<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999
------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission File Number 333-75861
---------
Centerprise Advisors, Inc.
(Exact name of registrant as specified in its charter)
Delaware 36-4272852
------------------------------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
225 W. Washington St., 16/th/ Floor, Chicago, IL 60606
- ------------------------------------------------ ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 578-9600
--------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [ ] No [x]
Number of shares outstanding as of November 15, 1999: 3,711,019 shares
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<PAGE>
CENTERPRISE ADVISORS, INC.
INDEX
<TABLE>
<CAPTION>
PART I - FINANCIAL INFORMATION Page
----
<S> <C> <C>
ITEM 1 Financial Statements
Balance Sheet as of September 30, 1999 and December 31, 1998......... 3
Statements of Income for the three and nine month periods ended
September 30, 1999.................................................. 4
Consolidated Statements of Cash Flows for the nine month period
ended September 30, 1999............................................ 5
Notes to Financial Statements........................................ 6
ITEM 2 Management's Discussion and Analysis of Financial
Condition and Results of Operations................................ 10
PART II - OTHER INFORMATION
ITEM 6 Exhibits and Reports on Form 8-K..................................... 11
SIGNATURES...................................................................... 12
</TABLE>
<PAGE>
CENTERPRISE ADVISORS, INC.
BALANCE SHEET
(Dollars in thousands)
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
------------- ------------
<S> <C> <C>
(Unaudited)
ASSETS
Current assets:
Cash $ 21 $ -
Deferred offering costs - 800
-------- --------
Total current assets 21 800
-------- --------
Total assets $ 21 $ 800
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accrued liabilities $ 2,030 $ 1,107
Payable to related parties 4,265 892
-------- --------
Total liabilities 6,295 1,999
-------- --------
Stockholders' equity:
Common stock, $.01 par value, 50,000,000 shares,
3,711,019 (unaudited) and 3,456,669 shares issued
at September 30, 1999 and December 31, 1998,
respectively 37 35
Additional paid-in capital 20,315 17,615
Retained deficit (26,626) (18,735)
Stock subscriptions receivable - (114)
-------- --------
Total shareholders' equity (6,274) (1,199)
-------- --------
Total liabilities and stockholders' equity $ 21 $ 800
======== ========
</TABLE>
See the accompanying Notes to these Financial Statements
Page 3
<PAGE>
CENTERPRISE ADVISORS, INC.
STATEMENT OF OPERATIONS
(Dollars in thousands)
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Nine Months
Ended Ended
September 30, September 30,
1999 1999
------------- -------------
<S> <C> <C>
Total revenues $ - $ -
---------- ----------
Operating expenses 402 3,719
Offering costs 4,172 4,172
---------- ----------
Loss before income taxes (4,574) (7,891)
Provision for income taxes - -
---------- ----------
Net loss $ (4,574) $ (7,891)
========== ==========
Net loss per share:
Basic $ (1.23) $ (2.37)
========== ==========
Diluted $ (1.23) $ (2.16)
========== ==========
Shares used in computing net loss per share (see Note 2):
Basic 3,711,019 3,328,869
========== ==========
Diluted 3,711,019 3,649,869
========== ==========
</TABLE>
See the accompanying Notes to these Financial Statements
Page 4
<PAGE>
CENTERPRISE ADVISORS, INC.
STATEMENT OF CASH FLOWS
FOR THE NINE MONTH PERIOD ENDED SEPTEMBER 30, 1999
(Dollars in thousands)
(UNAUDITED)
<TABLE>
<S> <C>
Cash flow from operating activities:
Net loss $(7,891)
Adjustments to reconcile net loss to net
cash used in operating activities:
Non-cash compensation charge on stock issuance 2,656
Decrease in deferred offering costs 800
Accrued expenses 923
-------
Net cash used in operating activities (3,512)
Cash flow from financing activities:
Proceeds from issuance of common stock 114
Proceeds from notes payable 3,419
-------
Net cash provided by financing activities 3,533
-------
Increase in cash 21
Cash, beginning of period -
-------
Cash, end of period $ 21
=======
</TABLE>
See the accompanying Notes to these Financial Statements
Page 5
<PAGE>
CENTERPRISE ADVISORS, INC.
NOTES TO FINANCIAL STATEMENTS
(Dollars in thousands)
UNAUDITED
1. BUSINESS AND ORGANIZATION
Centerprise Advisors, Inc. ("Centerprise" or the "Company") was founded
in 1998 to create a leading provider of professional, business and financial
services and products to middle-market clients. Centerprise intended to acquire
ten companies (the "Mergers") upon the consummation of a planned initial
public offering of its common stock (the "Offering"). Subsequent to September
30, 1999, Centerprise withdrew its planned Offering due to market conditions.
