SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS UNDER SECTION 12(b)
OR 12(g) OF THE SECURITIES EXCHANGE OF 1934
Be Safe Services, Inc.
----------------------------------------------
(Name of Small Business Issuer in Its Charter)
State of Delaware 11-3479172
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
62-45 Woodhaven Boulevard, Rego Park, New York 11374
----------------------------------------------------
(Address of Principal Executive Offices)
(718) 651-5400
------------------------
Issuers telephone number
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock
-----------------
(Title of class)
<PAGE>
PART I
ITEM 1. DESCRIPTION OF THE BUSINESS
HISTORY
Be Safe Services, Inc., which we sometimes refer to here as the Company
was organized in the State of Delaware on March 16, 1999. We were formed to
distribute, install and service alarm and surveillance systems. We also intend
to provide our customers with enhanced services that include:
-- extended service protection;
-- patrol and alarm response;
-- two-way voice communication;
-- pager service;
-- medical information service;
-- cellular back-up; and
-- mobile security service.
BUSINESS
Our principal activity will be responding to the immediate security and
safety needs of our customers 24 hours a day. It is expected that the majority
of our revenue will be generated from installing, maintaining and monitoring
alarm systems in our customers' homes and businesses.
We intend to provide our services to the residential (both single family
and multifamily residences), commercial and wholesale customers. We believe that
the residential customer is the most attractive segment of the alarm business
because of low penetration and higher gross margins.
In the New York metropolitan area a large percentage of the population
reside in multifamily dwellings. We intend to market our products and services
primarily to developers, building owners, cooperative boards and managers of
apartment complexes. We believe this targeted group is the most effective means
of generating sales in the multifamily dwelling market.
THE SECURITY ALARM INDUSTRY
The North American security industry is large, growing rapidly and
characterized by a high degree of fragmentation and low residential penetration.
It is estimated that total revenues in the North American security industry was
approximately 16.75 billion in 1998, up approximately 8.6% from 1997. We believe
that several favorable demographic trends,
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including the aging population, two-income families, home officing, as well as a
strong economy and increased perception of crime have all contributed to an
increased demand for security alarms and related services.
OPERATIONS
Our operations consist principally of installing security alarms
systems, alarm monitoring and customer service functions.
Security alarm systems include many different types of devices installed
at customers' premises designed to detect or to react to various occurrences or
conditions, such as intrusion or the presence of fire or smoke. In general,
systems for multifamily and residential applications tend to be smaller in size
than those used by commercial customers, and also tend to generate a lower level
of alarm signals than in commercial applications. These devices are connected to
a computerized control panel that communicates through the phone lines to a
service center. In most systems, control panels can identify the nature of the
alarm and the areas within a building where the sensor was activated, and can
transmit that information to a central monitoring station.
The basic system sold by us includes monitoring of the front and back
doors of a home, one keypad, an interior motion detection device, a central
processing unit with the ability to communicate signals to our central
monitoring station, a panic button, a siren, window decals and a yard sign. This
basic system often will be offered for little or no up-front price, but will be
sold to a customer with additional equipment customized to a customer's specific
needs. Such equipment add-ons include additional perimeter and interior
protection, fire protection devices (heat and smoke detectors), environmental
protection devices (freeze sensors and water detectors, additional panic buttons
and home automation devices (lighting or appliance controls).
Customer Contracts
Our alarm monitoring customer contracts generally have initial terms
ranging from one to five years in duration, and provide for automatic renewals
for a fixed period (typically one year) unless we or the customer elects to
cancel the contract at the end of its term.
Typically, we will sign customers to alarm monitoring contracts that
include a bundled monthly charge for monitoring, extended service protection and
a rebate against the homeowners' insurance deductibles in the event of a loss.
Extended service protection covers the normal costs of repair of the security
system after the expiration of the security system's initial warranty period.
Although a customer may elect to sign an alarm monitoring contract that excludes
extended service protection, few customers choose to do so, and we believe the
bundling of monitoring and extended service protection provides additional value
to customers and allows us to provide more efficient field repair services.
We intend to contract with several independent companies to provide
central station monitoring for our customers. These centers operate 24 hours per
day, seven days a week, including all holidays. Each operator within a service
center monitors a computer screen that presents real-time information concerning
the nature of the alarm signal, the customer whose alarm has been activated, and
the premises on which such alarm is located. Each operator
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receives training that includes familiarization with substantially every type of
alarm system in our customer base. This enables the operator to tell customers
how to turn off their systems in the event of a false alarm, thus reducing the
instances in which a field service person must be dispatched. All telephone
conversations are automatically recorded. Other non-emergency administrative
signals are generated by low battery status, deactivation and reactivation of
the alarm monitoring system, and test signals, and are processed automatically
by computer.
Enhanced Services
As a means to increase revenues and to enhance customer satisfaction, we
will offer customers an array of enhanced security services, including extended
service protection and several different types of alarm verification. These
services position us as a full service provider and give dealers more features
to sell in their solicitation of new customers. We intend to actively solicit
our customers for interest in these services. The following provides additional
detail on enhanced services:
-- Extended Service Protection, which covers the normal costs of repairing the
system during normal business hours, after the expiration of the initial
warranty period.
-- Two-Way Voice Communication (Remote Audio Verification), which consists of
the ability, in the event of an alarm activation, to listen and to talk to
persons at the monitored premises from the service center through speakers
and microphones located within the premises. Among other things, such
remote audio verification helps us to determine whether an alarm activation
is a false alarm.
