SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
Form 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 3, 1999.
SYNTHONICS TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Charter)
Utah 1-24109 87030-2620
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
31324 Via Colinas, Suite 106
Westlake Village, California 91362
(Address of Principal Executive Offices)
(818) 707-6000
(Registrant's Telephone Number)
None
(Former Name of Registrant)
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ITEM 5. OTHER INFORMATION
(a) Reincorporation in Delaware
On December 3, 1999 at a Special Meeting of shareholders, the
shareholders approved a reincorporation in Delaware through a merger of
Synthonics Technologies, Inc., a Utah corporation (the "Company"), with and
into its wholly owned subsidiary, Synthonics Technologies Mergercorp., a
Delaware corporation ("Synthonics Delaware").
The reincorporation became effective on December 23, 1999. The
reincorporation effects only a change in the legal domicile of the Company.
It did not result in any change of the name, business, management,
employees, fiscal year, assets or liabilities, trading symbol ("SNNT") or
location of any of the facilities of the Company. Pursuant to the Agreement
and Plan of Merger between the Company and Synthonics Delaware, each share
of the Company's common stock, par value $.01 per share, was automatically
converted into one share of Synthonics Delaware common stock, par value
$.01 per share. Each share of the Company's Class A Preferred Stock issued
and outstanding prior to the reincorporation was automatically converted
into one share of Class A Preferred Stock of Synthonics Delaware.
(b) Approval of 1999 Stock Option Plan
At the December 3, 1999 Special Meeting, shareholders also approved a
new stock option plan (the "1999 Plan") authorizing the issuance of
10,000,000 shares of common stock of the Company.
The reincorporation and the rights and terms of the 1999 Plan are more
fully described in the Company's proxy statement filed November 19, 1999
which is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
2.1 Bylaws of Synthonics Technologies Mergercorp.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
December 30, 1999 SYNTHONICS TECHNOLOGIES, INC.
By: /S/ F. MICHAEL BUDD
-----------------------------------
F. Michael Budd
Chief Executive Officer
<PAGE>
EXHIBIT INDEX
EXHIBITS
2.1 Bylaws of Synthonics Technologies Mergercorp.
BYLAWS OF
SYNTHONICS TECHNOLOGIES MERGERCORP.
A Delaware Corporation
ARTICLE I
CORPORATE OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation in
the State of Delaware is located at 9 East Loockerman Street, City of Dover,
County of Kent, Delaware 19901.
SECTION 2. PRINCIPAL OFFICE. The principal office of the Corporation is
located at 31324 Via Colinas, Suite 106, Westlake Village, California 91362. The
Board of Directors (herein referred to as the "Board") is hereby granted the
full power and authority, by a resolution of a majority of the directors, to
change the principal office from one location to another. Any such change shall
be noted in these Bylaws opposite this section, and this section may be amended
to state the new location.
SECTION 3. OTHER OFFICES. The Corporation may establish any additional
offices, at any place or places, as the Board may designate, or as the business
of the Corporation shall require.
ARTICLE II
STOCKHOLDERS MEETINGS
SECTION 1. PLACE OF MEETING. Meetings of the Stockholders of the
Corporation shall be held at such place, within or without the State of
Delaware, as may from time to time be designated for that purpose either by a
majority of the Board of Directors or by the Chairman of the Board.
SECTION 2. ANNUAL MEETING. The annual meeting of the Stockholders shall be
held on such date and at such time designated, from time to time, by resolution
of the Board. At each annual meeting of Stockholders, directors shall be elected
and any other proper business may be transacted.
SECTION 3. SPECIAL MEETINGS. Special meetings of the Stockholders for the
purpose of making any action which the Stockholders are permitted to take under
the General Corporation Law of the State of Delaware (herein, as the same may
from time to time be amended, referred to as the "General Corporation Law") may
be called at any time by a majority of the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or President of the Corporation.
