<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------------------------------
FORM 10-Q
(MARK ONE) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
[X] OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
[ ] OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______ TO ______ .
-----------------------------------------
COMMISSION FILE NUMBER 0-27673
EUROTELECOM COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 87-0409699
(STATE OR OTHER JURISDICTION OF I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.
MEXBOROUGH BUSINESS CENTRE, COLLEGE ROAD,
MEXBOROUGH, S64 9JP, YORKSHIRE, UNITED KINGDOM
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
011 44 1709 590899
011 44 1709 590939
(Registrants Telephone Number, Including Area Code)
-----------------------------------------
Indicate by check mark whether the Registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [x] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
As at 26 April 2000, there were outstanding 17,946,222 shares of Common Stock
and 11,165,763 shares of Class A Common Stock, each of $0.01 par value.
<PAGE>
EUROTELECOM COMMUNICATIONS, INC. AND SUBSIDIARIES
-------------------------------------------------
INDEX
-----
PART I FINANCIAL INFORMATION
ITEM I FINANCIAL STATEMENTS
Consolidated Balance Sheets of the Company at March 31, 2000
(unaudited) and June 30, 1999 (audited)
Consolidated Statements of Operations of the Company (unaudited) for
the three months and nine months ended March 31, 2000 and 1999.
Consolidated Statements of Cash Flows of the Company (unaudited) for
the nine months ended March 31, 2000 and 1999.
Consolidated Statement of Stockholders' Deficit (unaudited) for the
three months ended March 31, 2000
Consolidated Statement of Comprehensive Loss (unaudited) for the three
months ended March 31, 2000
Notes to Consolidated Financial Statements
ITEM 2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
ITEM 3 QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
PART II OTHER INFORMATION
ITEM 1 LEGAL PROCEEDINGS
ITEM 2 CHANGES IN SECURITIES AND USE OF PROCEEDS
ITEM 3 DEFAULTS UPON SENIOR SECURITIES
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
ITEM 5 OTHER INFORMATION
ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K
SIGNATURES
2
<PAGE>
PART 1 - FINANCIAL INFORMATION
------------------------------
ITEM 1 FINANCIAL STATEMENTS
EUROTELECOM COMMUNICATIONS, INC. AND SUBSIDIARIES
------------------------------------------------
CONSOLIDATED BALANCE SHEETS
---------------------------
MARCH 31, JUNE 30,
2000 1999
(UNAUDITED) (AUDITED)
------------- -------------
ASSETS
Current Assets:
Cash and cash equivalents $ 28,957 $ -
Accounts receivable 1,268,018 884,381
Accounts receivable - related party - 56,913
Other receivables - 185,358
Inventories 1,491,695 357,952
Prepaid expenses 60,089 27,803
------------- -------------
TOTAL CURRENT ASSETS $ 2,848,759 $ 1,512,407
Property and equipment, net 608,054 90,718
Goodwill, net 571,606 381,868
Investments at cost 89,708 43,964
Deferred offering costs 880,000 -
------------- -------------
TOTAL ASSETS $ 4,998,127 $ 2,028,957
============= =============
See accompanying notes to Consolidated Financial Statements
3
<PAGE>
EUROTELECOM COMMUNICATIONS, INC. AND SUBSIDIARIES
-------------------------------------------------
CONSOLIDATED BALANCE SHEETS (CONTINUED)
---------------------------------------
MARCH 31, JUNE 30,
2000 1999
(UNAUDITED) (AUDITED)
------------- -------------
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current Liabilities:
Bank facility $ 1,284,254 $ 375,261
Current maturities of long-term obligations 46,321 470,627
Accounts payable 3,443,836 743,063
Accounts payable - related party 15,288 9,464
Accrued liabilities 170,731 207,554
Accrued income and other taxes 280,630 311,807
------------- -------------
TOTAL CURRENT LIABILITIES $ 5,241,060 $ 2,117,776
Long-term liabilities:
Notes payable 155,463 941,240
Less: current maturities of long term obligations (46,321) (470,627)
------------- -------------
TOTAL LONG TERM LIABILITIES $ 109,142 $ 470,613
------------- -------------
TOTAL LIABILITIES $ 5,350,202 $ 2,588,389
============= =============
Stockholders' (deficit):
Preferred Stock $.01 par value. Authorized
10,000,000 shares; none issued.
Common Stock, $.01 par value. Authorized
20,000,000 shares; 17,946,222 and 8,988,102
shares issued and outstanding in March 31,
2000 and June 30, 1999 respectively 179,463 89,882
Additional paid-in capital 27,120,361 23,556,427
Less subscriptions receivable - (131,788)
Accumulated deficit (27,735,663) (24,078,967)
Other comprehensive income 83,764 5,014
------------- -------------
TOTAL STOCKHOLDERS' DEFICIT $ (352,075) $ (559,432)
------------- -------------
TOTAL LIABILITIES AND STOCKHOLDERS DEFICIT $ 4,998,127 $ 2,028,957
============= =============
See accompanying notes to Consolidated Financial Statements
4
<PAGE>
<TABLE>
EUROTELECOM COMMUNICATIONS, INC. AND SUBSIDIARIES
-------------------------------------------------
CONSOLIDATED STATEMENTS OF OPERATIONS
-------------------------------------
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
MARCH 31, MARCH 31,
2000 1999 2000 1999
-------------------------------- ----------------------------------
(UNAUDITED)
<S> <C> <C> <C> <C>
Net revenues $ 1,515,000 395,523 $ 4,976,488 427,523
Cost of revenue 1,078,142 177,571 3,599,800 177,571
------------- --------------- --------------- ---------------
GROSS PROFIT $ 436,858 217,952 $ 1,376,688 249,952
------------- --------------- --------------- ---------------
Expenses:
Selling and administrative 1,562,719 765,074 4,725,159 1,274,282
Depreciation 13,921 16,423 37,736 27,595
Amortization of intangible assets 37,890 - 108,770 -
Loss from closed subsidiary - 123,928 - 415,851
------------- --------------- --------------- ---------------
OPERATING LOSS $ (1,177,672) (687,473) $ (3,494,977) (1,467,776)
------------- --------------- --------------- ---------------
Other Income/(expense):
Interest expense 26,808 17,013 122,137 58,991
Investment writedown - - 44,597 -
Loan stock beneficial conversion expense - 918,750 - 918,750
------------- --------------- --------------- ---------------
LOSS BEFORE INCOME TAXES $ (1,204,480) (1,623,236) $ (3,661,711) (2,445,517)
------------- --------------- --------------- ---------------
Income tax expense - - - 100
------------- --------------- --------------- ---------------
Net loss for the Period (1,204,480) (1,623,236) (3,661,711) (2,445,617)
------------- --------------- --------------- ---------------
Net loss per common share
- - basic (0.067) (0.239) (0.272) (0.381)
============= =============== =============== ===============
Weighted average number of common shares
17,946,222 6,788,040 13,461,662 6,417,441
------------- --------------- --------------- ---------------
</TABLE>
Basic and diluted loss per share are the same due to any effect of warrants
outstanding being anti-dilutive.
