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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 10-Q
Mark One
/X/ Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the Quarterly Period Ended March 31, 1999.
or
/_/ Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the Transition Period From ---------- To ------------ .
Commission file number: 333-71997
WORLDGATE COMMUNICATIONS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 23-2866697
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(State of Incorporation) (I.R.S. Employer Identification No.)
3220 Tillman Drive, Suite 300
Bensalem, Pennsylvania 19020
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(Address of Principal Executive Offices) (Zip Code)
(215) 633-5100
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(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes /_/ No /X/
As of March 31, 1999, there were 15,658,720 shares of common stock, par value
$.01 per share, outstanding (assumes the conversion of all outstanding shares of
series A, series B and series C preferred stock and of all outstanding shares of
class B common stock into common stock and gives retroactive effect to a 2-for-3
stock split).
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WORLDGATE COMMUNICATIONS, INC.
QUARTERLY REPORT ON FORM 10-Q
FOR THE THREE MONTHS ENDED MARCH 31, 1999
TABLE OF CONTENTS
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PAGE
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PART I FINANCIAL INFORMATION
Item 1. Financial Statements and Supplementary Data.................................. 1
Item 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations................................................................... 7
Item 3. Quantitative and Qualitative Disclosures about Market Risk................... 11
PART II OTHER INFORMATION
Item 1. Legal Proceedings............................................................ 11
Item 2. Changes in Securities and Use of Proceeds.................................... 11
Item 4. Submission of Matters to a Vote of Security Holders.......................... 14
Item 6. Exhibits and Reports on Form 8-K............................................. 14
</TABLE>
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PART I. FINANCIAL INFORMATION
ITEM 1. FHINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
WORLDGATE COMMUNICATIONS, INC.
CONDENSED BALANCE SHEETS
(unaudited)
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
MARCH 31, DECEMBER 31,
1999 1998
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ASSETS
Current assets:
Cash and cash equivalents ................................. $ 4,544 $ 128
Restricted cash ........................................... 240 240
Accounts receivable, trade ................................ 475 572
Inventory ................................................. 2,788 2,737
Prepaid and other assets .................................. 498 172
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Total current assets ..................................... 8,545 3,849
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Property and equipment, at cost ............................ 790 780
less: accumulated depreciation and amortization ........... (172) (137)
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Property and equipment, net .............................. 618 643
Deposits and other ......................................... 1,129 1,129
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Total assets ............................................. $ 10,292 $ 5,621
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-------- --------
LIABILITY AND STOCKHOLDERS' DEFICIT
Current Liabilities:
Current portion, notes payable ............................ $ 5,030 $ 516
Current portion, capital lease ............................ 4 4
Accounts payable .......................................... 2,556 5,166
Accrued expenses .......................................... 182 128
Accrued compensation and benefits ......................... 1,546 1,283
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Total current liabilities ................................ 9,318 7,097
Notes payable ............................................. 459 596
Capital leases ............................................ 11 11
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Total liabilities ........................................ 9,788 7,704
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Commitments and contingent liabilities
Series A Convertible Mandatory Redeemable Preferred Stock,
$.01 par value, 2,752,111 shares authorized and outstanding 17,144 16,578
Series B Convertible Mandatory Redeemable Preferred Stock,
$.01 par value, 3,270,760 shares authorized and 2,803,031
outstanding ............................................... 24,413 23,569
Series C Convertible Mandatory Redeemable Preferred Stock,
$.01 par value, 3,181,819 shares authorized,
1,529,714 and 832,277 outstanding at March 31, 1999 and
December 31, 1998, respectively ........................... 17,485 9,129
Warrant for Series B Convertible Mandatory Redeemable
Preferred Stock ........................................... 881 881
Stockholders' deficit:
Class B common stock, $.01 par value; 27,608,000 shares
authorized, 9,100,801 shares issued and outstanding ....... 91 91
Warrant for Class B Common Stock .......................... 1,030 --
Accumulated deficit ....................................... (59,268) (51,300)
Unearned stock-based compensation ......................... (1,272) (1,031)
-------- --------
Total stockholders' deficit .............................. (59,419) (52,240)
-------- --------
Total liabilities and stockholders' deficit .............. $ 10,292 $ 5,621
-------- --------
-------- --------
</TABLE>
The accompanying notes are an integral part of these financial statements.
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WORLDGATE COMMUNICATIONS, INC.
CONDENSED STATEMENTS OF OPERATIONS
(unaudited)
<TABLE>
<CAPTION>
(DOLLARS IN THOUSANDS)
THREE MONTHS ENDED MARCH 31,
----------------------------
1999 1998
---- ----
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Revenues $ 549 $ 4
--------- ---------
Costs and expenses:
Cost of revenues 1,834 1,924
Engineering and development 2,330 2,286
Sales and marketing 1,355 1,181
General and administrative 1,137 822
Depreciation and amortization 35 21
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Total costs and expenses 6,691 6,234
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Loss from operations (6,142) (6,230)
Interest income 38 198
Interest expense (93) (15)
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Net loss (6,197) (6,047)
Accretion on preferred stock (2,111) (1,410)
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Net loss available to common stockholders $ (8,308) $ (7,457)
--------- ---------
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Net loss per common share - basic and diluted $ (0.91) $ (0.82)
--------- ---------
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Weighted average common shares outstanding - basic and diluted 9,100,801 9,100,801
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</TABLE>
The accompanying notes are an integral part of these financial statements.
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WORLDGATE COMMUNICATIONS, INC.
CONDENSED STATEMENTS OF CASH FLOWS
(unaudited)
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<CAPTION>
(DOLLARS IN THOUSANDS)
THREE MONTHS ENDED MARCH 31,
----------------------------
1999 1998
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CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (6,197) $ (6,047)
Adjustments to reconcile net loss to cash used in
operating activities:
Depreciation and amortization 35 21
Amortization of deferred compensation 99 28
Amortization of debt issue costs 63 --
Changes in operating assets and liabilities:
Accounts receivable 97 7
Inventories (51) (541)
Prepaid and other assets (326) (43)
Accounts payable (2,610) 304
Accrued expenses 54 578
Accrued compensation and benefits 263 (366)
------ ---
Net cash used in operating activities (8,573) (6,059)
------ ---
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (10) (275)
Purchases of short-term investments -- (2,042)
Proceeds from maturities of short-term investments -- 3,000
------ ---
Net cash (used in) provided by investing activities (10) 683
------ ---
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of preferred stock 7,672 142
Stock issuance costs (17) --
Proceeds from notes payable 6,000 439
Debt issue costs (530) --
Repayments of capital leases and notes payable (126) (75)
------ ---
Net cash provided by financing activities 12,999 506
------ ---
Net increase (decrease) in cash and cash equivalents 4,416 (4,870)
Cash and cash equivalents, beginning of period 128 4,880
------ ---
Cash and cash equivalents, end of period $ 4,544 $ 10
------ ---
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Noncash investing and financing activities:
Accretion on preferred stock $ 2,111 $ 1,410
Issuance of warrants in connection with financing agreements 1,030
</TABLE>
The accompanying notes are an integral part of these financial statements.
