Stock"), and Five Million (5,000,000) shares of Preferred Stock, par value $.01
per share (the "Preferred Stock"), with an aggregate par value of Five Hundred
Thousand Dollars ($500,000.00).
(c) The aggregate par value of all shares of all classes of
stock of the Corporation heretofore authorized was $2,199,684.54. The aggregate
par value of all shares of all classes of stock as reduced by this amendment is
$500,000.00. This amendment has the effect of reducing the aggregate par value
of all shares of all classes of stock of the Corporation by $1,699,684.54.
<PAGE>
IN WITNESS WHEREOF, ACE*COMM CORPORATION has caused these Articles of
Amendment and Restatement to be signed in its name and on its behalf by its Vice
President and attested by its Secretary this 19th day of August, 1996, and its
Vice President acknowledges that they are the act and deed of the Corporation,
and states under the penalties of perjury that to the best of his knowledge,
information and belief, the matters and facts set forth herein are true in all
material respects.
ATTEST: ACE*COMM CORPORATION
/s/ Loretta L. Rivers By:/s/ James M. Moore
- ---------------------------------- -------------------------------
Loretta L. Rivers, Secretary James M. Moore, Vice President
<PAGE>
EXHIBIT 4.2
BYLAWS
OF
ACE*COMM CORPORATION
ARTICLE I
STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS.
The annual meeting of the stockholders of the Corporation shall be
held on such date within the month of November (except in the case of the 1996
Annual Meeting, in which case it shall be held in the month of August) as may be
fixed from time to time by the Board of Directors. Not less than ten nor more
than 90 days' written or printed notice stating the place, day and hour of each
annual meeting shall be given in the manner provided in Section 1 of Article IX
hereof. The business to be transacted at the annual meetings shall include the
election of the class of directors to be elected at such meeting, consideration
and action upon the reports of officers and directors, and any other business
within the power of the Corporation. All annual meetings shall be general
meetings at which any business may be considered without being specified as a
purpose in the notice unless otherwise required by law.
SECTION 2. SPECIAL MEETINGS CALLED BY CHAIRMAN OF THE BOARD, PRESIDENT OR BOARD
OF DIRECTORS.
At any time in the interval between annual meetings, special meetings
of stockholders may be called by the Chairman of the Board, or by the President,
or by the Board of Directors. Not less than ten days' nor more than 90 days'
written notice stating the place, day and hour of such meeting and the matters
proposed to be acted on thereat shall be given in the manner provided in Section
1 of Article IX. No business shall be transacted at any special meeting except
that specified in the notice.
SECTION 3. SPECIAL MEETING CALLED BY STOCKHOLDERS.
Upon the request in writing delivered to the Secretary by the
stockholders entitled to cast at least 25% of all the votes entitled to be cast
at the meeting, it shall be the duty of the Secretary to call a special meeting
of the stockholders. Such request shall state the purpose of such meeting and
the matters proposed to be acted on thereat, and no other business shall be
transacted at any such special meeting. No such meeting shall be required to be
called for the election of directors except under the circumstances set forth in
Section 10 of Article I or Sections 7(b) or 7(c) of these Bylaws. The Secretary
shall inform such stockholders of the reasonably estimated costs of preparing
and mailing the notice of the meeting, and upon payment to the Corporation of
such costs, the Secretary
<PAGE>
shall give not less than ten nor more than 90 days' notice of the time, place
and purpose of the meeting in the manner provided in Section 1 of Article IX.
Unless requested by stockholders entitled to cast a majority of all the votes
entitled to be cast at the meeting, a special meeting need not be called to
consider any matter which is substantially the same as a matter voted on at any
special meeting of the stockholders held during the preceding 12 months.
SECTION 4. PLACE OF MEETINGS.
All meetings of stockholders shall be held at the principal office of
the Corporation in the State of Maryland or at such other place within the
United States as may be fixed from time to time by the Board of Directors and
designated in the notice.