See accompanying notes to Consolidated Financial Statements
5
<PAGE>
EUROTELECOM COMMUNICATIONS, INC. AND SUBSIDIARIES
-------------------------------------------------
CONSOLIDATED STATEMENTS OF CASH FLOWS
-------------------------------------
NINE MONTHS ENDED MARCH 31,
---------------------------
2000 1999
------------ ------------
(UNAUDITED)
NET LOSS $(3,661,711) $(2,445,617)
ADJUSTMENTS TO RECONCILE NET LOSS TO NET CASH
PROVIDED BY (USED IN) OPERATING ACTIVITIES
Non-cash items:
Depreciation and amortization 146,506 27,595
Investment write down 44,597 -
Write off subscription receivable 131,788 -
Stock issued for services 696,240 356,456
Loan stock beneficial conversion - 918,750
CHANGES IN CURRENT ASSETS AND LIABILITIES
Receivables (326,724) (218,466)
Inventories (1,133,743) (24,678)
Other current assets 153,072 (90,124)
Accrued expenses (36,823) 161,082
Accounts payable 2,658,089 122,411
Other liabilities (31,176) (233,401)
Net cash provided by (used in) operating ------------ ------------
Activities (1,359,885) (1,425,992)
============ ============
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of investments (90,341) -
Purchase/Disposal of fixed assets (527,502) 13,778
Net cash (used in) provided by investing ------------ ------------
Activities (617,843) 13,778
============ ============
CASH FLOW FROM FINANCING ACTIVITIES
Fees associated with company stock issue (880,000) -
Repayment of debt (13,347) (48,000)
Proceeds from line of credit 908,993 273,871
Proceeds from issuance of common stock 1,907,275 211,250
Proceeds from issuance of debt - 975,093
Net cash provided by financing ------------ ------------
Activities 1,922,921 1,412,214
============ ============
------------ ------------
Effect of exchange rate changes on cash 83,764 -
============ ============
INCREASE IN CASH
Cash and cash equivalents at beginning of period - -
------------ ------------
Cash and cash equivalents at end of period 28,957 -
============ ============
6
<PAGE>
<TABLE>
EUROTELECOM COMMUNICATIONS, INC. AND SUBSIDIARIES
-------------------------------------------------
CONSOLIDATED STATEMENT OF STOCKHOLDERS' DEFICIT
-----------------------------------------------
FROM JANUARY 1, 2000 TO MARCH 31, 2000
--------------------------------------
<CAPTION>
SHARES AMOUNT PAID IN ACCUMULATED ACCUMULATED
------ ------ CAPITAL DEFICIT OTHER
------- ------- COMPREHENSIVE
INCOME
------
<S> <C> <C> <C> <C> <C>
Balance January 1, 2000 17,946,222 $ 179,463 $ 27,120,361 $(26,531,183) $ 50,126
Net loss for the period ended
March 31, 2000 - - - (1,204,480) -
Currency translation differences
on foreign currency net investments - - - - 33,638
---------------------------------------------------------------------------
17,946,222 179,463 27,120,361 (27,735,663) 83,764
===========================================================================
</TABLE>
CONSOLIDATED STATEMENT OF COMPREHENSIVE LOSS
--------------------------------------------
Net loss for the period ended March 31, 2000 $(1,204,480)
Currency translation differences on foreign
currency net investments 33,638
------------
Comprehensive loss $(1,170,842)
============
7
<PAGE>
EUROTELECOM COMMUNICATIONS, INC. AND SUBSIDIARIES
-------------------------------------------------
NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
--------------------------------------------------------
FOR THE NINE MONTHS AND THREE MONTHS ENDED MARCH 31, 2000
---------------------------------------------------------
BASIS OF PRESENTATION
The accompanying consolidated financial statements have been prepared by the
Company without audit in accordance with generally accepted accounting
principles for interim financial statements and with instructions to Form 10-Q.
In the opinion of management, all adjustments (consisting only of normal
recurring accruals) considered necessary for a fair presentation have been
included. Operating results for the three and nine months ended March 31, 2000
are not necessarily indicative of the results that may be expected for the year
ended June 30, 2000.
The accompanying consolidated financial statements do not include certain
footnotes and financial presentations normally required under generally accepted
accounting principles and, therefore should be read in conjunction with the
audited financial statements included in the Company's Form 10-SB as of June 30,
1999.
On July 1, 1999 unsecured convertible loan notes in the amounts of $80,000,
$360,000 and $360,000 issued on February 11, 1999 were converted into 550,000,
2,475,000 and 2,475,000 shares of Common Stock respectively.
On July 22, 1999 the Company raised additional equity through the issue of
150,000 Common Stock for $150,000 cash.
In August 1999 the Company purchased RTC, Inc (RTC) for 150,000 shares of Common
Stock valued at $250,000. RTC was purchased to gain access to its brand name and
key personnel. No other assets or liabilities were acquired. The Company has
allocated the $250,000 as follows: brand name $50,000, Workforce: $50,000 and
goodwill: $150,000. The amortization period for each item is five years. RTC is
incorporated in the State of Maryland and operates as a full service technical
marketing, sales and consulting firm specializing in electronic communication.
On September 28, 1999 the Company raised additional equity through the issue of
160,000 Common Stock for $156,175 cash.
In the three months ended December 31, 1999 the Company raised additional equity
through issuing Common Stock pursuant to Regulation S promulgated under the
Securities Act of 1933, as amended. The Company issued 2,998,120 shares for
$2,297,340 to non US persons representing a mixture of cash and services
provided to the Company.
In the three months ended March 31, 2000 the Company incurred professional fees
and expenses in relation to an equity offering of a new class of securities,
designated Class A Common Stock par value $.001, of which 11,165,763 were issued
on April 5, 2000 pursuant to Regulation S promulgated under the Securities Act
of 1933, as amended.
8
<PAGE>
ITEM 2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULT OF OPERATIONS FOR THE PERIOD ENDED MARCH 31, 2000
This Form 10-Q contains certain forward looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended and Section 21E of the
Securities Exchange Act of 1934, as amended. The forward looking statements
involve risks and uncertainties that could cause actual results to differ
materially from those expressed in, or implied by, the forward looking
statements. Factors that might cause such a difference include, but are not
limited to, those relating to: general economic conditions in which the Company
operates, dependence on suppliers, third party manufacturers and channels of
distribution; customer and product concentration; fluctuations in customer
demand, maintaining access to external sources of capital; ability to execute
management's margin improvement; overall management of the Company's expansion;
and other risk factors detailed from time to time in the Company's filings with
the Securities and Exchange Commission.
RESULTS OF OPERATIONS
COMPARISON OF THIRD QUARTER AND FIRST NINE MONTHS OF 1999/2000 TO EQUIVALENT
PERIODS IN 1998/1999
The Company's financial year end is June 30. The third quarter therefore refers
to the three months ended March 31, 2000 and the first nine months refers to the
nine months ended March 31, 2000.
NET REVENUE
Revenues increased by $1,119,477 from $395,523 for the three months ended March
31, 1999 to $1,515,00 for the three months ended March 31, 2000, an increase of
183%.
The increase is due to increased volume of sales in the period.
The third quarter of 1999 show the continued development of the Company. For the
nine months ended March 31, 2000, revenues totalled $4,976,488, an increase of
$4,548,965 from $427,523 for the nine month period ended March 31, 1999, an
increase of 1064%
The individual divisions of the Company showed revenue growth for the quarter.
Easy IP Limited contributed net revenues for the three months ended March 31,
2000 of $626,418 this being the third full quarter of contribution since
acquisition in April 1999 with no revenues for the three months ended March 31,
1999.