Centerprise has not conducted any operations, and all activities to date
have related to the Offering and the Mergers. Centerprise was dependent upon the
Offering to execute the pending Mergers. There is no assurance that the pending
Mergers discussed will be completed or that Centerprise will be able to generate
future operating revenues.
In connection with the organization and initial capitalization of
Centerprise, 3,383,016 shares of the Company's common stock were subscribed by
sponsoring parties for total consideration of $143. Of this amount, $29 had been
received as of December 31, 1998. In addition, at the time of organization the
Company agreed to issue warrants to the CCP Group to purchase a total of 100,000
shares of the Company's common stock at the initial public offering price.
On September 24, 1999, the Board of Directors approved a 212.05817 stock
split which would occur prior to the closing of the Mergers and the Offering.
All common stock related information included in the financial statements has
been adjusted to reflect this split.
2. SIGNIFICANT ACCOUNTING POLICIES
Stock-Based Compensation:
Centerprise will measure compensation expense for its stock-based employee
compensation plans using the intrinsic value method. Following the issuance of
any options the Company will be required to make pro forma disclosures of net
income and earnings per share as if the fair value method of accounting had been
applied.
Earnings Per Share:
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 128, "Earnings per Share" ("SFAS No.
128"). For the Company, SFAS No. 128 is effective as of November 9, 1998
(inception date). SFAS No. 128 requires a presentation of basic earnings per
share ("basic EPS") and diluted earnings per share ("diluted EPS"). Basic
EPS excludes dilution and is determined by dividing income available to common
stockholders by the weighted average number of common shares outstanding during
the period. Diluted EPS reflects the potential dilution that could occur if
securities and other contracts to issue common stock were exercised or converted
into common stock. The following table reconciles the numerators and
denominators of the basic and diluted loss per share computations for the
respective periods:
Page 6
<PAGE>
CENTERPRISE ADVISORS, INC.
NOTES TO FINANCIAL STATEMENTS - (Continued)
(Dollars in thousands)
UNAUDITED
<TABLE>
<CAPTION>
Three Months Nine Months
Ended Ended
September 30, September 30,
1999 1999
<S> <C> <C>
Net loss....................................... $ (4,574) $ (7,891)
========== ==========
Basic weighted average shares of common stock.. 3,711,019 3,328,869
Effect of dilutive securities:
Stock subscriptions receivable................. - 321,106
---------- ----------
Diluted weighted average shares................ 3,711,019 3,649,975
========== ==========
Basic EPS...................................... $ (1.23) $ (2.37)
========== ==========
Diluted EPS.................................... $ (1.23) $ (2.16)
========== ==========
</TABLE>
Income Taxes:
Income taxes have been computed using the asset and liability approach.
Under this approach deferred income tax assets and liabilities are determined
based on the differences between the financial statement and tax basis of assets
and liabilities using currently enacted tax rates in effect for the years in
which the differences are expected to reverse. No income tax benefit has been
recorded associated with the pre-tax loss because such realization could not be
construed to be more likely than not.
Use of Estimates:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make certain estimates and
assumptions that affect the reported amounts of assets and liabilities at the
date of the financial statements. While management believes that the estimates
and related assumptions used in the preparation of the financial statements are
appropriate, actual results could differ from those estimates. Estimates are
made when accounting for the income taxes.
Unaudited Interim Financial Statements:
In the opinion of management, the Company has made all adjustments,
consisting of normal recurring adjustments, necessary for a fair presentation of
the financial position of the Company at September 30, 1999 and the results of
its operations and its cash flows for the nine months ended September 30, 1999
as presented in the accompanying unaudited interim financial statements.
Page 7
<PAGE>
CENTERPRISE ADVISORS, INC.
NOTES TO FINANCIAL STATEMENTS - (Continued)
(Dollars in thousands)
UNAUDITED
3. STOCKHOLDERS' EQUITY
Issuance of Common Stock to Persons Who Are or Will Become Employees of
Centerprise:
During the period from November 9, 1998 (inception date) to December 31,
1998, 1,580,520 shares were issued to initial investors who are or will become
employees of Centerprise for $69 of consideration. In addition, 73,653 shares
were issued to Rondol E. Eagle, Chief Integration Officer, for $3 of
consideration. During the nine months ended September 30, 1999, 33,171 shares
(unaudited) were issued to Dennis Bikun, chief accounting officer for $6
(unaudited) consideration, and 221,178 shares (unaudited) were issued to DeAnn
Brunts, chief financial officer for $40 (unaudited) consideration. For
accounting purposes, compensation expense of $0 (unaudited) and $2,656
(unaudited) has been reflected in the accompanying Statement of Operations
during the three and nine months ended September 30, 1999.