SECTION 5. QUORUM.
At any meeting of stockholders the presence in person or by proxy of
stockholders entitled to cast a majority of the votes thereat shall constitute a
quorum. In the absence of a quorum, the Chairman of the meeting, or
stockholders present in person or by proxy acting by majority vote, may adjourn
the meeting from time to time without notice other than by announcement at the
meeting, but not for a period exceeding 120 days after the original record date,
until a quorum shall attend.
SECTION 6. ADJOURNED MEETINGS.
A meeting of stockholders convened on the date for which it was called
(including one adjourned to achieve a quorum as above provided in Section 5 of
this Article) may be adjourned (in the manner provided in said Section 5) from
time to time without further notice other than by announcement at the meeting to
a date not more than 120 days after the original record date, and any business
may be transacted at any adjourned meeting which could have been transacted at
the meeting as originally called.
SECTION 7. VOTING.
A plurality of all the votes cast at a meeting of stockholders duly
called and at which a quorum is present shall be sufficient to elect a director.
Each share of stock may be voted for as many individuals as there are directors
to be elected and for whose election the share is entitled to be voted.
A majority of the votes cast at a meeting of stockholders, duly called
and at which a quorum is present, shall be sufficient to take or authorize
action upon any other matter which may properly come before the meeting, unless
more than a majority of votes cast is required by statute or by the Charter.
The Board of Directors may fix the record date for the determination of
stockholders entitled to vote in the manner provided in Article VIII, Section 3
of these Bylaws. Unless otherwise provided in the Charter,
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each outstanding share of stock, regardless of class, shall be entitled to one
vote on each matter submitted to a vote at a meeting of stockholders.
SECTION 8. PROXIES.
A stockholder may vote the shares owned of record either in person or
by proxy. The proxy shall be in writing and shall be signed by the stockholder
or by the stockholder's duly authorized attorney-in-fact or be in such other
form as may be permitted by the Maryland General Corporation Law, including
documents conveyed by electronic transmission. A copy, facsimile transmission
or other reproduction of the writing or transmission may be substituted for the
original writing or transmission for any purpose for which the original
transmission could be used. Every proxy shall be dated, but need not be sealed,
witnessed or acknowledged. No proxy shall be valid after 11 months from its
date, unless otherwise provided in the proxy. In the case of stock held of
record by more than one person, any co-owner or co-fiduciary may execute the
proxy without the joinder of the co-owner(s) or co-fiduciary(ies), unless the
Secretary of the Corporation is notified in writing by any co-owner or co-
fiduciary that the joinder of more than one is to be required. At all meetings
of stockholders, the proxies shall be filed with and verified by the Secretary
of the Corporation, or, if the meeting shall so decide, by the Secretary of the
meeting.
SECTION 9. REMOVAL OF DIRECTORS.
At any special meeting of the stockholders called in the manner
provided for by this Article, the stockholders, by the vote required by the
Charter, may remove any director from office, but only for cause as provided in
the Charter, and may elect a successor to fill the resulting vacancy for the
remainder of the term of the removed director.
SECTION 10. INFORMAL ACTION BY STOCKHOLDERS.
Any action required or permitted to be taken at any meeting of
stockholders may be taken without a meeting if a consent in writing setting
forth such action is signed by all the stockholders entitled to vote thereon, a
written waiver of any right to dissent is signed by each stockholder entitled to
notice of, but not the right to vote on, such action and such consent is filed
with the records of stockholders' meetings.