<PAGE>
SECTION 4. NOTICE OF MEETINGS. Except as otherwise provided by statute,
written or printed notice of each meeting of the Stockholders of the
Corporation, whether annual or special, shall be given not less than 10 nor more
than 60 days prior to the date upon which the meeting is to be held to each
stockholder entitled to vote at such meeting by delivering such notice with him
personally at, or by transmitting such notice (including telecopier,
electronically or other form of recorded communication, provided that delivery
of such notice in written form is confirmed in a writing) to, his residence or
usual place of business. If mailed, such notice shall be deemed delivered when
deposited in the United States mail in a sealed envelope addressed to the
stockholder at his address as it appears on the stock records of the
Corporation, with postage thereon prepaid. Such notice shall state the place,
date and hour of the meeting, and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. If a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken and, at the adjourned meeting, such business may be transacted as might
properly have been transacted at the original meeting. If the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
Stockholder of record entitled to vote at the meeting.
Notice of a Stockholders' meeting or adjournment thereof is waived upon the
occurrence of any of the following:
(a) A Stockholders' meeting is adjourned and a time and place for the
adjourned meeting is announced at the meeting at which the adjournment is
taken, and the period of adjournment does not exceed 30 days from the date
of adjournment.
(b) Receipt by the Corporation of a written notice of waiver, signed
by the person entitled to notice before or after the time stated therein.
(c) Attendance by the person entitled to notice and failure of such
person to object to the transaction of any business because the meeting is
not lawfully called or convened.
Whenever notice is required to be given under any statute or the
Certificate of Incorporation or these Bylaws to any Stockholder to whom (a)
notice of two consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting to such person during the
period between such two consecutive annual meetings or (b) all, and at least
two, payments (if sent by first class mail) of dividends or interest on
securities during a twelve month period, have been mailed addressed to such
person at his address as shown on the records of the Corporation and have been
returned undeliverable, the giving of notice to such person shall not be
required. Any action or meeting which shall be taken or held without notice to
such person shall have the same force and effect as if such notice had been duly
given. If any such person shall deliver to the Corporation a written notice
setting forth his then current address, the requirement that notice be given to
such person shall be reinstated. In the event that the action taken by the
Corporation is such as to require the filing of a certificate under any of the
other sections of the
EX 2.1 - 2
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General Corporation Law, the certificate need not state that notice was not
given to persons to whom notice was not required to be given pursuant to this
Section 4.
SECTION 5. QUORUM. On all questions, the presence of the holders of a
majority of the shares entitled to vote, in person or by proxy, shall constitute
a quorum for the transaction of business at any meeting of the Stockholders. On
all questions, the Stockholders present at a duly called or held meeting at
which a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough Stockholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum. In the absence of a
quorum, the Stockholders present in person or by proxy and entitled to vote at
the meeting may, by majority vote, or, in the absence of all Stockholders, any
officer entitled to preside at the meeting, shall have the power to adjourn the
meeting from time to time until Stockholders holding the requisite amount of
stock shall be present in person or by proxy.
SECTION 6. VOTING.
(a) The Stockholders entitled to notice of any meeting or to vote at
such meeting shall only be persons whose names stand on the stock records
of the Corporation on the record date determined in accordance with the
provisions of Section 12 of this Article.
(b) Voting shall in all cases be subject to the provisions of the
General Corporation Law relating to voting of shares.
(c) The common stock shall be entitled to one vote per share. Unless
otherwise provided in the Certificate of Incorporation or by statute, the
affirmative vote of a majority of the shares represented and voting at a
duly held meeting at which a quorum is present shall be the act of the
Stockholders. The vote on any question need not be by written ballot.
(d) At a stockholders' meeting involving the election of directors, no
stockholder shall be entitled to cumulate (i.e. cast for any one or more
candidates a number of votes greater than the number of the stockholder's
shares). The candidates receiving the highest number of votes, up to the
number of directors to be elected, shall be elected.
SECTION 7. PROXIES. Each Stockholder entitled to vote at a meeting of
Stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. Any such proxy shall be
delivered to the Secretary of such meeting, at or prior to the time designated
in the order of business for so delivering such proxies. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only so
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
EX 2.1 - 3
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interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
SECTION 8. STOCKHOLDER LIST. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten days before every
meeting of Stockholders, a complete list of the Stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each Stockholder.