RTC Inc. contributed net revenues of $92,101 for the three months ended March
31, 2000 this being an acquisition in August 1999, with no revenues for the
three months ended March 31, 1999.
The commercial security division in Mexborough contributed net revenues of
$204,499 for the three months ended March 31, 2000.
The defense division in Blandford contributed net revenues of $1,004,293 for the
three months ended March 31, 2000 with no revenues for the three months ended
March 31, 1999.
The air conditioning subsidiary, Chunlan Limited, contributed net revenues of
$110,423 for the three months ended March 31, 2000 with no revenues for the
three months ended March 31, 1999.
9
<PAGE>
GROSS PROFIT
Gross profit for the three months ended March 31, 2000 increased to $436,858
compared with the three months ended March 31, 1999 of $217,952, an increase of
100%. The nine month period ended March 31, 2000 showed a gross profit of
$1,376,688 compared with a gross profit of $249,952 for the nine months ended
March 31, 1999, an increase of 450% This increase was due to the increased
volume of sales.
SELLING AND ADMINISTRATIVE EXPENSES
Selling and administrative expenses increased by $797,645 from $765,074 for the
three months ended March 31, 1999 to $1,562,719 for the three months ended March
31, 2000, an increase of 104%. Selling and administrative expenses increased by
$3,450,877 from $1,274,282 for the nine months ended March 31, 1999 to
$4,725,159 for the nine months ended March 31, 2000, an increase of 271%.
The increase was due to the Company's continuing expansion plans; employing more
staff, the increased overheads associated with the additional offices opened and
additional overheads to service the increased sales. Wages and salaries
increased from $108,704 for the three months ended March 31, 1999 to $739,651
for the three months ended March 31, 2000, an increase of 580%. Advertising and
sales promotions increased from $0 for the three months ended March 31, 1999 to
$72,721 in the three months ended March 31, 2000. Motor expenses increased from
$44,111 for the three months ended March 31, 1999 to $371,712 for the three
months ended March 31, 2000, an increase of 742% due to the increase in the
number of employees employed in the period.
AMORTIZATION OF INTANGIBLE ASSETS
The amount of amortization of intangible assets has increased by $37,890 in the
three months ended March 31, 2000 from $0 in the three months ended March 31,
1999. The charge relates to the goodwill and other intangible assets associated
with the acquisitions of RTC Inc and Easy IP Limited.
INTEREST EXPENSE
The interest expense increased to $26,808 in the three months ended March 31,
2000 from $17,013 in the three months ended March 31, 1999 and to $122,137 in
the nine months ended March 31, 2000 from $58,991 in the nine months ended March
31, 1999. The increase was due to obtaining additional lines of bank credit in
the period.
10
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Net cash used in operations during the nine months ended March 31, 2000 amounted
to $(1,359,885) and consisted of the $(3,661,711) net loss decreased by the
$2,301,826 decrease in working capital and other non cash items.
Accounts payable and accruals were a source of funding to the extent of
$2,621,266.
Accounts receivable used $108,258 of funds due to increased revenues.
The Company has a credit facility with National Westminster Bank of $560,000
repayable on demand. By informal agreement with the bank, the Company has been
permitted to borrow in excess of this amount on a demand basis. As of March 31,
2000, the Company owed $1,284,254 to the bank under such facility.
INVESTING ACTIVITIES
Capital expenditure of $617,843 for the three months ended March 31, 2000
consisted primarily of fixed asset additions.
LIQUIDITY
The Company has to date not generated positive cash flow from operations.
Accordingly, the Company has required additional capital to fund activities and
to provide for increased working capital requirements which arise from increased
sales activities. Since June 30, 1999, the Company's working capital
requirements have been met by collections of accounts receivable and by
borrowings under the revolving credit facility together with additional sales of
common stock. The Company completed an additional equity raise on April 5, 2000,
pursuant to Regulation S promulgated under the Securities Act of 1933, as
amended, in which 11,165,763 shares of a new class of securities, designated
Class A Common Stock par value $0.01, were issued to non US persons for
$26,797,831.
ITEM 3 QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company does not invest in risk sensitive instruments, such as derivative
financial instruments, other financial instruments or derivative commodity
instruments, either for trading or non trading purposes. Most of the Company's
activities are conducted in the United Kingdom in British Pounds Sterling; a
smaller part of its activities are conducted in the United States through the
Company's subsidiary, RTC, Inc., in United States Dollars. The Pound Sterling to
Dollar exchange rate has remained stable for the past few years at about 1 Pound
to 1.6 Dollars. Variations in the Pound Sterling to Dollar exchange rate could
effect a proportional change in asset value and income.
11
<PAGE>
PART II - OTHER INFORMATION
---------------------------
ITEM 1 LEGAL PROCEEDINGS
None.
ITEM 2 CHANGES IN SECURITIES AND USE OF PROCEEDS
None.
ITEM 3 DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Effective February 7, 2000, the Company's shareholders adopted an amendment to
the Certificate of Incorporation which increased the number of shares of Common
Stock $.01 par value the Company is authorized to issue to 50,000,000, and added
a new class of stock consisting of 50,000,000 shares of Class A Common Stock. On
or about January 16, 2000, such amendments were proposed to the shareholders by
the Company's Board of Directors, and approved by the written consents of the
holders of 9,681,820 shares of Common Stock, which represented approximately 54%
of the Company's outstanding Common Stock. An Information Statement on Schedule
14-C (which included the text of the Certificate of Amendment to the Certificate
of Incorporation of the Company) was filed on February 7, 2000, and was mailed
to each of the holders of record of the Company's Common Stock, but no proxies
or other vote of shareholders was requested. The Certificate of Designations
describing the terms of the Class A Common Stock is attached as exhibit 4.0.
Article 2.6 (Quorum and Required Vote) of the by-laws of the Company were
amended on 28 March 2000. The amended and restated by-laws of the Company are
attached as exhibit 3.2.
ITEM 5 OTHER INFORMATION
None.
ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits.
Exhibit No. Exhibit
- ----------- -------
3.2 By-laws of the Company as amended through March 28, 2000
4 Certificate of Designations of Class A Common Stock
27 Financial Data Schedule
b. Reports on Form 8-K
No reports on Form 8-K were filed by the Registrant for the period.
12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EUROTELECOM COMMUNICATIONS, INC.
(REGISTRANT)
Date: May 19, 2000 By: /S/ David Linell
-----------------------
David Linell
Chief Financial Officer
13
<PAGE>
INDEX TO EXHIBITS
3.2 By-laws of the Company as amended through March 28, 2000
4 Certificate of Designations of Class A Common Stock
27 Financial Data Schedule
14
BY-LAWS OF EUROTELECOM COMMUNICATIONS, INC.
BY-LAWS
OF
EUROTELECOM COMMUNICATIONS, INC.
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE AND AGENT
The registered office of the Company shall be located at Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, State of
Delaware 19801. The name of the registered agent of the Company at such location
shall be The Corporation Trust Company.
1.2 OTHER OFFICES
The Board of Directors may at any time establish other offices at any place
within or without the State of Delaware as the business of the Company may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or without the State
of Delaware as may be designated by the Board of Directors. In the absence of
any such designation. stockholders meetings shall be held at the registered
office of the Company.