SECTION 11. ADVANCE NOTICE OF MATTERS TO BE PRESENTED AT AN ANNUAL MEETING OF
STOCKHOLDERS.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting as set forth
below. To be properly brought before an annual meeting, such business must (1)
be specified in the notice of the meeting (or any supplement thereto) given by
the Corporation pursuant to Section 1 of Article IX of these bylaws, or (2) be
brought before the meeting by or under
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the direction of the Board of Directors (or the Chairman of the Board or the
President), or (3) be properly brought before the meeting by a stockholder. In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary. To be timely, such
stockholder's notice must be delivered to or mailed and received by the
Secretary at the principal executive offices of the Corporation, not less than
20 days nor more than 30 days prior to the meeting (or, with respect to a
proposal required to be included in the Company's proxy statement pursuant to
Rule 14a-8 of the Securities Exchange Act of 1934, or its successor provision,
the earlier date such proposal was received); provided, however, that in the
event that less than 30 days' notice or prior public disclosure of the date of
the meeting is given or made by the Corporation, notice by the stockholder to be
timely must be so received by the Secretary not later than the close of business
on the 10th day following the earlier of the day on which the Corporation's
notice of the date of the annual meeting was mailed or the day on which the
Corporation's first public disclosure of the date of the annual meeting was
made. A stockholder's notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and address of the stockholder proposing such business, (iii) the class and
number of shares of the Corporation which are beneficially owned by the
stockholder, and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 12.
The Chairman of the meeting shall have the authority, if the facts
warrant, to determine that business was not properly brought before the meeting
in accordance with the provisions of this Section 11, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
SECTION 12. ADVANCE NOTICE OF NOMINEES FOR DIRECTORS.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors at any meeting of
stockholders. Nominations of persons for election to the Board of Directors of
the Corporation may be made at an annual meeting of stockholders or at a special
meeting of stockholders as to which the notice of meeting provides for election
of directors, by or under the direction of the Board of Directors, or by any
nominating committee or person appointed by the Board of Directors, or by any
stockholder of the Corporation entitled to vote for the election of directors at
the meeting who complies with the notice procedures set forth in this Section
12. Such nominations, other than those made by or under the direction of the
Board of Directors or by any nominating committee or person appointed by the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary. To be
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timely, such stockholder's notice shall be delivered to or mailed and received
by the Secretary at the principal executive offices of the Corporation not less
than 20 days nor more than 30 days prior to the meeting; provided, however, that
in the event that less than 30 days' notice or prior public disclosure of the
date of the meeting is given or made by the Corporation, notice by the
stockholder to be timely must be so received by the Secretary no later than the
close of business on the 10th day following the earlier of the day on which the
Corporation's notice of the date of the meeting was mailed or the day on which
the Corporation's first public disclosure of the date of the meeting was made.
Such stockholder's notice shall set forth: (a) as to each person whom the
stockholder proposes to nominate for election as a director, (i) the name, age,
business address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number of shares of
stock of the Corporation which are beneficially owned by the person, and (iv)
any other information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to the rules and
regulations under the Securities Exchange Act of 1934; and (b) as to the
stockholder giving the notice, (i) the name and address of the stockholder and
(ii) the class and number of shares of the Corporation which are beneficially
owned by the stockholder. The Corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the Corporation
to determine the eligibility of such proposed nominee to serve as a director of
the Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
The Chairman of the meeting shall have the authority, if the facts
warrant, to determine that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
ARTICLE II
DIRECTORS
SECTION 1. POWERS.
The business and affairs of the Corporation shall be managed under the
direction of its Board of Directors. All powers of the Corporation may be
exercised by or under the authority of the Board of Directors except as
conferred on or reserved to the stockholders by law, by the Charter or by these
Bylaws. A director need not be a stockholder. The Board of Directors shall
keep minutes of its meetings and full and fair accounts of its transactions.
SECTION 2. NUMBER; TERM OF OFFICE.
The number of directors of the Corporation shall be not less than
three or the same number as the number of stockholders (or one if there is no
stockholder),
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whichever is less; provided, however, that such number may be increased and
thereafter decreased from time to time by vote of a majority of the entire Board
of Directors. The number of directors shall not exceed eleven(11). The Board
of Directors shall be divided into three classes, with one class to be elected
at each annual meeting, as provided in the Charter.