-- Supervised Monitoring Service, which allows the alarm system to send
various types of signals containing information on the use of the system,
such as which users armed or disarmed the system and at what time of the
day. This information is supplied to customers for use in connection with
the management of their households or businesses. Supervised monitoring
service can also include a daily automatic test feature.
-- Pager Service, which provides the customer with standard pager services
that also enables us to reach the customer in the event of an alarm
activation.
-- Wireless Back-Up, which permits the alarm system to send signals over a
cellular telephone or dedicated radio system, in the event tat regular
telephone service is interrupted.
-- Alarm Response and Patrol Service, which provides customers in selected
markets with rapid, on-premises response to and verification of alarms by
armed officers.
-- Medical Information Service, which provides a responder with our customers'
specific medical needs, as well as emergency contacts whether home or away.
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ADVERTISING AND MARKETING
We intend to use radio, newspaper and direct mail with promotional
messages to create sales leads and general brand awareness. We intend to test
the use of brand awareness advertising in conjunction with direct response
marketing in an effort to quantify the extent to which increased consumer
awareness of the brand enhances direct marketing activities. We expect to invest
gradually in brand advertising over time as the security market matures.
COMPETITION
The security alarm industry is highly competitive and highly fragmented
in metropolitan New York. Based on number of residential customers, the top five
alarm companies in the New York metropolitan area, as estimated by management,
are:
-- ADT Security Services, a subsidiary of Tyco International, Inc. ("ADT");
-- Protection One;
-- Security Link from Ameritech, Inc., a subsidiary of Ameritech Corporation;
-- Brinks Home Security Inc., a subsidiary of The Pittston Services Group of
North America; and
-- Honeywell Inc.
Competition in the security alarm industry is based primarily on
reliability of equipment, market visibility, services offered, reputation for
quality of service, price and the ability to identify and to solicit prospective
customers as they move into homes. We believe that we compete effectively with
other national, regional and local security alarm companies due to our
reputation for reliable equipment and services, our prominent presence in the
areas surrounding our branch offices and dealers, our ability to offer combined
monitoring, repair and enhanced services our low cost structure and our
marketing alliances.
REGULATORY MATTERS
A number of local governmental authorities have adopted or are
considering various measures aimed at reducing the number of false alarms. Such
measures include:
-- subjecting alarm monitoring companies to fines or penalties for
transmitting false alarms;
-- permitting of individual alarm systems and the revocation of such permits
following a specified number of false alarms;
-- imposing fines on alarm customers for false alarms;
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-- imposing limitations on the number of times the police will respond to
alarms at a particular location after a specified number of false alarms;
and
-- requiring further verification of an alarm signal before the police will
respond.
Our operations are subject to a variety of other laws, regulations and
licensing requirements of both domestic and foreign federal, state, and local
authorities. In certain jurisdictions, we are required to obtain license or
permits, to comply with standards governing employee selection and training, and
to meet certain standards in the conduct of our business. Many jurisdictions
also require certain of our employees to obtain licenses or permits. Those
employees who serve as patrol officers are often subject to additional licensing
requirements, including firearm licensing and training requirements in
jurisdictions in which they carry firearms.
The alarm industry is also subject to requirements imposed by various
insurance, approval, listing, and standards organizations. Depending upon the
type of customer served, the type of security service provided, and the
requirements of the applicable local governmental jurisdiction, adherence to the
requirements and standards of such organizations is mandatory in some instances
and voluntary in others.
Our advertising and sales practices are regulated in the United States
by both the Federal Trade Commission and state consumer protection laws. In
addition, certain administrative requirements and laws of the foreign
jurisdictions in which we operate also regulate such practices. Such laws and
regulations include restrictions on the manner in which we promote the sale of
our security alarm systems, the obligation to provide purchasers of our alarm
systems with certain rescission rights and certain foreign jurisdictions'
restrictions on a company's freedom to contract.
Our alarm monitoring business utilizes telephone lines and radio
frequencies to transmit alarm signals. The cost of telephone lines and the type
of equipment which may be used in telephone line transmission are currently
regulated by both federal and state governments. The Federal Communications
Commission and state public utilities commissions regulate the operation and
utilization of radio frequencies. In addition, the laws of certain of the
foreign jurisdictions in which we operate regulate the telephone communications
with the local authorities.
RISK MANAGEMENT
The nature of the services provided by us potentially exposes us to
greater risks of liability for employee acts or omissions, or system failure,
than may be inherent in other businesses. Substantially all of our alarm
monitoring agreements and other agreements, pursuant to which we sell our
products and services contain provisions limiting liability to customers in an
attempt to reduce this risk.
We intend to carry insurance of various types, including general
liability and errors and omissions insurance in amounts management considers
adequate and customary for our industry and business. Our loss experience, and
the loss experiences at other security service companies,
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may affect the availability and cost of such insurance. Certain insurance
policies, and the laws of some states, may limit or prohibit insurance coverage
for punitive or certain other types of damages or liability arising from gross
negligence.
EMPLOYEES
At March 31, 1999 we employed two individuals on a full time basis, of
which one is an executive officer. Ultimately, we expect to maintain a staffing
level of at least 15 to 20 employees.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL STATEMENTS.
REVIEW OF OPERATING RESULTS
We are a start-up company and have had no operating history nor any
revenues from earnings from operations. The success of our proposed plan of
operation will depend to a great extent on management's abilities to implement
our business plan.
