<PAGE> 1
As filed with the Securities and Exchange Commission on December 10, 1999
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DURASWITCH INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 88-0308867
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
234 SOUTH EXTENSION ROAD, SUITE 103
MESA, ARIZONA 85210-8427
(Address of Principal Executive Offices) (Zip Code)
DURASWITCH INDUSTRIES, INC. 1999 STOCK OPTION PLAN
DURASWITCH INDUSTRIES, INC. 1997 STOCK OPTION PLAN
(Full titles of the plans)
ROBERT J. BRILON Copy to:
President and Chief Financial Officer P. ROBERT MOYA, ESQ.
DuraSwitch Industries, Inc. MARK K. BRIGGS, ESQ.
234 South Extension Road, Suite 103 Quarles & Brady LLP
Mesa, Arizona 85210-8427 One East Camelback Road, Suite 400
Phoenix, Arizona 85012
(Name and address of agent for service)
(480) 586-3300
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount to be maximum offering maximum aggregate Amount of
Title of Securities to be registered registered price per share (2)(3) offering price registration fee
(1)(4) (2)(3)(4)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 968,824 $9.87 $9,560,585.60 $2,524
$.001 par value per share
</TABLE>
<PAGE> 2
(1) Includes: (a) 968,824 shares of common stock being registered for
issuance pursuant to the exercise of options to be granted under
DuraSwitch's 1997 stock option plan; and (b) 235,294 shares of common
stock being registered for issuance under DuraSwitch's 1999 stock
option plan.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon: (a) 3,501 shares of common stock
available to be issued under DuraSwitch's 1997 stock option plan, at
$5.56 per share, which is the average of the high and low sales prices
of DuraSwitch's common stock on the American Stock Exchange on December
6, 1999; (b) 65,700 shares of common stock available to be issued under
DuraSwitch's 1999 stock option plan, at $5.56 per share, which is the
average of the high and low sales prices of DuraSwitch's common stock
on the American Stock Exchange on December 6, 1999; and (c) the
weighted average of the following options along with the ungranted
options described in (a) and (b) above will be used to calculate the
filing fee in accordance with Rule 457(h): options to purchase 50,343
shares of common stock under DuraSwitch's 1997 stock option plan, at
$.0213 per share; options to purchase 39,209 shares of common stock
under DuraSwitch's 1997 stock option plan, at $1.3090 per share;
options to purchase 232,942 shares of common stock under DuraSwitch's
1997 stock option plan, at $22.3125 per share; options to purchase
33,185 shares of common stock under DuraSwitch's 1997 stock option
plan, at $17.51 per share; options to purchase 1,177 shares of common
stock under DuraSwitch's 1997 stock option plan, at $17.8075 per share;
options to purchase 11,765 shares of common stock under DuraSwitch's
1997 stock option plan, at $19.1250 per share; options to purchase
5,883 shares of common stock under DuraSwitch's 1997 stock option plan,
at $13.0050 per share; options to purchase 471 shares of common stock
under DuraSwitch's 1997 stock option plan, at $16.1925 per share;
options to purchase 3,922 shares of common stock under DuraSwitch's
1997 stock option plan, at $23.3750 per share; options to purchase
341,178 shares of common stock under DuraSwitch's 1997 stock option
plan, at $6.3750 per share; options to purchase 9,954 shares of common
stock under DuraSwitch's 1997 stock option plan, at $6.9063 per share;
options to purchase 23,530 shares of common stock under DuraSwitch's
1999 stock option plan, at $7.9688 per share; options to purchase 5,415
shares of common stock under DuraSwitch's 1999 stock option plan, at
$8.50 per share; options to purchase 117,649 share of common stock
under DuraSwitch's 1999 stock option plan, at $3.125 per share; options
to purchase 4,000 shares of common stock under DuraSwitch's 1999 stock
option plan, at $3.50 per share; options to purchase 19,000 shares of
common stock under DuraSwitch's 1999 stock option plan, at $3.375 per
share.
(3) The actual offering price will be determined in accordance with the
terms of DuraSwitch's 1997 and 1999 stock option plans. However, with
respect to the an incentive stock option, in no event will the offering
price be less than 100% of the fair market value of the Registrant's
common stock on the date on which the option is granted.
(4) The above securities provide for the possible adjustment of the number,
price and kind of shares covered by options granted or to be granted in
the event of certain capital or other changes affecting the
Registrant's common stock. This Registration Statement therefore
covers, in addition to the above-stated shares, an indeterminate number
of shares that may become subject to DuraSwitch's 1997 and 1999 stock
option plans by reason of any such adjustment.
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<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be
sent or given to DuraSwitch stock option plan participants as specified by Rule
428(b)(1) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by DuraSwitch with the Securities and
Exchange Commission under the Securities Act of 1933 and the Securities Exchange
Act of 1934, are incorporated in this registration statement by reference:
(a) DuraSwitch's registration statement on Form SB-2 dated June 4,
1999, as amended, which contains DuraSwitch's audited
financial statements for the year ended December 31, 1998;
(b) DuraSwitch's quarterly report for the quarterly period ended
September 30, 1999; and
(c) the description of the DuraSwitch's common stock contained in
its Registration Statement on Form 8-A, dated June 26, 1999,
and any amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this registration statement shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in this registration statement or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference in this registration statement modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. See Item 3(c) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Joel H. Bock, an attorney with the firm of Dorn, McEachran, Jambor &
Keating, who provides intellectual property-oriented legal services to
DuraSwitch, owns a total of 15,255 shares of common stock. DuraSwitch provided
7,628 of those shares to Mr. Bock as partial payment for his firm's legal
services. He purchased the remaining shares on June 1, 1997 at $1.31 per share,
which was the market price at that time.