SECTION 3. ANNUAL MEETING; REGULAR MEETINGS.
As soon as practicable after each annual meeting of stockholders, the
Board of Directors shall meet for the purpose of organization and the
transaction of other business. No notice of the annual meeting of the Board of
Directors need be given if it is held immediately following the annual meeting
of stockholders and at the same place. Other regular meetings of the Board of
Directors may be held at such times and at such places, within or without the
State of Maryland, as shall be designated in the notice for such meeting by the
party making the call. All annual and regular meetings shall be general
meetings, and any business may be transacted thereat.
SECTION 4. SPECIAL MEETINGS.
Special meetings of the Board of Directors may be called by the
Chairman of the Board or the President, or by a majority of the directors.
SECTION 5. QUORUM; VOTING.
A majority of the Board of Directors shall constitute a quorum for the
transaction of business at every meeting of the Board of Directors; but, if at
any meeting there be less than a quorum present, a majority of those present may
adjourn the meeting from time to time, but not for a period exceeding ten days
at any one time or 60 days in all, without notice other than by announcement at
the meeting, until a quorum shall attend. At any such adjourned meeting at
which a quorum shall be present, any business may be transacted which might have
been transacted at the meeting as originally called. Except as hereinafter
provided or as otherwise provided by the Charter or by law, directors shall act
by a vote of a majority of those members in attendance at a meeting at which a
quorum is present.
SECTION 6. NOTICE OF MEETINGS.
Notice of the time and place of every regular and special meeting of
the Board of Directors shall be given to each director in the manner provided in
Section 2 of Article IX hereof. Subsequent to each Board meeting, and as soon
as practicable thereafter, each director shall be furnished with a copy of the
minutes of said meeting. At least 24 hours' notice shall be given of all
meetings. The purpose of any meeting of the Board of Directors need not be
stated in the notice.
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SECTION 7. VACANCIES.
(a) If the office of a director becomes vacant for any reason,
including increase in the size of the Board, such vacancy may be filled by the
Board by a vote of a majority of directors then in office, although such
majority is less than a quorum.
(b) If the vacancy occurs as a result of the removal of a director,
the stockholders may elect a successor at the meeting at which the removal
occurs.
(c) If the entire Board of Directors shall become vacant, any
stockholder may call a special meeting in the same manner that the Chairman of
the Board or the President may call such meeting, and directors for the
unexpired terms may be elected at such special meeting in the manner provided
for their election at annual meetings.
(d) A director elected by the Board of Directors to fill a vacancy
shall serve until the next annual meeting of stockholders and until a successor
is elected and qualifies. A director elected by the stockholders to fill a
vacancy shall serve for the unexpired term and until a successor is elected and
qualifies.
SECTION 8. RULES AND REGULATIONS.
The Board of Directors may adopt such rules and regulations for the
conduct of its meetings and the management of the affairs of the Corporation as
it may deem proper and not inconsistent with the laws of the State of Maryland,
these Bylaws and the Charter.
SECTION 9. EXECUTIVE COMMITTEE.
The Board of Directors may constitute an Executive Committee, composed
of at least two directors, from among its members. The Executive Committee
shall hold office at the pleasure of the Board of Directors. Between sessions
of the Board of Directors, such Committee shall have all of the powers of the
Board of Directors in the management of the business and affairs of the
Corporation, except those powers specifically denied by law. If any position on
the Executive Committee becomes vacant, or if the number of members is
increased, such vacancy may be filled by the Board of Directors. The taking of
any action by the Executive Committee shall be conclusive evidence that the
Board of Directors was not in session at the time of such action. The Executive
Committee shall hold formal meetings and keep minutes of all of its proceedings.