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WORLDGATE COMMUNICATIONS, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(unaudited)
1. Basis of Presentation
The unaudited financial statements of WorldGate Communications, Inc.
(the "Company") for the three months ended March 31, 1999 and March 31, 1998
presented herein have been prepared by the Company pursuant to the rules and
regulations of the Securities and Exchange Commission for quarterly reports on
Form 10-Q. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations. These financial statements should be read in conjunction with the
financial statements for the year ended December 31, 1998 and the notes thereto
included in the Company's Registration Statement on Form S-1 (No.
333-71997).
The financial information in this Report reflects, in the opinion of
management, all adjustments of a normal recurring nature necessary to present
fairly the results for the interim period. Quarterly operating results may not
be indicative of results which would be expected for the full year. The Company
operates in a single segment.
2. Recent Accounting Pronouncements
Cost of Computer Software. Effective January 1, 1999, the Company
adopted Statement of Position (SOP) No. 98-1, "Accounting for the Costs of
Computer Software Developed or Obtained for Internal Use". Under SOP No. 98-1,
the Company capitalizes the cost of internal-use software that has a useful life
in excess of one year. Such costs sometimes include payroll-related costs for
internally developed software. Subsequent additions, modifications or upgrades
to internal-use software are capitalized only to the extent that they allow the
software to perform a task it currently does not perform. Software maintenance
and training costs are expensed in the period in which they are incurred.
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3. Inventories
Inventories are summarized as follows:
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<CAPTION>
March 31, December 31,
1999 1998
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Raw Material...................... $ 968,404 991,670
Work in Progress.................. 86,980 16,461
Finished Goods.................... 1,732,908 1,728,381
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$2,788,292 $2,736,512
---------- ----------
---------- ----------
</TABLE>
Customers held $1,314,035 and $1,264,051 of the Company's finished
goods inventories at March 31, 1999 and December 31, 1998, respectively, for use
in system trials.
4. Financing Agreements
In 1998, the Company's $1,000,000 equipment facility was increased to
$2,000,000 of which $419,044 remained available at March 31, 1999 and December
31,1998. The weighted average interest rate on the outstanding notes payable
borrowings under this facility at March 31, 1999 and December 31, 1998 was
8.89%.
In March 1999, the Company received proceeds of $911,600 and $4,558,000
through the issuance of $1,000,000 and $5,000,000 of notes payable with a stated
interest rate of 12.48% due September 1999 and December 1999, respectively. In
connection with the issuance of these notes payable, the holders of the notes
received warrants to purchase up to 331,490 shares of common stock at an
exercise price of $16.50 per share. The fair value of the warrants has been
accounted for as an additional discount of the notes payable, which will be
amortized as additional interest expense over the term of the notes. These notes
payables became immediately due, and were paid, upon the completion of the
Company's initial public offering ("IPO") (see footnote no. 8).
5. Commitments and Contingencies
Legal
The Company is a party to various legal actions. The Company does not
expect that the ultimate resolution of these legal matters in future periods
will have a material effect on its financial position or cash flows, but it
could have a material effect on its results of operations.
6. Stockholders' Deficit
Convertible Mandatory Redeemable Preferred Stock
In January and February 1999, the Company sold 697,437 shares of Series
C Preferred Stock (convertible into 464,958 shares of common stock, giving
effect to a 2-for-3 stock split) at
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a purchase price of $11.00 per share for approximately $7,600,000. Upon
completion of the IPO these shares were converted into shares of common stock
(see footnote no. 8).
Stock Option Plan
Compensation expense of approximately $340,000 is being recognized over
the four-year vesting period of options which were granted to employees to
acquire 58,600 shares of common stock in January 1999 at below the estimated
fair market value at the time of such grants. Compensation expense related to
these options of approximately $21,000 was recognized in the three months ended
March 31, 1999. Compensation expense of approximately $78,000 was recognized in
the three months ended March 31, 1999 that related to options granted prior to
January 1, 1999 at less than the fair market value at the time of such grants.
Basic and Diluted EPS
The Company calculates earnings per share (EPS) in accordance with
Statement of Financial Accounting Standards (SFAS) No. 128, "Earnings Per
Share," which requires public companies to present basic earnings per share and,
if applicable, diluted earnings per share instead of primary and fully diluted
EPS. Basic EPS is a per share measure of an entity's performance computed by
dividing income (loss) available to common stockholders (the numerator) by the
weighted average number of common shares outstanding during the period (the
denominator). Diluted earnings per share measures the entity's performance
taking into consideration common shares outstanding (as computed under basic
EPS) and dilutive potential common shares, such as stock options. However,
entities with a net loss do not include common stock equivalents in the
computation of diluted EPS, as the effect would be anti-dilutive. Accordingly,
basic and diluted EPS are equal, since common stock equivalents are not
included, as inclusion of such shares would have an anti-dilutive effect.
7. Related Party Transactions
In 1997, the Company entered into an agreement with a cable operator
who is an investor. Revenues recognized from this investor were approximately
$431,000 for the three months ended March 31, 1999. Accounts receivable amounted
to approximately $276,000 at March 31, 1999.
In 1997 and 1998, the Company entered into agreements with four
stockholders to provide the Company with engineering and development support. As
a result of these agreements, the Company has expensed approximately $380,000
for the three months ended March 31, 1999. Accounts payable amounted to
approximately $386,000 as of March 31, 1999. These stockholders are suppliers of
technology and components for the Company's products and services. These
agreements provide for licensing of technology, as well as contracted services,
including hardware and software development, product testing and certification,
and the creation and development of tools and systems to facilitate the
Company's engineering efforts. These agreements do not provide for ongoing
royalties, purchase provisions, nor for any requirement to provide additional
funding to the Company. Also, revenues recognized from stockholders who provide
engineering and development support, for the three months ended March 31, 1999
amounted to approximately $56,000 from the sale of equipment for use in certain
facilities.
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Prior to the IPO the Company received non-binding commitments from
current investors and its chairman to provide additional funding if and when
necessary.
