<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 0)*
VOXCOM HOLDINGS, INC.
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(Name of Issuer)
Common Stock, Par Value $0.0001
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(Title of Class of Securities)
928957 10 9
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(CUSIP Number)
Jasper Resources Ltd
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
April 6, 1999
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(Date of Event which Requires Filing of this Settlement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. [_]
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 928957 10 9 Page 2 of 5 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jasper Resources Ltd.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
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7 SOLE VOTING POWER
Number of 7,000,000
Shares
Beneficially --------------------------------------------------------
Owned by
Each 8 SHARED VOTING POWER
Reporting
Person -0-
With
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9 SOLE DISPOSITIVE POWER
7,000,000
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10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,000,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30%
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14 TYPE OF REPORTING PERSON*
CO
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<PAGE>
Item 1. Security and Issuer.
This statement relates to shares of Common Stock, par value $0.0001 per
share, of Voxcom Holdings, Inc., a Nevada corporation (the "Issuer"), with
principal executive offices at 8115 Preston Road, Eighth Floor - East, Dallas,
Texas 75225.
Item 2. Identity and Background.
This statement is filed with respect to the ownership of 7,000,000 shares
of the Issuer's Common Stock. The following information is provided regarding
the owner:
(a) Name: Jasper Resources Ltd.
(b) Business Address: R/Joaquim
Tavora, 98 Centro
Telemaca, Borba, Parana, Brazil 84261-100
(c) Principal Occupation: Investments
(d) Registrant has not, during the past five years, been convicted in any
criminal proceeding (excluding traffic violations and similar
misdemeanors).
(e) Registrant has not, during the past five years, been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction or been subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation
with respect to such laws.
(f) Registrant is a British Virgin Islands corporation.
Item 3. Source and Amount of Funds, or Other Consideration.
The source of funds is Registrant's working capital.
Item 4. Purpose of Transaction.
The purpose of the transactions in such shares has been to acquire a
proprietary stake in and assist in the financing of a growing company that can
compete in the market for ancillary computer equipment.
Registrant has no present plan or proposal which would relate to or result
in: (a) the acquisition of additional securities of the Issuer; (b) any
extraordinary corporate transaction involving the Issuer; (c) a sale or transfer
of a material amount of assets of the Issuer or its subsidiaries; (d) any change
in the Board of Directors of the Issuer; (e) any material change in the Issuer's
capitalization or dividend policy; (f) any other material change in the Issuer's
business
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or corporate structure; (g) any change in the Issuer's Articles of Incorporation
or Bylaws which may impede the acquisition of control of the Issuer; (h) cause
any securities of the Issuer to be delisted from the NASDAQ; (i) any class of
equity securities of the Issuer becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities act of 1933; or (j)
any action similar to those enumerated above.
Item 5. Interests in Securities of the Issuer.
(a) 7,000,000 shares of Common Stock (30% of fully diluted shares
outstanding).
(b) 7,000,000 shares - sole power to vote and dispose.
(c) There have been no other transactions in the Registrant's securities
within the past 60 days.
(d) No other person has the right to receive or the power to direct
dividends from securities or the proceeds of the sale of the
securities of the Issuer.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Registrant has invested $12,660,000 in the common stock of Registrant,
pursuant to the documents attached as exhibits to this Schedule 13D. Pursuant to
those agreements, Registrant was granted a license to act as Distributor for the
Issuer's MAXpc product in Germany and rights of first refusal for the remainder
of Europe. In addition, the Issuer's board of directors will be expanded to nine
members, consisting of the four existing directors, three representatives of the
investor and two independent directors, of which one each will be named by
Registrant and the Issuer. Various provisions in the restated bylaws will
prohibit Issuer from issuing new securities without the full approval of the
Board. Other arrangements are set forth in detail in the attached exhibits.
<PAGE>
Item 7. Material to be Filed as Exhibits.
(1) Stock Purchase Agreement dated February 23, 1999 to purchase Series B
Preferred Stock
(2) Assignment dated March 26, 1999
(3) Stock Purchase Agreement dated March 26, 1999 for the purchase of
4,000,000 shares of Common Stock
(4) Distributorship Agreement
(5) Voting Agreement
(6) Restated Bylaws of Registrant
<PAGE>
Signature
After reasonable inquiry and to the best of my information and belief, I
certify that the information set forth in this statement is true, complete, and
correct.
April 13, 1999 Jasper Resources Ltd.
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Date /s/ Brahil Santos
By: Brahil Santos, Authorized Agent
<PAGE>
Exhibit 1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, made and entered into as of February 23,
1999, by and among Donald G. McLellan, Trustee (hereinafter referred to as the
"Buyer") and the Holders of the Company's Series B Preferred Stock set forth on
the signature page hereof (the "Holders") (hereinafter together referred to as
the "Sellers").
W I T N E S S E T H:
WHEREAS, the Sellers own all of the outstanding shares of Series B
Preferred Stock, par value $0.0001 (hereinafter referred to as the "Shares") of
VOXCOM HOLDINGS, INC., a Nevada corporation (hereinafter referred to as the
"Company"); and
WHEREAS, the Sellers desire to sell the Shares to Buyer and Buyer desires
to purchase the Shares on the terms and subject to the conditions set forth
herein;
NOW THEREFORE, in consideration of the premises and the mutual covenants
set forth below and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the parties hereto do hereby agree as follows:
I.
PURCHASE AND SALE OF SHARES
SECTION 1.01 Purchase and Sale of Shares. Subject to the terms and
---------------------------
conditions set forth herein, effective the date on which all transactions
described herein are completed and closed (the "Closing Date") Seller shall sell
to the Buyer, and the Buyer shall purchase from Seller the Shares. Seller shall
transfer all of its right, title, and interest in and to the Shares being
conveyed by it to Buyer free and clear of any lien, security interest, or other
encumbrance of any nature and free of any claim by any person or entity to or
against the Shares.
SECTION 1.02 Purchase Price. The purchase price of the Shares
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(hereinafter referred to as the "Purchase Price") shall be the sum of $3,792,000
plus the payment of accumulated dividends to the date of Closing.
SECTION 1.03 Waiver. Sellers hereby waive any right to convert the
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Shares into the Common Stock of the Company and agree to deliver the Shares in
full at the Closing.
SECTION 1.04 Assignment. Sellers also hereby assign and convey to Buyer
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all rights they
<PAGE>
have under the Company registration statement on Form SB-2 covering the resale
of the Company's common stock.
II.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
SECTION 2.01 Brokers. Sellers have not made any agreement or arrangement
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which would result in any broker, finder, agent or other person or entity having
any claim for any fee, commission, or payment against Buyer or the Company in
connection with the negotiation or execution of this Agreement or the
consummation of the transactions contemplated hereby.
SECTION 2.02 Ownership of Shares. Sellers are the record and beneficial
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owners of all of the Shares and have good and valid title to such Shares free
and clear of any lien, security interest, or other encumbrance of any nature and
free of any claim by any person or entity to or against such Shares. Such
Shares are not subject to any option, right, proxy, voting agreement, voting
trust, or any other agreement, understanding, or arrangement affecting the
Shares.
SECTION 2.03 Authorization, etc. Sellers have the power, authority, and
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capacity to enter into this Agreement and to carry out the transactions
contemplated hereby, and this Agreement has been duly executed and delivered by
Sellers.
SECTION 2.04 No Consent Required. No consent, approval, order or
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authorization of, or registration, declaration or filing with any governmental
or public body or authority or other party on the part of Sellers is required
for such Sellers to execute and deliver this Agreement and perform their
obligations hereunder.
III.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to, and agrees with, the Sellers as
follows:
SECTION 3.01 Brokers. Buyer has not made any agreement or arrangement
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which would result in any broker, finder, agent or other person or entity having
any claim for any fee, commission, or payment against any Seller in connection
with the negotiation or execution of this Agreement or the consummation of the
transactions contemplated hereby.
SECTION 3.02 Authorization, etc. Buyer has the power, authority, and
------------------
capacity to enter into this Agreement and to carry out the transactions
contemplated hereby, and this Agreement has been duly executed and delivered by
Buyer.
SECTION 3.03 No Consent Required. No consent, approval, order or
-------------------
authorization of, or registration, declaration or filing with any governmental
or public body or authority is required for Buyer to execute and deliver this
Agreement and perform its obligations hereunder.
<PAGE>
IV.
INDEMNIFICATION
SECTION 4.01 Buyer's Claims. The Sellers shall indemnify and hold
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harmless Buyer, its successors and assigns, and their respective officers,
directors, employees, shareholders, agents, and affiliates against any and all
damages, claims, losses, liabilities, and expenses actually incurred by Buyer,
including, without limitation, legal, accounting, and other expenses, which may
arise out of any breach of any of the representations or warranties made in this
Agreement by the Sellers (hereinafter referred to as a "Claim" or "Claims").
SECTION 4.02 Sellers' Claim. Buyer shall indemnify and hold harmless
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each Seller and its assigns, agents, and affiliates against any and all damages,
claims, losses, liabilities and expenses, including without limitation, legal
accounting, and other expenses actually incurred by Sellers, which may arise out
of any breach of any of the representations or warranties made in this Agreement
by Buyer, and for any liabilities or obligations of the Company now existing or
arising hereafter.
V.
OTHER AGREEMENTS
SECTION 5.01 Operations. From the date hereof until the Closing, Sellers
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shall take no action involving the Company without the knowledge and consent of
Buyer, including, without limitation, any conversion of the Shares.
SECTION 5.02 Future Assistance. Each party hereto shall assist the
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others in fulfilling the intent and purposes of this Agreement and shall take
all such further action as shall be reasonably necessary to effectively convey
the Shares to Buyer and allow for the timely reporting of the transaction to all
governmental and taxing authorities.
VI.
MISCELLANEOUS
SECTION 6.01 Expenses. Each party hereto will pay its own expenses in
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connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated, and the Seller shall not charge any such
expenses to the Company.
SECTION 6.02 Survival of Agreements. All covenants, agreements,
----------------------
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the sale and delivery of the Shares pursuant
hereto.
SECTION 6.03 Certain Rules of Interpretation. Any information disclosed
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in any schedule attached hereto or any certificate furnished in connection
herewith shall be deemed disclosed wherever otherwise required, and for all
purposes, under this Agreement, whether or not specific
<PAGE>
reference was made thereto. Inclusion of any information in a schedule or
exhibit shall not be deemed an admission as to the materiality of such
information or otherwise alter or affect the provisions of the representation or
warranty to which the schedule or exhibit relates.