2.2 ANNUAL MEETINGS
The annual meeting of stockholders shall be held each year on a date and at a
time designated by the Board of Directors. Such annual meetings shall be held
for the purpose of electing directors and for the transaction of such other
business as may properly come before the meeting.
2.3 SPECIAL MEETINGS
Special meetings of the stockholders may be called at any time for any purpose
by the board of directors, the Chairman of the Board, the President, or by the
holders of record of at least one-third of the issued and outstanding shares of
stock entitled to vote thereat.
2.4 NOTICE OF STOCKHOLDER'S MEETINGS
All notices of meetings of stockholders shall be in writing and shall be sent or
otherwise given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting. The
notice shall specify 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.
Notice of any meeting of stockholders, if mailed, is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his address
as it appears on the records of the Company. An affidavit of the Secretary or an
<PAGE>
Assistant Secretary or of the transfer agent of the Company that the notice has
been given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
2.5 WAIVER OF NOTICE
Whenever notice is required to be given to any stockholder under any provision
of the General Corporation Law of Delaware or of the Certificate of
Incorporation or these By-Laws, a written waiver thereof, signed by the
stockholder entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a stockholder at a meeting
shall constitute a waiver of notice of such meeting, except when such
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at.
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice unless so required by the Certificate
of Incorporation or these By-laws.
2.6 QUORUM AND REQUIRED VOTE
Except as otherwise required by statute or by the Certificate of Incorporation,
the holders of one-third of the stock issued and outstanding and entitled to
vote, whether present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business. If,
however, such quorum is not present or represented at any meeting of the
stockholders, then the stockholders of a majority of the shares entitled to vote
thereat, present in person or represented in proxy, or the Chairman of the
meeting, shall have power to adjourn the meeting to another time and place in
accordance with Section 2.7 below. Except as otherwise required by statute or by
the Certificate of Incorporation, the affirmative vote of a majority of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders. Where a
separate vote by class constitute a quorum of such class, and the affirmative
vote of a majority of shares in such class present in person or represented by
proxy at the meeting shall be the act of such class, except as otherwise
required by statute or by the Certificate of Incorporation.
2.7 ADJOURNED MEETINGS
When 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. At the adjourned meeting, the Company
may transact any business that might have been transacted at the original
meeting. If the adjournment is for more than thirty (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.
2.8 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required to be taken at any annual or special meeting of stockholders
of a corporation, or any action that may be taken at any annual or special
meeting of such stockholders may be taken without a meeting, without prior
notice, and without a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted.
<PAGE>
Prompt notice of the taking of the corporate action without a meting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing. If the action which is consented to is such as would have
required the filing of a certificate under any Section of the General
Corporation Law of Delaware, if such action had been voted on by stockholders at
a meeting thereof, then the certificate filed under such Section shall state, in
lieu of any statement required by such Section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
2.9 RECORD DATE FOR STOCKHOLDER NOTICES AND ACTIONS
In order that the Company may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to express consent to corporate action in writing without a meeting, 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 (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the Board of Directors does not so fix a record date:
(i) 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
(ii) the record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is necessary, shall be the day on which the first written consent
is expressed; and
(iii) the record date for determining stockholders for any other purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a
meting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
2.10 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 a written proxy, signed by
the stockholder and filed with the Secretary of the Company, but no such proxy
shall be voted or acted upon after three (3) years from its date, unless the
proxy provides for a longer period. A proxy shall be deemed signed if the
stockholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the stockholder or the
stockholders attorney-in-fact. The revocability of a proxy that states on its
face that it is irrevocable shall be governed by the provisions of section 212
Cc) of the General Corporation Law of Delaware.
<PAGE>
2.11 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of a corporation shall prepare
and make, at least ten (10) 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 (10) 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 entire time
thereof, and may be inspected by the stockholder who is present.
2.12 ELECTION OF DIRECTORS
The election of directors does not need to be by written ballot.
2.13 CONDUCT OF MEETINGS
Meetings of the stockholders shall be presided over by the Chairman of the
Board, if any, or, in his absence, by the President, if present, or, in the
absence of both, by a Vice President or, if none of the foregoing is in office
and present and acting, by a Chairman to be chosen by a majority of the shares
entitled to vote who are present, in person or by proxy. The Secretary of the
Company, or in his absence, an Assistant Secretary, shall act as Secretary of
every meeting, but if neither the Secretary nor an Assistant Secretary is
present, the Chairman of the meeting shall appoint a Secretary of the meeting.
The order of business at all meetings of the stockholders shall be determined by
the Chairman of the meeting.
2.14 APPOINTMENT OF INSPECTORS
The Board of Directors, in advance of any meeting, may, but need not, appoint
one or more inspectors, who need not be stockholders to act at the meeting or
any adjournment thereof. If an inspector or inspectors have not been previously
appointed, the Chairman of the meeting may, and upon the request of any
shareholder or proxy shall, appoint one or more inspectors at the meeting. In
case any person who may be appointed as an inspector fails to appear or act, the
vacancy may be filled by appointment made at the meeting by the Chairman. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power-of each, the shares of stock represented at the meting, the
existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine when the polls shall close, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the Chairman of the meeting or any stockholder,
the inspector or inspectors, if any, shall make a report in writing of any
challenge, question, or matter determined by him or them and execute a
certificate of any fact found by him or them.
ARTICLE III
DIRECTORS
3.1
Subject to the provisions of the General Corporation Law of Delaware and any
limitations in the Certificate of Incorporation, the business and affairs of the
Company shall be managed and all corporate powers shall be exercised by or under
the direction of the Board of Directors.
<PAGE>
3.2 NUMBER OF DIRECTORS
The authorized number of directors shall be fixed at eight (8) and may be
changed by the Board of Directors from time to time. No reduction of the
authorized number of directors shall have the effect of removing any director
before that director's term of office expires, unless such director earlier
resigns or is removed from office.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE
Except as provided in Section 3.5 below, directors shall be elected at each
annual meeting of stockholders. Directors need not be stockholders. Each
director shall hold office until his successor is elected and qualified or until
his earlier resignation or removal.
3.4 RESIGNATION OR RENEWAL
A director may resign at any time by written notice to the Company. Such
resignation shall take effect as of the date of receipt of such notice or at any
later time specified in such notice; and, unless otherwise specified in such
notice, the acceptance of resignation shall not be necessary to make it
effective. Any director or the entire Board of Directors may be removed, with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of directors. Whenever the holders of any class or series are
entitled to elect one or more directors, this provision shall apply in respect
to the removal without cause of a director so elected, to the vote of the
holders of the outstanding shares of that class or series and not to the vote of
the outstanding shares as a whole.
3.5 VACANCIES
Vacancies and newly created directorships may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director, or by the stockholders. Whenever the holders of any class or classes
of stock or series thereof are entitled to elect one or more directors by the
provisions of the Certificate of Incorporation, vacancies and newly created
directorships of such class or classes or series may be filled by a majority of
the directors elected by such class or classes or series thereof then in office,
or by a sole remaining director so elected, or by the stockholders of such class
or series of stock.
If at any time, the Company shall 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 these By--laws, or may apply to the Court of
Chancery for a decree summarily ordering an election as provided in Section 211
of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created directorship, the
directors then in office constitute less than a majority of the whole board (as
constituted immediately prior to any such increase) then the Court of Chancery
may, upon application of any stockholder or stockholders holding at least ten
(10) percent of the total number of the shares at the time outstanding having
the right to vote for such directors, summarily order an election to be held to
fill any such vacancies or newly created directorships, or to replace the
directors chosen by the directors then in office as aforesaid, which election
shall be governed by the provisions of Section 211 of the General Corporation
Law of Delaware as far as applicable.