8. Subsequent Events
In April 1999, the Company completed its IPO of 5,000,000 shares of
its common stock at $21.00 per share. The proceeds to the Company, net of
underwriting discounts, commissions and offering expenses were approximately
$96,495,000. In February 1999, the Board of Directors approved a 2-for-3 stock
split effective immediately prior to the IPO. All common stock share data has
been retroactively adjusted to reflect this change.
Concurrent with the closing of the IPO, all outstanding shares of the
Series C Convertible Preferred Stock and Series B Convertible Preferred Stock
automatically converted into an equal number of shares of Class B Common Stock,
and all outstanding shares of Series A Convertible Preferred Stock automatically
converted into two shares of Class B Common Stock. All of the outstanding shares
of Class B Common Stock then converted into common stock.
In May 1999 the Company closed on the exercise by the underwriters of
their over-allotment option to purchase 750,000 additional shares of common
stock at $21.00 per share. The proceeds to the Company, net of underwriting
discounts, were approximately $14,648,000.
Upon the completion of the IPO in April 1999, the Company repaid the
loans obtained during March 1999 (see footnote 4). As a result of the repayment
of the loans the Company will recognize a loss on the early extinguishment of
debt of approximately $1,019,000 in April 1999.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
FORWARD-LOOKING AND CAUTIONARY STATEMENTS.
We and our representatives may from time to time make written or oral
forward-looking statements, including those contained in the foregoing
Management's Discussion and Analysis of Financial Condition and Results of
Operations. In order to take advantage of the "safe harbor" provisions of the
Private Securities Litigation Reform Act of 1995, we are hereby identifying
certain important factors which could cause our actual results, performance or
achievement to differ materially from those that may be contained in or implied
by any forward-looking statement made by or on behalf of WorldGate. The factors,
individually or in the aggregate, that could cause such forward-looking
statements not to be realized include, without limitation, the following: (1)
difficulty in developing and implementing marketing and business plans, (2)
continued losses, (3) industry competition factors and other uncertainty that a
market for the WORLDGATE Servicesm will develop, (4) challenges associated with
cable operators (including, uncertainty that they will offer the WORLDGATE
Service, inability to predict the manner in which they will market and price the
WORLDGATE Service and existence of potential conflicts of interests and
contractual limitations impeding their ability to offer the WORLDGATE Service),
(5) challenges associated with cable box manufacturers (including uncertainty
that they will support our
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technology in their cable boxes, (6) challenges with advertisers and television
programmers (including uncertainties that they will support our CHANNEL
HYPERLINKING-SM- technology), (7) loss of any one of our largest customers, (8)
departure of one or more key persons and (9) other risks identified in filings
with the Securities and Exchange Commission. We caution you that the foregoing
list of important factors is not intended to be, and is not, exhaustive. We do
not undertake to update any forward-looking statement that may be made from time
to time by or on behalf of WorldGate.
Results of Operations
Three Months Ended March 31, 1999 and March 31, 1998
Revenues
Revenues increased from $4,000 for the three months ended March 31,
1998 to $549,000 for the three months ended March 31, 1999. Substantially, all
revenues are attributable to the increase in commercial deployments of the
WorldGate-SM- Service and cable subscribers subscribing to the WorldGate Service
as of March 31, 1999. At March 31, 1998 there were no commercial deployments or
participating subscribers. As of March 31, 1999 there were 7 commercial
deployments, with 2,846 cable customers subscribing to the WorldGate Service.
For the three months ended March 31, 1999 revenues consisted of $529,000 of
headend, keyboard and related product deliveries and $20,000 from subscriber
fees.
Costs and Expenses
Cost of Revenues. Cost of revenues consisted primarily of product
costs related to continuing initial trials, commercial deployments and WorldGate
modules to be incorporated into the set-top boxes. Cost of revenues for the
three months ended March 31, 1999 were $1,834,000, a decrease of 4.7% from the
cost of revenues of $1,924,000 for the three months ended March 31, 1998. This
reduction in cost of revenues is primarily attributable to the Company's
reduction of nearly 40% in unit costs, partially offset by increased volumes.
Engineering and Development. Engineering and development expenses
primarily consist of the cost of design, programming, testing, documentation and
support of the Company's hardware, software and services. Engineering and
development costs were $2,330,000 for the three months ended March 31, 1999, an
increase of 1.9% when compared to $2,286,000 for the three months ended March
31, 1998. The Company anticipates continued increases in staff and expenditures
for new and enhanced products, software and services.
Sales and Marketing. Sales and marketing costs consist primarily
of compensation, attendance at conferences and trade shows, travel costs that
cover a domestic and international customer market base, promotions and other
marketing programs substantially related to initial trial installations and
commercial deployments. For the three months ended March 31, 1999 and 1998,
sales and marketing expenses were $1,355,000 and $1,181,000, respectively. This
increase of $174,000 is primarily the result of additional trade show costs of
$148,000. The Company anticipates continued increases in its marketing and
promotional expenditures with the anticipated growth in number of new, and the
expansion of existing, commercial deployments.
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Additional increased expenditures are also anticipated for advertising and other
trade promotional activities.
General and Administrative. General and administrative expenses
consist primarily of expenditures for administration, office and facility
operations, finance and general management activities, including legal,
accounting and other professional fees. General and administrative expenses were
$1,137,000 for the three months ended March 31, 1999, an increase of 38.3% when
compared to $822,000 for the same period in 1998. This increase of $315,000 was
primarily due to a $273,000 placement fee for financing obtained in March 1999.
The Company anticipates that general and administrative expenses will continue
to increase as the Company hires additional personnel and incurs additional
costs related to being a public company, such as expenses related to directors'
and officers' insurance, investor relations programs and increased professional
fees.
Interest Income and Expenses
Interest income and expenses consist of interest earned on cash
and cash equivalents and short-term investments, and interest expense on
equipment financing and short-term debt. Interest income decreased from $198,000
for the three months ended March 31, 1998 to $38,000 for the three months ended
March 31, 1999. During the first quarter of 1998 the Company earned interest
from the proceeds of a $19,935,000 private placement that closed on January 23,
1998. In comparison, during the first quarter of 1999, the Company earned
interest on an average cash balance of approximately $1,500,000 and incurred
interest expense related to its $6,000,000 financing and $1,100,000 equipment
financing facility.
Income Taxes
The Company has incurred net operating losses since inception and
accordingly had no income taxes due and has not recorded any income tax benefit
for those losses.