Employee Incentive Compensation Plan:
The Company's Board of Directors and stockholders have adopted the
Company's Employee Incentive Compensation Plan (the ''Incentive Plan''). Awards
under this plan may take the form of: (1) incentive stock options or non-
qualified stock options; (2) stock appreciation rights; (3) restricted or
deferred stock; (4) dividend equivalents; and (5) cash awards or other awards
not otherwise provided for, the value of which is based in whole or in part upon
the value of the common stock. Centerprise's compensation committee will
administer the plan and generally select the individuals who will receive awards
as well as determine the terms and conditions of those awards. Upon adopting the
Incentive Plan, Centerprise will reserve shares of common stock for use in
connection with the plan. The number of shares available for use under the plan
at any given time will not exceed fifteen percent of the total number of shares
of common stock outstanding at that time. Shares attributable to awards which
have expired, terminated, canceled or forfeited are available for issuance for
future awards. The Incentive Plan has not yet taken effect.
Page 8
<PAGE>
CENTERPRISE ADVISORS, INC.
NOTES TO FINANCIAL STATEMENTS - (Continued)
(Dollars in thousands)
UNAUDITED
Employee Stock Purchase Plan:
Centerprise has also adopted an employee stock purchase plan. For purposes
of such plan, generally the first day of each quarter will be the grant date and
the last day of each quarter will be the exercise date. On each exercise date,
payroll deductions credited to participants' accounts will be automatically
applied to the purchase price of Common Stock at a price per share equal to 85
percent of the fair market value of the Common Stock on the grant or exercise
date, whichever is less. This will be accounted for as a non compensatory plan
in accordance with Accounting Principles Board Opinion No. 25. The plan has not
yet taken effect.
4. RELATED PARTY TRANSACTIONS
As of December 31, 1998 and September 30, 1999, Centerprise has outstanding
payables to related parties of $892 and $4,265 (unaudited), respectively, due to
BGL Capital and CCP Group, initial investors in the Company. These payables
represent consulting expenses, out-of-pocket expenses and legal and accounting
fees, of which $2,572 has been capitalized to date as deferred offering costs
and all remaining amounts have been expensed in the Statement of Operations in
the three and nine months ended September 30, 1999. Of these payables, $3,919
(unaudited) and $547 were funded by BGL Capital as of September 30, 1999 and
December 31, 1998, respectively.
5. SUBSEQUENT EVENTS
On November 9, 1999, Centerprise announced that it had withdrawn its
planned initial public offering of common stock due to market conditions. The
Company remains confident about the Centerprise strategy and will continue to
capitalize on the opportunities that have been developed over the past year as
it evaluates alternatives.
Page 9
<PAGE>
CENTERPRISE ADVISORS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.
Overview
Centerprise Advisors, Inc. (the "Company") was founded on November 9, 1998
to create a leading provider of professional, business and financial services
and products to middle-market clients. No comparative results of operations for
the three and nine months ended September 30, 1999 to the three and nine months
ended September 30, 1998 is presented because the company was not in existence
during the comparative periods ended September 30, 1998.
The net loss for the three and nine month periods ended September 30, 1999
includes a $4,172 charge for costs related to the canceled Offering.
Liquidity and Capital Resources
Cash flow sources and applications:
Net cash used by operating activities was $3,511 for the nine months ended
September 30, 1999 primarily the result of an increase in deferred offering
costs offset by an increase in accrued expenses.
Net cash flows provided by financing activities of $3,532 for the nine
months ended September 30, 1998 were primarily comprised of an increase in notes
payable to related parties.
The Offering:
On November 9, 1999, Centerprise announced that it had withdrawn its
planned initial public offering of common stock due to market conditions. The
Company remains confident about the Centerprise strategy and will continue to
capitalize on the opportunities that have been developed over the past year as
it eveluates alternatives. Absent funding from outside sources, the Company will
not have sufficient assets to fund its liabilities.
Page 10
<PAGE>
PART II
OTHER INFORMATION
Except to the extent noted below, the items required in Part II are
inapplicable or, if applicable, would be answered in the negative and have been
omitted.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<CAPTION>
Filed herewith or
incorporated
herein by
Number Title reference
- -------- ------------------------------------------------------------ -----------------
<S> <C> <C>
3.1 Certificate of Incorporation of the Registrant. Exhibit 3.1 filed
herewith.
3.2 Bylaws of the Registrant. Exhibit 3.2 filed
herewith.
3.3 Amendment to Certificate of Incorporation of the Registrant. Exhibit 3.3 filed
herewith.
27 Financial Data Schedule Exhibit 27 filed
herewith.
</TABLE>
(b) Reports on Form 8-K.
None.
Page 11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Centerprise Advisors, Inc.