Such list shall be open to the examination of any Stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any Stockholder who is
present.
SECTION 9. VOTE OF STOCKHOLDERS. Any action required or permitted to be
taken at any annual or special meeting of Stockholders may be taken upon the
vote of the Stockholders at an annual or special meeting duly noticed and called
or may be taken by written consent of the Stockholders pursuant to the General
Corporation Law.
SECTION 10. INSPECTORS OF ELECTION. In advance of any meeting of the
Stockholders, the Board shall appoint at least one person, other than nominees
for office, as inspectors of election to act at such meeting or any adjournment
thereof. The number of such inspectors of election shall be one or three. In
case any person appointed as inspector fails to appear or refuses to act, the
vacancy shall be filled by appointment by the Board in advance of the meeting,
or at the meeting by the chairman of the meeting.
The duties of such inspector shall include: determining the number of
shares outstanding and voting power of each; the shares represented at the
meeting; the existence of a quorum; the authenticity, validity and effect of
proxies as described by Section 231(d) of the General Corporation Law; receiving
votes, ballots or consents; hearing and determining all challenges and questions
in any way arising in connection with the right to vote; retaining for a
reasonable period the disposition of any challenges made to their
determinations; counting and tabulating all votes or consents; determining when
the polls shall close; determining the result; certifying their determination of
the number of shares represented at the meeting, and their count of all votes
and ballots; and performing such acts as may be proper to conduct the election
or vote with fairness to all Stockholders. If there are three inspectors of
election, the decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all.
SECTION 11. OPENING AND CLOSING OF POLLS. An announcement shall be made at
each meeting of the Stockholders of the date and time of the opening and closing
of polls for each matter upon which the Stockholders will vote at the meeting.
No ballot, proxies or votes, nor any revocations thereof or changes thereto,
shall be accepted by the inspectors after the closing of the polls unless the
Court of Chancery upon application by a Stockholder shall determine otherwise.
EX 2.1 - 4
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SECTION 12. RECORD DATE. In order that the Corporation may determine the
Stockholders entitled to notice of or to vote at any meeting of Stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any written consent or other action.
If no record date is fixed:
(a) the record date for determining Stockholders entitled to notice of
or to vote at a meeting of Stockholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the day on
which the meeting is held; and
(b) the record date for determining Stockholders for any other purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto.
A determination of Stockholders of record entitled to notice of or to vote
at a meeting of Stockholders shall apply to any adjournment of the meeting;
PROVIDED, HOWEVER, that the Board may fix a new record date for the adjourned
meeting.
SECTION 13. PROCEDURES FOR MEETINGS. All meetings of Stockholders shall be
conducted according to such rules and procedures as the Board of Directors may
establish by resolution from time to time as being in the best interests of the
Stockholders and as may be deemed appropriate for insuring that such meetings
are conducted in a fair and orderly manner and in accordance with the
Certificate of Incorporation and these Bylaws.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. The business and affairs of the Corporation shall be
managed by, or under the direction of the Board, except as may be otherwise
provided by the General Corporation Law or in the Certificate of Incorporation
or these Bylaws. Without prejudice to such powers, but subject to the same
limitation, it is hereby expressly declared that the directors shall have the
following powers in addition to other powers enumerated in these Bylaws:
(a) To select and remove all officers, agents and employees of the
Corporation; prescribe any powers and duties for them that are consistent
with law, with the Certificate of Incorporation, and with these Bylaws; fix
their compensation; and require from them security for faithful service;
EX 2.1 - 5
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(b) To conduct, manage and control the affairs and business of the
Corporation, and to make rules and regulations therefor consistent with
law, with the Certificate of Incorporation and with these Bylaws;
(c) To change the offices of the Corporation from one location to
another; to fix and locate from time to time one or more other offices of
the Corporation within or without the State of Delaware; to cause the
Corporation to be qualified to do business and to conduct business in any
other state, territory, dependency or country; and to designate any place
within or without the State of Delaware for the holding of any
Stockholders' meeting or meetings, including annual meetings;
(d) To adopt, make and use a corporate seal; to prescribe the form of
the seal and certificates evidencing stock; and to alter the form of the
seal and certificates;
(e) To authorize the issuance of shares of stock of the Corporation
from time to time, upon such terms and for such consideration as may be
lawful; and
(f) To borrow money and incur indebtedness for the purposes of the
Corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, and other evidences of debt and
securities therefor.