Liquidity and Capital Resources
As of March 31, 1999, the Company's primary source of liquidity
consisted of cash and debt instruments that are highly liquid, are of high
quality investment grade and predominantly have maturities less than one year
with the intent to make such funds readily available for operating purposes.
At March 31, 1999 the Company had cash and cash equivalents of
$4,544,000, as compared to $128,000 at December 31, 1998. Net cash used in
operations was $8,573,000 for the three months ended March 31, 1999, as compared
to $6,059,000 used for the same period in 1998. The decrease in net cash was
primarily attributable to the payment of trade payables in the amount of
$2,600,000 during the three months ended March 31, 1999.
Net cash provided by financing activities was $12,999,000 for the three
months ended March 31, 1999, as compared to $506,000 for the same period in
1998. The increase resulted from net proceeds received during the first quarter
of 1999 of $5,470,000 from a loan and $7,655,000 from the sale of Series C
Convertible Preferred Stock in a private placement. These
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amounts were partially offset by the repayment of capital leases and equipment
financing obligations.
The Company completed an initial public offering ("IPO") in April
1999, with gross proceeds totaling $105,000,000. Approximately $8,333,000 in
IPO expenses incurred was offset against these proceeds. The Company received
in May 1999 additional gross proceeds of $15,800,000 from the underwriters in
connection with the exercise of their over-allotment option. Offering
expenses related to these additional proceeds were approximately $1,103,000.
Assuming that there is no significant change in the Company's business,
the Company believes that cash-flow from operations together with existing cash
balances and the proceeds from the initial public offering will be sufficient to
meet its working capital requirements for at least the next twelve months.
Y2K Compliance
We continue to assess the Year 2000 readiness of our third-party
supplied software, computer technology and other services. Based upon the
results of this assessment, we will develop and implement, if necessary, a
remediation plan with respect to any third-party software, computer technology
and services which may fail to be Year 2000 compliant. We have assessed our
proprietary software and internal systems and believe them to be Year 2000
compliant. We anticipate that our systems, including components thereof provided
by third-party vendors, will be Year 2000 compliant by the end of 1999. At this
time, the expenses associated with this assessment and potential remediation
plan appear to be minimal as third-party supplied software, computer technology
and other services are assessed for Year 2000 compliance as part of our normal,
on-going, and standard evaluation procedures for all components and software
acquired or developed. The failure of our software and computing systems and our
third-party vendors to be Year 2000 compliant could have a material adverse
effect on us.
Recent Accounting Pronouncements
In March 1998, the American Institute of Certified Public Accountants
(AICPA) issued Statement of Position No. 98-1, "Accounting for the Costs of
Computer Software Developed or Obtained for Internal Use" ("SOP 98-1"). SOP 98-1
provides, among other things, guidance for determining whether computer software
is for internal use and when the cost related to such software should be
expensed as incurred or capitalized and amortized. SOP 98-1 is required to be
applied prospectively. We adopted SOP 98-1 on January 1, 1999 and do not expect
the adoption of SOP 98-1 to have a material effect on our results of operations
and financial condition.
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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
INTEREST RATE RISK.
Our exposure to market risk related to changes in interest rates
relates primarily to our investment portfolio. We invest in instruments that
meet high credit quality standards, and we limit the amount of credit exposure
to any one issue, issuer and type of investment.
As of March 31, 1999, our investments consisted of $4,784,000 all of
which were cash equivalents having a maturity of less than one year. Due to the
average maturity and conservative nature of our investment portfolio, a sudden
change in interest rates would not have a material effect on the value of the
portfolio. Management estimates that had the average yield of our investments
decreased by 100 basis points, our interest income for the quarter ended March
31, 1999 would have decreased by less than $7,300. This estimate assumes that
the decrease occurred on the first day of 1999 and reduced the yield of each
investment instrument by 100 basis points. The impact on our future interest
income of future changes in investment yields will depend largely on the gross
amount of our investments.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
There has been no material development in any of the Legal Proceedings in which
the Company is currently a party.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS.
CHANGE IN BYLAWS.
Prior to the closing of our initial public offering, our bylaws were
amended to require delivery to us of advance notice regarding any business to be
brought by a stockholder before any annual or special meeting of stockholders.
The amendment also specified procedures to be followed by stockholders in
nominating persons for election to our board of directors. Generally, the
advance notice provisions require that the stockholder must give written notice
to the Secretary of WorldGate:
o In the case of an annual meeting, not less than 90 days nor more
than 120 days before the first anniversary of the preceding year's
annual meeting of stockholders, and
o In the case of a special meeting, not less than 90 days, or, if
later, 10 days after the first public announcement of the date of the
special meeting, nor more than 120 days prior to the scheduled date of
such special meeting.
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In each case, the notice must set forth specific information regarding the
stockholder and each director nominee or other business proposed by the
stockholder, as applicable.
UNREGISTERED SALES OF SECURITIES.
During the three month period ended March 31, 1999, we have made the
following sales of unregistered securities to employees and various
institutional and other accredited investors:
o From January 1, 1999 through February 8, 1999, we sold an
aggregate of 697,437 shares of series C preferred stock (convertible
into 464,958 shares of common stock, giving effect to a 2-for-3 stock
split) at a purchase price of $11.00 per share to various accredited
investors. These sales were exempt from registration pursuant to
Section 4(2) of the Securities Act of 1933, as amended, and Rule 506 of
Regulation D thereunder.
o On March 2, 1999 we issued senior secured promissory notes in
the aggregate principal amount of $6 million and issued warrants to
purchase 331,490 shares of common stock at an exercise price equal to
$16.50, to two institutional accredited investors (as adjusted to
reflect the Company's 2-for-3 stock split). These sales were exempt
from registration pursuant to Section 4(2) of the Securities Act.
o Pursuant to our stock option plan, as amended, in January 1999
and March 1999 we granted options to purchase a total of 305,866 shares
of common stock (as adjusted to reflect the Company's 2-for-3 stock
split) to our employees and other persons at an exercise prices ranging
from $4.50 to $16.50 per share. In granting the options, we relied upon
exemptions from registration set forth in Rule 701 and Section 4(2) of
the Securities Act.
OUR INITIAL PUBLIC OFFERING/USE OF PROCEEDS.
On April 15, 1999, our Registration Statement on Form S-1 (Commission
file number 333-71997) covering the initial public offering of 5,000,000 shares
of our common stock at $21 per share was declared effective. The offering
commenced on April 15, 1999, and was managed by Gerard Klauer Mattison & Co.,
Inc., Jefferies & Company, Inc. and Janney Montgomery Scott Inc. as
representatives of the several underwriters named in the Registration Statement
(the "Underwriters").