November 15, 1999 /s/ Dennis W. Bikun
- ----------------- --------------------------------------
(Date) Dennis W. Bikun, Vice President, Chief
Accounting Officer and Treasurer
Page 12
<PAGE>
Exhibit 3.1
Certificate of Incorporation
of
CORNERSTONE PROFESSIONAL ADVISORS, INC.
FIRST: The name of the corporation is Cornerstone Professional Advisors, Inc.
(the "Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801, in the county of New Castle. The name of the
Corporation's registered agent is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware (the "GCL").
FOURTH: The total number of shares of capital stock which the Corporation
shall have authority to issue is 20,000 shares of common stock, par
value of $.01 per share.
FIFTH: The name and mailing address of the Corporation's incorporator is:
Name Mailing Address
---- ---------------
Sarah E. Filler c/o Katten Muchin & Zavis
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661-3693
SIXTH: The Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the by-laws of the Corporation (the "By-Laws").
SEVENTH: The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. Elections of directors
need not be by written ballot unless otherwise provided in the By-
Laws.
EIGHTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the
application in a summary way of the Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of
Title 8 of the GCL or on the application of trustees in dissolution or
of any receiver or receivers appointed for the Corporation under the
provisions of Section 279 of Title 8 of the GCL order a meeting of the
<PAGE>
creditors or class of creditors, and/or of the stockholders or class
of stockholders of the Corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as a
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the
court to which the said application has been made, be binding on all
the creditors or class of creditors, and/or on all the stockholders or
class of stockholders, of the Corporation, as the case may be, and
also on this Corporation.
NINTH: The personal liability of the directors and officers of the
Corporation is hereby eliminated to the fullest extent permitted by
the GCL.
TENTH: The Corporation shall:
(a) indemnify, to the fullest extent permitted by the GCL, any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason
of the fact that such person is or was a director or officer of
the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith
and in a manner which such person reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that such person's conduct was unlawful; and
(b) indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or
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<PAGE>
suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was serving at
the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the Corporation and except
that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged
to be liable to the Corporation unless and only to the extent
that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper; and
(c) indemnify any director or officer against expenses (including
attorneys' fees) actually and reasonably incurred by such person
in connection therewith, to the extent that a director or officer
of the Corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in
Article TENTH (a) and (b), or in defense of any claim, issue or
matter therein; and
(d) make any indemnification under Article TENTH (a) and (b) (unless
ordered by a court) only as authorized in the specific case upon
a determination that indemnification of the director or officer
is proper in the circumstances because such director or officer
has met the applicable standard of conduct set forth in Article
TENTH (a) and (b). Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the
stockholders of the Corporation; and
(e) pay expenses incurred by a director or officer in defending a
civil or criminal action, suit or proceeding in advance of the
final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to
repay
-3-
<PAGE>
such amount if it shall ultimately be determined that such
director or officer is not entitled to be indemnified by the
Corporation as authorized in this Article TENTH; and
(f) not deem the indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this Article
TENTH exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in a director's or
officer's official capacity and as to action in another capacity
while holding such office; and
(g) have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such
liability under the provisions of this Article TENTH; and
(h) deem the provisions of this Article TENTH to be a contract
between the Corporation and each director or officer who serves
in such capacity at any time while this Article TENTH is in
effect and any repeal or modification of this Article TENTH shall
not affect any rights or obligations then existing with respect
to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought or
threatened based in whole or in part upon such state of facts.
The provisions of this Article TENTH shall not be deemed to be a
contract between the Corporation and any directors or officers of
any other Corporation (the "Second Corporation") which shall
merge into or consolidate with this Corporation when this
Corporation shall be the surviving or resulting Corporation, and
any such directors or officers of the Second Corporation shall be
indemnified to the extent required under the GCL only at the
discretion of the board of directors of this Corporation; and
(i) continue the indemnification and advancement of expenses provided
by, or granted pursuant to, this Article TENTH, unless otherwise
provided when authorized or ratified, as to a person who has
ceased to be a director or officer of the Corporation and
-4-
<PAGE>
shall inure to the benefit of the heirs, executors and
administrators of such a person.
The undersigned incorporator hereby acknowledges that the foregoing
certificate of incorporation is such incorporator's act and deed and that the
facts stated therein are true.
Dated: November 9, 1998 /s/ Sarah E. Filler
__________________________________
Sarah E. Filler, Incorporator
c/o Katten Muchin & Zavis
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661-3693
-5-
<PAGE>
Exhibit 3.2
BY-LAWS
OF
CORNERSTONE PROFESSIONAL ADVISORS, INC.
---------------------------------------
ARTICLE I
---------
Identification; Offices
-----------------------
SECTION 1.1. Name. The name of the corporation is Cornerstone
Professional Advisors, Inc. (the "Corporation").