A copy of such minutes shall, after approval by the members of the Committee, be
sent to all directors as a matter of information. Any action taken by the
Executive Committee within the limits permitted by law shall have the force and
effect of Board action unless and until revised or altered by the Board. The
presence of not less than a majority of the Committee shall be necessary to
constitute a quorum. Action may be taken without a meeting if a unanimous
written consent is signed by all of the
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members of the Committee, and if such consent is filed with the records of the
Committee. The Executive Committee shall have the power to elect one of its
members to serve as its Chairman unless the Board of Directors shall have
designated such Chairman.
SECTION 10. COMPENSATION.
The directors may receive a stated salary or an attendance fee for
each meeting of the Board of Directors or any committee thereof attended, plus
reimbursement of reasonable expenses of attendance. The amount of the salary or
attendance fee and any entitlement to reimbursement of expenses shall be
determined by resolution of the Board; provided, however, that nothing herein
contained shall be construed as precluding a director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 11. PLACE OF MEETINGS.
Regular or special meetings of the Board may be held within or without
the State of Maryland, as the Board may from time to time determine. The time
and place of meeting may be fixed by the party calling the meeting.
SECTION 12. INFORMAL ACTION BY THE DIRECTORS.
Any action required or permitted to be taken at any meeting of the
Board may be taken without a meeting, if a written consent to such action is
signed by all members of the Board and such consent is filed with the minutes of
the Board.
SECTION 13. TELEPHONE CONFERENCE.
Members of the Board of Directors or any committee thereof may
participate in a meeting of the Board or such committee by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time.
Participation by such means shall constitute presence in person at the meeting.
ARTICLE III
OFFICERS
SECTION 1. IN GENERAL.
The Board of Directors may choose a Chairman of the Board from among
the directors. The Board of Directors shall elect a President, a Treasurer, a
Secretary, and may elect one or more Vice Presidents, Assistant Secretaries and
Assistant Treasurers as the Board may from time to time deem appropriate. All
officers shall hold office only
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during the pleasure of the Board or until their successors are chosen and
qualify. Any two of the above offices, except those of President and Vice
President, may be held by the same person, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity when such
instrument is required to be executed, acknowledged or verified by any two or
more officers. The Board of Directors may from time to time appoint such other
agents and employees with such powers and duties as the Board may deem proper.
In its discretion, the Board of Directors may leave unfilled any offices except
those of President, Treasurer and Secretary.
SECTION 2. CHAIRMAN OF THE BOARD.
The Chairman of the Board, if one is elected, shall have the
responsibility for the implementation of the policies determined by the Board of
Directors and for the administration of the business affairs of the Corporation.
The Chairman shall preside over the meetings of the Board and of the
stockholders if present at the meeting. The Chairman shall be the Chief
Executive Officer of the Corporation if so designated by resolution of the
Board.
SECTION 3. PRESIDENT.
The President shall have the responsibility for the active management
of the business and general supervision and direction of all of the affairs of
the Corporation. In the absence of a Chairman of the Board, the President shall
preside over the meetings of the Board and of the stockholders if present at the
meeting, and shall perform such other duties as may be assigned by the Board of
Directors or the Executive Committee. The President shall have the authority on
the Corporation's behalf to endorse securities owned by the Corporation and to
execute any documents requiring the signature of an executive officer. The
President shall perform such other duties as the Board of Directors may direct
and shall be the Chief Executive Officer of the Corporation unless the Chairman
of the Board is so designated by resolution of the Board.
SECTION 4. VICE PRESIDENTS.
The Vice Presidents, in the order of priority designated by the Board
of Directors, shall be vested with all the power and may perform all the duties
of the President in the latter's absence. They may perform such other duties as
may be prescribed by the Board of Directors, the Executive Committee or the
President.
SECTION 5. TREASURER.