CAPITAL NEEDS AND FUTURE REQUIREMENTS
We have raised, as of May 15, 1999, an aggregate of approximately
$16,500. While these monies have allowed us to commence operations, it is not
enough to sustain our business plan. Upon the effectiveness of this Registration
Statement, we intend to raise funds for the expansion of our business and
possible business acquisitions. There can be no assurance as to our ability to
raise additional funds and there can be no assurances that we will be able to
continue as an ongoing concern.
YEAR 2000
We have reviewed our internal computer systems and products and their
capability of recognizing the year 2000 and years thereafter. We expect that any
costs relating to ensuring such systems to be year 2000 compliant will not be
material to our financial condition or results of operations.
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ITEM 3. DESCRIPTION OF PROPERTY
Our corporate offices are located at 62-45 Woodhaven Boulevard, Rego
Park, New York 11375. We occupy approximately 500 square feet at a rental of
$200.00 per month from Mr. Jordan Erber, our Chairman and CEO. We believe that
the rental rate is fair and reasonable. We occupy this space on a month to month
basis. Our management believes the space is adequate to satisfy our customers
need at present. As we grow, the current space will be insufficient, however,
there is adequate space available in the area and management believes a move can
be accomplished with minimal or no disruption to its operations.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
This table describes the current ownership of our outstanding Common
Stock by (i) each of our officers and directors; (ii) each person who is known
by us to own more than 5% of the company's outstanding Common Stock; and (iii)
all of our officers and directors as a group:
<TABLE>
<CAPTION>
Amount and
Name and Address of Nature of Beneficial Percent of
Title of Class Beneficial Owner Owner Class
- -------------- ------------------- -------------------- ----------
<S> <C> <C> <C>
Common Stock Jordan Erber 778,000 17.16%
62-45 Woodhaven Blvd.
Rego Park, NY 11374
Common Stock Kathleen LaVeglia 290,000 6.39%
205-48 Brian Crescent
Bayside, NY 11360
Common Stock Robert Dehmer 10,000 .22%
171-31 21st Avenue
Whitestone, NY 11357
All officers and Directors
as a group (3 persons) 1,078,000 23.77%
</TABLE>
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ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
This table describes our current directors and executive officers:
Name Age Title
---- --- -----
Jordan Erber 39 President, Treasurer and Chairman of
the Board
Kathleen LaVeglia 43 Secretary & Director
Robert Dehmer 26 Director
Jordan Erber - President & Chairman of the Board of Directors - Mr. Erber has
been the Company's President, Treasurer and Chairman of the Board since its
inception. Since 1983 Mr. Erber has been President of Around the Clock Locksmith
Inc. Mr. Erber has been a licensed locksmith since 1981 and he has a license
from the New York State Burlar & Fire organization. Mr. Erber has considerable
contacts within the business community and intends to introduce the company to
some potentially large customers. Potential clients include retail,
institutional, corporate and municipal organizations.
Kathleen La Veglia - Secretary & Director - Ms. La Veglia has been Secretary and
a Director of the Company since its inception. Since 1992 Ms. La Veglia has been
a Teacher employed by the Board of Education, City of New York. Ms. La Veglia
had been employed for eleven years as a Bookkeeper at Sieger & Smith Inc. Ms. La
Veglia holds an Associates Degree from Queens Borough College in New York.
Robert Dehmer - DirectoR - Mr. Dehmer has been a Director of the Company since
its inception. Since 1993 Mr. Dehmer has been a Paraprofessional employed by the
Board of Education, City of New York. Mr. Dehmer is currently attending
Queensboro College in New York. Mr. Dehmer is a licensed real estate agent.
Our directors serve in their positions until the next annual meeting of
stockholders or until the director's successors have been elected and qualified.
Our executive officers are appointed by our Board of Directors and serve at the
discretion of the Board.
ITEM 6. EXECUTIVE COMPENSATION
Our President, Mr. Jordan Erber is currently compensated at the rate of
$500 per month. As we begin to generate revenues it is anticipated that Mr.
Erber will be paid the salary of $60,000 annually. Additionally, Mr. Erber will
receive a 5% commission on gross sales initiated by him.
No retirement, pension, profit sharing, stock option or insurance
programs or other similar programs have been adopted by us for the benefit of
our employees.
Each Director will receive $500 for attending no less than 50% of the
Board meetings in that year.
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ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
We were incorporated on March 16, 1999 with a total authorized shares of
20,000,000, $0.0001 par value shares. On March 26, 1999 we issued 1,078,000
restricted shares of our Common Stock to our founders at par value. On March 26,
1999 we sold 3,432,000 shares to 25 investors at par value. On March 31, 1999 we
sold 10,000 shares to 100 investors for $0.10 per Share. On April 6, 1999 we
sold 15,000 shares to three investors for $1.00 per Share.
ITEM 8. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
We are authorized to issue 20,000,000 shares of Common Stock, $.0001 par
value. At this time, we have 4,535,000 shares of Common Stock issued and
outstanding. Each share of Common Stock entitles the shareholder (i) to one
non-cumulative vote for each share held of record on all matters submitted to a
vote of the stockholders; (ii) to participate equally and to receive dividends
as may be declared by the Board of Directors; and, (iii) to participate pro rata
in any distribution of assets available for distribution upon liquidation of the
Company. Our stockholders have no preemptive rights to acquire additional shares
of Common Stock or any other securities. Our Common Stock is not subject to
redemption and carries no rights to purchase other securities of the Company.