SECTION 1.2. Registered Offices; Other Offices. The registered office of
the Corporation in the State of Delaware shall be in the City of Wilmington and
County of New Castle. The Corporation may have such other offices, either
within or outside of the State of Delaware, as the business of the Corporation
may require from time to time.
ARTICLE II
----------
Stockholders
------------
SECTION 2.1. Annual Meeting. An annual meeting of the stockholders shall
be held within 180 days of the end of the Corporation's fiscal year, on such
date as may be determined by resolution of the Board of Directors. At each
annual meeting, the stockholders shall elect directors to hold office for the
term provided in Section 3.1 of these By-laws.
SECTION 2.2. Special Meeting. A special meeting of the stockholders may
be called by the President of the Corporation, the Board of Directors, or by
such other officers or persons as the Board of Directors may designate.
SECTION 2.3. Place of Stockholder Meetings. The Board of Directors may
designate any place, either within or without the State of Delaware, as the
place of meeting for any annual meeting or for any special meeting. If no such
place is designated by the Board of Directors, the place of meeting will be the
principal business office of the Corporation.
SECTION 2.4. Notice of Meetings. Unless waived as herein provided,
whenever stockholders are required or permitted to take any action at a meeting,
written notice of the meeting shall be given stating the place, date and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Such written notice shall be given not less than
ten (10) days nor more than sixty (60) days before the date of the meeting to
-1-
<PAGE>
each stockholder entitled to vote at the meeting or in the event of a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of all or
substantially all of the Corporation's property, business or assets not less
than twenty (20) days before the date of the meeting. If mailed, notice is
given when deposited in the United States mail, postage prepaid, directed to the
stockholder at the stockholder's address as it appears on the records of the
Corporation.
When a meeting is adjourned to another time or place in accordance with
Section 2.5 of these By-laws, notice need not be given of the adjourned meeting
if the time and place thereof are announced at the meeting in which the
adjournment is taken. At the adjourned meeting the Corporation may conduct any
business which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 2.5. Quorum and Adjourned Meetings. Unless otherwise provided by
law or the Corporation's Certificate of Incorporation, a majority of the shares
entitled to vote, present in person or represented by proxy, shall constitute a
quorum at a meeting of stockholders. If less than a majority of the shares
entitled to vote at a meeting of stockholders is present in person or
represented by proxy at such meeting, a majority of the shares so represented
may adjourn the meeting from time to time without further notice. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the original meeting. The stockholders
present at a meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of such number of stockholders as may leave less
than a quorum.
SECTION 2.6. Fixing of Record Date. (a) For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. 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.
(b) For the purpose of determining stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is established by the Board of Directors, and
which date shall not be more than ten (10) days after the date on which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has
-2-
<PAGE>
been fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by law,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal office, or an
officer or agent of the Corporation having custody of the book in which the
proceedings of meetings of stockholders are recorded. Delivery to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board
of Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders' consent to corporate action in writing
without a meeting shall be the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action.
(c) For the purpose of determining the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect to any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix the record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining the
stockholders for any such purpose shall be the close of business on the day on
which the Board of Directors adopts the resolution relating thereto.
SECTION 2.7. Voting List. 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 stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
SECTION 2.8. Voting. Unless otherwise provided by the Certificate of
Incorporation, each stockholder shall be entitled to one vote for each share of
capital stock held by each stockholder. In all matters other than the election
of directors, the affirmative vote of the majority of shares present in person
or represented by proxy at the meeting and entitled to vote on the subject
matter shall be the act of the stockholders. Directors shall be elected by
plurality of the votes of the shares present in person or represented by a proxy
at the meeting entitled to vote on the election of directors.
SECTION 2.9. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may
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<PAGE>
authorize another person or persons to act for him by proxy, but no such proxy
shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may remain
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation generally.
SECTION 2.10. Ratification of Acts of Directors and Officers. Except as
otherwise provided by law or by the Certificate of Incorporation of the
Corporation, any transaction or contract or act of the Corporation or of the
directors or the officers of the Corporation may be ratified by the affirmative
vote of the holders of the number of shares which would have been necessary to
approve such transaction, contract or act at a meeting of stockholders, or by
the written consent of stockholders in lieu of a meeting.
SECTION 2.11. Informal Action of Stockholders. Any action required to be
taken at any annual or special meeting of stockholders of the Corporation, or
any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing. In the event that the action which is consented
to is such as would have required the filing of a certificate with any
governmental body, if such action had been voted on by stockholders at a meeting
thereof, the certificate filed shall state, in lieu of any statement required by
law concerning any vote of stockholders, that written consent had been given in
accordance with the provisions of Section 228 of the Delaware General
Corporation Law, and that written notice has been given as provided in such
section.