The Treasurer shall have general supervision over the Corporation's
finances, and shall perform such other duties as may be assigned by the Board of
Directors or the President. Unless the Board designates another officer, the
Treasurer shall be the Chief Financial Officer of the Corporation. If required
by resolution of the Board, the Treasurer shall furnish a bond (which may be a
blanket bond) with such surety
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and in such penalty for the faithful performance of duty as the Board of
Directors may from time to time require, the cost of such bond to be paid by the
Corporation.
SECTION 6. SECRETARY.
The Secretary shall keep the minutes of the meetings of the
stockholders and of the Board of Directors and shall attend to the giving and
serving of all notices of the Corporation required by law or these Bylaws. The
Secretary shall maintain at all times in the principal office of the Corporation
at least one copy of the Bylaws with all amendments to date, and shall make the
same, together with the minutes of the meeting of the stockholders, the annual
statement of affairs of the Corporation and any voting trust or other
stockholders agreement on file at the office of the Corporation, available for
inspection by any officer, director or stockholder during reasonable business
hours. The Secretary shall perform such other duties as may be assigned by the
Board of Directors.
SECTION 7. ASSISTANT TREASURER AND SECRETARY.
The Board of Directors may designate from time to time Assistant
Treasurers and Secretaries, who shall perform such duties as may from time to
time be assigned to them by the Board of Directors or the President.
SECTION 8. COMPENSATION; REMOVAL; VACANCIES.
The Board of Directors shall have power to fix the compensation of all
officers of the Corporation. It may authorize any committee or officer, upon
whom the power of appointing subordinate officers may have been conferred, to
fix the compensation of such subordinate officers. The Board of Directors shall
have the power at any regular or special meeting to remove any officer if, in
the judgment of the Board, the best interests of the Corporation will be served
by such removal. The Board of Directors may authorize any officer to remove
subordinate officers. The Board of Directors may authorize the Corporation's
employment of an officer for a period in excess of the term of the Board. The
Board of Directors at any regular or special meeting shall have power to fill a
vacancy occurring in any office for the unexpired portion of the term.
SECTION 9. SUBSTITUTES.
The Board of Directors may, from time to time in the absence of any
one of its officers or at any other time, designate any other person or persons
on behalf of the Corporation to sign any contracts, deeds, notes or other
instruments in the place or stead of any of such officers, and may designate any
person to fill any one of said offices, temporarily or for any particular
purpose; and any instruments so signed in accordance with a resolution of the
Board shall be the valid act of the Corporation as fully as if executed by any
regular officer.
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ARTICLE IV
RESIGNATION
Any director or officer may resign from office at any time. Such
resignation shall be made in writing and shall take effect from the time of its
receipt by the Corporation, unless some time be fixed in the resignation, and
then from that date. The acceptance of a resignation shall not be required to
make it effective.
ARTICLE V
COMMERCIAL PAPER, ETC.
All bills, notes, checks, drafts and commercial paper of all kinds to
be executed by the Corporation as maker, acceptor, endorser or otherwise, and
all assignments and transfers of stock, contracts, or written obligations of the
Corporation, and all negotiable instruments, shall be made in the name of the
Corporation and shall be signed by any one or more of the following officers as
the Board of Directors may from time to time designate: the Chairman of the
Board, the President, any Vice President, or the Treasurer, or such other person
or persons as the Board of Directors or Executive Committee may from time to
time designate.
ARTICLE VI
FISCAL YEAR
The fiscal year of the Corporation shall cover such period of 12
months as the Board of Directors may determine. In the absence of any such
determination, the accounts of the Corporation shall be kept on a calendar year
basis.
ARTICLE VII
SEAL
The seal of the Corporation shall be in the form of two concentric
circles inscribed with the name of the Corporation and the year and State in
which it is incorporated. The Secretary or Treasurer, or any Assistant
Secretary or Assistant Treasurer, shall have the right and power to attest to
the corporate seal. In lieu of affixing the corporate seal to any document, it
shall be sufficient to meet the requirements of any law, rule or regulation
relating to a corporate seal to affix the word "(SEAL)" adjacent to the
signature of the person authorized to sign the document on behalf of the
Corporation.