Our Common Stock is non-assessable. Our transfer agent is Executive Registrar &
Transfer Company, Inc., P.O. Box 56517, Phoenix, AZ 85079.
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PART II
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS
There is no trading market for our Common Stock at present and there has
been no trading market to date. Management has not undertaken any discussions,
preliminary or otherwise, with any prospective market maker concerning the
participation of such market maker in the aftermarket for the Company's
securities and management does not intend to initiate any such discussions until
such time as the Company has received a no further comment letter from the
Securities and Exchange Commission with respect to this filing. There is no
assurance that a trading market will ever develop or, if such a market does
develop, that it will continue.
(a) MARKET PRICE. Our Common Stock is not quoted at the present time.
Effective August 11, 1993, the Securities and Exchange Commission
adopted Rule 15g-9, which established the definition of a "penny stock," for
purposes relevant to the Company, as any equity security that has a market price
of less than $5.00 per share or with an exercise price of less than $5.00 per
share, subject to certain exceptions. For any transaction involving a penny
stock, unless exempt, the rules require: (i) that a broker or dealer approve a
person's account for transactions in penny stocks; and (ii) the broker or dealer
receive from the investor a written agreement to the transaction, setting forth
the identity and quantity of the penny stock to be purchased. In order to
approve a person's account for transactions in penny stocks, the broker or
dealer must (i) obtain financial information and investment experience and
objectives of the person; and (ii) make a reasonable determination that the
transactions in penny stocks are suitable for that person and that person has
sufficient knowledge and experience in financial matters to be capable of
evaluating the risks of transactions in penny stocks. The broker or dealer must
also deliver, prior to any transaction in a penny stock, a disclosure schedule
prepared by the Commission relating to the penny stock market, which, in
highlight form, (i) sets forth the basis on which the broker or dealer made the
suitability determination; and (ii) that the broker or dealer received a signed,
written agreement from the investor prior to the transaction. Disclosure also
has to be made about the risks of investing in penny stocks in both public
offerings and in secondary trading, and about commissions payable to both the
broker-dealer and the registered representative, current quotations for the
securities and the rights and remedies available to an investor in cases of
fraud in penny stock transactions. Finally, monthly statements have to be sent
disclosing recent price information for the penny stock held in the account and
information on the limited market in penny stocks.
The National Association of Securities Dealers, Inc. (the "NASD"), which
administers NASDAQ, has recently made changes in the criteria for initial
listing on the NASDAQ Small Cap market and for continued listing. For initial
listing, a company must have net tangible assets of $4 million, market
capitalization of $50 million or net income of $750,000 in the most recently
completed fiscal year or in two of the last three fiscal years. For initial
listing, the common stock must also have a minimum bid price of $4 per share. In
order to continue to be included on NASDAQ, a company must maintain $2,000,000
in net tangible assets and a $1,000,000 market value of its publicly-traded
securities. In addition, continued inclusion requires two market-makers and a
minimum bid price of $1.00 per share.
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(b) HOLDERS. There are 131 holders of our Common Stock. In March and
April 1999, we issued a total of 4,535,000 of our Common Stock to these persons
for a total of $16,451 in cash.
(c) DIVIDENDS. We have not paid any dividends to date, and have no plans
to do so in the immediate future.
ITEM 2. LEGAL PROCEEDINGS
We are not a party to any pending legal proceedings.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
We have not had any changes in accountants nor have we had any
disagreements with accountants.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES
On March 26, 1999, we issued an aggregate of 1,078,000 shares of our
Common Stock to Jordan Erber (778,000), Kathleen LaVeglia (290,000) and Robert
Dehmer (10,000) for $107.80. We relied on the exemption from registration at
Section 4(2) of the Securities Act of 1933 for non-public offerings.
On March 26, 1999, we sold an aggregate of 3,432,000 shares of our
Common Stock to 25 purchasers for $343.20. The offering was conducted under
Regulation D, Rule 504 of the Securities Act of 1933.
On March 31, 1999, we sold an aggregate of 10,000 shares of our Common
Stock to 100 purchasers for $1,000. The offering was conducted under Regulation
D, Rule 504 of the Securities Act of 1933.
On April 6, 1999, we sold 15,000 shares of our Common Stock to three
purchasers for $15,000. The offering was conducted under Regulation D, Rule 504
of the Securities Act of 1933.
ITEM 5. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Pursuant to our certificate of incorporation and by-laws, attached as
Exhibits hereto, we shall indemnify our directors, officers, employees and
agents to the full extent permissible under the General Corporation Law of the
State of Delaware, as effective from time to time, or any other applicable law.
Under Section 145 of the Delaware General Corporation Law, we have the
power to indemnify directors, officers, employees and agents under certain
prescribed circumstances against expenses (including attorney's fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred in connection with any action, suit or proceeding, whether civil,
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criminal, administrative or investigative, to which any of them is a party by
reason of his being a director, officer, employee, or agent of the company if it
is determined that he acted in accordance with the applicable standard of
conduct set forth in such statutory provisions.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the company pursuant to the foregoing provisions, or otherwise, we have been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by us in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, we will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy.
Our certificate of incorporation and by-laws provide that no director of
shall be personally liable to us or our stockholders for monetary damages for
breach of his or her fiduciary duty as a director, except (i) for any breach of
the director's duty of loyalty to us or our stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) for paying a dividend or approving a stock repurchase
which was illegal under section 174 of the Delaware General Corporation Law; or
(iv) for any transaction from which the director derived an improper benefit.