SECTION 2. NUMBER AND QUALIFICATIONS. The number of directors of the
Corporation shall be NINE (9) until changed by a duly adopted amendment to the
Certificate of Incorporation or by a Bylaw amending this Section 2 approved by
the affirmative vote of a majority of the outstanding shares entitled to vote;
PROVIDED, HOWEVER, that no decrease in the number of directors shall shorten the
term of any incumbent directors. Directors need not be Stockholders of the
Corporation unless required by the Certificate of Incorporation.
SECTION 3. ELECTION AND TERM OF OFFICE. Members of the Board of Directors
shall hold office for the terms specified in the Certificate of Incorporation
and until their successors have been elected as provided in the Certificate of
Incorporation.
SECTION 4. VACANCIES.
(a) Any vacancy on the Board of Directors however resulting, shall be
filled only by a majority of the directors then in office, although less
than a quorum, or by a sole remaining director and not by the Stockholders.
Any director elected to fill a vacancy shall hold office for a term that
shall coincide with the term of the class to which such director shall have
been elected.
EX 2.1 - 6
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(b) If at any time, by reason of death or resignation or other cause,
the Corporation should have no directors in office, then any officer or any
Stockholder or an executor, administrator, trustee or guardian of a
Stockholder, or other fiduciary entrusted with like responsibility for the
person or estate of a Stockholder, may call a special meeting of
Stockholders in accordance with the provisions of the Certificate of
Incorporation and the Bylaws or may apply to the Delaware Court of Chancery
for a decree summarily ordering an election as provided by the General
Corporation Law.
(c) When one or more directors shall resign from the Board, effective
at a future date, a majority of the directors then in office, including
those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or
registration or resignations shall become effective, and each director so
chosen shall hold office as provided in these Bylaws.
(d) Any director or the entire Board of Directors may be removed, with
cause only, by the affirmative vote of the holders of a majority of the
outstanding shares of the Corporation then entitled to vote generally in
the election of directors, considered as one class.
(e) Any director may resign effective upon giving written notice to
the Chairman of the Board, the President, the Secretary or the Board,
unless the notice specifies a later date for the effectiveness of such
resignation.
SECTION 5. PLACE OF MEETING. Meetings, both regular and special, of the
Board shall be held at such place or places within or without the State of
Delaware, as the Board may from time to time determine.
SECTION 6. REGULAR MEETINGS. Immediately following each annual meeting of
the Stockholders the Board shall hold a regular meeting at the same place at
which such Stockholders' meeting is held, or any other place as may be fixed
from time to by the Board of Directors. Notice of such meeting need not be
given.
Other regular meetings of the Board shall be held without call at such time
and place as the Board may from time to time by resolution determine. If any day
fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at the same hour on the next succeeding business day not a
legal holiday. Notice of a regular meeting need not be given.
SECTION 7. SPECIAL MEETINGS. Except as otherwise provided in the
Certificate of Incorporation, special meetings of the Board for any purpose or
purposes may be called at any time by the Chairman of the Board, the President,
the Secretary or by any three directors.
EX 2.1 - 7
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Written notice of the time and place of special meetings shall be delivered
personally to each director or communicated to each director by telephone or
telecopier or electronically or mail or other form of recorded communication,
charges prepaid, addressed to each director at that director's address as it is
shown on the records of the Corporation or, if it is not so shown on such
records or is not readily ascertainable, at that director's residence or usual
place of business. In case such notice is mailed, it shall be deposited in the
United States mail at least seven days prior to the time of the holding of the
meeting. In case such notice is delivered personally or by other form of written
communication, it shall be delivered at least 48 hours before the time of the
holding of the meeting. The notice shall state the time of the meeting, but need
not specify the place of the meeting if the meeting is to be held at the
principal executive office of the Corporation. The notice need not state the
purpose of the meeting unless expressly provided otherwise by statute.