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ARTICLE VIII
STOCK
SECTION 1. ISSUE.
Each stockholder shall be entitled to a certificate or certificates
which shall represent and certify the number and class of shares of stock owned
in the Corporation. Each certificate shall be signed by the Chairman of the
Board, the President or any Vice President and be countersigned by the Secretary
or any Assistant Secretary or the Treasurer or any Assistant Treasurer. The
signatures of the Corporation's officers and its corporate seal appearing on
stock certificates may be facsimiles if each such certificate is authenticated
by the manual signature of an officer of a duly authorized transfer agent.
Stock certificates shall be in such form, not inconsistent with law and the
Charter, as shall be approved by the Board of Directors. In case any officer of
the Corporation who has signed any certificate ceases to be an officer of the
Corporation, whether by reason of death, resignation or otherwise, before such
certificate is issued, then the certificate may nevertheless be issued by the
Corporation with the same effect as if the officer had not ceased to be such
officer as of the date of such issuance.
SECTION 2. TRANSFERS.
The Board of Directors shall have power and authority to make all such
rules and regulations as the Board may deem expedient concerning the issue,
transfer and registration of stock certificates. The Board of Directors may
appoint one or more transfer agents and/or registrars for its outstanding stock,
and their duties may be combined. No transfer of stock shall be recognized or
binding upon the Corporation until recorded on the books of the Corporation, or,
as the case may be, of its transfer agent and/or of its registrar, upon
surrender and cancellation of a certificate or certificates for a like number of
shares.
SECTION 3. RECORD DATES FOR DIVIDENDS AND STOCKHOLDERS' MEETING.
The Board of Directors may fix a date not exceeding 90 days preceding
the date of any meeting of stockholders, any dividend payment date or any date
for the allotment of rights, as a record date for the determination of the
stockholders entitled to notice of and to vote at such meeting, or entitled to
receive such dividends or rights, as the case may be, and only stockholders of
record on such date shall be entitled to notice of and to vote at such meeting
or to receive such dividends or rights, as the case may be. In the case of a
meeting of stockholders, the record date shall be fixed not less than ten days
prior to the date of the meeting.
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SECTION 4. NEW CERTIFICATES.
In case any certificate of stock is lost, stolen, mutilated or
destroyed, the Board of Directors may authorize the issuance of a new
certificate in place thereof upon such indemnity to the Corporation against loss
and such other terms and conditions as it may deem advisable. The Board of
Directors may delegate such power to any officer or officers of the Corporation
or to any transfer agent or registrar of the Corporation; but the Board of
Directors, such officer or officers or such transfer agent or registrar may, in
their discretion, refuse to issue such new certificate save upon the order of
some court having jurisdiction.
ARTICLE IX
NOTICE
SECTION 1. NOTICE TO STOCKHOLDERS.
Whenever by law or these Bylaws notice is required to be given to any
stockholder, such notice shall be in writing and may be given to each
stockholder by personal delivery or at the stockholder's residence or usual
place of business, or by mailing it, postage prepaid, and addressed to the
stockholder at the address appearing on the books of the Corporation or its
transfer agent. Such leaving or mailing of notice shall be deemed the time of
giving such notice.
SECTION 2. NOTICE TO DIRECTORS AND OFFICERS.
Whenever by law or these Bylaws notice is required to be given to any
director or officer, such notice may be given in any one of the following ways:
by personal delivery to such director or officer, by telephone communication
with such director or officer personally or by telephone facsimile transmission,
by telegram, cablegram, radiogram, first class mail or by delivery service
providing confirmation of delivery, addressed to such director or officer at the
address appearing on the books of the Corporation. The time when such notice
shall be consigned to a communication company for delivery shall be deemed to be
the time of the giving of such notice; if mailed, such notice shall be deemed
given 48 hours after the time it is deposited in the mail, postage prepaid.