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<PAGE> 4
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Chapter 208, L. '97, 1 of the General Corporation Law of the State of
Nevada (the "General Corporation Law") provides that a Nevada corporation may
indemnify 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, other than an action by or in
the right of the corporation, by reason of the fact that he of she is or was a
director, officer, or agent of another corporation or enterprise, against
expenses, judgements, fines and amounts paid in settlement actually and
reasonable incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonable
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 cause to believe his
or her conduct was unlawful.
Chapter 208, L. '97, 2 provides that a Nevada corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgement in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards as
set forth above. However, no indemnification may 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 in which
such action or suit was brought shall determined that despite the adjuration of
liability, but in view of all the circumstances of the case, such person is
fairly and reasonable entitled to be indemnified for such expenses which the
court shall deem proper.
Sections 78.751, 78.752, and Chapter 208, L. '97 further provided that:
- to the extent a director or officer of a corporation has been
successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in subsections (a) and
(b) or in the defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses actually and
reasonably incurred by him or her in connection therewith;
- indemnification provided for by Sections 78.751, 78.752, and
Chapter 208, L. '97 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and
- the corporation may purchase and maintain insurance on behalf
of such person against any liability asserted against him or
her incurred by him or her in any such capacity or arising out
of his or her status as such, whether or not the corporation
would have the power to indemnify him or her against such
liabilities under such Section 78.751, 78.752, and Chapter
208, L. '97.
Section 78.037, 1 of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment
thereto, validly approved by stockholders, may eliminate or limit personal
liability of members of its board of directors or governing body for monetary
damages for breach of a director's fiduciary duty. However, no such provision
may eliminate or limit the liability of a director for breaching his or her duty
of loyalty, failing to act in good faith, engaging in intentional misconduct or
knowingly violating a law, paying a dividend or approving a stock repurchase or
redemption which was illegal, or obtaining an improper personal benefit. A
provision of this type has no effect on the availability of equitable remedies,
such as injunction or rescission, for breach of fiduciary duty. DuraSwitch's
articles of incorporation contain such a provision.
DuraSwitch's articles of incorporation provide that DuraSwitch shall
indemnify officers and directors to the full extent permitted by and in the
manner permissible under the law. DuraSwitch's bylaws provide that DuraSwitch
may, to the extent authorized by the Board of Directors, indemnify employees and
agents of DuraSwitch made a party to a legal proceeding by reason of that person
being DuraSwitch's employee or agent.
-4-
<PAGE> 5
DuraSwitch has directors' and officers' liability insurance coverage
with a policy limit of $1,000,000. The policy includes coverage for liability
for certain violations of federal and state securities laws.
DuraSwitch has entered into indemnity agreements with its directors and
officers for indemnification of and advance of such persons to the full extent
permitted by law. DuraSwitch intends to execute such indemnity agreements with
its future officers and directors.
ITEM 7. EXEMPTION FROM THE REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index following signatures page in this registration
statement, which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high end of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than a 20% change in
the maximum aggregate offering price set
forth in the "Calculation of Registration
Fee" table in the effective Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the Registration
Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement re-
-5-
<PAGE> 6
lating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(h) Reference is made to the indemnification provisions described
in Item 6 of this Registration Statement. Insofar as
indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
DuraSwitch certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, duly authorized, in the
City of Phoenix, State of Arizona, on December 10, 1999.
DURASWITCH INDUSTRIES, INC.
By:/s/ Robert J. Brilon
-----------------------------------------
Robert J. Brilon
President and Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Robert J. Brilon and R. Terren
Dunlap, or either of them, his true and lawful attorneys-in-fact and agents, for
him and in his name, place and stead in any and all capacities, to sign any and
all amendments (including pre- and post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and any state of the United States, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C> <C>
/s/ R. Terren Dunlap December 10, 1999
-------------------------- ----------------
R. Terren Dunlap CEO, Chairman and Director Date
(Principal Executive Officer)
/s/ Robert J. Brilon December 10, 1999
-------------------------- ----------------
Robert J. Brilon President and Chief Financial Date
Officer (Principal Financial
and Accounting Officer)
/s/ Anthony J. Van Zeeland December 10, 1999
-------------------------- ----------------
Anthony J. Van Zeeland Director Date
/s/ Michael A. Van Zeeland December 10, 1999
-------------------------- ----------------
Michael A. Van Zeeland Director Date
/s/ John W. Hail December 10, 1999
-------------------------- ----------------
John W. Hail Director Date
-------------------------- ----------------
William E. Peelle Director Date
</TABLE>
S-1
<PAGE> 8
DURASWITCH INDUSTRIES, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Exhibit Incorporated Herein Filed
Number Description By Reference To Herewith
------ ----------- --------------- --------
<S> <C> <C> <C>
4.1 Articles 3, 4, 5 and 7 of the Registrant's Registration
Articles of Incorporation of Statement on Form SB-2, dated June
DuraSwitch 4, 1999, as amended.