SECTION 6.04 Parties in Interest. All covenants and agreements contained
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in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not.
SECTION 6.05 LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEVADA.
SECTION 6.06 Entire Agreement. This Agreement constitutes the entire
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agreement of the parties with respect to the subject matter hereof and may not
be modified or amended except in writing.
SECTION 6.07 Counterparts. This Agreement, including all agreements
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executed and delivered hereunder, may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
SECTION 6.08 Time. Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, each of the Sellers and the Buyer has executed this
Agreement or caused this Agreement to be executed on its behalf by its duly
authorized representative, as of the day and year first above written.
SELLERS:
DOMINION CAPITAL FUND, LTD.
By: (Name illegible)
--------------------------------------------
Inter Caribbean Services (Bahamas) Ltd
Director
SOVEREIGN PARTNERS, LIMITED
PARTNERSHIP
By Southridge Capital Management LLC, GP
By: /s/ Stephen Hicks
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Stephen Hicks, President
<PAGE>
CANADIAN ADVANTAGE LIMITED
PARTNERSHIP
By: /s/ Mark Valentine
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Mark Valentine, President, VMH Management,
General Partner
BUYER:
/s/ Donald G. McLellan
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DONALD G. MCLELLAN, TRUSTEE
COMPANY:
VOXCOM HOLDINGS, INC.
By: /s/ Donald G. McLellan
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Donald G. McLellan, President
<PAGE>
EXHIBIT 2
ASSIGNMENT
FOR VALUE RECEIVED, Donald G. McLellan, Trustee ("Assignor"), hereby
assigns all of his right, title and interest in and to 316,000 shares of the
Series B Preferred Stock, par value $0.0001 per share (the "Shares") of Voxcom
Holdings, Inc., a Nevada corporation (the "Company"), together with the rights
under the Company's registration statement on Form SB-2 (the "Registration
Statement"), unto Jasper Resources Ltd. ("Assignee"), which the Assignor is
obtaining pursuant to the Stock Purchase Agreement attached hereto and
incorporated by reference.
Assignee agrees in exchange for such assignment as follows:
1. Assignee will fund in cash the sum of US $4,000,000 to be held and
disbursed pursuant to the Joint Escrow Instructions among the Company, the
Assignee and the escrow agent upon the closing of the transactions described in
the Joint Escrow Instructions attached as Exhibit A hereto. Assignor shall be
responsible to forward the funds required to acquire the Shares. It is
acknowledged that the funds payable to Assignor from the escrow will be reduced
by the fees to Jay Powell, Inlet Investments, Inc. and the escrow agent.
2. Assignee will agree to convert the Shares into 3,000,000 shares of the
Company's common stock, notwithstanding any different conversion rate set forth
in the Company's instruments governing the Series B Preferred Stock. The
Company's board of directors has approved the conversion rate described herein.
The 3,000,000 shares of common stock shall be fully registered and tradable
under the Registration Statement.
Dated: March 26, 1999
ASSIGNOR:
/s/ Donald G. McLellan
-----------------------------------
Donald G. McLellan, Trustee
ASSIGNEE:
Jasper Resources Ltd.
By: /s/ Brahil Santos
---------------------------------
Brahil Santos, Attorney-in-Fact
<PAGE>
COMPANY:
VOXCOM HOLDINGS, INC.
By: /s/ Donald G. McLellan
------------------------------------
Donald G. McLellan, President
<PAGE>
EXHIBIT 3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, made and entered into as of March 26, 1999,
by and among VOXCOM HOLDINGS, INC., a Nevada corporation (hereinafter referred
to as the "Seller" or the "Company"), MAXpc TECHNOLOGIES, INC., a wholly owned
subsidiary of Seller ("MAX") and Jasper Resources Ltd. (hereinafter referred to
as the "Buyer").
W I T N E S S E T H:
WHEREAS, the Seller is a corporation engaged in the manufacture and sale of
computer add-on equipment; and
WHEREAS, the Seller desires to sell 4,000,000 shares of its Common Stock,
par value ($0.0001) (the "Shares") to Buyer and Buyer desires to purchase the
Shares on the terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual covenants
set forth below and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the parties hereto do hereby agree as follows:
I.
PURCHASE AND SALE OF SHARES
SECTION 1.01 Purchase and Sale of Shares. Subject to the terms and
---------------------------
conditions set forth herein, effective the date on which all transactions
described herein are completed and closed (the "Closing Date") Seller shall
issue and sell to the Buyer, and the Buyer shall purchase from Seller the
Shares. Seller shall transfer all of its right, title, and interest in and to
the Shares being issued by it to Buyer free and clear of any lien, security
interest, or other encumbrance of any nature and free of any claim by any person
or entity to or against the Shares.
SECTION 1.02 Purchase Price. (a) The purchase price of the Shares
--------------
(hereinafter referred to as the "Purchase Price") shall be the sum of
$8,660,000, payable in cash at the Closing pursuant to the Joint Escrow
Instructions attached hereto as Exhibit D.
II.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
PART A. The Seller hereby represents and warrants to, and agrees with, the
Buyer as follows, which representations and warranties are joined in by MAX:
<PAGE>
SECTION 2.01 Organization; Qualification. The Company is a corporation
---------------------------
duly organized and validly existing under the laws of the State of Nevada and is
in good standing under such laws. The Company has all requisite corporate power
and authority to own, lease and operate its properties and assets, and to carry
on its business as presently conducted. The Company is qualified to do business
as a foreign corporation in each jurisdiction in which the ownership of its
property or the nature of its business requires such qualification, except where
failure to so qualify would not have a material adverse effect on the Company.
SECTION 2.02 Capitalization. The authorized capital stock of the Company
--------------
consists of (i) 25,000,000 nonassessable shares of Common Stock, $0.0001 par
value per share, of which approximately 7,800,000 are issued and (ii) 50,000,000
shares of Preferred Stock, $0.0001 par value per share, including (x) 80,000
shares of Series A, having an issue price of $800,000, all of which are
outstanding and (y) 350,000 shares of Series B, 316,000 of which are outstanding
as of the date hereof and will be converted into 3,000,000 shares of Common
Stock as of the Closing Date. All issued and outstanding shares of Company
stock have been duly authorized and validly issued and are fully paid and
nonassessable. The Company has sufficient authorized and unissued shares of
Common Stock as may be reasonably necessary to effect the conversion of the
Series B Preferred Stock and issue the Shares hereby. The Company has reserved
a total of 15,491,601 shares of common stock for issuance upon exercise of
outstanding Class A Warrants (4,839,101 shares at a $4.00 exercise price per
share), Class B Warrants (160,835 shares at a $20.00 exercise price per share)
warrants and options issued to employees and others to purchase 3,491,665
shares, 3,000,000 shares reserved for issuance upon exercise of Series B
Preferred Stock and 4,000,000 shares contemplated by this Agreement. Based upon
the foregoing, following the Closing, there will be issued and outstanding
23,297,000 shares of Common Stock on a fully diluted basis (assuming exercise
and conversion of all derivative securities, regardless of exercise or
conversion price), of which Buyer will own 7,000,000 shares (30%) on a fully
diluted basis.
SECTION 2.03 Authorization. The Company has all requisite corporate right,
-------------
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. All corporate action on the part of the
Company, its directors and stockholders necessary for (i) the authorization,
execution and delivery and performance of this Agreement by the Company, (ii)
the authorization, sale, issuance and delivery of the Shares by the Company and
(iii) the performance of the Company's obligations hereunder has been taken.
This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies, and to
limitations of public policy as they may apply to the indemnification provisions
set forth in this Agreement. Upon issuance and delivery pursuant to this
Agreement, the Shares will be validly issued, fully paid and nonassessable and
will be free of any liens or encumbrances except for those imposed by or on
behalf of the Buyer, its creditors or agents.
SECTION 2.04 No Conflict. The execution and delivery of this Agreement do
-----------
not, and the consummation of the transactions contemplated hereby will not,
conflict with, or result in any violation of, or default (with or without notice
or lapse of time, or both), or give rise to a right of termination, cancellation
or acceleration of any obligation or to a loss of a material benefit, under, any
provision of the Articles of Incorporation, and any amendments thereto, Bylaws,
and any amendments
<PAGE>
thereto of the Company or any material mortgage, indenture, lease or other
agreement or instrument, permit, concession, franchise, license, judgment,
order, decree statute, law, ordinance, rule or regulation applicable to the
Company, its properties or assets.
SECTION 2.05 Full Disclosure. There is no fact known to the Company (other
---------------
than general economic conditions known to the public generally) that has not
been publicly disclosed by the Company or disclosed in writing to the Purchaser
which could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise) or in the earnings, business affairs,
properties or assets of the Company, or (ii) could reasonably be expected to
materially and adversely affect the ability of the Company to perform its
obligations pursuant to this Agreement. The Company has registered its Common
Stock pursuant to Section 12 of the Securities Exchange Act of 1934 (the "1934
Act") and the Common Stock is listed and traded on the Nasdaq OTC Bulletin Board
Market. The Company has received no notice, either oral or written, with
respect to the continued eligibility of the Common Stock for such listing, and
the Company has maintained all requirements for the continuation of such
listing.
SECTION 2.06 Governmental Consent, etc. No consent, approval or
--------------------------
authorization of or designation, declaration or filing with any governmental
authority on the part of the Company is required in connection with the valid
execution and delivery of this Agreement, or the offer, sale or issuance of the
Shares, or the consummation of any other transaction contemplated hereby.
SECTION 2.07 SEC Reports. Since January 1, 1998, the Company has filed all
-----------
required forms, reports and documents with the SEC ("SEC Reports") required to
be filed by it pursuant to the federal securities laws and the SEC rules and
regulations thereunder, all of which have complied in all material respects with
all applicable requirements of the Securities Act of 1933 (the "1933 Act") and
the 1934 Act, and the rules and interpretive releases promulgated thereunder.