SECTION 2.12. Organization. Such person as the Board of Directors may
designate or, in the absence of such a designation, the president of the
Corporation or, in his or her absence, such person as may be chosen by the
holders of a majority of the shares entitled to vote who are present, in person
or by proxy, shall call to order any meeting of the stockholders and act as
chairman of such meeting. In the absence of the secretary of the Corporation,
the chairman of the meeting shall appoint a person to serve as secretary at the
meeting.
ARTICLE III
-----------
DIRECTORS
---------
SECTION 3.1. Number and Tenure of Directors. The number of directors of
the Corporation shall consist of one (1) to three (3) members. The Corporation
initially shall have
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<PAGE>
two (2) directors. The number of directors which shall constitute the whole
Board of Directors shall be determined by resolution of a majority of the Board
of Directors. Each director shall hold office until such director's successor
is elected and qualified or until such director's earlier resignation or
removal. Any director may resign at any time upon written notice to the
Corporation.
SECTION 3.2. Election of Directors. Directors shall be elected at the
annual meeting of stockholders. In all elections for directors, every
stockholder shall have the right to vote the number of shares owned by such
stockholder for each director to be elected.
SECTION 3.3. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board, the
President or at least one-third of the number of directors constituting the
whole board. The person or persons authorized to call special meetings of the
Board of Directors may fix any place, either within or without the State of
Delaware, as the place for holding any special meeting of the Board of Directors
called by them.
SECTION 3.4. Notice of Special Meetings of the Board of Directors.
Notice of any special meeting of the Board of Directors shall be given at least
one (1) day previous thereto by written notice to each director at his or her
address. If mailed, such notice shall be deemed to be delivered when deposited
in the United States Mail so addressed, with first-class postage thereon
prepaid. If sent by any other means (including facsimile, courier, or express
mail, etc.), such notice shall be deemed to be delivered when actually delivered
to the home or business address of the director.
SECTION 3.5. Quorum. A majority of the total number of directors fixed
by these By-laws, or in the absence of a By-Law which fixes the number of
directors, the number stated in the Certificate of Incorporation or named by the
incorporators, shall constitute a quorum for the transaction of business. If
less than a majority of the directors are present at a meeting of the Board of
Directors, a majority of the directors present may adjourn the meeting from time
to time without further notice.
SECTION 3.6. Voting. The vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors, unless the Delaware General Corporation Law or the Certificate of
Incorporation requires a vote of a greater number.
SECTION 3.7. Vacancies. Vacancies in the Board of Directors may be
filled by a majority vote of the Board of Directors or by an election either at
an annual meeting or at a special meeting of the stockholders called for that
purpose. Any directors elected by the stockholders to fill a vacancy shall hold
office for the balance of the term for which he or she was elected. A director
appointed by the Board of Directors to fill a vacancy shall serve until the next
meeting of stockholders at which directors are elected.
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<PAGE>
SECTION 3.8. Removal of Directors. A director, or the entire Board of
Directors, may be removed, with or without cause, by the holders of a majority
of the shares then entitled to vote at an election of directors; provided,
however, that if cumulative voting obtains and less than the entire Board of
Directors is to be removed, no director may be removed without cause if the
votes cast against such director's removal would be sufficient to elect him if
then cumulatively voted at an election of the entire Board of Directors.
SECTION 3.9. Informal Action of Directors. Unless otherwise restricted
by the Certificate of Incorporation or these By-laws, 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 of
Directors 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 of
Directors or committee.
SECTION 3.10. Participation by Conference Telephone. Members of the Board
of Directors, or any committee designated by such board, may participate in a
meeting of the Board of Directors, or committee thereof, by means of conference
telephone or similar communications equipment as long as all persons
participating in the meeting can speak with and hear each other, and
participation by a director pursuant to this Section 3.10 shall constitute
presence in person at such meeting.
ARTICLE IV
----------
WAIVER OF NOTICE
----------------
SECTION 4.1. Written Waiver of Notice. A written waiver of any required
notice, signed by the person entitled to notice, whether before or after the
date stated therein, shall be deemed equivalent to notice. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of
stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice.
SECTION 4.2. Attendance as Waiver of Notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, and objects at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
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<PAGE>
ARTICLE V
---------
COMMITTEES
----------
SECTION 5. General Provisions. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member at any meeting of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease, or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-laws of the Corporation; and, unless the
resolution so provides, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock or to adopt a certificate
of ownership and merger, pursuant to Section 253 of the Delaware General
Corporation Law.