4.2 Amended and Restated X
Bylaws of DuraSwitch
4.3 DuraSwitch Industries, Inc. Registrant's Registration
1997 Stock Option Plan Statement on Form SB-2, dated June
4, 1999, as amended
4.4 DuraSwitch Industries, Inc. Registrant's Registration
1999 Stock Option Plan Statement on Form SB-2, dated June
4, 1999, as amended
5.1 Opinion of Quarles & Brady LLP X
23.1 Consent of Deloitte & Touche X
LLP
23.2 Consent of Quarles & Brady LLP Contained in opinion
filed as Exhibit 5.1
23.3 Consent of McGladrey & Pullen X
LLP
24.1 Powers of Attorney Contained in
signatures page to
this Registration
Statement
</TABLE>
E-1
<PAGE> 1
Exhibit 4.2
AMENDED & RESTATED
BYLAWS
OF
DURASWITCH INDUSTRIES, INC.
a Nevada corporation
(As Adopted September 29, 1999)
ARTICLE I
OFFICES
1.1. Registered Office. The registered office of the Corporation in the
State of Nevada, shall be in the City of Carson City, State of Nevada.
1.2. Other Offices. The Corporation also may have offices at such other
places both within and without the State of Nevada as the Board of Directors may
from time to time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
2.1. Stockholder Meetings.
(a) Time and Place of Meetings. Meetings of the stockholders shall
be held at such times and places, either within or without the State of Nevada,
as may from time to time be fixed by the Board of Directors and stated in the
notices or waivers of notice of such meetings.
(b) Annual Meeting. Annual meetings of stockholders shall be held at
such date and time as may be set and stated in the notice of the meeting. At the
annual meeting, stockholders shall elect a board of directors and transact such
other business as properly may be brought before the annual meeting.
(c) Special Meetings. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time only by the
Chairman of the Board, or the Board of Directors pursuant to a resolution
approved by a majority of the whole Board of Directors, or at the request in
writing of shareholders owning at least 51% of the capital stock issued and
outstanding and entitled to vote. Business transacted at any special meeting of
the stockholders shall be limited to the purposes stated in the notice of such
meeting.
<PAGE> 2
(d) Notice of Meetings. Except as otherwise provided by law, the
Articles of Incorporation or these Bylaws, written notice of each meeting of the
stockholders shall be given not less than ten days nor more than sixty days
before the date of such meeting to each stockholder entitled to vote thereat,
directed to such stockholder's address as it appears upon the books of the
Corporation, such notice to specify the place, date, hour and purpose or
purposes of such meeting. If mailed, such notice shall be deemed to be given
when deposited in the United States mail, postage prepaid, addressed to the
stockholder at his address as it appears on the stock ledger of the Corporation.
When a meeting of the stockholders is adjourned to another time and/or place,
notice need not be given of such adjourned meeting if the time and place thereof
are announced at the meeting of the stockholders at which the adjournment is
taken, unless the adjournment is for more than thirty days or unless after the
adjournment a new record date is fixed for such adjourned meeting, in which
event a notice of such adjourned meeting shall be given to each stockholder of
record entitled to vote thereat. Notice of the time, place and purpose of any
meeting of the stockholders may be waived in writing either before or after such
meeting and will be waived by any stockholder by such stockholder's attendance
thereat in person or by proxy. Any stockholder so waiving notice of such a
meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
(e) Quorum. Except as otherwise required by law, the Articles of
Incorporation or these Bylaws, the holders of not less than one-third of the
shares entitled to vote at any meeting of the stockholders, present in person or
by proxy, shall constitute a quorum and the affirmative vote of the majority of
such quorum shall be deemed the act of the stockholders. If a quorum shall fail
to attend any meeting of the stockholders, the presiding officer of such meeting
may adjourn such meeting from time to time to another place, date or time,
without notice other than announcement at such meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting of the stockholders as originally noticed. The foregoing
notwithstanding, if a notice of any adjourned special meeting of the
stockholders is sent to all stockholders entitled to vote thereat which states
that such adjourned special meeting will be held with those present in person or
by proxy constituting a quorum, then, except as otherwise required by law, those
present at such adjourned special meeting of the stockholders shall constitute a
quorum and all matters shall be determined by a majority of the votes cast at
such special meeting.
2.2. Determination of Stockholders Entitled to Notice and to Vote. To
determine the stockholders entitled to notice of any meeting of the stockholders
or to vote thereat, the Board of Directors may fix in advance a record date as
provided in Article VII, Section 7.1 of these Bylaws, or if no record date is
fixed by the Board of Directors, a record date shall be determined as provided
by law.
<PAGE> 3
2.3. Voting.
(a) Except as otherwise required by law, the Articles of
Incorporation or these Bylaws, each stockholder present in person or by proxy at
a meeting of the stockholders shall be entitled to one vote for each full share
of stock registered in the name of such stockholder at the time fixed by the
Board of Directors or by law at the record date of the determination of
stockholders entitled to vote at such meeting.
(b) Every stockholder entitled to vote at a meeting of the
stockholders may do so either (i) in person or (ii) by one or more agents
authorized by a written proxy executed by the person or such stockholder's duly
authorized agent, whether by manual signature, typewriting, telegraphic
transmission or otherwise as permitted by law. No proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
(c) Voting may be by voice or by ballot as the presiding officer of
the meeting of the stockholders shall determine. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by such stockholder's
proxy, and shall state the number of shares voted.