SECTION 8. MEETINGS BY COMMUNICATION EQUIPMENT. Members of the Board, or
any committee designated by the Board, may participate in a meeting of the Board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in a meeting pursuant to this section shall constitute
presence in person at such meeting.
SECTION 9. QUORUM AND MANNER OF ACTING. The presence of a majority to the
total number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at a meeting duly
held shall be the act of the Board. In the absence of a quorum, a majority of
the directors present may adjourn any meeting from time to time until a quorum
is present. Notice of an adjourned meeting need not be given.
SECTION 10. VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS. The
transactions of any meeting of the Board, however called and noticed or wherever
held, shall be as valid as though made or performed at a meeting duly held after
regular call and notice, if, either before or after the meeting, each of the
directors not present or who, though present, has prior to the meeting or at its
commencement protested the lack of proper notice to such director, signs a
written waiver of notice or a consent to holding such meeting or approval of the
minutes thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
SECTION 11. ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board, 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.
SECTION 12. COMPENSATION OF DIRECTORS. Directors and members of committees
may receive such compensation, if any, for their services, and such
reimbursement for expenses incurred by them, as may be fixed or determined by
resolution of the Board of Directors.
EX 2.1 - 8
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SECTION 13. COMMITTEES. The Board may, by resolution passed by a majority
of the directors, 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, shall have and may exercise
all the powers and authority of the Board in the management of the business and
affairs of the Corporation, 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 amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
Stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the Stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
Bylaws of the Corporation; and, unless the resolution expressly so provides, no
such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Any director may be removed from a committee with or without cause by
the affirmative vote of a majority of the entire Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a Chairman, a
Chief Executive Officer and/or President, a Secretary and a Chief Financial
Officer. The Corporation may also have, at the discretion of the Board, a Chief
Operating Officer, Vice Chairman, one or more Vice Presidents and one or more
Assistant Secretaries, and such other officers as may be appointed in accordance
with the provisions of Section 3 of this Article. Any number of offices may be
held by the same person.
SECTION 2. ELECTION OF OFFICERS. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions of Section 3
or Section 5 of this Article, shall be chosen annually by the Board, and each
shall serve at the pleasure of the Board, subject to the rights, if any, of an
officer under any contract of employment.
SECTION 3. SUBORDINATE OFFICERS. The Board may appoint, and may empower the
Chief Executive Officer or President to appoint, such other officers as the
business of the Corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in these
Bylaws or as the Board or Chief Executive Officer or President may from time to
time determine.
SECTION 4. REMOVAL AND RESIGNATION OF OFFICERS. Without prejudice to the
rights, if any, of an officer under any contract of employment, any officer may
be removed, either with or without cause, by the Board, at any regular or
special meeting of the Board, or by any officer upon whom such power of removal
may be conferred by the Board. Any officer may resign at any time by giving
written notice to the Corporation. Any resignation shall take effect at the date
of the receipt of that notice or at any later time specified in that notice; the
acceptance of the resignation
EX 2.1 - 9
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shall not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the Corporation under any contract to which
the officer is a party.
SECTION 5. VACANCIES IN OFFICES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for regular election or appointment to such
office.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at all meetings of the Board and
exercise and perform such other powers and duties as may be from time to time
assigned to him by the Board.
SECTION 7. CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers, if
any, as may be given by the Board to the Chairman of the Board, the Chief
Executive Officer, if such an officer be elected, shall, subject to the control
of the Board and the Chairman, have general supervision, direction and control
over the business and the officers of the Corporation. The Chief Executive
Officer shall preside at all meetings of the Stockholders and, in the absence of
the Chairman of the Board, or if there be none, at all meetings of the Board.
The Chief Executive Officer shall exercise and perform such other powers and
duties as may from time to time be assigned to him by the Board.