ARTICLE VI
----------
OFFICERS
--------
SECTION 6.1. General Provisions. The Board of Directors shall elect a
President and a Secretary of the Corporation. The Board of Directors may also
elect a Chairman of the Board, one or more Vice Chairmen of the Board, one or
more Vice Presidents, a Treasurer, one or more Assistant Secretaries and
Assistant Treasurers and such additional officers as the Board of Directors may
deem necessary or appropriate from time to time. Any two or more offices may be
held by the same person. The officers elected by the Board of Directors shall
have such duties as are hereafter described and such additional duties as the
Board of Directors may from time to time prescribe.
SECTION 6.2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held after each annual meeting of the
stockholders. If the election of officers is not held at such meeting, such
election shall be held as soon thereafter as may be convenient. New offices of
the
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<PAGE>
Corporation may be created and filled and vacancies in offices may be filled
at any time, at a meeting or by the written consent of the Board of Directors.
Unless removed pursuant to Section 6.3 of these By-laws, each officer shall hold
office until his successor has been duly elected and qualified, or until his
earlier death or resignation. Election or appointment of an officer or agent
shall not of itself create contract rights.
SECTION 6.3. Removal of Officers. Any officer or agent elected or
appointed by the Board of Directors may be removed by the Board of Directors
whenever, in its judgment, the best interests of the Corporation would be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person(s) so removed.
SECTION 6.4. The Chief Executive Officer. The Board of Directors shall
designate whether the Chairman of the Board, if one shall have been chosen, or
the President shall be the Chief Executive Officer of the Corporation. If a
Chairman of the Board has not been chosen, or if one has been chosen but not
designated Chief Executive Officer, then the President shall be the Chief
Executive Officer of the Corporation. The Chief Executive Officer shall be the
principal executive officer of the Corporation and shall in general supervise
and control all of the business and affairs of the Corporation, unless otherwise
provided by the Board of Directors. The Chief Executive Officer shall preside
at all meetings of the stockholders and of the Board of Directors and shall see
that orders and resolutions of the Board of Directors are carried into effect.
The Chief Executive Officer may sign bonds, mortgages, certificates for shares
and all other contracts and documents whether or not under the seal of the
Corporation except in cases where the signing and execution thereof shall be
expressly delegated by law, by the Board of Directors or by these By-laws to
some other officer or agent of the Corporation. The Chief Executive Officer
shall have general powers of supervision and shall be the final arbiter of all
differences between officers of the Corporation and his decision as to any
matter affecting the Corporation shall be final and binding as between the
officers of the Corporation subject only to the Board of Directors.
SECTION 6.5. The President. In the absence of the Chief Executive
Officer or in the event of his inability or refusal to act, if the Chairman of
the Board has been designated Chief Executive Officer, the President shall
perform the duties of the Chief Executive Officer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Chief
Executive Officer. At all other times the President shall have the active
management of the business of the Corporation under the general supervision of
the Chief Executive Officer. The President shall have concurrent power with the
Chief Executive Officer to sign bonds, mortgages, certificates for shares and
other contracts and documents, whether or not under the seal of the Corporation
except in cases where the signing and execution thereof shall be expressly
delegated by law, by the Board of Directors, or by these By-laws to some other
officer or agent of the Corporation. In general, the President shall perform
all duties incident to the office of president and such other duties as the
Chief Executive Officer or the Board of Directors may from time to time
prescribe.
-8-
<PAGE>
SECTION 6.6. The Chairman of the Board. The Chairman of the Board, if
one is chosen, shall be chosen from among the members of the board. If the
Chairman of the Board has not been designated Chief Executive Officer, the
Chairman of the Board shall perform such duties as may be assigned to the
Chairman of the Board by the Chief Executive Officer or by the Board of
Directors.
SECTION 6.7. Vice Chairman of the Board. In the absence of the Chief
Executive Officer or in the event of his inability or refusal to act, if the
Chairman of the Board has been designated Chief Executive Officer, the Vice
Chairman, or if there be more than one, the Vice Chairmen, in the order
determined by the Board of Directors, shall perform the duties of the Chief
Executive Officer, and when so acting shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer. At all other
times, the Vice Chairman or Vice Chairmen shall perform such duties and have
such powers as the Chief Executive Officer or the Board of Directors may from
time to time prescribe.
SECTION 6.8. The Vice President. In the absence of the President or in
the event of his inability or refusal to act, the Vice President (or in the
event there be more than one Vice President, the Executive Vice President and
then the other Vice President or Vice Presidents in the order designated, or in
the absence of any designation, then in the order of their election) shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. The Vice
Presidents shall perform such other duties and have such other powers as the
Chief Executive Officer or the Board of Directors may from time to time
prescribe.
SECTION 6.9. The Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or the Chief Executive Officer, under whose supervision
he shall be. The Secretary shall have custody of the corporate seal of the
Corporation and the Secretary, or an Assistant Secretary, shall have authority
to affix the same to any instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such Assistant Secretary. The
Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature.