(d) In advance of or at any meeting of the stockholders, the
Chairman of the Board may appoint one or more persons as inspectors of election
(the "Inspectors") to act at such meeting. Such Inspectors shall take charge of
the ballots at such meeting. After the balloting on any question, the Inspectors
shall count the ballots cast and make a written report to the secretary of such
meeting of the results. Subject to the direction of the Chairman of the Board,
the duties of such Inspectors may further include without limitation:
determining the number of shares outstanding and the voting power of each; the
shares represented at the meeting; the existence of a quorum; the authenticity,
validity, and effect of proxies; receiving votes, ballots, or consents; hearing
and determining all challenges and questions in any way arising in connection
with the right to vote; counting and tabulating all votes of consents and
determining when the polls shall close; determining the result; and doing such
acts as may be proper to conduct the election or vote with fairness to all
stockholders. An Inspector need not be a stockholder of the Corporation and any
officer of the Corporation may be an Inspector on any question other than a vote
for or against such officer's election to any position with the Corporation or
on any other questions in which such officer may be directly interested. If
there are three or more Inspectors, the determination, report or certificate of
a majority of such Inspectors shall be effective as if unanimously made by all
Inspectors.
2.4. List of Stockholders. The officer who has charge of the stock ledger
of the Corporation shall prepare and make available, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote thereat, showing the address of and the number of shares registered in the
name of each such stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to such meeting, either at a place within
the city where such meeting is to be held and which place shall be specified in
the
<PAGE> 4
notice of such meeting, or, if not so specified, at the place where such meeting
is to be held. The list also shall be produced and kept at the time and place of
the meeting of the stockholders during the whole time thereof, and may be
inspected by any stockholder who is present.
2.5. Action by Consent of Stockholders. A resolution in writing, signed by
Stockholders, representing a majority of those shares entitled to vote shall be
deemed to be the action of the Stockholders to the effect therein expressed with
the same force and effect as if the same had been duly passed by the same vote
at a duly convened meeting, and it shall be the duty of the Secretary of the
Corporation to record such Resolution in the Minute Book of the Corporation
under its proper date.
If stockholder action is taken without a meeting by less than unanimous
written consent, notice shall be given to those stockholders who have not
consented in writing.
2.6. Conduct of Meetings. The Chairman of the Board shall have full and
complete authority to determine the agenda, to set the procedures and order the
conduct of meetings, all as deemed appropriate by such person in his sole
discretion with due regard to the orderly conduct of business.
2.7. Notice of Agenda Matters. If a stockholder wishes to present to the
Chairman of the Board an item for consideration as an agenda item for a meeting
of stockholders, he must give timely notice to the Secretary of the Corporation
and give a brief description of the business desired to be brought before the
meeting. To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation not less than
sixty days nor more than ninety days prior to the meeting; provided, however,
that if less than seventy days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the fifteenth
day following the date on which such notice of the date of the meeting was
mailed or such public disclosure was made and provided further that any other
time period necessary to comply with federal proxy solicitation rules or other
regulations, if applicable, shall be deemed to be timely.
ARTICLE III
BOARD OF DIRECTORS
3.1. General Powers. Unless otherwise restricted by law, the Articles of
Incorporation or these Bylaws as to action which shall be authorized or approved
by the stockholders, and subject to the duties of directors as prescribed by
these Bylaws, all corporate powers shall be exercised by or under the authority
of, and the business and affairs of the Corporation shall be controlled by, the
Board of Directors.
<PAGE> 5
3.2. Election of Directors.
(a) Number, Qualification and Term of Office. The authorized number
of directors of the Corporation shall be fixed from time to time by the Board of
Directors, but shall not be less than one nor more than nine. The exact number
of directors shall be determined from time to time by a resolution duly adopted
by a majority of the whole Board of Directors. Until changed by resolution of
the Board of Directors, the Board shall be set at seven members. Each Director
must beneficially own at all times at least $25,000 worth of shares of the
Corporation's capital stock, which amount shall be computed by multiplying (1)
the number of shares then held by the Director, by (2) the Fair Market Value per
share of such capital stock on the day the Director was elected, provided that
this share ownership requirement may be waived for any Director upon a unanimous
vote of the Board of Directors. The usual term for a Director is three years.
However, the Board of Directors initially shall be divided into three groups of
as equal number as possible, and each group shall serve one, two and three year
terms, respectively. If the current members of the Board of Directors cannot
agree on which Directors shall serve which terms, then the matter will be
decided by a vote of the stockholders at the annual meeting, with the Directors
receiving the most votes serving the longest terms. "Fair Market Value" means
(1) the reported closing price of the Corporation's stock on an established
stock market, (2) if such stock is not then listed on an exchange, the last
trade price per share for such stock in the over-the-counter market as quoted on
Nasdaq Over-the-Counter Bulletin Board, or (3) if such stock is not listed or
quoted as referenced above, an amount determined in good faith by the Board of
Directors.
(b) Resignation. Any director may resign from the Board of Directors
at any time by giving written notice to the Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein, or if the time
when such resignation shall become effective shall not be so specified, then
such resignation shall take effect immediately upon its receipt by the
Secretary; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
(c) Nomination of Directors. Candidates for director of the
Corporation shall be nominated only either by:
(i) the Chairman of the Board or the Board of Directors, or
(ii) nomination at any stockholders' meeting by or on behalf
of any stockholder entitled to vote thereat.
<PAGE> 6
(d) Vacancies. Vacancies and new directorships resulting from an
increase in the authorized number of directors may be filled by a person elected
by a majority of the directors then in office, though less than a quorum, or by
the sole remaining director. Directors so chosen shall hold office until their
successors are duly elected at the annual meeting and qualified. If no directors
are in office, an election may be held as provided by statute.