None of such SEC Reports, including without limitation any financial statements,
notes, or schedules included therein, at the time filed, contained nor contain,
any untrue statement of a material fact, or omitted or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Each of the consolidated balance sheets in or incorporated by
reference into the SEC Reports fairly presents the financial position of the
entity or entities to which it relates as of its date, and each of the related
consolidated statements of operations and retained earnings and cash flows or
equivalent statements in the SEC Reports (including any related notes and
schedules) fairly presents the results of operations, retained earnings and cash
flows, as the case may be, of the entity or entities to which it relates for the
period set forth therein (subject in the case of unaudited interim statements,
to normal year-end audit adjustments) in each case in accordance with generally-
accepted accounting principles applicable to the particular entity consistently
applied throughout the periods involved, except as may be noted therein; and
independent certified public accountants for the Company have rendered an
unqualified opinion with respect to each audited financial statement included in
the SEC Reports or, if qualified, such qualification is reasonably satisfactory
to the Company. The consolidated financial statements included or to be
included in the SEC Reports are hereinafter sometimes collectively referred to
as the "Financial Statements."
SECTION 2.08 Litigation. Except as disclosed in the SEC Reports, there is
----------
no action, proceeding or investigation pending, or to the Company's knowledge
threatened, against the
<PAGE>
Company which might result, either individually or in the aggregate, in any
material adverse change in the business, prospects, conditions, affairs or
operations of the Company. The Company is not a party to or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. There is no action, suit, proceeding or
investigation by the Company currently pending or which the Company currently
intends to initiate.
SECTION 2.09 Title to Assets. Except as set forth in the SEC Reports, the
---------------
Company has good and marketable title to all properties and material assets
described in the SEC Reports as owned by it, free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest other than such as
are not material to the business of the Company.
SECTION 2.10 Subsidiaries. Except as disclosed in the SEC Reports and the
------------
financial statements, the Company does not presently own or control, directly or
indirectly, any interest in any other corporation, partnership, association or
other business entity.
SECTION 2.11 Absence of Certain Changes. Since December 31, 1998, there
--------------------------
has been no material adverse change and no material adverse development in the
business, properties, operations, condition (financial or otherwise), or results
of operations of the Company, except as disclosed in the SEC Reports. Since
December 31, 1998, except as provided in the SEC Reports, the Company has not
(i) incurred or become subject to any material liabilities (absolute or
contingent) except liabilities incurred in the ordinary course of business
consistent with past practices; (ii) discharged or satisfied any material lien
or encumbrance or paid any material obligation or liability (absolute or
contingent), other than current liabilities paid in the ordinary course of
business consistent with past practices; (iii) declared or made any payment or
distribution of cash or other property to stockholders with respect to its
capital stock, or purchased or redeemed, or made any agreements to purchase or
redeem, any shares of its capital stock; (iv) sold, assigned or transferred any
other tangible assets, or canceled any debts or claims, except in the ordinary
course of business consistent with past practices; (v) suffered any substantial
losses or waived any rights of material value, whether or not in the ordinary
course of business, or suffered the loss of any material amount of existing
business; (vi) made any changes in employee compensation, except in the ordinary
course of business consistent with past practices; or (vii) experienced any
material problems with labor or management in connection with the terms and
conditions of their employment.
SECTION 2.12 No Directed Selling Efforts in Regard to this Transaction.
---------------------------------------------------------
The Company has not, and to the best of the Company's knowledge neither the
Buyer nor any distributor, if any, participating in the offering of the Shares
nor any person acting for the Company or any such distributor has conducted any
"directed selling efforts" as that term is defined in Rule 902 of Regulation S.
Such activity includes, without limitation, the mailing of printed material to
investors residing in the United States, the holding of promotional seminars in
the United States, the placement of advertisements with radio or television
stations broadcasting in the United States or in publications with a general
circulation in the United States, which discuss the offering of Shares. The
Company represents and warrants that the sale of the Shares is not part of a
plan or scheme to evade the registration provisions of the Act.
SECTION 2.13 Due Diligence. The Company has provided all information
-------------
requested by Buyer (as outlined in attached Exhibit E) concerning the business,
books and records of Buyer and
<PAGE>
its Subsidiaries. Such information is materially true and correct in all
respects, and does not fail to state any information required in order to make
the information provided not misleading. The Company knows of no information not
provided to Buyer in response to its requests.
SECTION 2.14 Leases. The Company and MAX are in material compliance with
------
all Leases to which they are a party or by which their properties are bound. An
estoppel from the lessors of such leases will be delivered at the Closing,
certifying that the leases are in full force and effect and free of any default.
III.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to, and agrees with, the Seller as
follows:
SECTION 3.01 Investment Representations
--------------------------
(a) The Buyer understands that the Shares have not been registered
under the 1933 Act in reliance upon applicable exemptions from the
registration requirements of the 1933 Act for sales to non-U.S. persons as
defined by SEC Regulation S, and is similarly exempt under state securities
laws, and that the Seller's reliance on such exemptions is predicated on
the Buyer's representations set forth herein.
(b) Buyer represents and warrants to the Company that (i) neither the
Buyer nor any of the investors on whose behalf the Buyer may purchase and
hold Shares (the "Investors") is a "U.S. person" as that term is defined in
Rule 902(k) of Regulation S, and neither the Buyer nor any Investor is an
entity organized or incorporated under the laws of any foreign jurisdiction
by any "U.S. person" principally for the purpose of investing in securities
not registered under the Act, unless the Buyer is or was organized or
incorporated by "U.S. persons" who are accredited investors (as defined in
Rule 501(a) under the Act) and who are not natural persons, estates or
trusts ("Institutional Investors"), and all owners of interests in such
entity who are "U.S. persons" are Institutional Investors, and not natural
persons, estates or trusts; (ii) the Shares were not offered to the Buyer
or to any Investor in the United States and at the time of execution of
this Agreement and of any offer to the Buyer or to the Investors to
purchase the Shares hereunder, the Buyer and each such Investor was
physically outside the United States; (iii) the Buyer is purchasing the
Shares for its own account and not on behalf of or for the benefit of any
U.S. person and the sale and resale of the Shares have not been prearranged
with any buyer in the United States; (iv) the Buyer hereby agrees that all
offers and sales of the Shares prior to the expiration of a period
commencing on the Closing of all Shares offered and ending one year
thereafter (the "Restricted Period") shall not be made to U.S. persons or
for the account or benefit of U.S. persons and shall otherwise be made in
compliance with the provisions of Regulation S.
<PAGE>
(c) The Buyer acknowledges and agrees that the Shares shall bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of any such Securities):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE SECURITIES COMMISSION OF ANY STATE. THEY ARE
BEING SOLD PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
REGULATION S PROMULGATED UNDER THE ACT, AND MAY NOT BE SOLD,
OFFERED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO
U.S. PERSONS (AS SUCH TERM IS DEFINED IN REGULATION S)
UNLESS AND UNTIL EITHER (A) SUCH SHARES ARE REGISTERED UNDER
THE APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR (B) AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION IS
OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.
(d) The Shares may not be offered or sold in the United States or to
U.S. persons unless the Shares have been registered under the 1933 Act or
an exemption for registration is available. The Shares are "restricted
securities" for purpose of SEC Rule 144. Hedging transactions in the
Shares may not be conducted unless in accordance with the 1933 Act.
SECTION 3.02 Brokers. Buyer has not made any agreement or arrangement
-------
which would result in any broker, finder, agent or other person or entity having
any claim for any fee, commission, or payment against any Seller in connection
with the negotiation or execution of this Agreement or the consummation of the
transactions contemplated hereby.
SECTION 3.03 Authorization, etc. Buyer has the power, authority, and
------------------
capacity to enter into this Agreement and to carry out the transactions
contemplated hereby, and this Agreement has been duly executed and delivered by
Buyer.
SECTION 3.04 No Consent Required. No consent, approval, order or
-------------------
authorization of, or registration, declaration or filing with any governmental
or public body or authority is required for Buyer to execute and deliver this
Agreement and perform its obligations hereunder.
SECTION 3.05 German Laws. The issuance and sale of the Shares hereby will
-----------
not violate aprovision of law applicable to Buyer, including, without
limitation, German securities laws.
<PAGE>
IV.
INDEMNIFICATION
SECTION 4.01 Buyer's Claims. The Seller shall indemnify and hold harmless
--------------
Buyer, its successors and assigns, and their respective officers, directors,
employees, shareholders, agents, attorneys and affiliates and the Escrow Agent
serving pursuant to Exhibit D, against any and all damages, claims, losses,
liabilities, and expenses actually incurred by Buyer, including, without
limitation, legal, accounting, and other expenses, which may arise out of any
breach of any of the covenants, representations or warranties made in Articles
II and V of this Agreement by the Sellers.
SECTION 4.02 Sellers' Claim. Buyer shall indemnify and hold harmless each
--------------
Seller and his assigns, agents, and affiliates against any and all damages,
claims, losses, liabilities and expenses, including without limitation, legal
accounting, and other expenses actually incurred by Sellers, which may arise out
of any breach of any of the covenants, representations or warranties made in
Articles III and V of this Agreement by Buyer.
V.
OTHER AGREEMENTS
SECTION 5.01 Future Assistance. Each party hereto shall assist the others
-----------------
in fulfilling the intent and purposes of this Agreement and shall take all such
further action as shall be reasonably necessary to effectively convey the Shares
to Buyer and allow for the timely reporting of the transaction to all
governmental and taxing authorities.
SECTION 5.02 Trading Market. Buyer shall take all actions and assume all
--------------
cost and expense necessary to enable Seller to list the Shares for trading on a
national or regional stock exchange in the Federal Republic of Germany.
SECTION 5.03 Distributor. Seller shall appoint Buyer or its designee to be
-----------
the exclusive distributor of Seller's products in the Republic of Germany
pursuant to the Distribution Agreement in the form attached hereto as Exhibit A.
Such agreement may be expanded to other European countries upon mutual agreement
of the parties.
SECTION 5.04 Corporate Governance.
--------------------
(a) Seller shall adopt a restatement of its Bylaws in the form
attached hereto as Exhibit B.
(b) Buyer, Larry Cahill, Lawrence R. Biggs, Jr., Vision Finance and
Management, and Donald G. McLellan of Seller shall execute the Voting
Agreement attached hereto as Exhibit C.
SECTION 5.05 Access and Reliance to Buyer. Buyer and its agents, counsel,
----------------------------
auditors, and other representatives shall be given access to all property,
assets, books and records, and contracts
<PAGE>
of the Seller to enable a complete investigation for the purpose of verifying
the accuracy of the representations and warranties set forth herein and
otherwise investigating the status of the business and the condition of the
Seller and its respective assets and liabilities; provided, however, that no
such investigation or the failure to make any investigation shall in any way
limit or affect the obligations or liabilities of the Seller hereunder and Buyer
shall be deemed to have relied upon the representations, warranties, and
covenants of the other parties contained herein. Buyer agrees that it will
maintain all information so gathered as confidential, will not reveal any of
such information to any third party or to any of its employees or agents who do
not need to know of such information in the performance of their duties, without
the express written consent of the other parties hereto, and will return all
such information if this Agreement is terminated. If Buyer discovers any
materially adverse information not previously actually known to Buyer, Buyer may
terminate this Agreement by providing written notice of termination to the other
parties hereto within ten business days of the date hereof.