<PAGE>
3.6 COMPENSATION
The Board of Directors shall have the authority to fix the compensation of
directors.
ARTICLE IV
MEETINGS OF DIRECTORS
4.1 PLACE OF MEETINGS
The Board of Directors of the Company may hold its meetings either within or
without the State of Delaware.
4.2 REGULAR MEETINGS
Regular meetings of the Board of Directors may be held at such time and at such
place as shall from time to time be determined by the Board of Directors and
publicized among all the directors. A notice of each regular meeting need not be
given.
4.3 SPECIAL MEETINGS
Special meetings of the Board of Directors for any purpose may be called at any
time by the Chairman of the Board, the President, any Vice President, the
Secretary or any two (2) directors. Notice of the time and place of special
meetings shall be delivered personally or by telephone to each director or sent
by first--class mail or telegram, charges prepaid, addressed to each director at
that directors address as it is shown on the records of the Company. If the
notice is mailed, it shall be deposited in the United States mail at least four
(4) days before the time of the holding of the meeting. If the notice is
delivered personally or by telephone or by telegram, it shall be delivered
personally or by telephone or to the telegraph company at least forty-eight (48)
hours before the time of the holding of the meeting. Any oral notice given
personally or by telephone may be communicated either to the director or to a
person at the office of the director who the person giving the notice has reason
to believe will promptly communicate it to the director. The notice need not
specify the purpose of the meeting.
4.4 QUORUM AND REQUIRED VOTE
At all meetings of the Board of Directors, a majority of the authorized number
of directors shall constitute a quorum for the transaction of business (except
that, when only one director is authorized, one director shall constitute a
quorum) and the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law or by the Certificate of
Incorporation or these By--laws. If a quorum is not present at any meeting of
the Board of Directors, then the directors present thereat may adjourn the
meeting to another time and place without notice other than announcement at the
meeting, until a quorum is present.
4.5 MEETINGS BY TELEPHONE
Members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear and talk to
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
<PAGE>
4.6 WAIVER OF NOTICE
Whenever notice is required to be given to any director under any provision of
the General Corporation Law of Delaware or of the Certificate of Incorporation
or these By--laws, a written waiver thereof, signed by the director entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except when such director attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors need be specified in any written
waiver of notice.
4.7 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if all members of the Board of
Directors consent thereto in writing and such document is filed with the minutes
of proceedings of the Board of Directors.
ARTICLE V
COMMITTEES OF DIRECTORS
5.1 ESTABLISHMENT AND AUTHORITY
The Board of Directors may, by resolution passed by a majority of the whole
board, designate one or more committees, with each committee to consist of one
or more of the directors of the Company. 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. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Company, and may authorize the seal of the Company to be affixed to all papers
that may require it: but no such committee shall have the power or authority to
(i) amend the Certificate of Incorporation (except that a committee may, to the
extent authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the Board of Directors as provided in Section 151(a)
of the General Corporations Law of Delaware, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Company or the conversion into,
or the exchange of such shares for, shares of any other class or classes or any
other series of the same or any other class or classes of stock of the Company
or fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series), (ii) adopt an agreement of merger or
consolidation under Sections 251 or 252 of the General Corporation Law of
Delaware, (iii) recommend to the stockholders the sale, lease or exchange of all
or substantially all of the Company's property and assets, (iv) recommend to the
stockholders a dissolution of the Company or a revocation of a dissolution, or
(v) amend the By--laws of the Company: and, unless the board resolution
establishing the committee, the By--laws, or the Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock, or to adopt a
certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
<PAGE>
5.2 MEETINGS AND ACTIONS OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and taken in
accordance with, the provision, of Article IV of these By-laws, with such
changes in the context of those By-laws as are necessary to substitute the
committee and its members for the Board of Directors and its members: provided,
however that notice of regular and special meetings of committees shall also be
given to all alternate members, who shall have the right to attend all meetings
of the committee. Each committee may adopt rules for the governance of such
committee not inconsistent with the provisions of these By-laws or any
resolution of the Board of Directors.
ARTICLE VI
OFFICERS
6.1 ELECTION OF OFFICERS
The officers of the Company shall be appointed by the Board of Directors and
shall serve subject to its direction and control. The officers of the Company
shall be a President, one or more Vice Presidents, a Secretary, and a Chief
Financial Officer. The Company may also have, at the discretion of the Board of
Directors, a Chairman of the Board, a Chief Executive Officer, a Treasurer,
Assistant Secretaries, Assistant Treasurers, and any such other officers as may
be determined by the Board of Directors. Any Vice President or other Assistant
officer shall exercise all the powers of the officer to which they are an
assistant. Any number of offices may be held by the same person.
6.2 TERM OF OFFICE AND COMPENSATION
The term of office and the compensation of each officer and the manner and time
of the payment of such compensation shall be determined by the Board of
Directors from time to time in its sole discretion, subject to the rights, if
any, of such officer under contract of employment with the Company. The
appointment of any officer shall not of itself create any contractual right of
employment. Each officer shall hold his office until his successor is elected
and qualified or until his earlier resignation or removal.
6.3 RESIGNATION OR REMOVAL
Any officer may resign at any time by giving written notice to the Company. Such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified in such notice, and, unless otherwise specified in such
notice, the acceptance of the resignation shall not be necessary to make it
effective. Any officer may be removed, either with or without cause, by the
Board of Directors or by any officer to whom such power of removal may be
delegated by the Board of Directors.
6.4 VACANCIES
Any vacancy occurring in any office of the Company by death, resignation,
removal, or otherwise shall be filled by the Board of Directors.
6.5 CHAIRMAN OF THE BOARD
The Chairman of the Board, if such an officer be elected, shall, if present,
preside at meetings of the Board of Directors and exercise and perform such
other powers and duties as may from time to time be assigned to him by the Board
of Directors.
<PAGE>
6.6 PRESIDENT
Subject to such supervisory powers, if any, as may be given by the Board of
Directors to the Chairman of the Board or the Chief Executive Officer, if there
be such an officer, the President shall have general supervision, direction, and
control of the business and the officers of the Company. He shall preside at all
meetings of the shareholders and, in the absence or nonexistence of a Chairman
of the Board, at all meetings of the Board of Directors. He shall have the
general powers and duties of management usually vested in the office of
President of a corporation and shall have such other powers and duties as may be
prescribed by the Board of Directors.
6.7 VICE PRESIDENT
The titles, powers, and duties of the Vice President or Vice Presidents shall be
as prescribed by the Board of Directors. In the absence or disability of the
President, the Vice President, if any, in order of their rank as fixed by the
Board of Directors or, if not ranked, a 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 by the Board of
Directors, the President, the Chairman of the Board, if any, and the Chief
Executive Officer, if any.
6.8 SECRETARY
The Secretary shall keep or cause to be kept, at the principal executive office
of the Company or such other place as the Board of Directors may direct, a book
of minutes of all meetings and actions of directors, committees of directors,
and stockholders. The minutes shall show the time and place of each meeting,
whether regular or special (and, if special, how authorized and 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 thereof.