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PART F/S
Attached is the audited balance sheet for the Company for the period
ended March 31, 1999. The following financial statements are attached to this
report and filed as a part thereof. See pages F-1 through F-4.
1. Table of Contents
2. Report of Independent Certified Public Accountants
3. Balance Sheet
4. Notes to the Balance Sheet
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BE SAFE SERVICES, INC.
BALANCE SHEET
MARCH 31, 1999
CONTENTS
Page
----
Accountants' audit report 2
Balance sheet 3
Note to the balance sheet 4
-1-
<PAGE>
WEISS & COMPANY
CERTIFIED PUBLIC ACCOUNTANTS
22 WEST 38TH STREET
NEW YORK, NEW YORK 10018-6204
ABRAHAM WEISS, CPA TELEPHONE: (212) 302-3400
STEVE YANKOVICH, CPA TELECOPIER: (212) 704-3269
http://www.weissandco.com
INDEPENDENT AUDITORS' REPORT
To the Board of Directors
Be Safe Services, Inc.
We have audited the accompanying balance sheet of Be Safe Services, Inc. as of
March 31, 1999. This financial statement is the responsibility of the Company's
management. Our responsibility is to express an opinion on this financial
statement based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the balance sheet is free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and
disclosures in the balance sheet. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the balance sheet. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall balance sheet
presentation. We believe that our audit provides a reasonable basis for our
opinion.
In our opinion, the balance sheet referred to above presents fairly, in all
material respects, the financial position of Be Safe Services, Inc. as of March
31, 1999,in conformity with generally accepted accounting principles.
/s/ Weiss & Company
New York, New York
April 20, 1999
-2-
<PAGE>
BE SAFE SERVICES, INC.
BALANCE SHEET
MARCH 31, 1999
ASSETS
Cash $2,128
------
LIABILITIES AND SHAREHOLDERS' EQUITY
Loans from officers $ 687
Common stock, par value $.0001, 20,000,000 shares
authorized, 4,520,000 shares issued and outstanding 452
Additional paid-in capital 999
Accumulated deficit (10)
------
Total shareholders' equity 1,441
------
$2,128
======
See accountants' audit report and note.
-3-
<PAGE>
BE SAFE SERVICES, INC.
NOTE TO THE BALANCE SHEET
Note 1 - General
The Company was incorporated in the State of Delaware on March 16, 1999. As
of March 31, 1999, the Company had not yet commenced its business
operations.
Note 2 - Stockholders' Equity
On March 26, 1999, the company issued 4,510,000 shares of common stock for
$451. 1,078,000 of said shares were issued to officers of the Company.
On March 30, 1999, the company issued 10,000 shares of common stock for
$1,000.
-4-
<PAGE>
PART III
ITEM 1 Index to Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description Location
- ------- ----------- --------
<C> <S> <C>
3.1 Certificate of Incorporation of Be Safe Services, Inc. Filed electronically
herewith
3.2 By-laws of Be Safe Services, Inc. Filed electronically
herewith
4.1 Specimen of Common Stock Certificate To be filed by
Amendment
27 Financial Data Schedule Filed electronically
herewith
</TABLE>
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SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934,
the Registrant caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
Be Safe Services, Inc.
Date: June 1, 1999 By: /s/ Jordan Erber
------------------------------
Jordan Erber, President
17
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "BE SAFE SERVICES, INC.", FILED IN THIS OFFICE ON THE SIXTEENTH
DAY OF MARCH, A.D. 1999, AT 3:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[Secretary's Office Seal] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
3017341 8100 AUTHENTICATION: 9631898
991102512 DATE: 03-17-99
<PAGE>
CERTIFICATE OF INCORPORATION
OF
Be Safe Services, Inc.
*****
1. The name of the corporation is Be Safe Services, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. 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.
4. The total number of shares of common stock which the corporation shall
have authority to issue is: Twenty Million (20,000,000) and the par value of
each of such shares is ($.0001) amounting in the aggregate to ($2,000).
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
Joel C. Schneider 600 Old Country Road, Garden City, NY 11530
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by statute,
the board of directors is expressly authorized: To make, alter or repeal the
by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the by-laws
of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this 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 this
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 Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this 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 this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
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 this corporation, as the case may be, and also on this
corporation.
9. The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate or Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
10. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any translation from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this Certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this Sixteenth day of March, 1999.
/s/ Joel C. Schneider
-----------------------------------
Joel C. Schneider
(DEL. - 42 - 9/25/96)
-2-
BY-LAWS
OF
BE SAFE SERVICES, INC.
ADOPTED MARCH 17, 1999
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of the Corporation
within the State of Delaware shall be located at the principal place of business
in said state of the Corporation or individual acting as the Corporation's
registered agent in Delaware.
SECTION 2. Other Offices. The Corporation may have other offices, either
within or without the State of Delaware, at such place or places as the Board of
Directors may from time to time appoint or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.1. Time and Place. All meetings of shareholders shall be held
at such time and place, whether within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
SECTION 2.2. Annual Meetings. An annual meeting of shareholders,
commencing with the year 2000, shall be held on such date, not less than sixty
(60) nor more than one hundred and eighty (180) days after the end of the
Corporation's last preceding fiscal year, as the Board of Directors shall
prescribe; PROVIDED, that if in any such year, the annual meeting shall not have
been held within such period, then it shall be held on the third Thursday of the
fifth month after the end of the Corporation's last preceding fiscal year, or,
if such day be a legal holiday, on the next business day following. At each
annual meeting, the shareholders shall elect a board of directors and transact
such other business as may properly come before the meeting.