SECTION 5.06 Interim Actions. Pending the Closing, Seller and MAX will
---------------
continue to operate in the usual and ordinary course of business and consistent
with past practice. Without limiting the generality of the foregoing, and
except as otherwise expressly provided in this Agreement, neither the Company
nor any of its Subsidiaries will, prior to the Effective Time, without the prior
written consent of Buyer (a) issue, sell or pledge, or authorize or propose the
issuance, sale or pledge of (i) additional shares of capital stock of any class,
or securities convertible into any such shares, or any rights, warrants or
options to acquire any such shares or other convertible securities, or (ii) any
other securities in respect of, in lieu of or in substitution for, capital stock
outstanding on the date hereof; (b) purchase or otherwise acquire, or propose to
purchase or otherwise acquire, any outstanding securities; (c) declare or pay
any dividend or distribution on any shares of its capital stock; (d) authorize,
recommend, propose or announce an intention to authorize, recommend or propose,
or enter into an agreement in principle or an agreement with respect to, any
merger, consolidation or business combination, any acquisition of a material
amount of assets or securities, any disposition of a material amount of assets
or securities or any material change in its capitalization, or any entry into a
material contract or any release or relinquishment of any material contract
rights, not in the ordinary course of business; (e) propose or adopt any
amendments to its charter or by-laws; (f) enter into, assign or terminate, or
amend in any material respect, any contract other than in the ordinary course of
business; (g) acquire, dispose of, encumber or relinquish any material asset
(other than sale of real properties at prices equal to or greater than their
carrying values); (h) waive, compromise or settle any right or claim that would
adversely affect the ownership, operation or value of any asset; (i) make any
capital expenditures other than in the ordinary course of business; (j) allow or
permit the expiration, termination or cancellation of any of the insurance
policies or coverages or surety bonds currently maintained by or on behalf of
the Company unless replaced with a policy, coverage or bond having substantially
the same coverage and similar terms and conditions; (k) increase, directly or
indirectly, the salary or other compensation of any officer or member of
management, enter into any employment agreement with any person or pay or enter
into any agreement to pay any bonuses or other extraordinary compensation to any
officer of the Company or its Subsidiaries or to any member of management or
other employees, or institute any general increase in rates of compensation for
its employees, or increase, directly or indirectly, any provisions or other
benefits of any of such persons; or (l) waive, settle or compromise any material
litigation or other claim on a basis materially adverse to the Company.
<PAGE>
SECTION 5.07 Technology. On or about the Closing Date, the Seller will
----------
enter into an agreement to acquire the source code to the MPact Technology and
"Chromatic Technology" and a license from ATI to use certain intellectual
property substantially in accordance with the terms of the Source Code Purchase
Agreement in the form attached as Exhibit F. In the event the Source Code
Purchase Agreement is not closed and the rights described therein not acquired
by the Closing Date of this Agreement, Buyer shall be excused from performance
of this Agreement.
SECTION 5.08 Protective Rights. The Company shall take no action for a
-----------------
period of three years with respect to its Series A Preferred Stock resulting in
any change in any of the terms, rights and preferences, any additional
issuances, the declaration of any dividends or distributions, or any redemptions
of the Series A Preferred Stock.
SECTION 5.09 Opinion. At the Closing, counsel for the Seller shall deliver
-------
to Buyer a legal opinion to the effect that:
(i) This Agreement is binding on and enforceable against the Seller
and MAX and has been duly approved.
(ii) The 3,000,000 shares acquired at the Closing from Donald G.
McLellan, Trustee, pursuant to the Assignment, are fully registered for
resale under a Form SB-2 registration statement.
(iii) The Source Code Purchase Agreement is binding on and
enforceable against the parties thereto.
SECTION 5.10 Registration. The shares issued pursuant to this Agreement
------------
shall be registered for resale in the United States pursuant to a Form S-3
registration statement that the Company will file as soon as practicable after
becoming eligible to use SEC Form S-3, which is anticipated to occur in July
1999. The Company will file such Form S-3 and use all commercially reasonable
efforts to have it declared effective as soon as practicable following review by
the Securities and Exchange Commission.
SECTION 5.11 Nevada Fair Price Provision. The Company waives the
---------------------------
applicability of Nevada Revised Statute 78.387 through 78.3792, inclusive, to
this Agreement and the transaction contemplated hereby.
SECTION 5.12 SEC Reports. Certain beneficial owners of Buyer may be
-----------
required to file reports with the SEC regarding their ownership of and
transactions in the Seller's common stock, including reports on Schedule 13D or
G and Forms 3, 4 and 5. The Company will assist Buyer and its principals in
completing these forms provided it is furnished with the information requested
to make such filings.
SECTION 5.13 Insurance. Seller shall provide that its existing policy of
---------
director and office liability insurance shall extend coverage to all persons
serving on the Board of Directors of the Company.
<PAGE>
SECTION 5.14 Divestitures. Seller represents that it has or is in the
-------------
process of divesting its subsidiaries Voxcom Systems, Inc., Home Business Group,
Inc., and AmeraPress, Inc. Seller agrees that none of the proceeds of the sale
of the Shares shall be used to repay any indebtedness of any such divested
subsidiary or to fund the costs of divestiture.
VI.
MISCELLANEOUS
SECTION 6.01 Expenses. Each party hereto will pay its own expenses in
--------
connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated. Seller shall pay out of the proceeds of the
Purchase Price deposited pursuant to the Joint Escrow Instructions the fees
payable to Jay Powell, Inlet Investments, Inc. and the Escrow Agent.
SECTION 6.02 Survival of Agreements. All covenants, agreements,
----------------------
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the sale and delivery of the Shares pursuant
hereto.
SECTION 6.03 Certain Rules of Interpretation. Any information disclosed in
-------------------------------
any schedule attached hereto or any certificate furnished in connection herewith
shall be deemed disclosed wherever otherwise required, and for all purposes,
under this Agreement, whether or not specific reference was made thereto.
Inclusion of any information in a schedule or exhibit shall not be deemed an
admission as to the materiality of such information or otherwise alter or affect
the provisions of the representation or warranty to which the schedule or
exhibit relates.
SECTION 6.04 Parties in Interest. All covenants and agreements contained in
-------------------
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
SECTION 6.05 Notices. All notices, requests, consents, or other
-------
communications hereunder shall be in writing and shall be delivered personally
or by courier or mailed by first class registered or certified mail, postage
prepaid, in either case addressed as follows:
(a) if to the Buyer
Jasper Resources Ltd.
________________________________
(b) if to the Seller
Voxcom Holdings, Inc.
8115 Preston Road
Suite 800 - East
Dallas, Texas 75225
Attention: Don McLellan
<PAGE>
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. Any such communication shall
be deemed given when actually delivered to the address indicated.
SECTION 6.06 LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS REGARDLESS
OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPALS OF CONFLICTS
OF LAWS THEREOF.
SECTION 6.07 Entire Agreement. This Agreement, along with the Schedules and
----------------
Exhibits attached hereto, constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified or amended except
in writing.
SECTION 6.08 Counterparts. This Agreement, including all agreements
------------
executed and delivered hereunder, may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
SECTION 6.09 Time. Time is of the essence of this Agreement.
----
IN WITNESS WHEREOF, each of the Sellers and the Buyer has executed this
Agreement or caused this Agreement to be executed on its behalf by its duly
authorized representative, as of the day and year first above written.
VOXCOM HOLDINGS, INC.
By: /s/ Donald G. McLellan
-------------------------------------
Donald G. McLellan, President
MAXpc TECHNOLOGIES, INC.
By: /s/ Donald G. McLellan
----------------------------------------
Donald G. McLellan, Vice President
Jasper Resources Ltd.
By: /s/ Brahil Santos
---------------------------------------------
Brahil Santos, Attorney-in-Fact
EXHIBITS ATTACHED AS EXHIBITS TO FORM 8-K
<PAGE>
EXHIBIT 4
MAXpc DISTRIBUTOR AGREEMENT
AGREEMENT made this 26th day of March, 1999, by and between MAXpc TECHNOLOGIES,
INC., a Texas corporation, with offices at 8115 Preston Road, Eighth Floor East,
Dallas, Texas 75225 ("MAX") and Jasper Resources LTD., a British Virgin Islands
corporation ("Distributor").
RECITALS
A. MAX warrants that it owns the worldwide, exclusive right and license
to manufacture and sell a multimedia computer add-in card bearing the
specifications set forth on attached Exhibit A, which it currently manufactures
and sells under the trademark/trade name "OOMPH", together with all
enhancements, upgrades, and modifications thereof (the card and all trademarks,
trade names and copyrights associated therewith herein referred to as the
"Product").
B. The parties desire that Distributor become the exclusive distributor
of the Product for MAX in the countries on the European continent identified at
Exhibit B (the "Territory").
AGREEMENT
1. Appointment. MAX hereby appoints Distributor as the exclusive
-----------
distributor for the Product in the Territory, to resell the Product to original
equipment manufacturers, other customers located within the Territory who are
providing the products for resale to merchants, wholesalers, and retailers
within the Territory, and directly to commercial and noncommercial final users.
2. Right of First Refusal. Distributor shall have the right of first
----------------------
refusal to be the exclusive distributor of the Product in the remainder of
Europe, including all constituent political subdivisions, as well as the States
of the former Soviet Union and South America.
3. Limitations on Exclusivity. Distributor shall not acquire any
--------------------------
right, title or interest in and to the MAX trademarks, trade names or
copyrights. In addition, Distributor's rights to the Products shall become
nonexclusive in the event Distributor shall fail to achieve the following
minimum sales volumes through no fault of MAX, including its inability to ship
such volumes in a timely manner.