On May 10, 1999, we closed on the Underwriters exercise of their
over-allotment option to purchase an additional 750,000 shares of our common
stock at the initial public offering price of $21 per share. The total price to
the public for the shares of common stock offered and sold by us was
$120,750,000.
-12-
<PAGE>
The amount of expenses incurred for our account in connection with the
offering are as follows:
<TABLE>
<S> <C>
Underwriting discounts and commissions.......... $8,452,500
Finder's fees................................... --
Expenses paid to or for the Underwriters........ --
Other expenses.................................. $ 983,000
----------
Total expenses............................. $9,435,500
----------
----------
</TABLE>
All of the foregoing expenses were direct or indirect payments to
persons other than (i) directors, officers or their associates; (ii) persons
owning ten percent (10%) or more of our common stock; or (iii) our affiliates.
The net proceeds of the offering to us (after deducting the foregoing
expenses) was $111,315,000. From the effective date of the Registration
Statement, the net proceeds have been used for the following purposes:
<TABLE>
<S> <C>
Construction of plant, building and facilities............... $ --
Purchase and installation of machinery and equipment......... 39,000
Purchase of real estate...................................... --
Acquisition of other business (including transaction costs).. --
Repayment of indebtedness.................................... 5,566,000
Working capital.............................................. 2,710,000
Temporary investments, including cash and cash equivalents... 8,000,000
Other purposes (for which at least $100,000 has been used)
including: investments, including debt instruments of the
United States Government and its agencies and in high
quality corporate issuers 95,000,000
------------
$111,315,000
</TABLE>
Except for compensation expenses, all of the foregoing payments were
direct or indirect payments to persons other than (i) directors, officers or
their associates; (ii) persons owning ten percent (10%) or more of the Company's
common stock; or (iii) affiliates of the Company.
-13-
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
On January 8, 1999, and March 5, 1999, we sent the following proposals,
which was approved by majority consent, to our stockholders for their consent in
connection with our initial public offering:
<TABLE>
<CAPTION>
VOTES
PROPOSAL VOTES FOR AGAINST ABSTENTION
-------- --------- ------- ----------
<S> <C> <C> <C>
To approve a 2-for-3 stock split.........................11,118,680 None None
To approve the conversion of all outstanding shares of
series A, series B, and series C preferred stock and
all outstanding shares of class B common stock into
class A common stock.....................................11,118,680 None None
To approve the designation of only one class of common
stock as "common stock"..................................11,118,680 None None
To approve the amendment and restatement of our
Certificate of Incorporation in substantially the form
attached hereto as EXHIBIT 3.1...........................11,118,680 None None
To approve the amendment and restatement to our bylaws
in substantially the form attached hereto as
EXHIBIT 3.2..............................................11,118,680 None None
</TABLE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
The following is a list of exhibits filed as part of this report on
Form 10-Q. Where so indicated by footnote, exhibits which were previously filed
are incorporated by reference. For exhibits incorporated by reference, the
location of the exhibit in the previous filing is indicated parenthetically
except for in those situations where the exhibit number was the same as set
forth below.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation*
3.2 Amended and Restated Bylaws*
27.1 Financial Data Schedule
</TABLE>
-14-
<PAGE>
* Effective as of April 15, 1999.
(b) Reports on Form 8-K.
None.
-15-
<PAGE>
WORLDGATE COMMUNICATIONS, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: May 28, 1999 /s/ Hal M. Krisbergh
-------------------------------------
Hal M. Krisbergh
President and Chief Executive Officer
/s/ David A. Dill
-------------------------------------
David A. Dill
Chief Financial Officer
-16-
<PAGE>
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WORLDGATE COMMUNICATIONS, INC.
WORLDGATE COMMUNICATIONS, INC., a corporation organized and existing
under and by virtue of the Delaware General Corporation Law (the "Corporation"),
does hereby certify that:
FIRST: The name of the Corporation is
WorldGate Communications, Inc. (hereinafter, the
"Corporation").
SECOND: The address of the Corporation's
registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, DE 19801, in the
county of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to
engage in any lawful act or activity for which corporations
may be organized under the DGCL.
FOURTH: The amount of total authorized
capital stock of the Corporation is 63,500,000 shares, divided
into 50,000,000 shares of common stock, par value $.01 per
share ("Common Stock"), and 13,500,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock").
(a) COMMON STOCK.
(i) All outstanding shares of
Common Stock shall be identical and shall entitle the holders
thereof to the same rights and privileges. The holders of
shares of Common Stock shall have no preemptive or
preferential rights of subscription to any shares of any class
of capital stock of the Corporation.
(ii) When, as and if dividends or
distributions are declared on outstanding shares of Common
Stock, whether payable in cash, in property or in securities
of the Corporation, the holders of outstanding shares of
Common Stock shall be entitled to share equally in such
dividends and distributions.
(iii) Upon any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of outstanding shares of
Common Stock shall be entitled to share equally in the assets
of the Corporation to be distributed among the holders of
shares of Common Stock.
<PAGE>
(iv) The holders of outstanding
shares of Common Stock shall have the right to vote on (or, as
provided by law, take action by consent with respect to) the
election and removal of the directors of the Corporation and
on, and with respect to, all other matters to be voted on or
consented to by the stockholders of the Corporation, and each
holder shall be entitled to one vote for each share of Common
Stock held.
(b) PREFERRED STOCK. The Board of
Directors shall have the authority at any time and from time
to time, by resolution, to divide the Preferred Stock into
classes and into series within any class or classes, and to
determine the designation and the number of shares of any
class or series and the relative rights, powers, preferences,
qualifications, restrictions and limitations of the shares of
any class or series.
FIFTH: In furtherance and not in limitation
of the general powers conferred by the laws of the State of
Delaware, the Board of Directors is expressly authorized to
make, alter or repeal the Bylaws of the Corporation, except as
specifically otherwise provided therein.
SIXTH: A director of the Corporation shall
have no personal liability to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty
as a director except to the extent that Section 102(b)(7) (or
any successor provision) of the DGCL, as amended from time to
time, expressly provides that the liability of a director may
not be eliminated or limited. No amendment or repeal of this
paragraph SIXTH shall apply to or have any effect on the
liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
SEVENTH: Whenever a compromise or
arrangement is proposed between this Corporation and its
creditors or any class of them and/or between this Corporation
and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on
the application in a summary way of this Corporation or of any
creditor or stockholder thereof or on the application of any
receiver or receivers appointed for this Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or
on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the
provisions of Section 279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner
as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to
any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the
-2-
<PAGE>
court to which the said application has been made, be binding
on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders of this Corporation, as
the case may be, and also on this Corporation.