SECTION 8. PRESIDENT. Subject to such supervisory powers, if any, as may be
given by the Board to the Chairman of the Board and the Chief Executive Officer,
the President, if there be such an officer elected, shall be the chief operating
officer of the Corporation and shall, subject to the control of the Board, have
general supervision, direction, and control of the business and the officers of
the Corporation (other than the Chairman and Chief Executive Officer). The
President shall preside at all meetings of the Stockholders in the absence of
the Chairman and the Chief Executive Officer, and, in the absence of the
Chairman and the Chief Executive Officer, at all meetings of the Board. The
President shall have the general powers and duties of management usually vested
in the office of president and general manager of a Corporation, and shall have
other powers and duties as may be prescribed by the Board and the Chief
Executive Officer.
SECTION 9. VICE PRESIDENTS. In the absence or disability of the Chairman,
the Chief Executive Officer and the President, the Vice Presidents, if any, in
order of their rank as fixed by the Board, or, if not ranked, the Vice President
designated by the Board shall perform all the duties of such officer, and when
so acting shall have all the powers of, and be subject to all the restrictions
upon, such offices. The Vice Presidents shall have such other powers and perform
such other duties as from time to time may be prescribed for them respectively
by the Board, the Chairman, the Chief Executive Officer or the President.
SECTION 10. SECRETARY. The Secretary shall keep, or cause to be kept, at
the principal executive office or such other place as the Board may direct, a
book of minutes of all meetings and actions of directors, committees of
directors, and Stockholders, with the time and
EX 2.1 - 10
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place of holding, whether regular or special, and, if special, how authorized,
the notice given, the names of those present at directors' meetings or committee
meetings, the number of shares present or represented at Stockholders' meetings,
and the proceedings. The Secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the Corporation's transfer agent
or registrar, as determined by resolution of the Board, a stock ledger, or a
duplicate stock ledger, showing the names of all Stockholders and their
addresses, the numbers and classes of shares held by each, the number and dates
of certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
the Stockholders and of the Board required by the Bylaws or by law to be given,
and he shall keep the seal of the Corporation, if one be adopted, in safe
custody, and shall have such other powers and perform such other duties as may
be prescribed by the Board.
SECTION 11. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep
and maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares, and shall
send or cause to be sent to the Stockholders of the Corporation such financial
statements and reports as are by law or these Bylaws required to be sent to
them. The books of account shall at all reasonable times be open to inspection
by any director.
The Chief Financial Officer shall deposit all monies and other valuables in
the name or to the credit of the Corporation with such depositories as may be
designated by the Board. The Chief Financial Officer shall disburse the funds of
the Corporation as may be ordered by the Board, shall render to the Chief
Executive Officer, the President and directors, whenever they request it, an
account of all transactions undertaken as Chief Financial Officer and of the
financial condition of the Corporation, and shall have such other powers and
perform such other duties as may be prescribed by the Board.
ARTICLE V
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND OTHER AGENTS
SECTION 1. AGENTS, PROCEEDINGS AND EXPENSES. For the purposes of this
Article, "agent" means any person who is or was a director, officer, employee or
other agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise, or
was a director, officer, employee or agent of a foreign or domestic corporation
which was a predecessor corporation of the Corporation or of another enterprise
at the request of such predecessor corporation; "proceeding" means any
threatened, pending or complete action, suit or proceeding, whether civil,
criminal, administrative, or investigative; and "expenses" includes, without
limitation, attorneys' fees and any expenses of establishing a right to
indemnification under Section 2 or Section 3 of this Article.
EX 2.1 - 11
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SECTION 2. ACTIONS OTHER THAN BY THE CORPORATION. The Corporation shall
have power to indemnify any person who was or is a party or is threatened to be
made a party to any proceeding (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was an agent, against expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal proceeding, had reasonable cause to believe that
his conduct was unlawful.
SECTION 3. ACTIONS BY THE CORPORATION. The Corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any proceeding by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was an agent, against expenses
actually and reasonably incurred by him in connection with the defense or
settlement of such proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
SECTION 4. SUCCESSFUL DEFENSE BY AGENT. To the extent that an agent has
been successful on the merits or otherwise in defense of any proceeding referred
to in Sections 2 and 3, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses actually and reasonably incurred by him in
connection therewith.