The Secretary shall keep, or cause to be kept, at the principal executive office
of the Company or at the office of the company' a transfer agent or registrar,
as determined by resolution of the Board of Directors, a share register, or a
duplicate share register, showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates evidencing such shares, 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 of Directors required to be given by statute or by
these By--laws. He shall keep the seal of the Company, 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 of Directors, the President, the Chairman of the
Board, if any, and the Chief Executive Officer, if any.
6.9 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 Company, including accounts of its assets,
liabilities, receipts, disbursement, gains, losses, capital, retained earnings,
and shares.
<PAGE>
The Chief Financial Officer shall deposit all money and other valuables in the
name and to the credit of the Company with such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the Company
as may be ordered by the Board of Directors, shall render to the President and
directors, whenever they request it, an account of all of his transactions as
Chief Financial Officer and of the financial condition of the Company, and shall
have such other powers and perform such other duties as may be prescribed by the
Board of Directors, the president, the Chairman of the Board, if any, and the
Chief Executive Officer, if any.
6.10 APPROVAL OF LOANS TO OFFICERS
The Company may lend money to, or guarantee any obligation of, or otherwise
assist any officer or other employee of the Company or of its subsidiary,
including any officer or employee who is a director of the Company or its
subsidiary, whenever, in the judgment of the directors, such loan, guaranty or
assistance may reasonably be expected to benefit the Company. The loan, guaranty
or other assistance may be with or without interest and may be unsecured, or
secured in such manner as the Board of Directors shall approve, including,
without limitation, a pledge of shares of stock of the Company. Nothing in this
Section shall be deemed to deny, limit or restrict the powers of guaranty or
warranty of the Company at common law or under any statute.
6.11 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
From time to time, the Board of Directors shall determine by resolution which
person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the Company, and which person or persons may enter
into any contract or execute any instrument in the name of and on behalf of the
Company. Such authority may be general or confined to specific instances. Unless
so authorized or ratified by the Board of Directors or within the agency power
of an officer, no officer, agent or employee shall have any power or authority
to bind the Company by any contract or engagement or to pledge its credit or to
render it liable for any purpose or for any amount.
ARTICLE VII
INDEMNIFICATION OF AGENTS
7.1 STANDARD IN NON-DERIVATIVE PROCEEDINGS
The Company shall 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, and
whether external or internal to the Company (other than a judicial action by or
in the right of the Company) by reason of the fact that he is or was a director,
officer, employee, trustee, or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee, trustee, or agent of
another corporation, partnership, joint venture, trust or other enterprise (all
such persons are hereafter referred to as "Agent"), against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
or any appeal therein 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 Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nob 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 Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
<PAGE>
7.2 STANDARD IN DERIVATIVE SUITS
The Company shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed judicial action or suit
by or in the right of the Company to procure a judgment in its favor by reason
of the fact that he is or was an Agent of the Company against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense, settlement, or appeal of such action or suit 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 Company and 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 Company unless and only to the
extent that the Court of Chancery or the court in which such action or suit 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.
7.3 INDEMNIFICATION OF SUCCESSFUL PARTY
Notwithstanding the other provisions of this Article, to the extent that an
Agent of the Company has been successful on the merits or otherwise, including
without limitation the dismissal of an action without prejudice or the
settlement of an action without admission of liability, in defense of any
action, suit, or proceeding referred to in Sections 7.1 and 7.2 above, or in
defense of any claim, issue, or matter therein, or an appeal from any such
action, suit, proceeding, claim, or matter, such Agent shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
7.4 CONDITIONS OF INDEMNIFICATION
Any indemnification under Sections 7.1 and 7.2 of this Article (unless ordered
by a court) shall be made by the Company 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 7.1 and 7.2 of this Article. Such determination shall be made (1) by
the Board of Directors by a majority vote of a quorum consisting surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued. 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 any employee
benefit plan; and references to "serving at the request of the Company" shall
include any service as a director, officer. employee, trustee, or agent of the.
Company which imposes duties on, or involves services by, such director,
officer, employee, trustee, 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 Company" as referred to in this
Section.
<PAGE>
7.9 CONTINUING RIGHT
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
7.10 SAVINGS CLAUSE
If this Article or any portion thereof shall be invalidated by any court of
competent jurisdiction, the remaining provisions hereof shall nevertheless
remain in full force and effect and the Company shall indemnify each Agent
hereunder to the full extent permitted by any remaining portion of this Article
that shall not have been invalidated or by any other applicable law.
7.11 SPECIAL LIMITATIONS ON LIABILITY OF DIRECTORS
No director of the Company shall be personally liable to the Company or its
stockholders for monetary damages arising out of or resulting from any breach of
his fiduciary duty as a director in connection with any act or omission
occurring subsequent to the effective date of this provision as part of the
Certificate of Incorporation of the Company: provided that this provision shall
not in any case eliminate or limit any such liability of a director arising out
of or resulting from (a) a breach by such director of his duty of loyalty to the
Company or to its stockholders, (b) any act or omission of such director not in
good faith or which involves intentional misconduct or a knowing violation of
law, (c) any payment of a dividend on or any purchase or redemption of the
capital stock of the company or other transaction in violation of Section 174 of
the General Corporation Law of Delaware, or (d) any transaction from which such
director derived an improper personal benefit.
ARTICLE VIII
RECORDS AND INSPECTION RIGHTS
8.1 MAINTENANCE OF RECORDS
The Company shall, either at its principal executive office or at such place or
places as designated by the Board of Directors, keep a record of its
shareholders, listing their names and addresses and the number and class of
shares held by each shareholder, a stock ledger, copies of the Certificate of
Incorporation, as amended, a copy of these By-laws, as amended minute books,
accounting books, and other records. Any records maintained by the Company in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time.
8.2 INSPECTION BY STOCKHOLDERS
Any stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Companys stock
ledger, a list of its stockholders, and its other books and records and to make
copies of extracts therefrom. A proper purpose shall mean a purpose reasonably
related to such persons interest as a stockholder. In every instance where an
attorney or other agent is the person who seeks the right to inspection, the
demand under oath shall be accompanied by a power of attorney or such other
writing that authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the Company at its
registered office in Delaware or at its principal place of business.
<PAGE>
8.3 INSPECTION BY DIRECTORS
Any director shall have the right to examine the company'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. The Court of Chancery is hereby vested
with the exclusive jurisdiction to determine whether a director is entitled to
the inspection sought. The Court may similarly order the Company to permit the
director to inspect any and all to make copies or extracts therefrom. The Court
may, in its discretion, prescribe any limitations or conditions with reference
to the inspection, or award such other and further relief as the Court may deem
just and proper.
ARTICLE IX
SUNDRY PROVISIONS
9.1 SHARES HELD BY THE COMPANY
Shares of stock of other companies which stand in the name of this Company may
be voted or represented and all rights incident thereto may be exercised on
behalf of this Company by any officer of the Company who has been authorized to
do so by resolution of the Board of Directors.
9.2 STOCK CERTIFICATES
The shares of a corporation shall be represented by certificates, provided that
the Board of Directors of the Company may provide by resolution or resolutions
that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Company.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate signed by, or
in the name of the company by the Chairman or Vice Chairman of the Board of
Directors, or the President, or Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary or such
corporation representing the number of shares registered in certificate form.