<PAGE>
Calendar Quarter Ending Minimum Units
----------------------- -------------
March 31, 1999 0
July 31, 1999 1,000
September 30, 1999 2,000
March 31, 2000 3,000
June 30, 2000 4,000
Thereafter 4,500 units per quarter
4. Purchase Orders
---------------
a. Distributor shall purchase the Products from MAX by means of Purchase
Orders in the from set forth at Exhibit C.
b. Under the terms of a Purchase Order, MAX will ship all orders of the
Product to Distributor's distribution center, as set forth on each individual
purchase order, in compliance with the following delivery schedule:
Units Ordered Days to Delivery
------------- ----------------
Up to 300 21
More than 300 30
c. All shipments shall be D.D.P., unloaded upon delivery, distribution
center. Risk of loss shall pass to Distributor at the time Products are received
at the distribution center. Terms of payment shall be net amount due thirty (30)
days after received at distribution center. The parties' other burdens and
obligations with respect to delivery are governed by the Vienna Convention of
1980 (CISG), except for those for which the parties expressly contract,
including Section 17(c), infra, notwithstanding the signatory status of the
-----
country constituting the Territory.
d. To effect payment of invoices, Distributor shall deliver to MAX an
international letter of credit in the amount of each invoice, in a form to
comply with the International Chamber of Commerce Uniform Custom and Practices
for Documentary Credits. Such letter of credit shall enable MAX to draw thereon
on or after thirty (30) days from the date of shipment received at distribution
center.
e. All Purchase Orders to Distributor shall be based on a price reflected
in United States Dollars that is 20% below the lowest price charged to MAX's
distributors for purchases of similar quantities. Such price shall in no event
increase on future purchase orders for similar quantities.
f. Each Purchase Order shall clearly state the appropriate DVD Code
Number for the country for which copies of the Product are intended. It is
understood that the inclusion of a DVD Code Number shall not operate to widen
the scope of the Territory.
<PAGE>
g. All payments to MAX shall be payable in Dallas, Texas in United States
Dollars, and Distributor and its customers shall bear all risk of currency
fluctuations. MAX will bear the risk of inflation changes.
h. MAX shall reasonably inform Distributor of the delivery status of any
units ordered.
5. Duties of Distributor
---------------------
a. Distributor shall, at its expense, exercise commercially reasonable
efforts to optimize the sales potential of the Products in the Territory,
including that Distributor shall support, honor and perform all commercially
reasonable sales programs sponsored by MAX to the extent they are appropriate in
the Territory.
b. Distributor shall train its sales and service personnel to be
sufficiently knowledgeable about the Product to provide its use in the
Territory.
c. Distributor shall not engage in sales of any computer card that
competes with the Product in terms of its use and the functions offered thereon,
in the Territory.
d. Distributor shall furnish MAX with monthly sales reports and
projections of monthly sales for the ensuing three months, together with a long
range forecast of sales for the following nine months once a quarter.
e. Distributor shall, at its expense, provide for the establishment of
its sales hierarchy in the Territory, and shall design and translate in the
dominant language of each country in the Territory, the packaging materials and
instructions for the Product.
f. Distributor shall not be restricted from distributing non-competing
products within the Territory manufactured by competing companies.
6. Duties of MAX
-------------
a. MAX shall manufacture the Product in a good and workmanlike manner in
sufficient quantities to meet the delivery requirements and schedule set forth
in Section 4(b).
b. MAX shall honor all warranty claims in accordance with the warranty
policy attached hereto at Exhibit D. EXCEPT FOR THE WARRANTIES CONTAINED IN THE
COMPANY'S WARRANTY POLICY, MAX HEREBY DISCLAIMS ALL OTHER EXPRESS, STATUTORY AND
IMPLIED WARRANTIES APPLICABLE TO THE PRODUCTS AND OTHER ITEMS, INCLUDING,
WITHOUT LIMITATION, ALL IMPLIED WARRANTIES APPLICABLE TO THE PRODUCTS AND OTHER
ITEMS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE.
c. MAX shall provide technical training at its office in Dallas, Texas
for not more than
<PAGE>
ten (10) of Distributor's personnel not more often than fifteen (I 5) days each
calendar year.
d. MAX will provide (in English) all training manuals, literature and
video documentation it has developed for the product.
e. MAX will make a trainer available in the Territory to Distributor and
its customers, at no expense to MAX, to assist with technical and sales
training.
7. Representations. Each party represents and warrants to the other as
---------------
follows:
a. It has the corporate power and authority to enter into and perform
this Agreement.
b. This Agreement has been authorized and approved by all necessary
corporate actions.
c. This Agreement does not conflict with any other agreement or
instrument which either party or its property may be subject.
d. No government approval is required for the execution or performance of
this Agreement.
8. Confidentiality:
---------------
a. As used herein, the term "Confidential Information" means and includes
any and all of the following: All information or materials furnished by one
party to the other pursuant to this Agreement, including technical data,
customer lists, manufacturing processes, analysis, compilations, studies, or
other documents or records prepared by either party or on behalf, either party
which contains or otherwise reflects or are generated from such materials. The
term Confidential Information shall not include information which is (a) already
known by a recipient without an obligation of confidentiality other than this
Agreement, (b) publicly known or becomes known through no unauthorized act of
the receiving party, (c) rightfully received by a receiving party from a third
person who is not subject to a confidentially or fiduciary obligation with
respect to such information, (d) is required to be disclosed pursuant to a court
order, a rule or a regulation of a governmental agency, or (e) is independently
developed by a party.
b. Distributor agrees that, during the term of this Agreement, and for a
period of five years thereafter, without the prior written consent of MAX,
Distributor will not, directly or indirectly, for its own benefit or for the
benefit of another, disclose or reveal to any other person, firm, venture,
corporation or other business entity, any of the Confidential Information
delivered to it by MAX. Distributor agrees to use all such information solely
for the purpose of performing its obligations under this Agreement and to take
all actions reasonably necessary or appropriate to ensure that none of the
employees, officers, directors, partners, owners, agents or affiliates of
Distributor, discloses or reveals Confidential Information delivered to it by
MAX in any manner whatsoever except on behalf of Distributor and at its
discretion and under its control in the course of its performance of its
obligations under this Agreement and solely in strict compliance with each of
the limitations and other provisions hereof. Distributor will disclose
Confidential Information
<PAGE>
delivered to it by MAX only to those employees, agents or affiliates who need to
know such information in order to enable Distributor to comply with its
obligations under this Agreement.
c. MAX agrees that, during the term of this Agreement, and for a period
of five years thereafter, without the prior written consent of Distributor, MAX
will not, directly or indirectly, for its own benefit or for the benefit of
another, disclose or reveal to any other person, firm, venture, corporation or
other business entity, any of the Confidential Information delivered to it by
Distributor including any information related to Distributor's clients and
outlets. MAX agrees to use all such information solely for the purposes of
performing its obligations under this Agreement and to take all actions
reasonably necessary or appropriate to ensure that none of the employees,
officers, directors, partners, owners, agents or affiliates of MAX discloses or
reveals Confidential Information delivered to it by Distributor in any manner
whatsoever except on behalf of MAX and at its discretion and under its control
in the course of its performance of its obligations under this Agreement and
solely in strict compliance with each of the limitations and other provisions
hereof MAX will disclose Confidential Information delivered to it by Distributor
only to those employees, agents or affiliates who need to know such information
in order to enable MAX to comply with its obligations under this Agreement.
d. Upon the earlier of (1) the written request of MAX or Distributor, as
applicable, or (2) the expiration of the term of this Agreement, a receiving
party shall return all copies of such Confidential Information delivered to it
by the other party, and all derivatives thereof, to the other party or, if
directed by the other party, shall cause to be destroyed all copies of such
Confidential Information and such derivatives, and certify in writing to the
other party that such Confidential Information and derivatives have been
destroyed.
9. Intellectual Property Rights. Distributor acknowledges that MAX has
----------------------------
valuable and exclusive rights to patents, trademarks, trade names and copyrights
relative to MAX's products. The parties agree that Distributor may propose one
or more trade names for the Product for use in the Territory. Such name shall be
subject to MAX's approval and shall become the intellectual property of
Distributor if used. Distributor shall have the same right to use the additional
names as it does the OOMPH or successor trademarks and trade names as set forth
herein. A schedule of these patents, trademarks, trade names, and copyrights
along with the jurisdiction to which they apply pursuant to World Trade
Organization rules and regulations, is attached as Exhibit E.
10. Force Majeure. In no event shall the parties be liable to each other for
-------------
failure or delay in the performance of any obligations contained in this
Agreement or in any purchase order accepted hereunder by MAX, arising, directly
or indirectly from acts of God, unforeseeable circumstances, acts (including
delay or failure to act) of any governmental authority (de jure or de facto),
war (declared or undeclared), riot, revolution, priorities, fires, floods,
weather, strikes,labor disputes, sabotage, epidemics, factory shutdowns or
alternations, embargoes, delays or shortages in transportation, delay or
inability to obtain or procure labor, manufacturing facilities or materials, or
causes of any other kind beyond the reasonable control of the hindered party.
II. Independent Contractor.
----------------------
<PAGE>
a. Distributor is an independent contractor and is not the legal
representative or agent of MAX for any purpose.
b. MAX is an independent contractor and is not the legal representative
or agent of Distributor for any purpose.
c. The Products sold by MAX pursuant to this Agreement shall be purchased
by Distributor for its own account, payment to be made within thirty (30) days,
and the prices at which such Products are resold by Distributor shall be
determined solely by Distributor.
d. Distributor has no Del Credere obligations to MAX.
-----------
12. Sales and Similar Taxes. The prices specified in each purchase order
-----------------
accepted by MAX hereunder do not include any federal, state or local property,
license, privilege, business, occupation, stamp, documentary, transfer, sales,
use, excise, gross receipts, value added or other similar taxes which may or
hereafter be applicable to, measured by, or imposed upon:
a. The sale or transfer of the Products;
b. The value or use of the products; or
c. The performance of any services in this Agreement. except as is
required for Seller to fulfill its delivery obligations, except as may
be required pursuant to MAX's shipping and delivery obligations under
Vienna Convention of 1980 (CISG).