SECTION 5. REQUIRED APPROVAL. Any indemnification under Sections 2 and 3
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the agent is
proper in the circumstances because he has met the applicable standard of
conduct set forth in Sections 2 and 3. Such determination shall be made (a) by
the Board by a majority vote of a quorum consisting of directors who were not
parties to such proceeding, or (b) if such disinterested directors so direct, by
independent legal counsel in a written opinion, or (c) by the affirmative vote
of a majority of Stockholders.
SECTION 6. ADVANCE OF EXPENSES. Expenses incurred in defending a proceeding
may be paid by the Corporation in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of the agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article.
EX 2.1 - 12
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Such expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board deems appropriate.
SECTION 7. CONTRACTUAL RIGHTS. The indemnification and advancement of
expenses provided by this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any agreement, vote of Stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be an agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 8. LIMITATIONS. No indemnification or advance shall be made under
this Article, except as provided in Section 4, in any circumstances where it
appears:
(a) That it would be inconsistent with a provision of the Certificate
of Incorporation, a resolution of the Stockholders or an agreement in
effect at the time of accrual of the alleged cause of action asserted in
the proceeding in which the expenses were incurred or other amounts were
paid, which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
SECTION 9. INSURANCE AND SIMILAR ARRANGEMENTS. The Corporation shall have
the power to purchase and maintain insurance on behalf of any person who is or
was an agent 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 this Article.
The Corporation may create a trust fund, grant a security interest and/or
use other means (including, without limitation, letters of credit, surety bonds
and/or other similar arrangements), as well as enter into contracts pursuant to
the provisions of Section 7 of this Article V of these Bylaws and including as
part thereof provisions with respect to any or all of the foregoing to insure
the payment of such amounts as may become necessary to effect indemnification as
provided for therein or elsewhere.
The provisions of this Article shall not apply to any proceedings against
any trustee, investment manager or other fiduciary of an employee benefit plan
in that person's capacity as such, even though that person may also be an agent
as defined in Section 1 of this Article. Nothing contained in this Article shall
limit the power of the Corporation, upon and in the event of a determination of
the Board to indemnify any trustee, investment manager or other fiduciary of an
employee benefit plan, and the Corporation may thereupon indemnify and purchase
and maintain insurance on behalf of any such trustee, investment manager or
other fiduciary.
EX 2.1 - 13
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SECTION 10. CONSTITUENT CORPORATIONS. For purposes of this Article,
references to "the Corporation" shall include, in addition to the Corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate existence had
continued.
SECTION 11. ADDITIONAL DEFINITIONS. For purposes of this Article,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article.
ARTICLE VI
MISCELLANEOUS
SECTION 1. INSPECTION OF BOOKS AND RECORDS BY STOCKHOLDERS. Any Stockholder
of record, in person or by attorney or other agent, shall, upon written demand
under oath stating the purpose thereof delivered to the Corporation's principal
place of business, have the right during the usual hours for business to inspect
for any proper purpose the Corporation's stock ledger, a list of its
Stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to such
person's interest as a Stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the Stockholder.
SECTION 2. INSPECTION OF BOOKS AND RECORDS BY DIRECTORS. Any director shall
have the right to examine the Corporation's stock ledger, a list of its
Stockholders and its other books and records for a purpose reasonably related to
his position as a director. Such right to examine the records and books of the
Corporation shall include the right to make copies and extract therefrom.
SECTION 3. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts,
or other orders for payment of money, notes, or other evidences of indebtedness,
issued in the name of or payable to the Corporation, shall be signed or endorsed
by such person or persons and in such manner as, from time to time, shall be
determined by resolution of the Board.
EX 2.1 - 14
<PAGE>
SECTION 4. CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED. The Board,
except as otherwise provided in these Bylaws, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the Corporation, and this authority may be
general or confined to specific instances; and, unless so authorized or ratified
by the Board or within the agency power of an officer, no officer, agent, or
employee shall have any power or authority to bind the Corporation by any
contract or engagement or to pledge its credit or to render it liable for any
purpose or for any amount.