SECTION 6.10. The Assistant Secretary. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Chief Executive Officer or the Board of Directors may from time to time
prescribe.
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<PAGE>
SECTION 6.11. The Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer 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 the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give
the Corporation a bond (which shall be renewed every six (6) years) in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
SECTION 6.12. The Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their elect- ion), shall, in the absence of the Treasurer or in the
event of his 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 Chief Executive Officer or the Board of Directors may from time to
time prescribe.
SECTION 6.13. Duties of Officers May be Delegated. In the absence of any
officer of the Corporation, or for any other reason the Board of Directors may
deem sufficient, the Board of Directors may delegate the powers or duties, or
any of such powers or duties, of any officers or officer to any other officer or
to any director.
SECTION 6.14. Compensation. The Board of Directors shall have the
authority to establish reasonable compensation of all officers for services to
the Corporation.
ARTICLE VII
-----------
CERTIFICATES FOR SHARES
-----------------------
SECTION 7.1. Certificates of Shares. The shares of the Corporation shall
be represented by certificates, provided that the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the Corporation by
the Chairman or Vice Chairman of the Board of Directors,
-10-
<PAGE>
Chief Executive Officer, or the President or Vice President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation representing the number of shares registered in certificate
form. Any or all the signatures on the certificate may be a facsimile.
SECTION 7.2. Signatures of Former Officer, Transfer Agent or Registrar.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if such person or
entity were such officer, transfer agent or registrar at the date of issue.
SECTION 7.3. Transfer of Shares. Transfers of shares of the Corporation
shall be made only on the books of the Corporation by the holder of record
thereof or by his legal representative, who shall furnish proper evidence of
authority to transfer, or by his or her attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary of the Corporation, and
on surrender for cancellation of certificate for such shares. Prior to due
presentment of a certificate for shares for registration of transfer, the
Corporation may treat a registered owner of such shares as the person
exclusively entitled to vote, to receive notifications and otherwise have and
exercise all of the right and powers of an owner of shares.
SECTION 7.4. Lost, Destroyed or Stolen Certificates. Whenever a
certificate representing shares of the Corporation has been lost, destroyed or
stolen, the holder thereof may file in the office of the Corporation an
affidavit setting forth, to the best of his knowledge and belief, the time,
place, and circumstance of such loss, destruction or theft together with a
statement of indemnity sufficient in the opinion of the Board of Directors to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss of any such certificate. Thereupon the Board may
cause to be issued to such person or such person's legal representative a new
certificate or a duplicate of the certificate alleged to have been lost,
destroyed or stolen. In the exercise of its discretion, the Board of Directors
may waive the indemnification requirements provided herein.
ARTICLE VIII
------------
DIVIDENDS
---------
SECTION 8. Dividends. The Board of Directors of the Corporation may
declare and pay dividends upon the shares of the Corporation's capital stock in
any form determined by the Board of Directors, in the manner and upon the terms
and conditions provided by law.
-11-
<PAGE>
ARTICLE IX
----------
CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------
SECTION 9.1. Contracts. The Board of Directors may authorize any officer
or 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.
SECTION 9.2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 9.3. Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by one or more officers or agents of the
Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
SECTION 9.4. Deposits. The funds of the Corporation may be deposited or
invested in such bank account, in such investments or with such other
depositaries as determined by the Board of Directors.
ARTICLE X
---------
AMENDMENTS
----------
SECTION 10. Amendments. These By-laws may be adopted, amended or
repealed by either the Corporation's Board of Directors or its stockholders.
-12-
<PAGE>
Exhibit 3.3
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
CENTERPOINT ADVISORS, INC.
[Delaware Charter No. 2920663]
CenterPoint Advisors, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the "Act"),
DOES HEREBY CERTIFY THAT:
1. In accordance with the provisions of Section 242 of the Act, an
amendment to the Certificate of Incorporation of this Corporation has
been duly adopted by the holder of the majority of the outstanding
shares of the Corporation's Common Stock and the Board of Directors of
this Corporation by written consent in accordance with Sections 228(a)
and (d) and 141(f), respectively, of the Act. Written notice has been
given pursuant to Section 228(d) of the Act.
2. Said amendment amends Article FIRST of the Certificate of
Incorporation so that, as amended, said Article FIRST, in its
entirety, shall read as follows:
"FIRST: The name of the Corporation is Centerprise
Advisors, Inc. (the "Corporation")."
IN WITNESS WHEREOF, CenterPoint Advisors, Inc. has caused this Certificate
of Amendment of Certificate of Incorporation to be signed this 21/st/ day of
June, 1999.
CENTERPOINT ADVISORS, INC.
By: /s/ Robert C. Basten
--------------------------------
Robert C. Basten
President
978200.2
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