13. Duration and Termination
------------------------
a. Unless earlier terminated in accordance with the terms of this
Agreement, this Agreement shall commence as of the date of this Agreement and
shall remain in effect for a period ending December 31, 2001. This Agreement may
be renewed at the beginning of each year during the term of this Agreement for
an additional three (3) year term upon the written agreement of both parties
during the first month of the year. If either party falls to agree in writing to
such renewal, this Agreement shall not be renewed and shall continue only for
the balance of the remaining term. For purposes of this paragraph, a "year"
shall be deemed a "calendar year."
b. In addition to all other remedies provided by law, or specified in the
Agreement, MAX may, at its option, terminate this Agreement, and any outstanding
and unperformed purchase orders previously accepted by MAX hereunder, by mailing
written notice of such termination to Distributor, upon the occurrence of any of
the following events:
(1) The insolvency of Distributor;
(2) The filing of a voluntary or involuntary petition in
bankruptcy by, against or on behalf of Distributor;
<PAGE>
(3) The appointment of a receiver or trustee for all or
substantially all of the property of the Distributor;
(4) If Distributor otherwise commits an act of bankruptcy; or
any bankruptcy reorganization debt arrangement or other
proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding is instituted by,
against, or on behalf of Distributor;
(5) The breach or failure of Distributor to perform any of the
terms, conditions or covenants contained in this Agreement;
or
(6) The acquisition or control of Distributor, directly or
indirectly, by a competitor of MAX without the consent of
MAX which consent may be withheld in MAX's sole discretion.
c. Upon expiration of this Agreement, or upon its termination for any
reason whatsoever, Distributor shall immediately cease using MAX's intellectual
property. MAX shall continue to honor and provide warranty information to
Distributor's customers.
d. MAX shall repurchase Distributor's inventory of Products upon
expiration of this Agreement or upon its termination for any reason whatsoever,
at prices which are the same as those for which the inventory was originally
purchased by Distributor, shipped by Distributor E.X.W., no assistance in
loading. The foregoing price for the returned inventory shall be paid by MAX to
Distributor by means of an irrevocable sight letter of credit drawn on a U.S.
money center bank the date MAX receives the inventory.
e. It is further agreed that MAX and Distributor shall, following the
expiration of any termination of the Agreement, continue to perform all purchase
orders accepted by MAX prior to the date of such termination.
f. Distributor will be allowed to complete any outstanding purchase order
commitments it may have outstanding at time of termination.
14. Inspection of Records, Products and Other Items. During the term of this
------------------------------------------------
Agreement, Distributor shall maintain a log memorializing purchases and sales of
Products (the "Log") at its principal office. MAX, its employees and authorized
representatives, shall be entitled during business hours to inspect and copy all
of Distributor's Business Records and to inspect Products wherever located.
15. Amendments and Assignment of Agreement. This Agreement sets forth the
--------------------------------------
entire Agreement between the parties. All previous oral and written agreements
between the parties are hereby terminated and neither party shall have any
continuing obligation of any kind thereunder. This Agreement may be changed,
altered, or amended only by an Agreement in writing signed by both parties and
may not be assigned by Distributor, in whole or in part, without the prior
consent of MAX, which consent may be withheld by MAX in its sole discretion
except for any entity or
<PAGE>
person that is an affiliate of or controlled by Distributor. MAX shall have the
right to assign this Agreement without limitation. Subject to the foregoing
provisions, this Agreement shall be binding upon and inure to the benefit of the
successors, assigns and legal representatives of the parties hereto.
16. Notices. Except as otherwise provided in this Agreement, all writings,
notices, payments and reports required hereunder shall be sent by certified or
registered mail to the parties at their address specified below:
DISTRIBUTOR: To be provided within thirty (30) days
MAX: MAXpc Technologies, Inc. c/o Gary A. Raabe
8115 Preston Road, Eighth Floor East Dallas,
Texas 75225
17. Miscellaneous.
-------------
a. Expenses. Each party to this Agreement shall bear its own legal and
accounting expenses in connection with the transactions provided for herein.
Each of the parties hereto agrees to hold the other harmless from and against
any liability for broker's or finder's fees in connection with the purchase and
sale provided for herein arising out of the contracts, express or implied, which
may be asserted against the noncontracting parties.
b. Waivers. The failure of any party to act to enforce rights hereunder
shall not be deemed a waiver and shall not preclude enforcement of any rights
hereunder. No waiver of any term or provision of this Agreement on the part of a
party shall be effective for any purpose whatsoever unless such waiver is in
writing and signed by such party.
c. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS.
d. VENUE: THE PARTIES AGREE THAT ANY DISPUTE REGARDING THIS AGREEMENT
SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE TEXAS STATE COURTS IN AND
FOR DALLAS COUNTY, TEXAS, UNITED STATES OF AMERICA, AND THE PARTIES AGREE TO
SUBMIT TO THE PERSONAL AND EXCLUSIVE JURISDICTION AND VENUE OF THESE COURTS. e.
No Benefit to Others. The representations, warranties, covenants, and agreements
contained in this Agreement are for the sole benefit of the parties hereto and
their respective successors, permitted assigns, heirs, executors,
administrators, and legal representatives, and shall not be construed as
conferring and are not intended to confer any rights on any other persons.
f. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the, term hereof, such provision shall be fully severable. This Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and the remaining provisions hereof
<PAGE>
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
g. Indemnity. MAX will indemnify and hold harmless Distributor for any
and all claims relating to breach of MAXpc's warranty and strict liability or
breach of warranty related to products liability law of any jurisdiction in
which the goods may land in the stream of commerce.
h. No partnership. Nothing contained in this Agreement shall constitute
or be deemed to constitute a partnership between the parties.
i. Headings. The article and section headings contained in this Agreement
are for reference purposes only and shall not be deemed to be a part of this
Agreement or to affect the construction or interpretation of this Agreement.
j. Amendments. This Agreement may be amended or modified only by an
agreement in writing signed by all of the parties hereto.
k. Construction. Any alleged uncertainty or ambiguity in this Agreement
shall not be construed for or against a party based on attribution of drafting
to such party.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed, or through their duly authorized officers have duly
executed, this Agreement effective as of the date first written above.
MAXpc TECHNOLOGIES, INC.
By: /s/ Donald G. McLellan
-------------------------------
Donald G. McLellan, Vice President
JASPER RESOURCES LTD.
By: /s/Brahil Santos
----------------------------
Brahil Santos, Attorney-in-Fact
-------------------------------
<PAGE>
EXHIBIT 5
VOTING AGREEMENT
This Agreement is made as of March 26, 1999, by and among the undersigned
stockholders of VOXCOM HOLDINGS, INC., referred to in this Agreement as
"Holders," for the purpose of creating a Voting Agreement of the shares of
Voxcom Holdings, Inc., a Nevada corporation, sometimes referred to in this
Agreement as the "Company."
1. VOTING OF DIRECTORS. At each annual meeting of stockholders of the
-------------------
Company, the Holders who are parties hereto agree to vote their shares of common
stock or other voting security held by them to elect a board of directors of the
Company consisting of four members nominated by the management of the Company;
two members who are independent, non-management directors who each hold less
than 1% of the outstanding stock of the Company, one of whom shall be nominated
by management and one of whom shall be nominated by Jasper Resources Ltd.
("Jasper"); and three members who are nominated by Jasper. Pending the election
of the foregoing directors at the next annual meeting of stockholders, the
undersigned holders shall cause the Board of Directors to adopt a resolution
amending the bylaws in the form attached to the Stock Purchase Agreement between
Voxcom Holdings, Inc. and Jasper dated the date hereof, and the Board of
Directors of Voxcom shall adopt a resolution implementing the foregoing Board
composition by increasing the number of Board seats to nine and filling the
vacancies in the manner described above as though such persons were elected at
the annual meeting of stockholders, all in a manner as permitted by Section 3.11
of the Bylaws and Nevada law.
2. REMOVAL. No party to this Agreement shall ever vote his or its shares
-------
for the removal of any director chosen by the Holders in accordance with the
procedures described in Section 1 hereof.
3. TERMINATION OF AGREEMENT. This Voting Agreement shall terminate on
------------------------
the first to occur of either of the following:
(a) The consent of all parties hereto;
(b) Such time as the parties identified below as Jasper no longer
holds any shares of the Company; or
(c) Three years from the date of this Agreement.
Otherwise, this Voting Agreement shall be deemed to be coupled with an interest
and shall be irrevocable.
4. COPIES OF AGREEMENT. This Agreement may be executed in multiple
-------------------
counterparts
<PAGE>
but shall not otherwise be separable or divisible. Upon the execution of this
Agreement, the parties shall cause a copy of this Agreement to be filed in the
registered office of the Company. This Agreement shall be open to inspection in
the manner provided for inspection under the laws of the State of Nevada.
5. PLACE OF PERFORMANCE. THIS AGREEMENT IS EXECUTED AND ENTERED INTO
--------------------
AT DALLAS, TEXAS, AND IT IS MUTUALLY AGREED THAT THE PERFORMANCE OF ALL PARTS OF
THIS CONTRACT SHALL BE AT DALLAS, TEXAS.
6. GOVERNING LAW. THIS AGREEMENT IS INTENDED BY THE PARTIES TO BE
-------------
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA.
7. SEVERABILITY OF PROVISIONS. This Agreement shall not be severable or
--------------------------
divisible in any way, but it is specifically agreed that, if any provision
should be invalid, the invalidity shall not affect the validity of the remainder
of the Agreement.
Executed on the date first set forth above.
HOLDERS
/s/ Lawrence R. Biggs, Jr.
---------------------------------------
Lawrence R. Biggs, Jr.
/s/ Larry Cahill
---------------------------------------
Larry Cahill
/s/ Donald G. McLellan
---------------------------------------
Donald G. McLellan
Vision Finance and Management
By: /s/ Donald G. McLellan
------------------------------------
Donald G. McLellan, Authorized Agent
Jasper Resources Ltd.
By: /s/ Brahil Santos
------------------------------------
Brahil Santos, Attorney-in-Fact
<PAGE>
EXHIBIT 6
BYLAWS OF
VOXCOM HOLDINGS, INC.
(THE "CORPORATION")
ARTICLE I
OFFICES
Section 1.1. The registered office of the Corporation shall be in the
County of Carson City, State of Nevada.
Section 1.2. The Corporation may also 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
MEETINGS OF STOCKHOLDERS
Section 2.1. All meetings of the stockholders for the election of
Directors and for any other purpose may be held at such time and place, within
or without the State of Nevada, as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section 2.2. An annual meeting of the stockholders for the election of
Directors and for the transaction of such other business as may properly come
before the meeting shall be held each year, within six months after the end of
the prior fiscal year at 10:00 a.m. on a date to be selected by the Board of
Directors. At the meeting, the stockholders shall elect directors, and transact
such other business as may properly be brought before the meeting.
Section 2.3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than fifty (50) days before the
date of the meeting.