IN WITNESS WHEREOF, WorldGate Communications, Inc. has caused this
Certificate of Amendment to the Amended and Restated Certificate of
Incorporation to be executed by a duly authorized officer as of this 14th day of
April, 1999.
WORLDGATE COMMUNICATIONS, INC.
By: /s/ Randall J. Gort
-------------------------------------
Name: Randall J. Gort
Title: Vice President, General Counsel
and Secretary
-3-
<PAGE>
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
WORLDGATE COMMUNICATIONS, INC.
(A DELAWARE CORPORATION)
ARTICLE 1
OFFICES
Section 1.01. OFFICES. The Corporation may have offices at such
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.01. PLACE OF MEETING. Meetings of the stockholders
shall be held at such place, within the State of Delaware or elsewhere, as may
be fixed from time to time by the Board of Directors. If no place is so fixed
for a meeting, it shall be held at the Corporation's then principal executive
office.
Section 2.02. ANNUAL MEETING. The annual meeting of stockholders
shall be held, unless the Board of Directors shall fix some other hour or date
therefor, at 10:00 o'clock A.M. on the last Thursday in May in each year, if not
a legal holiday under the laws of Delaware, and, if a legal holiday, then on the
next succeeding secular day not a legal holiday under the laws of Delaware, at
which the stockholders shall elect by plurality vote a Board of Directors, and
transact such other business as may properly be brought before the meeting,
provided that notice of any such matter to be brought before the meeting by any
stockholder shall have been given to the Corporation as provided in Section 2.09
of these Bylaws.
Section 2.03. NOTICE OF ANNUAL MEETINGS. Written notice of the
annual meeting stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than 10 days nor more
than 60 days before the date of the meeting.
Section 2.04. LIST OF STOCKHOLDERS. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least 10 days
before every meeting of stockholders, a complete list of stockholders entitled
to vote at the meeting,
<PAGE>
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least 10 days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be so specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 2.05. SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman of
the Board or the President and shall be called by the President or Secretary at
the request in writing of a majority of the Board of Directors. Such request
shall state the purpose or purposes of the proposed meeting. Business transacted
at any special meeting of stockholders shall be limited to the purposes stated
in the notice, provided that notice of any such matter to be brought before the
meeting by any stockholder shall have been given to the Corporation as provided
in Section 2.09 of these Bylaws.
Section 2.06. NOTICE OF SPECIAL MEETINGS. Written notice of a
special meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than 10 days nor more than 60 days
before the date of the meeting.
Section 2.07. QUORUM; VOTING. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
-2-
<PAGE>
stockholder of record entitled to vote at the meeting. When a quorum is present
at any meeting, except for elections of directors, which shall be decided by
plurality vote, the vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of statute or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no shares shall be voted
pursuant to a proxy more than three years after the date of the proxy unless the
proxy provides for a longer period.
Section 2.08. ACTION WITHOUT A MEETING. Unless otherwise
restricted by the Certificate of Incorporation, any action required or permitted
to be taken at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing setting forth the action so taken shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and shall be
delivered to the corporation by delivery to its registered office in the State,
its principal place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation's registered office shall be by hand or
by certified or registered mail, return receipt requested. Every written consent
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within sixty days after the earliest dated consent delivered in
the manner required by this Section to the corporation, written consents signed
by a sufficient number of stockholders to take action are delivered in the
manner required by this Section to the Corporation. Prompt notice of the taking
of the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take the action were
delivered to the Corporation.
-3-
<PAGE>
"Section 2.09.NOTICE OF STOCKHOLDER NOMINATIONS AND OTHER
PROPOSED STOCKHOLDER ACTION.
(a) ANNUAL MEETINGS OF STOCKHOLDERS.
(i) Nominations of persons for election as directors and
the proposal of matters to be considered and voted on by the
stockholders at an annual meeting of stockholders may be made
only (A) by or at the direction of the Board of Directors, or (B)
by any stockholder of the Corporation who was a stockholder of
record at the time of giving the notice required by this Section
and who shall be entitled to vote at the meeting (or a duly
authorized proxy therefor) and who complies with the notice
procedures set forth in this Section.
(ii) For nominations or other proposals to be properly
brought before an annual meeting of stockholders by a stockholder
pursuant to paragraph (a)(i) of this Section, the stockholder
must have given timely notice thereof (including the information
required hereby) in writing to the Secretary of the Corporation
and any such proposal must otherwise be a proper matter for
stockholder action. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 90th
calendar day nor earlier than the close of business on the 120th
calendar day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that
the date of the annual meeting is more than 30 calendar days
before or more than 60 calendar days after such anniversary date,
notice by the stockholder to be timely must be so delivered not
earlier than the close of business on the 120th calendar day
prior to such annual meeting and not later than the close of
business on the later of the 90th calendar day prior to such
annual meeting or the 10th calendar day following the calendar
day on which public announcement of the date of such meeting is
first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a
new time period for the giving of a stockholder's notice of a
nomination or proposed action as described above. Such
stockholder's notice shall set forth: (A) as to each person whom
the stockholder proposes to nominate for election or reelection
as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies
-4-
<PAGE>
for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and Rule 14a-11 thereunder (or any successor provision of law),
including such person's written consent to being named as a
nominee and to serving as a director if elected; (B) as to any
other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such
business of such stockholder and of any of such stockholder's
affiliates (as defined below) and of any person who is the
beneficial owner (as defined below), if any, of such stock; and
(C) as to the stockholder giving the notice and each beneficial
owner, if any, of such stock, the name and address of such
stockholder, as they appear on the Corporation's stock ownership
records, and the name and address of each beneficial owner of
such stock and the class and number of shares of capital stock
the Corporation which are owned of record or beneficially by each
such person.