3.3. Meetings of the Board of Directors.
(a) Regular Meetings. Regular meetings of the Board of Directors
shall be held without call, and without any requirement of notice, at the
following times:
(i) at such times as the Board of Directors shall from time to
time by resolution determine; and
(ii) one-half hour prior to any special meeting of the
stockholders and immediately following the adjournment of any annual or
special meeting of the stockholders.
(b) Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board, or the Board of Directors pursuant to a
resolution approved by a majority of the whole Board of Directors. Notice of the
time and place of special meetings of the Board of Directors shall be given by
the Secretary or an Assistant Secretary of the Corporation, or by any other
officer authorized by the Board of Directors. Such notice shall be given to each
director personally or by mail, messenger, telephone or fax at such director's
business or residence address. Notice by mail shall be deposited in the United
States mail, postage prepaid, not later than the fifth day prior to the date
fixed for such special meeting. Notice by telephone or fax shall be sent, and
notice given personally or by messenger shall be delivered, at least 24 hours
prior to the time set for such special meeting. Notice of a special meeting of
the Board of Directors need not contain a statement of the purpose of such
special meeting.
(c) Adjourned Meetings. A majority of directors present at any
regular or special meeting of the Board of Directors or any committee thereof,
whether or not constituting a quorum, may adjourn any meeting from time to time
until a quorum is present or otherwise, however, notice of the time and place of
holding any adjourned meeting shall be required as provided in Section 3.3(b) of
these Bylaws.
(d) Place of Meetings. Meetings of the Board of Directors, both
regular and special, may be held either within or without the State of Nevada.
(e) Participation by Telephone. Members of the Board of Directors or
any committee may participate in any meeting of the Board of Directors or
committee through the use of conference telephone or similar communications
equipment, so long as all members
<PAGE> 7
participating in such meeting can hear one another, and such participation shall
constitute presence in person at such meeting.
(f) Quorum. At all meetings of the Board of Directors or any
committee thereof, a majority of the total number of directors of the entire
then authorized Board of Directors or such committee shall constitute a quorum
for the transaction of business and the act of a majority of the directors
present at any such meeting at which there is a quorum shall be the act of the
Board of Directors or any committee, except as may be otherwise specifically
provided by law, the Articles of Incorporation or these Bylaws. A meeting of the
Board of Directors or any committee at which a quorum initially is present may
continue to transact business notwithstanding the withdrawal of directors so
long as any action is approved by at least a majority of the required quorum for
such meeting.
(g) Waiver of Notice. The transactions of any meeting of the Board
of Directors or any committee, however called and noticed or wherever held,
shall be as valid as though had at a meeting duly held after regular call and
notice, if a quorum be present and if, either before or after the meeting, each
of the directors not present signs a written waiver of notice, or a consent to
hold such meeting, or an 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.
(h) Actions Requiring Supermajority Vote. The Board of Directors may
take the following acts only upon an affirmative vote of at least two-thirds of
the Directors present at any meeting of the Board of Directors at which a quorum
be present: (i) a sale of all or most of the assets of the Corporation; (ii)
merger of the Corporation with another entity; (iii) amendment of the Bylaws;
(iv) borrowing of funds in excess of $100,000; (v) terminating officers of the
Corporation without cause; (vi) dissolution of the Corporation; or (vii) sale of
all the Corporation's issued and outstanding captial stock.
3.5. Action Without Meeting. Any action required or permitted to be taken
by the Board of Directors at any meeting or at any meeting of a committee may be
taken without a meeting if all members of the Board of Directors or such
committee consent in writing and the writing or writings are filed with the
minutes of the proceedings of the Board of Directors or such committee.
3.6. Compensation of Directors. Unless otherwise restricted by law, the
Articles of Incorporation or these Bylaws, the Board of Directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of committees of the Board of Directors may be allowed like
compensation for attending committee meetings.
<PAGE> 8
3.7. Committees of the Board.
(a) Committees. The Board of Directors may, by resolution adopted by
a majority of the Board of Directors, designate one or more committees of the
Board of Directors, each committee to consist of one or more directors. Each
such committee, to the extent permitted by law, the Articles of Incorporation
and these Bylaws, shall have and may exercise such of the powers of the Board of
Directors in the management and affairs of the Corporation as may be prescribed
by the resolutions creating such committee. 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. The Board of Directors 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. The Board of Directors
shall have the power, at any time for any reason, to change the members of any
such committee, to fill vacancies, and to discontinue any such committee.
(b) Minutes of Meetings. Each committee shall keep regular minutes
of its meetings and report the same to the Board of Directors when required.
(c) Audit Committee. The Board of Directors may appoint an Audit
Committee consisting of at least two directors, none of whom shall be employees
of the Corporation. The Audit Committee shall review the financial affairs and
procedures of the Corporation from time to time with management and meet with
the auditors of the Corporation to review the financial statements and
procedures.
(d) Executive Committee. There may be an executive committee
consisting of at least one member of the Board of Directors elected by the whole
Board. Members of the executive committee shall serve at the pleasure of the
Board of Directors and each member of the executive committee may be removed
with or without cause at any time by the Board of Directors. Vacancies shall be
filled by the Board of Directors. The executive committee may exercise the
powers of the Board of Directors and the management of the business and affairs
of the corporation, but shall not possess any authority prohibited to it by law.