Section 2.4. The officer who has charge of the stock ledger of the
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,
for any purpose germane to the meeting, which shall be open to the inspection of
any stockholder 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
<PAGE>
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 2.5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Articles of
Incorporation, may be called by the Board of Directors or by the written order
of a majority of the Directors; and shall be called by the President or
Secretary at the request in writing of stockholders owning two-thirds or more of
the entire capital stock of the Corporation issued and outstanding and entitled
to vote. Such request by the stockholders shall state the purpose or purposes
of the proposed meeting.
Section 2.6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than fifty (50) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 2.7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 2.8. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute, by the Articles of
Incorporation or by these Bylaws. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have the power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty (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.
Section 2.9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes,
these Bylaws or of the Articles of Incorporation, a different vote is required,
in which case such express provision shall govern and control the decision of
such question. The stockholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
Section 2.10. Unless otherwise provided in the Articles of Incorporation,
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy executed in writing by the stockholder or by his or
her duly authorized attorney-in-fact, for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after six
(6) months from its date, unless the proxy provides for a longer period. Each
proxy shall be filed
<PAGE>
with the Secretary of the Corporation prior to, or at the time of, the meeting.
Any vote may be taken via voice or by show of hands unless the holders of at
least ten percent (10%) of shares outstanding and entitled to vote object, in
which case written ballots shall be used.
Section 2.11. Any stockholder proposing to nominate a person for election
to the Board of Directors shall provide the Corporation 60 days prior written
notice of such nomination, stating the name and address of the nominee and
describing his qualifications for being a Director of the Corporation. Such
notice shall be sent or delivered to the principal office of the Corporation to
the attention of the Board of Directors, with a copy to the President and
Secretary of Corporation.
Section 2.12. At any meeting of stockholders, the President of the
Corporation shall act as the chairman of the meeting, and the stockholders shall
not have the right to elect a different person as chairman of the meeting. The
chairman of the meeting shall have the authority to determine (i) when the
election polls shall be closed in connection with any vote to be taken at the
meeting; and (ii) when the meeting shall be recessed. No action taken at a
meeting shall become final and binding if any group of stockholders representing
one-third or more of the shares entitled to be voted for such action shall
contest the validity of any proxies or the outcome of any election.
Section 2.13. The Board of Directors may fix in advance a record date for
the purpose of determining stockholders entitled to notice of, or to vote at, a
meeting of stockholders, such record date to be not less than ten nor more than
fifty days prior to such meeting; or the Board of Directors may close the stock
transfer books for such purpose for a period of not less than ten nor more than
fifty days prior to such meeting. In the absence of any action of the Board of
Directors, the date upon which the notice of the meeting is mailed shall be the
record date.
Section 2.14. The order of business at annual meetings, and so far as
practicable at other meetings of stockholders, shall be as follows unless
changed by the Chairman:
(a) Call to order
(b) Proof of due notice of meeting
(c) Determination of quorum and examination of proxies
(d) Announcement of availability of voting list (See Bylaw 2.04)
(e) Announcement of distribution of annual statement (See Bylaw 7.4)
(f) Reading and disposing of minutes of last meeting of stockholders
(g) Reports of Officers and committees
(h) Appointment of voting inspectors
(i) Unfinished business
(j) New business
(k) Nomination of Directors
(1) Opening of polls for voting
(m) Recess
(n) Reconvening; closing of polls
(o) Report of voting inspectors
(p) Other business
(q) Adjournment
<PAGE>
ARTICLE III
DIRECTORS
Section 3.1. The business and affairs of the Corporation shall be managed
by a Board of Directors, which shall have and may exercise all of the powers of
the Corporation, except such as are expressly conferred upon the stockholders by
law, by the Articles of Incorporation or by these Bylaws. The Board of
Directors shall consist of nine persons. No change in this number may be made
without the unanimous approval of the directors then in office. No decrease in
the number of Directors constituting the Board of Directors shall shorten the
term of any incumbent Director. Each director elected shall hold office until
his successor shall be elected and shall qualify. Subject to the rights of
holders of any series of any Preferred Stock then outstanding, any vacancies in
the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filed by a majority
vote of the Directors then in office even though less than a quorum or by a sole
remaining Director and the Directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If the remaining Directors fail to select a successor
Director to fill a vacancy within sixty (60) days of its occurrence, the vacancy
shall be filled by the vote of a majority of the outstanding shares. If there
are no Directors in office, then an election of Directors may be held in the
manner provided by statute. Newly-created directorships resulting from any
increase in the authorized number of Directors may be filled by the remaining
Directors. Directors elected to fill a vacancy will serve the remaining portion
of the unexpired term; provided, however, that Directors elected to fill a
vacancy by virtue of expanding the number of Directors shall serve until the
next election of Directors by stockholders.
Section 3.2. No stockholder shall have the right to cumulate his votes for
the election of Directors but each share shall be entitled to one vote in the
election of such Director. At any meeting of the stockholders, every
stockholder having the right to vote may vote either in person or by proxy
executed in writing by the stockholder or by his duly authorized attorney-in-
fact. Such proxy shall be filed with the Secretary of the Corporation prior to,
or at the time of, the meeting.
MEETINGS OF THE BOARD OF DIRECTORS
Section 3.3. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Nevada.
Section 3.4. The first meeting of each newly elected Board of Directors
shall be held without further notice immediately following the annual meeting of
the stockholders, and at the same place unless the Directors change such time or
place by unanimous vote.
Section 3.5. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the Board.
Section 3.6. Special meetings of the Board may be called by the President
or by Directors constituting at least one-third of Directors in office, on three
(3) days' notice to each Director, either personally or by mail or by telegram.
<PAGE>
Section 3.7. At all meetings of the Board, a majority of the Directors
shall constitute a quorum for the transaction of business and the act of a
majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, these Bylaws or by the Articles of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the Directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. Each Director who is present at a meeting will be deemed to
have assented to any action taken at such meeting unless his dissent to the
action is entered into the minutes of the meeting, or unless he or she files
their written dissent thereto with the Secretary of the meeting or forwards such
dissent by registered mail to the Secretary of the Corporation immediately after
such meeting.
Section 3.8. Unless otherwise restricted by the Articles of Incorporation
or these Bylaws, any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 3.9. Unless otherwise restricted by the Articles of Incorporation
or these Bylaws, 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 each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 3.10. Interested Directors, Officers and stockholders. (a) If
Paragraph (b) is satisfied, no contract or other transaction between the Company
and any of its Directors, Officers or stockholders (or any corporation or firm
in which any of them are directly or indirectly interested) shall be invalid
solely because of such relationship or because of the presence of such Director,
Officer or stockholder at the meeting authorizing such contract or transaction,
or his participation in such meeting or authorization.
(b) Paragraph (a) shall apply only if:
(1) The material facts of the relationship or interest of each such
Director, Officer or stockholder are known or disclosed:
(A) To the Board of Directors and they nevertheless authorizes or
ratifies the contract or transaction by a majority of the Directors
present, each such interested Director to be counted in determining
whether a quorum is present but not in calculating the majority
necessary to carry the vote; or
(B) To the stockholders and they nevertheless authorize or ratify
the contract or transaction by a majority of the shares present, each
such interested stockholder to be counted in
<PAGE>
determining whether a quorum is present but not in calculating the
majority necessary to carry the vote; and
(2) The contract or transaction is fair to the Corporation as of the
time it is authorized or ratified by the Board of Directors, a committee of
the Board or the stockholders.
(c) This provision shall not be construed to invalidate a contract or
transaction which would be valid in the absence of this provision.
Section 3.11. Unanimous Voting. A vote by the Board of Directors to
consider the following action shall be effective only if approved by all
directors in office and entitled to vote:
(1) Any issuance of capital stock or debt securities by the
Corporation, including, without limitation any shares of common stock,
preferred stock, warrants, options, any convertible equity or debt, or any
other instrument entitling the holder to vote at a meeting of the
stockholders; and
(2) An amendment to this Section 3.11 of the Bylaws.
(3) Increasing the number of seats on the Board of Directors to a
number greater than nine.
COMMITTEES OF DIRECTORS
Section 3.12. The Board of Directors may, by resolution adopted by the
two-thirds of the Directors, designate one or more other committees comprised of
members who are not members of management nor affiliated with any holder of 10%
or more of the Corporation's Common Stock or Series A Preferred Stock to conduct
the business and affairs of the Corporation to the extent authorized by the
resolution including but not limited to the following: Audit Committee,
Compensation Committee, and Conflict of Interest Committee. The Board of
Directors, by two-thirds vote, shall have the power at any time to change the
powers and members of any committee, to fill vacancies and to dispose of any
committee. Members of any committee shall receive such compensation as the
Board of Directors may from time to time provide. The designation of any
committee and the delegation of authority to such committee shall not operate to
relieve the Board of Directors of any responsibility imposed by law.
COMPENSATION OF DIRECTORS
Section 3.13. Unless otherwise restricted by 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 special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
ARTICLE I
NOTICES
Section 4.1. Whenever, under the provisions of the statutes or of the
Articles of Incorporation or of these Bylaws, notice is required to be given to
any Director or stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by telecopier or by certified mail,
return receipt requested, addressed to such Director or stockholder, at his
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States Mail.
Section 4.2. Whenever any notice is required to be given under the
provisions of the statutes or of the Articles of Incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE
OFFICERS
Section 5.1. The officers of the Corporation shall be chosen by the Board
of Directors and shall be a president, one or more vice presidents, any one or
more of which may be designated executive vice president or senior vice
president, a secretary, and a treasurer. The Board of Directors may also choose
a chairman of the board, assistant vice presidents and one or more assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the Articles of Incorporation or these Bylaws otherwise
provide. The Chairman shall be elected from among the Directors.
Section 5.2. The Board of Directors at its first meeting after each annual
meeting of stockholders shall choose a president, one or more vice presidents, a
secretary and a treasurer.
Section 5.3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
Section 5.4. The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors or a committee thereof.
Section 5.5. The officers of the Corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
Board of Directors may be removed with or without cause at any time by the
affirmative vote of a majority of the Board of Directors then in office at any
regular or special meeting. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed, provided, however, that the
election or appointment of an officer shall not, of itself, create contract
rights. Any vacancy occurring in any
<PAGE>
office of the Corporation shall be filled by the Board of Directors.
CHAIRMAN OF THE BOARD
Section 5.6. The Chairman of the Board, if any, shall preside at all
meetings of the Board of Directors of the Corporation. In the Chairman's
absence, such duties shall be attended to by the President. The Chairman may be
the chief executive officer of the Corporation if so designated.