SECTION 2.3. Special Meetings. Special meetings of shareholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Board of Directors, or by the
Chairman of the Board, or the President and shall be called by the Chairman of
the Board, the President or the Secretary at the request in writing of any one
or more shareholders owning at least ten percent (10%) in amount of the shares
of the Corporation issued and outstanding and entitled to vote. Any such request
shall state the purpose or purposes of the proposed meeting.
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SECTION 2.4. Notice of Meetings. Written notice of each meeting of
shareholders stating the place, date an hour thereof, and, in the case of a
special meeting, specifying the purpose or purposes thereof, shall be given, in
the manner prescribed by Section 6.1 of these By-Laws, to each shareholder
entitled to vote thereat, not less than ten (10) nor more than sixty (60) days
prior to the meeting, except that where the matter to be acted on is a merger or
consolidation or the Corporation or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than twenty
(20) nor more than sixty (60) days prior to such meeting.
If at any meeting, action is proposed to be taken which, if taken, would
entitle shareholders fulfilling the requirements of section 262(d) of the
Delaware General Corporation Law to an appraisal of the fair value of their
shares, the notice of such meeting shall contain a statement of that purpose and
to that effect and shall be accompanied by a copy of that statutory section.
SECTION 2.5. Quorum. Except as otherwise provided by statute or the
Certificate of Incorporation, the holders of a majority of the shares of the
Corporation issued and outstanding and entitled to vote thereat, present in
person or by proxy, shall be necessary to and shall constitute a quorum for the
transaction of business at each meeting of shareholders. A quorum which is
present to organize a meeting shall not be broken by the subsequent withdrawal
of one or more shareholders.
If a quorum shall not be present at the time fixed for any meeting, the
shareholders present in person or by proxy and entitled to vote thereat shall
have power to adjourn the meeting from time to time, without notice other than
an announcement at the meeting of the place, date and hour of the adjourned
meeting, until a quorum shall be present; and at any such adjourned meeting at
which a quorum shall be present, any business may be transacted which might have
been transacted had a quorum been present at the time originally fixed for the
meeting; provided, that if any meeting is so adjourned for more than thirty (30)
days, or if after any such adjournment, a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder entitled to vote thereat.
SECTION 2.6. Vote Required. At any meeting of shareholders at which a
quorum is present, all elections shall be determined by plurality vote and all
other matters shall be determined by the vote of the holders of a majority of
the shares present in person or by proxy and entitled to vote, unless the matter
is one which, by express provision of the statute, of the Certificate of
Incorporation or of these By-Laws, a different vote is required, in which case
such express provision shall govern and control the determination of such
matter.
SECTION 2.7. Voting. At any meeting of shareholders, each shareholder
having the right to vote shall be entitled to vote in person or by proxy; and
except otherwise provided by statute or the Certificate of Incorporation, each
shareholder of record shall be entitled to one vote for each outstanding share
registered in his name on the books of the Corporation as of the record date for
determining the shareholders entitled to notice of and to vote such meeting.
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SECTION 2.8. Action by Written Consent. Whenever a vote of shareholders
at a meeting thereof is required or permitted to be taken in connection with any
corporate action by any provision of statute or of the Certificate of
Incorporation or these By-Laws, the meeting, prior notice thereof and vote of
shareholders may be dispensed with if the holders of shares having not less than
the minimum number of votes that would have been necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted shall consent in writing to the taking of such action. Where
corporate action is taken in such manner by less than unanimous written consent,
prompt written notice of the taking of such action shall be given to all
shareholders who have not consented in writing thereto.
SECTION 2.9. Proxies. Each proxy shall be in writing executed by the
shareholder giving the proxy or his duly authorized attorney. No proxy shall be
valid after the expiration of three (3) years from its date, unless a longer
period is provided for in the proxy. Unless and until voted, every proxy shall
be revocable at the pleasure of the person who executed it or of his legal
representatives or assigns, except in those cases where an irrevocable proxy
permitted by statute has been given.
ARTICLE III
DIRECTORS
SECTION 3.1. Board of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors, which may exercise all such powers of the Corporation and do all such
lawful acts and things on its behalf as are not, by statute or by the
Certificate of Incorporation or by these By-Laws, directed or required to be
exercised or done by the shareholders.
SECTION 3.2. Number; Election and Tenure. The first Board of Directors
shall consist of one or more members and thereafter the number of directors
constituting the whole Board shall not be less than two (2) nor more than nine
(9) as fixed from time to time by resolution of the whole Board; provided, that
no decrease in the number of directors shall shorten the term of any incumbent
director. With the exception of the first Board of Directors, which shall be
elected by the incorporator of the Corporation, and except as otherwise provided
in these By-Laws, directors shall be elected at the annual meeting of
shareholders. Each director shall hold office for a term expiring at the annual
meeting of shareholders next succeeding his election and until his successor is
elected and has qualified or until his earlier displacement from office by
resignation, removal or otherwise.
SECTION 3.3. Resignation and Removal. Any director may resign at any
time by written notice to the Corporation. Any director may be removed for cause
or without cause, by the shareholders at a special meeting called for the
purpose.