SECTION 5. CERTIFICATES FOR SHARES. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by the Chairman or the President or a Vice-President, and by the
Chief Financial Officer or the Secretary or an Assistant Secretary of the
Corporation representing the number of shares owned by him in the Corporation.
Any or all of the 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 he were such officer,
transfer agent, or registrar at the date of issue.
SECTION 6. TRANSFER OF SHARES. Transfers of shares of the capital stock of
the Corporation shall be made only on the books of the Corporation by the holder
thereof, or by his attorney thereunto authorized by a power of attorney duly
executed and filed with the Secretary of the Corporation or a transfer agent of
the Corporation, if any, and on surrender of the certificate or certificates for
such shares properly endorsed. A person in whose name shares of stock and on the
books of the Corporation shall be deemed the owner thereof as regards the
Corporation, and upon any transfer of shares of stock the person or persons into
whose name or names such shares shall have been transferred, with respect to all
rights, privileges and obligations of holders of stock of the Corporation and as
against the Corporation or any other person or persons. The term "person" or
"persons" wherever used herein shall be deemed to include any partnership,
corporation, association or other entity. Whenever any transfer of shares shall
be made for collateral security, and not absolutely, such fact, if known to the
Secretary or to such transfer agent, shall be so expressed in the entry of
transfer.
SECTION 7. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may
issue a new certificate of stock in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the
Corporation may require the owner of the lost, stolen or destroyed certificate,
or his legal representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 8. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman of
the Board, the Chief Executive Officer, the President, or any Vice President or
any person designated by any of such officers, is authorized, in the absence of
authorization by the Board, to vote on behalf of the Corporation any and all
shares of any other corporation or corporations,
EX 2.1 - 15
<PAGE>
foreign or domestic, for which the Corporation has the right to vote. The
authority granted to these officers to vote or represent on behalf of the
Corporation any and all shares held by the Corporation in any other corporation
or corporations may be exercised by any of these officers in person or by any
person authorized to do so by proxy duly executed by these officers.
SECTION 9. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
General Corporation Law shall govern the construction of these Bylaws. Without
limiting the generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term "person" includes
both a corporation and a natural person.
SECTION 10. AMENDMENTS. Unless otherwise provided in the Certificate of
Incorporation or the General Corporation Law, the power to adopt, amend or
repeal any Bylaws of the Corporation shall be vested in the Board of Directors;
provided, that the Board of Directors may delegate such power, in whole or in
part, to the Stockholders.
SECTION 11. CONFORMANCE TO THE LAW. In the event that it is determined that
these Bylaws, as now written or as amended, conflict with the General
Corporation Law, or any other applicable law, as now enforced or as amended,
these Bylaws shall be deemed amended, without action of the Board or the
Stockholders, to conform with such law, such amendment to be so interpreted as
to bring these Bylaws within minimum compliance. For purposes of this section,
"amendment" shall include a repeal of, or a change in interpretation of, the
relevant compendium.
SECTION 12. SEAL. The corporate seal shall be in such form as the Board of
Directors shall prescribe. Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
SECTION 13. FISCAL YEAR. The fiscal year of the Corporation shall be fixed,
and shall be subject to change, by the Board of Directors.
SECTION 14. DIVIDENDS; SURPLUS. Subject to the provisions of the
Certificate of Incorporation and any restrictions imposed by statute, the Board
of Directors may declare dividends out of the net assets of the Corporation in
excess of its capital or, in case there shall be no such excess, out of the net
profits of the Corporation for the fiscal year then current and/or the preceding
fiscal year, or out of any funds at the time legally available for the
declaration of dividends (hereinafter referred to as "surplus or net profits")
whenever, and in such amounts as, in its sole discretion, the conditions and
affairs of the Corporation shall render advisable. The Board of Directors in its
sole discretion may, in accordance with law, from time to time set aside from
surplus or net profits such sum or sums as it may think proper as a reserve fund
to meet contingencies, or for equalizing dividends, of for the purpose of
maintaining or increasing the property or business of the Corporation, or for
any other purpose as it may think conducive to the best interests of the
Corporation.