THE PRESIDENT
Section 5.7. The President shall be the Chief Executive Officer of the
Corporation; he or she shall preside at all meetings of the stockholders and of
the Board of Directors (unless the Corporation has a Chairman of the Board, who
will, in that case, preside at all meetings of the Board of Directors), shall
have general and active management of the business and affairs of the
Corporation and shall see that all orders and resolutions of the Board are
carried into effect. He or she shall perform such other duties and have such
other authority and powers as the Board of Directors may from time to time
prescribe. Within this authority and in the course of his or her duties the
President shall:
(a) Preside at all meetings of the stockholders and in the absence of the
Chairman of the Board, or, if there is none, at all meetings of the Board of
Directors.
(b) Sign all certificates of stock of the Corporation, in conjunction with
the Secretary or Assistant Secretary, unless otherwise ordered by the Board of
Directors.
(c) When authorized by the Board of Directors or required by law, execute,
in the name of the Corporation, deeds conveyances, notices, leases, checks,
drafts, bills of exchange, warrants, promissory notes, bonds, debentures,
contracts, and other papers and instruments in writing, and unless the Board of
Directors orders otherwise by resolution, make such contracts as the ordinary
conduct of the Corporation's business requires.
(d) Subject to the approval of the Board of Directors, appoint and remove,
employ and discharge, and prescribe the duties and fix the compensation of all
agent, employees, and clerks of the Corporation other than the duly appointed
Officers, and, subject to the direction of the Board of Directors, control all
of the Officers, agents and employees of the Corporation.
Section 5.8. The Vice-Presidents, if any, in the order of their seniority,
unless otherwise determined by the Board of Directors, shall, in the absence or
disability of the President, perform the duties and have the authority and
exercise the powers of the President. They shall perform such other duties and
have such other authority and powers as the Board of Directors may from time to
time prescribe or as the President may from time to time delegate.
Section 5.9. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all votes and minutes
of all proceedings in a book to be kept for that purpose, and shall perform like
duties for the Executive Committee when required. He or she shall give, or cause
to be given, notice of all meetings of the stockholders and special
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meetings of the Board of Directors. He or she shall keep in safe custody the
Seal of the Corporation and, when authorized by the Board of Directors or the
Executive Committee, affix the same to any instrument requiring it, and when so
affixed, it shall be attested by his signature or by the signature of the
Treasurer or an Assistant Secretary. He or she shall be under the supervision of
the President. He or she shall perform such other duties and have such other
authority and powers as the Board of Directors may from time to time prescribe
or as the President may from time to time delegate.
Section 5.10. The Assistant Secretaries, if any, in the absence or
disability of the Secretary, perform the duties and have the authority and
exercise the powers of the Secretary. They shall perform such other duties and
have such other powers as the Board of Directors may from time to time prescribe
or as the President may from time to time delegate.
Section 5.11. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements of the Corporation and shall deposit all monies and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors. He or she shall disburse the funds
of the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the President and
Directors, at the regular meeting of the Board, or whenever they may request it,
an account of all his transactions as Treasurer and of the financial condition
of the Corporation. If required by the Board of Directors, he or she shall give
the Corporation a bond in such form, in such sum, and with such surety or
sureties as satisfactory to the Board of Directors, for the faithful performance
of the duties of his or her office. He or she shall perform such other duties
and have such other authority and powers as the Board of Directors may from time
to time prescribe or as the President may from time to time delegate.
Section 5.12. The Assistant Treasurer, if any, shall, in the absence of
the Treasurer or in the event of his or her inability or refusal to act, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
ARTICLE I
CERTIFICATES FOR SHARES
Section 6.1. The shares of the Corporation shall be represented by a
certificate. Certificates shall be signed by, or in the name of the Corporation
by, the Chairman of the Board of Directors, or the President or Vice President
and the Treasurer or an assistant treasurer, or the Secretary or an assistant
secretary of the Corporation.
Upon the face or back of each stock certificate issued to represent any
partly paid shares, or upon the books and records of the Corporation in the case
of uncertificated partly paid shares, shall be set forth the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Certificates shall also contain such legends or statements as may be required by
law and any agreement between the Corporation and the holder thereof.
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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 lights of
each class of stock or series thereof and the qualification, 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 Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in the Act, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate which 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 and/or rights. Any security of
the Corporation, including, among others, any certificate evidencing shares of
the Common Shares and Preferred Shares or warrants to purchase Common Shares and
Preferred Shares of the Corporation, which is issued to any person without
registration under the Securities Act of 1933, as amended, or the Blue Sky laws
of any state, shall not be transferable until the Corporation has been furnished
with a legal opinion of counsel with reference thereto, satisfactory in form and
content to the Corporation and its counsel, to the effect that such sale,
transfer or pledge does not involve a violation of the Securities Act of 1933,
as amended, or the Blue Sky laws of any state having jurisdiction. The
certificate representing the security shall bear substantially the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER THE BLUE SKY LAWS OF ANY STATE AND MAY
NOT BE OFFERED, SOLD OR TRANSFERRED UNLESS SUCH OFFER, SALE OR TRANSFER WILL NOT
BE IN VIOLATION OF THE SECURITIES ACT OF 1933 OR ANY APPLICABLE BLUE SKY LAWS.
ANY OFFER, SALE OR TRANSFER OF THESE SECURITIES MAY NOT BE MADE WITHOUT THE
PRIOR WRITTEN APPROVAL OF THE CORPORATION OR ITS COUNSEL. "
Section 6.2. The consideration for the issuance of shares shall consist of
any tangible or intangible property or benefit to the Corporation, including,
but not limited to, cash, promissory notes, services performed, contracts for
services to be performed or other securities of the corporation. Before the
Corporation issues shares, the Board of Directors must determine that the
consideration received or to be received for the shares to be issued is
adequate. The judgment of the Board of Directors as to the adequacy of the
consideration received for the shares issued is conclusive in the absence of
actual fraud in the transaction. When the Corporation receives the consideration
for which the Board of Directors authorized the issuance of shares, the shares
issued therefor are fully paid and nonassessable. The Corporation may place in
escrow shares issued for a contract for future services or benefits or a
promissory note, or make any other arrangements to restrict the transfer of the
shares. The Corporation may credit distributions made for the shares against
their purchase price, until the services are performed, the benefits are
received or the promissory note is paid. If the services are not performed, the
benefits are not received or the promissory note is not paid, the shares
escrowed or restricted and the distributions credited may be canceled in whole
or in part.
Section 6.3. Unless otherwise provided in the subscription agreement,
subscriptions of shares, whether made before or after organization of the
Corporation, shall be paid in full at such
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time or in such installments and at such times as shall be determined by the
Board of Directors for payment on subscriptions shall be uniform as to all
shares of the same series. In case of default in the payment on any installment
or call when payment is due, the Corporation may proceed to collect the amount
due in the same manner as any debt due to the Corporation.
Section 6.4. For any indebtedness of a Stockholder to the Corporation, the
Corporation shall have a first and prior lien on all preferred or common shares
owned by him and on all dividends or other distributions declared thereon.
Section 6.5. 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 any requirements of the Act 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 and/or rights.
Section 6.6. Any or all the signatures on a certificate may be facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 6.7. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates 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 or her legal representative, to advertise the same in such
manner as it shall require or to give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
TRANSFER OF STOCK
Section 6.8. 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 or the transfer agent 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 and issuance of new equivalent
uncertificated shares or uncertificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
corporation. Transfers of shares
<PAGE>
shall be made only on the books of the Corporation by the registered holder
thereof, or by his or her attorney thereunto authorized by power of attorney and
filed with the Secretary of the Corporation or the transfer agent.
Section 6.9. Every stockholder or transferee shall furnish the Secretary
or a transfer agent with the address to which notice of meetings and all other
notices may be served upon or mailed to him or her, and in default thereof, he
or she shall not be entitled to service or mailing of any such notice.
FIXING RECORD DATE
Section 6.10. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or 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 fifty (50) nor less than ten (10) days before the
date of such meeting, nor more than fifty (50) days prior to any other action.
A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6.11. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, to vote as such owner, and to hold such person registered on its
books liable for calls and assessments as the owner of such 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 any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Nevada.
ARTICLE II
MISCELLANEOUS/DIVIDENDS
Section 7.1. Dividends upon the capital stock of the Corporation, subject
to the provisions of the Articles of Incorporation, if any, and applicable law,
may be declared by the Board of Directors at any regular or special meeting.
Dividends may be paid in cash, in properly or in shares of capital stock,
subject to the provisions of the Articles of Incorporation.
Section 7.2. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
Directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall determine to be in the interest of the
Corporation, and the Directors
<PAGE>
may modify or abolish any such reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 7.4. Not later than one hundred fifty (150) days after the close
of each full fiscal year of the Corporation, the Directors shall mail a report
of the business and operation of the Corporation during such fiscal year to the
stockholders, which report shall constitute the accounting of the Directors for
such fiscal year. The report (herein the "Annual Report") shall be in such form
and have such content as the Directors deem proper. The Annual Report shall
include a balance sheet and a statement of income and surplus of the
Corporation. Such financial statement shall be accompanied by the report of an
independent certified public accountant thereon. A manually signed copy of the
accountant's report shall be filed with the Directors.
CHECKS
Section 7.5. All checks, demands, drafts, or other orders for payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation, shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
CONTRACTS
Section 7.6. The Board of Directors may authorize any officer, officers,
agent, or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
DEPOSITS
Section 7.7. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks,
trust companies, or other depositories as the Board of Directors may select.
FISCAL YEAR
Section 7.8. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
SEAL
Section 7.9. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words "Corporate Seal,
Nevada." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7.10. Unless otherwise provided in the Articles of Incorporation,
the Corporation
<PAGE>
shall indemnity its officers, agents and Directors to the full extent permitted
by the General Corporation Law of Nevada. The protection and indemnification
provided hereunder shall not be deemed exclusive of any other rights to which
such Director, agent or officer or former Director or officer or such person may
be entitled under any agreement, insurance policy, vote of stockholders or
otherwise.
ARTICLE III
AMENDMENTS
Section 8.1. Notwithstanding any other provision contained in these Bylaws
to the contrary, Sections 2.5, 2.11, 2.12 and 2.13 of Article II, Section 3.1 of
Article III, and this Article VII of these Bylaws may be amended, supplemented,
or repealed only by the affirmative vote of two-thirds or more of all of the
shares of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class. In addition to the foregoing, the
Board of Directors may amend or repeal these Bylaws or adopt new Bylaws.