SECTION 3.4. Vacancies. Any vacancy in the Board of Directors occurring
by reason of the death, resignation or disqualification of any director, the
removal of any director from office for cause or without cause, an increase in
the number of directors, or otherwise, may be filled by a majority of the
directors then in office, although such majority is less than a quorum, or by
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the sole remaining director, or by the shareholders. Each director elected to
fill a vacancy shall hold office for a term expiring at the next succeeding
annual meeting of shareholders and until his successor is elected and has
qualified or until his earlier displacement from office by resignation, removal
or otherwise.
SECTION 3.5. Compensation. The Board of Directors may from time to time
fix the compensation of directors for their services in that capacity. The
compensation of a director may consist of an annual fee or a fee for attendance
at each regular or special meeting of the Board or any meeting of any committee
of the Board of which such director is a member or a combination of fees of both
types; PROVIDED, that nothing herein contained shall be construed to preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor. The Board may also provide for the reimbursement to any
director of expenses incurred in attending any meeting of the Board or any
committee of the Board of which he is a member.
ARTICLE IV
MEETINGS OF THE BOARD
SECTION 4.1. Time and Place. Meetings of the Board of Directors may be
held at such time and place, within or without the State of Delaware, as shall
be determined in accordance with these By-Laws.
SECTION 4.2. Organization Meetings. The directors elected at each annual
meeting of shareholders shall hold a meeting for the purposes of organizing,
electing officers, and transacting any other business which may properly come
before the meeting within ten (10) days following the annual meeting, at such
time and place as shall be fixed by resolution of the Board of Directors prior
to the annual meeting or by the consent in writing of all of the newly-elected
directors, and no notice of such meeting to the newly-elected directors shall be
necessary in order legally to constitute the meeting, provided a quorum shall be
present.
SECTION 4.3. Regular Meetings. Regular meetings of the Board of
Directors, may be held, without notice, at such time and place as shall from
time to time be fixed in advance by resolution of the Board.
SECTION 4.4. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President, and, at
the written request of any two (2) directors shall be called by the Chairman of
the Board, the President or the Secretary. Written notice of each special
meeting of directors stating the time and place, and, if deemed appropriate by
the person or persons by whom or at whose request the meeting is being called,
the purpose or purposes thereof, shall be given to each director, in the manner
provided in Section 6.1 of these By-Laws, at least twenty-four (24) hours before
such meeting. The time and place of any special meeting of directors may also be
fixed by a duly executed waiver of notice thereof.
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SECTION 4.5. Quorum and Voting. At all meetings of the Board of
Directors or of any committee of the Board, a majority of the Board of Directors
or a majority of the whole membership of such committee shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the vote
of a majority of the directors or members of the committee present at any
meeting at which a quorum is present shall be the act of the Board of Directors
or such committee, except as otherwise provided by statute or by the Certificate
of Incorporation or these By-Laws. If a quorum shall not be present at any
meeting of the Board of Directors or any committee of the Board, the members of
the Board or such committee present thereat may adjourn the meeting from time to
time, without notice other than an announcement at the meeting, until a quorum
shall be present.
SECTION 4.6. Participation in Meetings by Telephone. Any one or more
members of the Board of Directors or of any committee of the Board may
participate in a meeting of the Board or committee by means of conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting.
SECTION 4.7. Action by Unanimous Written Consent. Any action required or
permitted to be taken by the Board of Directors or any committee of the Board
may be taken without a meeting if all members of the Board or of such committee
consent thereto in writing. The written consent or consents to each such action
shall be filed with the minutes of the proceedings of the Board or of the
committee taking such action.
ARTICLE V
COMMITTEES OF THE BOARD
SECTION 5.1. Designation. The Board of Directors, by resolution adopted
by a majority of the whole Board, may designate one or more committees, each
consisting of one (1) or more directors and having such title as the Board may
consider to be properly description of its function, (except that only one
committee, consisting of three (3) or more directors, shall be designated as the
Executive Committee, each of which, to the extent provided in such resolution,
shall have and may exercise all of the powers and authority of the Board in the
management of the business and affairs of the Corporation. However, no such
committee shall have power or authority in reference to:
(a) amending the certificate of incorporation;
(b) adopting an agreement of merger or consolidation;
(c) recommending to the shareholders the sale, lease or exchange of
all or substantially all of the Corporation's property and
assets;
(d) recommending to the shareholders a dissolution of the Corporation
or a revocation of a dissolution; or
(e) amending these By-Laws; and, unless expressly so provided by
resolution of the
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Board, no such committee shall have power or authority in reference
to;
(f) declaring a dividend; or
(g) authorizing the issuance of shares of the Corporation of any class.
The Board of Directors may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of any member
of any committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place and stead of such absent or disqualified member.
SECTION 5.2. Tenure; Reports; Procedures. Each such committee shall
serve at the pleasure of the Board of Directors. It shall keep minutes of its
meetings and report the same to the Board of Directors as and when requested by
the Board, and it shall observe such other procedures with respect to its
meetings as are prescribed in these By-Laws or, to the extent not prescribed
herein, as may be prescribed by the Board in the resolution appointing such
committee.
ARTICLE VI
NOTICES AND WAIVERS OF NOTICE
SECTION 6.1. Delivery of Notices. Notices to directors and shareholders
shall be in writing and may be delivered personally or by mail. Notice by mail
shall be deemed to be given at the time when deposited in the post office or a
letter box, enclosed in a post-paid sealed wrapper, and addressed to directors
or shareholders at their respective addresses appearing on the books of the
Corporation, unless any such director or shareholder shall have filed with the
Secretary of the Corporation a written request that notices intended for him be
mailed or delivered to some other address, in which case the notice shall be
mailed to or delivered at the address designated in such request. Notice to
directors may also be given by telegram or by leaving the notice at the
residence or usual place of business of a director.