3.8. Interested Directors. In addition to the statutory and corporate
common law of Nevada, no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose
if (i) the material facts as to his or their relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and noted in the minutes and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even
<PAGE> 9
though the disinterested directors be less than a quorum; or (ii) the material
facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
ARTICLE IV
OFFICERS
4.1. Officers.
(a) Number. The officers of the Corporation shall be chosen by the
Board of Directors and may include a Chairman of the Board of Directors (who
must be a director as chosen by the Board of Directors) and may include a Chief
Executive Officer, President, Chief Operating Officer, Vice President, Secretary
and a Treasurer. The Board of Directors also may appoint one or more Assistant
Secretaries or Assistant Treasurers and such other officers and agents with such
powers and duties as it shall deem necessary. Any Vice President may be given
such specific designation as may be determined from time to time by the Board of
Directors. Any number of offices may be held by the same person, unless
otherwise required by law, the Certificate of Incorporation or these Bylaws. The
Board of Directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective duties and
powers.
(b) Election and Term of Office. The officers shall be elected
annually by the Board of Directors at its regular meeting following the annual
meeting of the stockholders and each officer shall hold office until the next
annual election of officers and until such officer's successor is elected and
qualified, or until such officer's death, resignation or removal. Any officer
may be removed at any time, with or without cause, by a vote of the majority of
the whole Board of Directors. Any vacancy occurring in any office may be filled
by the Board of Directors.
(c) Salaries. The salaries of all officers of the Corporation shall
be fixed by the Board of Directors or a committee thereof from time to time.
4.2. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there be a Chairman, shall preside at all meetings of the
stockholders and the Board of Directors and shall have such other power and
authority as may from time to time be assigned by the Board of Directors.
4.3. Chief Executive Officer. The Chief Executive Officer shall be the top
executive
<PAGE> 10
officer of the Corporation, and in the absence of the Chairman of the Board,
shall preside at all meetings of the stockholders and the Board of Directors (if
a Chairman of the Board has not been elected), and shall see that all orders and
resolutions of the Board of Directors are carried into effect. Subject to the
provisions of these Bylaws and to the direction of the Board of Directors, the
Chief Executive Officer shall have the general and active management of the
business of the Corporation, may execute all contracts and any mortgages,
conveyances or other legal instruments in the name of and on behalf of the
Corporation, but this provision shall not prohibit the delegation of such powers
by the Board of Directors to some other officer, agent or attorney-in-fact of
the Corporation.
4.4. Chief Operating Officer. The Chief Operating Officer shall report
directly to the Chief Executive Officer, and shall be in charge of certain
operations of the Corporation, as may be assigned by the Chief Executive Officer
from time to time.
4.5. President. The President shall be the second highest executive
officer of the Corporation, and shall carry out the duties of the Chief
Executive Officer in the event that the Chief Executive Officer is absent or
unable to carry out such duties. The President shall be responsible for such
other duties as the Chief Executive Officer may assign from time to time.
4.6. Vice Presidents. In the absence or disability of the President, the
Vice Presidents in order of their rank as fixed by the Board of Directors, or if
not ranked, the Vice President designated by the Board of Directors, shall
perform all the duties of the President, and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the President. 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 of Directors
or these Bylaws.
4.7. Secretary and Assistant Secretaries. The Secretary shall record or
cause to be recorded, in books provided for the purpose, minutes of the meetings
of the stockholders, the Board of Directors and all committees of the Board of
Directors; see that all notices are duly given in accordance with the provisions
of these Bylaws as required by law; be custodian of all corporate records (other
than financial) and of the seal of the Corporation, and have authority to affix
the seal to all documents requiring it and attest to the same; give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board of Directors; and, in general, shall perform all duties incident to the
office of Secretary and such other duties as may, from time to time, be assigned
to him by the Board of Directors or by the President. At the request of the
Secretary, or in the Secretary's absence or disability, any Assistant Secretary
shall perform any of the duties of the Secretary and, when so acting, shall have
all the powers of, and be subject to all the restrictions upon, the Secretary.
4.8. Treasurer and Assistant Treasurers. The Treasurer shall keep or cause
to be kept the books of account of the Corporation and shall render statements
of the financial affairs of the Corporation in such form and as often as
required by the Board of Directors or the President. The Treasurer, subject to
the order of the Board of Directors, shall have custody of all funds and
<PAGE> 11
securities of the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements. The Treasurer shall perform all other duties commonly
incident to his office and shall perform such other duties and have such other
powers as the Board of Directors or the President shall designate from time to
time. At the request of the Treasurer, or in the Treasurer's absence or
disability, any Assistant Treasurer may perform any of the duties of the
Treasurer and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Treasurer. Except where by law the signature of
the Treasurer is required, each of the Assistant Treasurers shall possess the
same power as the Treasurer to sign all certificates, contracts, obligations and
other instruments of the Corporation.
ARTICLE V
INDEMNIFICATION AND INSURANCE
5.1. Right to Indemnification. Subject to the terms and conditions of this
Article V, each officer or director of the Corporation who was or is made a
party or witness or is threatened to be made a party or witness to or is
otherwise involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action or inaction in an official
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of Nevada ("GCL"), as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue as to an indemnitee
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the indemnitee's heirs, executors and administrators; provided,
however, that, except as provided in Section 5 hereof with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding in
<PAGE> 12
advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the GCL requires, an advancement of expenses
incurred by an indemnitee shall be made only upon delivery to the Corporation of
an undertaking in the form then required by the GCL (if any), by or on behalf of
such indemnitee, with respect to the repayment of amounts so advanced
(hereinafter an "undertaking").