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 has ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the Company
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
9.3 LEGENDS ON CERTIFICATES
If the Company is authorized to issue more than one class of stock or more than
one series of any class, then the powers, the designations, the preferences, and
the relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the Company shall issue to represent such
class or series of stock: provided, however, that, except as otherwise provided
in section 202 of the General Corporation Law of Delaware, in lieu of the
foregoing requirements there may be set forth on the face or back of the
certificate that the Company shall issue to represent such class or series of
stock a statement that the Company will furnish without charge to each
stockholder who so requests the powers, the designations, the preferences, and
the relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
<PAGE>
9.4 LOST CERTIFICATES
The Company may issue a new certificate of stock or uncertificated share in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Company may require the owner of the lost, stolen
or destroyed certificate, or his legal representative, to give the Company 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 or uncertificated shares.
9.5 CORPORATE SEAL
The corporate seal, if any, shall be in such form as the Board of Directors
shall prescribe. The corporate seal may be affixed originally or may be
reproduced in any manner. Duplicate seals may be kept as required.
9.6 STOCK TRANSFER AGREEMENTS
The Company shall have power to enter into and perform any agreement with any
number of shareholders of any one or more classes of stock of the Company to
restrict the transfer of shares of stock of the company of any one or more
classes owned by such stockholders in any manner not prohibited by the General
Corporation Law of Delaware.
9.7 REGISTERED STOCKHOLDERS
The Company shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to vote
as such owner, shall be entitled to hold liable for calls and assessments the
person registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of another person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
ARTICLE X
CONSTRUCTION OF BY-LAWS
10.1 BY-LAW PROVISIONS ADDITIONAL AND SUPPLEMENTED TO PROVISIONS OF LAW
All restrictions, limitations, requirements and other provisions of these
By-laws shall be construed, insofar as possible, as supplemental and additional
to all provisions of law applicable to the subject matter thereof and shall be
fully complied with in addition to the said provisions of law unless such
compliance shall be illegal.
10.2 BY-LAW PROVISIONS CONTRARY TO OR INCONSISTENT WITH PROVISIONS OF LAW
Any article, section, subsection, subdivision, sentence, clause or phrase of
these By-laws which shall be contrary to or inconsistent with any applicable
provision of law shall not apply so long as said provisions of law shall remain
in effect, but such result shall not affect the validity or applicability of any
other portion of these By-laws, it being hereby declared that these By-laws, and
each article, section, subsection, subdivision, sentence, clause or phrase
thereof, would have been adopted irrespective of the fact that any one or more
articles, sections, subsections, subdivisions, sentences, clauses or phrases is
or are illegal.
<PAGE>
ARTICLE XI
AMENDMENTS
These By-laws may be amended or repealed by the Board of Directors or by the
stockholders: provided that the determination of the stockholders shall be
controlling and may not be subsequently reversed or altered except by the
subsequent action of the stockholders.
CERTIFICATE OF THE DESIGNATIONS, POWERS,
PREFERENCES AND RIGHTS
OF THE
CLASS A COMMON STOCK
(par value $.01 per share)
of
EUROTELECOM COMMUNICATIONS, INC.
a Delaware Corporation
----------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
----------
The undersigned DOES HEREBY CERTIFY that the following resolution was
duly adopted by the Board of Directors (the "Board of Directors") of EuroTelecom
Communications, Inc., a Delaware corporation (the "Corporation"), in accordance
with the provisions of Section 151 of the General Corporation Law of the State
of Delaware:
RESOLVED, that there be, and hereby is, created out of the class of
50,000,000 shares of the Class A Common Stock of the Corporation, $.01 par value
per share, a series of Class A Common Stock with the following designations,
powers, preferences and relative, participating, optional or other special
rights, qualifications, limitations or restrictions (this instrument hereinafter
referred to as the "Designation"):
1. NUMBER OF SHARES AND DESIGNATIONS. All 50,000,000 shares of the
Class A Common Stock of the Corporation, $.01 par value per share, are hereby
constituted as a single series constituting the entire class of the Class A
Common Stock of the Corporation, and such single series constituting the entire
class is hereby designated as Class A Common Stock (the "Class A Stock").
2. GENERAL POWERS, RIGHTS AND PROVISIONS. The Class A Stock and the
Common Stock, par value $.01 per share of the Corporation (the "Common Stock")
shall, except as set forth in this Designation, be identical in all respects
(including, without limitation, with respect to dividends, liquidations and,
except as otherwise provided by law, voting rights).
3. RESTRICTIONS ON TRANSFER. To the extent lawful, the shares of Class
A Stock will be subject to the restrictions that such shares of Class A Stock
may not be (i) offered, sold, transferred or assigned to any "U.S. persons" or
to or for the account or benefit of any "U.S. persons," or (ii) offered or sold
in any transaction that does not constitute an "offshore transaction" (the
transactions described in clauses (i) and (ii) of this sentence are hereinafter
referred to as "Prohibited Transactions"); provided, however, that a Prohibited
<PAGE>
Transaction shall not include any issue, offer, sale, transfer or assignment of
Class A Stock made (A) by the Corporation or (B) whether or not by the
Corporation, in connection with (x) the merger or consolidation of the
Corporation, (y) any exchange, conversion, reclassification or recapitalization
of all or any portion of the Corporation's securities, or (z) any offer to
purchase all or any portion of the outstanding shares of Class A Stock
(including, without limitation, pursuant to a tender offer or exchange offer)
that is made available to all holders of Class A Stock. The terms "U.S. persons"
and "offshore transaction" as used herein have the respective meanings given to
them in Rule 902 of Regulation S, as amended from time to time, promulgated
under the Securities Act of 1933, as amended from time to time, and if such
Regulation is no longer in effect, such terms shall have the respective meanings
given to them in such Regulation immediately prior to the date such Regulation
is no longer in effect.
4. REDEMPTION.
(a) In the event any shares of Class A Stock are offered,
sold, transferred or assigned in a Prohibited Transaction, unless prohibited by
applicable law or regulation, such offer, sale, transfer or assignment shall be
valid but the Corporation shall have the right (but not the obligation) to
redeem such shares of Class A Stock from the Person ("Person" means any
individual, firm, corporation, limited liability company, partnership, joint
venture, trust, unincorporated organization or other entity or any governmental
body or subdivision, agency, commission or authority thereof), that acquired
such shares in the Prohibited Transaction (to the extent such Person is the then
holder of such shares) at a price (the "Redemption Price") equal to the "fair
market value" (as defined below) of such shares of Class A Stock. The "fair
market value" of shares of Class A Stock acquired in a Prohibited Transaction
shall be determined by the Board of Directors and shall be equal to the lower of
(I) the price paid for the shares of Class A Stock in the Prohibited Transaction
and (II) (a) the average of the closing bid and offer prices of the shares of
Class A Stock on the London Stock Exchange's Alternative Investment Market
("AIM"), as published in the AIM section of the Daily Official List of the
London Stock Exchange (or any successor official journal), over the ten (10)
consecutive London Business Days (as defined below) ending five (5) days prior
to the Redemption Date (as defined in Section 5 (a) below) or (b) if the Board
of Directors determines that AIM is no longer the principal British market on
which the shares of Class A Stock are quoted, then the average closing bid and
offer prices of the shares of Class A Stock on the principal British market, as
determined by the Board of Directors, on which the shares of Class A Stock are
quoted, as published in the official journal (whether in written or electronic
form) regulating the closing prices of such market, over the ten (10)
consecutive London Business Days ending five (5) days prior to the Redemption
Date, or (c) if the Board of Directors determines that there exists no principal
British trading market for the shares of Class A Stock, the book value of the
shares of Class A Stock on the last day of the fiscal quarter of the Corporation
immediately preceding the Redemption Date, as determined by the Board of
Directors; provided, however, that if such Prohibited Transaction was effected
pursuant to a gift, bequest or other transaction in which no consideration was
2
<PAGE>
paid or in which consideration can not be established, "fair market value" shall
be determined pursuant to (II) above. As used herein, "London Business Days"
shall mean days on which shares are quoted on the AIM, or if the AIM is not then
the principal British Market on which shares of Class A Stock are quoted, days
on which shares are quoted on such other principal British market, as determined
by the Board of Directors, to then be the principal British market on which
shares of Class A Stock are quoted. Any determination by the Board of Directors
under this Section 4 shall be final, binding and conclusive absent manifest
error.