(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section to the contrary, in the event
that the number of directors to be elected to the Board of
Directors of the Corporation at an annual meeting of stockholders
is increased and there is no public announcement by the
Corporation specifying the increased size of the Board of
Directors at least 100 calendar days prior to the first
anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to
the Secretary of the Corporation at the principal executive
offices of the Corporation not later than the close of business
on the 10th calendar day following the day on which such public
announcement is first made by the Corporation.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting under Section 2.06 of these Bylaws. Nominations of persons for
election to the Board of Directors at a special meeting of stockholders
at which directors are to be elected pursuant to the Corporation's
notice of meeting may be made only (i)
-5-
<PAGE>
by or at the direction of the Board of Directors or (ii) provided that
the Board of Directors has determined that directors shall be elected
at such meeting, by any stockholder of the Corporation who is a
stockholder of record at the time of giving the notice required by this
Section and who shall be entitled to vote at the meeting (or a duly
authorized proxy therefor) and who complies with the notice procedures
set forth in this Section. In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, for nominations to be properly
brought before the special meeting by a stockholder pursuant to this
paragraph, the stockholder must give notice thereof containing the
information required in the case of a nomination to be made by a
stockholder at an annual meeting of stockholders by paragraph (a)(ii)
of this Section to the Secretary of the Corporation at the principal
executive offices of the Corporation not earlier than the close of
business on the 120th calendar day prior to such special meeting and
not later than the close of business on the later of the 90th calendar
day prior to such special meeting or the 10th calendar day following
the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors
to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time
period for the giving of a stockholder's notice of a nomination as
described above.
(c) GENERAL.
(i) Only such persons who are nominated in accordance with
the procedures set forth in this Section shall be eligible to
serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this
Section. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the Chairman of the meeting shall
have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures
set forth in this Section and, if any proposed nomination or
business is not in compliance with this Section, to declare that
such defective proposal or nomination shall be disregarded.
(ii) For purposes of this Section, "affiliate" in respect
of a person shall mean another person who
-6-
<PAGE>
controls, is controlled by or is under common control with such
person and the term "beneficially owns" (and variations thereof)
shall have the same meaning as when used in Section 13(d) of the
Exchange Act and Regulation 13D-G thereunder (or any successor
provision of law). For purposes of this Section, "public
announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this
Section, (A) a stockholder shall also be required to comply with
all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in
this Section and nothing contained herein shall constitute a
waiver by the Corporation or any stockholder of compliance
therewith and (B) nothing in this Section shall be deemed to
affect any rights of (I) stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act (or any successor provision of law)
or (II) holders of any series of preferred stock to elect
directors in accordance with the provision of an applicable
preferred stock designation.
(d) Notwithstanding the foregoing provisions of this Section, any
common stockholder who, together with its affiliates, owns
shares of common stock entitled to exercise a majority of the
voting power which all outstanding shares of the Corporation
entitled to vote generally in the election of directors are
entitled to exercise in the election of directors may nominate
one or more individuals for election as directors by giving to
the Secretary of the Corporation in writing notice only of the
name and business or residence address of its nominee or
nominees, including each such individual's written consent to
being named as a nominee and to serving as a director if
elected, not later than five days before the day on which the
meeting for the election of directors is scheduled to be held."
-7-
<PAGE>
ARTICLE 3
DIRECTORS
Section 3.01. NUMBER AND TERM OF OFFICE. The number of directors
of the Corporation shall be such number as shall be designated from time to time
by resolution of the Board of Directors and initially shall be two. The
directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 3.02 hereof. Each director elected shall hold office for a
term of one year and shall serve until his successor is elected and qualified or
until his earlier death, resignation or removal.
Directors need not be stockholders.
Section 3.02. VACANCIES. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, unless sooner displaced. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least 10 percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3.03. RESIGNATIONS. Any director may resign at any time
by giving written notice to the Board of Directors, the Chairman of the Board,
if there is one, the President, or the Secretary. Such resignation shall take
effect at the time of receipt thereof or at any later time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 3.04. DIRECTION OF MANAGEMENT. The business of the
Corporation shall be managed under the direction of its Board of Directors,
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these Bylaws directed or required to be exercised or done by the
stockholders.
Section 3.05. PLACE OF MEETINGS. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
-8-
<PAGE>
Section 3.06. ANNUAL MEETING. Immediately after each annual
election of directors, the Board of Directors shall meet for the purpose of
organization, election of officers, and the transaction of other business, at
the place where such election of directors was held or, if notice of such
meeting is given, at the place specified in such notice. Notice of such meeting
need not be given. In the absence of a quorum at said meeting, the same may be
held at any other time and place which shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors, or as shall
be specified in a written waiver signed by the directors, if any, not attending
and participating in the meeting.
Section 3.07. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board.
Section 3.08. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if there is one, or the
President on 2 days' notice to each director; either personally (including
telephone), or by telecopy addressed as provided in Section 4.01; special
meetings shall be called by the Chairman of the Board, if there is one, or the
President or the Secretary in like manner and on like notice on the written
request of two directors.
Section 3.09. QUORUM; VOTING. At all meetings of the Board, a
majority of the directors shall constitute a quorum for the transaction of
business; and at all meetings of any committee of the Board, a majority of the
members of such committee shall constitute a quorum for the transaction of
business. The act of a majority of the directors present at any meeting of the
Board of Directors or any committee thereof at which there is a quorum present
shall be the act of the Board of Directors or such committee, as the case may
be, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation. If a quorum shall not be present at any meeting of
the Board of Directors or committee thereof, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 3.10. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
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Section 3.11. PARTICIPATION IN MEETINGS. One or more directors
may participate in any meeting of the Board or committee thereof by means of
conference telephone or similar communications equipment by which all persons
participating can hear each other.
Section 3.12. COMMITTEES OF DIRECTORS. The Board of Directors may
designate one or more committees, each committee to consist of one or more of
the directors of the Corporation. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the
extent provided in the resolution of the Board of Directors or in these bylaws,
shall have and may exercise all of the powers and authority of the Board of
Directors and may authorize the seal of the Corporation to be affixed to all
papers which may require it, but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
Delaware General Corporation Law to be submitted to stockholders for approval or
(ii) adopting, amending or repealing any bylaw of the Corporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. Each committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors when requested.
Section 3.13. COMPENSATION OF DIRECTORS. Each director shall be
entitled to receive such compensation, if any, as may from time to time be fixed
by the Board of Directors. Members of special or standing committees may be
allowed like compensation for attending committee meetings. Directors may also
be reimbursed by the Corporation for all reasonable expenses incurred in
traveling to and from the place of each meeting of the Board or of any such
committee or otherwise incurred in the performance of their duties as directors.
No payment referred to herein shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
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ARTICLE 4
NOTICES
Section 4.01. NOTICES. Whenever, under the provisions of law or
of the Certificate of Incorporation or of these Bylaws, notice is required to be
given to any director or stockholder, such requirement shall not be construed to
necessitate personal notice. Subject to Section 3.08, such notice may in every
instance be effectively given by depositing a writing in a post office or letter
box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, cable,
telecopy or telex or by delivering a writing in a sealed wrapper prepaid to a
courier service guaranteeing delivery within 2 business days, in each case
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation in the case of a stockholder and at his business
address (unless he shall have filed a written request with the Secretary that
notices be directed to a different address) in the case of a director. Such
notice shall be deemed to be given at the time it is so dispatched.