5.2. Right of Indemnitee to Bring Suit. If a claim under Section 5.1 of
this Article is not paid in full by the Corporation within sixty days after a
written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expenses of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) any suit by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking the Corporation shall be entitled to recover such
expenses upon a final adjudication that, the indemnitee has not met the
applicable standard of conduct set forth in the GCL. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the GCL, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard or conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right hereunder, or by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified or to
such advancement of expenses under this Section or otherwise shall be on the
Corporation.
5.3. Specific Limitations on Indemnification. Notwithstanding anything in
this Article to the contrary, the Corporation shall not be obligated to make any
payment to any indemnitee with respect to any proceeding (i) to the extent that
payment is actually made to the indemnitee under any insurance policy, or is
made to indemnitee by the Corporation or an affiliate thereof otherwise than
pursuant to this Article, (ii) for any expense, liability or loss in connection
with a proceeding settled without the Corporation's written consent, which
consent, however, shall not be unreasonably withheld, (iii) for an accounting of
profits made from the purchase or sale by the indemnitee of securities of the
Corporation within the meaning of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or similar provisions of any state statutory or common law,
(iv) where the indemnitee acted in bad faith or with gross negligence, or (v)
where prohibited by applicable law.
<PAGE> 13
5.4. Contract. The provisions of this Article shall be deemed to be a
contract between the Corporation and each director and officer who serves in
such capacity at any time while such Section is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter based in whole or in part upon any
such state of facts.
5.5. Partial Indemnity. If the indemnitee is entitled under any provision
of this Article to indemnification by the Corporation for some or a portion of
the expenses, liabilities or losses incurred in connection with a proceeding but
not, however, for all of the total amount thereof, the Corporation shall
nevertheless indemnify the indemnitee for the portion thereof to which the
indemnitee is entitled. Moreover, notwithstanding any other provision of this
Article, to the extent that the indemnitee has been successful on the merits or
otherwise in defense of any or all claims relating in whole or in part to a
proceeding or in defense of any issue or matter therein, including dismissal
without prejudice, the indemnitee shall be indemnified against all loss, expense
and liability incurred in connection with the portion of the proceeding with
respect to which indemnitee was successful on the merits or otherwise.
5.6. Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
the Articles of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
5.7. Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the GCL.
5.8. Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses,
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article with respect to the indemnification and advancement
of expenses of directors and officers of the Corporation, or to such lesser
extent as may be determined by the Board of Directors.
5.9. Notice by Indemnitee and Defense of Claim. The indemnitee shall
promptly notify the Corporation in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter, whether civil, criminal, administrative or
investigative, but the omission so to notify the Corporation will not relieve it
from any liability which it may have to the indemnitee if such omission does not
prejudice the Corporation's rights. If such omission does prejudice the
Corporation's rights, the Corporation will be relieved from liability only to
the extent of such prejudice; nor will such
<PAGE> 14
omission relieve the Corporation from any liability which is may have to the
indemnitee otherwise than under this Article VII. With respect to any
proceedings as to which the indemnitee notifies the Corporation of the
commencement thereof:
(a) The Corporation will be entitled to participate therein at its
own expense; and
(b) The Corporation will be entitled to assume the defense thereof,
with counsel reasonably satisfactory to the indemnitee; provided, however, that
the Corporation shall not be entitled to assume the defense of any proceeding
(and this Section 5.9 shall be inapplicable to such proceeding) if the
indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Corporation and the indemnitee with respect to such
proceeding. After notice from the Corporation to the indemnitee of its election
to assume the defense thereof, the Corporation will not be liable to the
indemnitee under this Article V for any expenses subsequently incurred by the
indemnitee in connection with the defense thereof, other than reasonable costs
of investigation or as otherwise provided below. The indemnitee shall have the
right to employ its own counsel in such proceeding but the fees and expenses of
such counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of the indemnitee unless:
(i) The employment of counsel by the indemnitee has been
authorized by the Corporation in writing; or
(ii) The Corporation shall not have employed counsel to assume
the defense in such proceeding or shall not have assumed such defense and
be acting in connection therewith with reasonable diligence;
in each of which cases the fees and expenses of such counsel shall be at the
expense of the Corporation.
(c) The Corporation shall not settle any proceeding in any manner
which would impose any penalty or limitation on the indemnitee without the
indemnitee's written consent; provided, however, that the indemnitee will not
unreasonably withhold his consent to any proposed settlement.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1. Certificates for Shares. Unless otherwise provided by a resolution of
the Board of Directors, the shares of the Corporation shall be represented by a
certificate. The certificates of stock of the Corporation shall be numbered and
shall be entered in the books of the Corporation as they are issued. They shall
exhibit the holder's name and number of shares and shall be signed by or in the
name of the Corporation by (a) the Chairman of the Board of Directors, the
President
<PAGE> 15
or any Vice President and (b) the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary. Any or all of the signatures on a
certificate may be facsimile. In case any officer of the Corporation, transfer
agent or registrar who has signed, or whose facsimile signature has been placed
upon such certificate, shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may nevertheless
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issuance.
6.2. Classes of Stock.
(a) If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualification, limitations, or
restrictions of such preferences or rights shall be set forth in full or
summarized on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock; provided, that, except as
otherwise provided in Section 202 of the General Corporation Law of the State of
Nevada, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate that the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences or rights.
(b) Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to applicable law (including Sections 78.195, 78.205,
78.235 and 78.242 of the Nevada General Corporation Law) or a statement that the
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences or rights.