SECTION 3. WAIVER OF NOTICE.
Notice to any stockholder or director of the time, place and/or
purpose of any meeting of stockholders or directors required by these Bylaws may
be dispensed with if such stockholder shall either attend in person or by proxy,
or if such director shall attend in person, or if such absent stockholder or
director shall, in writing filed with the records of the meeting either before
or after the holding thereof, waive such notice.
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ARTICLE X
VOTING OF STOCK IN OTHER CORPORATIONS
Any stock in other corporations, which may from time to time be held
by the Corporation, may be represented and voted at any meeting of stockholders
of such other corporations by the President or a Vice-President or by proxy or
proxies appointed by the President or a Vice-President, or otherwise pursuant to
authorization thereunto given by a resolution of the Board of Directors adopted
by a vote of a majority of the directors.
ARTICLE XI
AMENDMENTS
The Board of Directors, and not the stockholders, shall have the
exclusive power to make, alter, amend or repeal the Bylaws of the Corporation.
ARTICLE XII
MARYLAND CONTROL SHARE ACT
The Corporation elects not to be governed by Section 3-702 of Subtitle
6 (the "Maryland Control Share Act") of Title 3 of the Maryland General
Corporation Law, as the same may be amended from time to time (including any
successor statute), with respect to the acquisition of shares of stock of the
Corporation in an amount not exceeding 49.9% of the stock oustanding from time
to time, by George T. Jimenez or any affiliate or associate of George T.
Jimenez, where such acquisition may be deemed to be a control share acquisition.
As used in this Section, the terms "control share acquisition, "affiliate," and
"associate" shall have the meanings ascribed to them in the Maryland Control
Share Act and the Maryland General Corporation Law.
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EXHIBIT 5
Venable, Baetjer and Howard, LLP
1800 Mercantile Bank and Trust Building
Two Hopkins Plaza
Baltimore, Maryland 21201
September 16, 1996
ACE*COMM Corporation
209 Perry Parkway
Gaithersburg, Maryland 20877
Gentlemen:
We have acted as counsel for ACE*COMM Corporation (the "Corporation") in
connection with a registration statement on Form S-8 of the Corporation filed
with the Securities and Exchange Commission (the "Registration Statement"),
pertaining to the registration of 2,200,000 shares of common stock (par
value $0.01 per share) of the Corporation (the "Shares") for issuance
and sale pursuant to the Corporation's Amended and Restated Omnibus Stock
Plan (the "Plan").
In connection with this opinion, we have considered such questions
of law as we have deemed necessary as a basis for the opinions set forth
below, and we have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of the following:
(i) the Registration Statement; (ii) the Charter and By-Laws of the
Corporation, as amended and as currently in effect; (iii) certain
resolutions of the Board of Directors of the Corporation relating to
the issuance of the Shares and the other transactions contemplated by
the Registration Statement; (iv) the Plan; and (v) such other documents
as we have deemed necessary or appropriate as a basis for the opinion
set forth below. In our examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. As to any facts
material to this opinion that we did not independently
<PAGE>
establish or verify, we have relied upon statements and representations of
officers and other representatives of the Corporation and others.
Based upon the foregoing, we are of the opinion that when sold,
issued and paid for as contemplated in the Registration Statement,
the Shares will be validly issued and will be fully paid and
nonassessable.
The law covered by the opinion set forth above is limited to
the law of the State of Maryland and the federal law of the United
States of America.
We hereby consent to the filing of this opinion with the Commission
as Exhibit 5 to the Registration Statement. In giving this consent,
we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ VENABLE, BAETJER AND HOWARD, LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 17, 1996, except as to the stock
split described in Note 11 which is as of August 5, 1996, which appears on page
F-2 of the Amended Registration Statement on Form S-1 of ACE*COMM Corporation
dated August 12, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Washington, D.C.
September 16, 1996