Section 4.02. WAIVER OF NOTICE. Whenever, under the provisions of
law or of the Certificate of Incorporation or of these Bylaws, notice is
required to be given, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time of the event
for which notice is to be given, shall be deemed equivalent thereto. Neither the
business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE 5
OFFICERS
Section 5.01. NUMBER. The officers of the Corporation shall be a
Chairman of the Board, a President, a Secretary and a Treasurer, and may also
include one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be elected by the Board of
Directors. Any number of offices may be held by the same person.
Section 5.02. ELECTION AND TERM OF OFFICE. The officers of the
Corporation shall be elected by the Board of Directors. Officers shall hold
office at the pleasure of the Board.
Section 5.03. REMOVAL. Any officer may be removed at any time by
the Board of Directors. Any vacancy occurring in any office of the Corporation
may be filled by the Board of Directors.
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<PAGE>
Section 5.04. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of the Board of Directors and shall perform such
other duties, if any, as may be specified by the Board from time to time.
Section 5.05. PRESIDENT. The President shall be the chief
executive officer of the Corporation and shall have overall responsibility for
the management of the business and operations of the Corporation and shall see
that all orders and resolutions of the Board are carried into effect. In the
absence of the Chairman of the Board he shall preside over meetings of the Board
of Directors. In general, he shall perform all duties incident to the office of
President, and such other duties as from time to time may be assigned to him by
the Board.
Section 5.06. VICE PRESIDENTS. The Vice Presidents shall perform
such duties and have such authority as may be specified in these Bylaws or by
the Board of Directors or the President. In the absence or disability of the
President, the Vice Presidents, in order of seniority established by the Board
of Directors or the President, shall perform the duties and exercise the powers
of the President.
Section 5.07. SECRETARY. The Secretary shall attend all meetings
of the Board of Directors and all meetings of the stockholders and record all
the proceedings of the meetings of the stockholders and of the Board of
Directors in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or the President. He shall have custody of the corporate seal of
the Corporation and he, or an Assistant Secretary, shall have authority to affix
the same to any instrument, and when so affixed it may be attested by his
signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature.
Section 5.08. ASSISTANT SECRETARIES. The Assistant Secretary or
Secretaries shall, in the absence or disability of the Secretary, perform the
duties and exercise the authority of the Secretary and shall perform such other
duties and have such other authority as the Board of Directors or the President
may from time to time prescribe.
Section 5.09. TREASURER. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books
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<PAGE>
belonging to the Corporation and shall deposit all monies and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors or the President or the
Chief Financial Officer, taking proper vouchers for such disbursements, and
shall render to the Board of Directors when the Board so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation.
Section 5.10. ASSISTANT TREASURERS. The Assistant Treasurer or
Treasurers shall, in the absence or disability of the Treasurer, perform the
duties and exercise the authority of the Treasurer and shall perform such other
duties and have such other authority as the Board of Directors may from time to
time prescribe.
ARTICLE 6
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 6.01. INDEMNIFICATION. Any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was serving while a director or officer of
the Corporation at the request of the Corporation as a director, officer,
employee, agent, fiduciary or other representative of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall be indemnified by the Corporation against expenses (including attorneys'
fees), judgments, fines, excise taxes and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit or
proceeding to the full extent permissible under Delaware law.
Section 6.02. ADVANCES. Any person claiming indemnification
within the scope of Section 6.01 shall be entitled to advances from the
Corporation for payment of the expenses of defending actions against such person
in the manner and to the full extent permissible under Delaware law.
Section 6.03. PROCEDURE. On the request of any person requesting
indemnification under Section 6.01, the Board of Directors or a committee
thereof shall determine whether such indemnification is permissible or such
determination shall be made by independent legal counsel if the Board or
committee so directs or if the Board or committee is not empowered by statute to
make such determination.
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<PAGE>
Section 6.04. OTHER RIGHTS. The indemnification and advancement
of expenses provided by this Article 6 shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any insurance or other agreement, vote of shareholders or
disinterested directors or otherwise, both as to actions in their official
capacity and as to actions in another capacity while holding an office, and
shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such
person.
Section 6.05. INSURANCE. The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee, agent,
fiduciary or other representative of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of these Bylaws.
Section 6.06. MODIFICATION. The duties of the Corporation to
indemnify and to advance expenses to a director or officer provided in this
Article 6 shall be in the nature of a contract between the Corporation and each
such director or officer, and no amendment or repeal of any provision of this
Article 6 shall alter, to the detriment of such director or officer, the right
of such person to the advancement of expenses or indemnification related to a
claim based on an act or failure to act which took place prior to such
amendment, repeal or termination.
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<PAGE>
ARTICLE 7
CERTIFICATES OF STOCK
Section 7.01. STOCK CERTIFICATES. Every holder of stock in the
Corporation shall be entitled to have a certificate in the form prescribed by
the Board of Directors signed on behalf of the Corporation by the Chairman of
the Board or the President or a Vice President and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, representing the number of shares owned by him in the Corporation.
Any or all signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if such person were such officer,
transfer agent, or registrar at the date of issue.
Section 7.02. LOST CERTIFICATES. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 7.03. TRANSFERS OF STOCK. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 7.04. FIXING RECORD DATE. The Board of Directors of the
Corporation may fix a record date for the purpose of determining the
stockholders entitled to notice of, or to vote at, any meeting of stockholders
or any adjournment thereof, or to consent to corporate action in writing without
a meeting, or to receive payment of any dividend or other distribution or
allotment of any rights, or to exercise any
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<PAGE>
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action. Such record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and such record date shall not be (i) in the case of such a meeting of
stockholders, more than 60 nor less than 10 days before the date of the meeting
of stockholders, or (ii) in the case of consents in writing without a meeting,
more than 10 days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors, or (iii) in other cases, more than 60
days prior to the payment or allotment or change, conversion or exchange or
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting unless the Board of Directors fixes a new record date for the adjourned
meeting.
Section 7.05. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of stock to receive dividends and to vote as such owner, and shall be
entitled to hold liable for calls and assessments a person registered on its
books as the owner of stock, and shall not be bound to recognize any equitable
or other claim to, or interest in, such stock on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE 8
AMENDMENTS
Section 8.01. AMENDMENTS. These Bylaws may be altered, amended or
repealed, and new Bylaws may be adopted, by the stockholders or by the Board of
Directors at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
Bylaws be contained in the notice of such special meeting.
-16-
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