6.3. Transfer. 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, assignation 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.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be canceled, issuance of
new equivalent uncertificated shares or certificated shares shall be made to the
person entitled thereto and the transaction shall be recorded upon the books of
the Corporation.
6.4. Record Owner. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact thereof, and,
accordingly, shall not be bound to
<PAGE> 16
recognize any equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or other notice
thereof, save as expressly provided by the laws of the State of Nevada.
6.5. Lost Certificates. The Board of Directors may direct a new
certificate or certificates or uncertificated shares 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 or
uncertificated shares, 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 the Board of Directors shall require and 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.
ARTICLE VII
MISCELLANEOUS
7.1. Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the 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 of Directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days prior to the date of
such meeting nor more than sixty days prior to any other action. If not fixed by
the Board of Directors, the record date shall be determined as provided by law.
(b) A determination of stockholders of record entitled to notice of
or to vote at a meeting of the stockholders shall apply to any adjournments of
the meeting, unless the Board of Directors fixes a new record date for the
adjourned meeting.
(c) Holders of stock on the record date are entitled to notice and
to vote or to receive the dividend, distribution or allotment of rights or to
exercise the rights, as the case may be, notwithstanding any transfer of the
shares on the books of the Corporation after the record date, except as
otherwise provided by agreement or by law, the Articles of Incorporation or
these Bylaws.
7.2. Execution of Instruments. The Board of Directors may, in its
discretion, determine the method and designate the signatory officer or
officers, or other persons, to execute any corporate instrument or document or
to sign the corporate name without limitation, except
<PAGE> 17
where otherwise provided by law, the Articles of Incorporation or these Bylaws.
Such designation may be general or confined to specific instances.
7.3. Voting of Securities Owned by the Corporation. All stock and other
securities of other corporations held by the Corporation shall be voted, and all
proxies with respect thereto shall be executed, by the person so authorized by
resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman of the Board.
7.4. Corporate Seal. A corporate seal shall not be requisite to the
validity of any instrument executed by or on behalf of the Corporation. If a
corporate seal is used, the same shall be at the pleasure of the officer
affixing seal either (a) a circle having on the circumference thereof the words
"DURASWITCH INDUSTRIES, INC." and in the center "Incorporated - 1993, Nevada,"
or (b) a seal containing the words "Corporate Seal" in the center thereof.
7.5. Construction and Definitions. Unless the context requires otherwise,
the general provisions, rules of construction and definitions in the General
Corporation Law of the State of Nevada and the Articles of Incorporation shall
govern the construction of these Bylaws.
7.6. Amendments. These Bylaws may be altered, amended or repealed by a
two-thirds majority vote of the Board of Directors or a simple majority vote of
the stockholders.
<PAGE> 1
EXHIBIT 5.1
[QUARLES & BRADY LLP LETTERHEAD]
December 9, 1999
DuraSwitch Industries, Inc.
234 S. Extension Road
Mesa, Arizona 85210
Ladies and Gentlemen:
We are providing this opinion in connection with the Registration Statement of
DuraSwitch Industries, Inc. (the "Company") on Form S-8 (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), with
respect to the proposed sale of up to 968,824 shares of Common Stock, $.001
par value, of the Company (the "Shares") pursuant to DuraSwitch Industries,
Inc.'s 1997 Stock Option Plan and 1999 Stock Option Plan (each of the foregoing
referred to hereinafter as the "Plans").
We have examined:
(i) the Registration Statement;
(ii) the Company's Articles of Incorporation and Bylaws, as amended to date;
(iii) the minutes of corporate proceedings regarding the issuance and sale of
the Shares by the Company; and
(iv) such other documents and records as we have deemed necessary for purposes
of rendering this opinion.
For purposes of rendering this opinion, we have examined originals or
photocopies of the documents referred to above. In conducting such examination,
we have assumed the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
copies.
Based upon the foregoing, it is our opinion that:
1. The Company is validly existing under the laws of the State of Nevada.
2. The Shares to be sold from time to time pursuant to the Plans which are
original issuance shares, when issued and paid for as contemplated by the
Registration Statement and the Plans, will be validly issued, fully paid
and nonassessable by the Company.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement. In giving our consent, we do not admit that we are "experts" within
the meaning of Section 11 of the Act, or that we come within the category of
persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ Quarles & Brady LLP
QUARLES & BRADY LLP
<PAGE> 1
Exhibit 23.1
[DELOITTE & TOUCHE LLP LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
DuraSwitch Industries, Inc. on Form S-8 of our report relating to the financial
statements of DuraSwitch Industries, Inc. dated February 26, 1999 (except for
Note 2, as to which the date is August 19, 1999) appearing in Registration
Statement No. 333-79969 on Form SB-2 of DuraSwitch Industries, Inc. dated June
4, 1999, as amended.
/s/ Deloitte & Touche LLP
December 7, 1999
- ----------------
DELOITTE TOUCHE
TOHMATSU
- ----------------
<PAGE> 1
Exhibit 23.3
[MCGLADREY & PULLEN, LLP LETTERHEAD]
INDEPENDENT AUDITOR'S CONSENT
To the Board of Directors
Duraswitch Industries, Inc.
Mesa, Arizona
We hereby consent to the use in this Registration Statement on Form S-8 of our
report, dated October 1, 1998, relating to the consolidated financial statements
of Duraswitch Industries, Inc. We also consent to the reference of our Firm
under the caption "Experts" in the prospectus.
/s/ McGladrey & Pullen, LLP
Phoenix, Arizona
December 8, 1999