(b) Notwithstanding the Corporation's right of redemption
under subsection (a) above, the Corporation shall not redeem any shares of Class
A Stock if after giving effect to such redemption, the Corporation would not
have outstanding one or more shares of one or more classes or series of stock,
which share, or shares together, have full voting powers.
5. REDEMPTION PROCEDURE.
(a) REDEMPTION NOTICE. At least ten (10) days prior to the redemption
date designated by the Corporation (the "Redemption Date"), written notice (a
"Redemption Notice") shall be delivered by the Corporation to the holder of
Class A Stock from whom the Corporation seeks to redeem shares of Class A Stock
on such Redemption Date (the "Redeeming Holder"). The Redemption Notice shall
state:
(i) the number of shares of Class A Stock to be
redeemed from such Redeeming Holder;
(ii) the Redemption Date and the Redemption
Price;
(iii) the identity of the bank or trust company in
which an account for the deposit of the
Redemption Price is to be established and
maintained; and
(iv) the manner and place designated for the
Redeeming Holder to surrender to the
Corporation the certificates representing
the shares of Class A Stock to be redeemed
in exchange for the Redemption Price.
(b) DELIVERIES OF STOCK CERTIFICATES. On or before the
Redemption Date, the Redeeming Holder shall surrender to the Corporation the
certificate or certificates representing the shares of Class A Stock to be
redeemed, in the manner and the place designated in the Redemption Notice, and
thereupon the Redemption Price for those shares shall be payable on the
Redemption Date to the order of the person whose name appears on that
certificate or certificates, and each surrendered certificate shall be canceled
and retired. In the event that less than all of the shares of Class A Stock
represented by a certificate surrendered for redemption are redeemed as
aforesaid, a new certificate or certificates shall be issued representing the
unredeemed shares.
3
<PAGE>
(c) CESSATION OF RIGHTS. If on the Redemption Date the
Redemption Price is either paid or made available for payment through the
arrangement specified in clause (d) below, then notwithstanding that
certificates evidencing any of the shares of Class A Stock so elected to be
redeemed shall not have been surrendered, all rights with respect to the
redeemed shares of Class A Stock shall forthwith after the Redemption Date
terminate, except for the right of the Redeeming Holder to receive the
Redemption Price without interest upon surrender of the certificate or
certificates representing the shares of Class A Stock that have been redeemed,
subject to applicable law. If the Corporation shall default in the payment of
the Redemption Price, then, with respect to all shares of Class A Stock for
which the Redemption Price shall not have been paid, all rights shall remain in
effect with respect to such shares until the Corporation shall pay the
Redemption Price.
(d) DEPOSIT OF FUNDS FOR REDEMPTION. On or prior to the
Redemption Date, the Corporation shall deposit in a segregated trust account
with any bank or trust company designated by it a sum equal to the aggregate
Redemption Price of all shares of Class A Stock to be redeemed, with irrevocable
instructions and authority to the bank or trust company to pay, or deliver on or
after the Redemption Date or prior thereto, the Redemption Price to the
Redeeming Holder upon the surrender of the share certificates. From and after
the Redemption Date, if such deposit shall have been made, the shares of Class A
Stock called for redemption shall be redeemed and shall after such redemption be
canceled. The deposit shall constitute full payment of the redeemed shares of
Class A Stock to their holders, and from and after the Redemption Date the
shares shall be deemed to be no longer outstanding, and the holders thereof
shall cease to be stockholders with respect thereto except for the right to
receive from such designated bank or trust company payment of the Redemption
Price of the shares, without interest, upon surrender of the certificates
therefor. Any funds so deposited and unclaimed at the end of one year from the
Redemption Date shall be released or repaid to the Corporation, after which time
the holder of the shares redeemed shall be entitled to receive payment of the
Redemption Price only from the Corporation.
5. ANTI-DILUTION PROVISIONS.
(a) If the Corporation at any time or from time to time
subdivides or combines the outstanding shares of Common Stock or declares a
dividend or any other distribution (including any dividend payable in shares of
Common Stock (or payable in securities convertible into or exercisable or
exchangeable for shares of Common Stock)) on the outstanding shares of the
Common Stock or effects any similar transaction with respect to the Common
Stock, then contemporaneously therewith, the Corporation will proportionately
subdivide or combine the outstanding shares of the Class A Stock or declare an
identical dividend or other distribution on the outstanding shares of the Class
A Stock, or effect such other similar transaction with respect to the Class A
Stock; provided that, in the case of any dividend payable in shares of Common
Stock (or payable in securities convertible into or exercisable or exchangeable
for shares of Common Stock), the dividend on the Class A Stock shall be payable
in the shares of Class A Stock (or payable in securities convertible into or
exercisable or exchangeable for shares of the Class A Stock).
4
<PAGE>
(b) The Corporation will not, at any time or from time to
time, subdivide or combine the outstanding shares of Class A Stock or declare a
dividend or any other distribution (including any dividend payable in shares of
Class A Stock (or payable in securities convertible into or exercisable or
exchangeable for shares of Class A Stock)) on the outstanding shares of the
Class A Stock or effect any similar transaction with respect to the Class A
Stock, unless, contemporaneously therewith, the Corporation proportionately
subdivides or combines the outstanding shares of the Common Stock or declares an
identical dividend or other distribution on the outstanding shares of the Common
Stock, or effects such other similar transaction with respect to the Common
Stock; provided that, in the case of any dividend payable in shares of Class A
Stock (or payable in securities convertible into or exercisable or exchangeable
for shares of Class A Stock), the foregoing prohibition under this subsection
(b) shall require that the Corporation will not declare such dividend, unless,
contemporaneously therewith, the Corporation declares a similar dividend on the
Common Stock which is payable in shares of Common Stock (or payable in
securities convertible into or exercisable or exchangeable for shares of Common
Stock).
6. REISSUANCE. Shares of Class A Stock which have been redeemed or
canceled may be reissued by the Corporation as shares of Class A Stock.
5
<PAGE>
IN WITNESS WHEREOF, EuroTelecom Communications, Inc. has caused this
Designation to be executed this 24th day of March, 2000.
EUROTELECOM COMMUNICATIONS, INC.
BY: /S/ PHILIP DERRY
----------------------------------
Name: Philip Derry
Title: President
<TABLE> <S> <C>
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<FISCAL-YEAR-END> JUN-30-2000
<PERIOD-START> JUL-01-1999
<PERIOD-END> MAR-31-2000
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0
0
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