SECTION 6.2. Waiver of Notice. Whenever notice is required to be given
by statute, the Certificate of Incorporation or these By-Laws, a waiver thereof
in writing, signed by the person or persons entitled to such notice, or, in the
case of any waiver of notice of any meeting of shareholders, signed by the proxy
for a person entitled to notice thereof, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Attendance of
a person at a meeting of shareholders, directors or any committee of directors,
as the case may be, shall constitute a waiver of notice of such meeting, except
where the person is attending for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of shareholders, directors or
committee of directors need be specified in any written waiver of notice.
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ARTICLE VII
OFFICERS
SECTION 7.1. Executive Officers. The executive officers of the
Corporation shall be Chairman of the Board, a President, a Treasurer and a
Secretary. The Corporation may also have one or more Vice Presidents, in which
case each Vice President shall also be an executive officer. The Chairman of the
Board and the President shall be selected from among the directors, but no other
executive officer need be a member of the Board. Two or more offices, except
those of President and Vice President and those of President and Secretary, may
be held by the same person, but no officer shall execute, acknowledge or verify
any instrument in more than one capacity. The executive officers of the
Corporation shall be elected annually by the Board of Directors at its first
meeting following the meeting of shareholders at which the Board was elected.
SECTION 7.2. Other Officers and Agents. The Board of Directors may also
elect of may delegate to the title of Chief Executive Officer authority to
appoint and remove, and to fix the duties, compensation and terms of office of
one or more Assistant Vice Presidents, Assistant Treasurers and Assistant
Secretaries, and such other officers and agents as the Board may at any time
determine to be advisable.
SECTION 7.3. Tenure; Resignation; Removal; Vacancies. Each officer of
the Corporation shall hold office until his successor is elected or appointed or
until his earlier displacement from office by resignation, removal or otherwise;
provided, that if the term of office of any officer elected or appointed
pursuant to Section 7.2 of these By-Laws shall have been fixed by the Board of
Directors, Chairman of the Board or President, he shall cease to hold such
office no later than the date of expiration of such term, regardless of whether
any other person shall have been elected or appointed to succeed him. Any
officer may resign by written notice to the Corporation and may be removed for
cause or without cause by the Board of Directors pursuant to Section 7.2 of
these By-Laws; PROVIDED, that any such removal shall be without prejudice to the
rights, if any, of the officer so removed under any employment contract or other
agreement with the Corporation. If the office of any officer becomes vacant for
any reason, the vacancy may be filled by the Board of Directors.
SECTION 7.4. Compensation. The compensation of all officers of the
Corporation shall be fixed by the Board of Directors.
SECTION 7.5. Authority and Duties. All officers as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-Laws, or, to the
extent not provided, as may be prescribed by the Board of Directors.
SECTION 7.6. The Chairman of the Board. The Chairman of the Board shall
be the Chief Executive Officer of the Corporation. He shall preside at all
meetings of the shareholders and the directors. He shall have general and active
management of the business of the Corporation, shall see to it that all
resolutions and orders of the Board of Directors are carried into effect, and,
in connection therewith, shall be authorized to delegate to the President and
the other
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executive officers such of his powers and duties as Chairman of the Board at
such times and in such manner as he may deem to be advisable. Except where by
law or by order of the Board of Directors, the signature of the President is
required, the Chairman of the Board shall have the same power as the President
to execute instruments on behalf of the Corporation.
SECTION 7.7. The President. The President shall be the Chief Operating
Officer of the Corporation and its executive officer next in authority to the
Chairman of the Board. He shall assist the Chairman of the Board in the
management of the business of the Corporation and, in the absence or disability
of the Chairman, he shall preside at all meetings of the shareholders and the
directors, and exercise the other powers and perform the other duties of the
Chairman or designate the executive officers of the Corporation by whom such
other powers shall be exercised and other duties performed; and he shall have
such other powers and duties as the Board of Directors may from time to time
prescribe.
SECTION 7.8. The Vice Presidents. The Vice President, if any, or, if
there be more than one, the Vice Presidents, shall assist the Chairman and
President in the management of the business of the Corporation and the
implementation of resolutions and orders of the Board of Directors at such times
and in such manner as the Chairman and President may deem to be advisable. If
there be more than one Vice President, the Board of Directors may designate one
of them as Executive Vice President, in which case he shall be first in order of
seniority, and may also grant to others such titles as shall be descriptive of
their respective functions or indicative of their relative seniority. The Vice
President, or, if there by more than one, the Vice Presidents in the order of
their seniority as indicated by their titles or as otherwise determined by the
Board of Directors shall, in the absence or disability of the Chairman and
President, exercise the powers and perform the duties of those officers subject
to the direction of the Board of Directors; and he or they shall have such other
powers and duties as the Board of Directors or the Chairman may from time to
time prescribe.
SECTION 7.9. The Assistant Vice Presidents. The Assistant Vice
President, if any, or, if there be more than one, the Assistant Vice Presidents,
shall perform such duties as the Board of Directors or the Chairman may from
time to time prescribe.
SECTION 7.10. The Treasurer. The Treasurer shall have the care and
custody of the corporate funds, and other valuable effects, including
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 Chairman, President and the Board of Directors, at meetings or whenever they
may require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation.
SECTION 7.11. The Assistant Treasurers. The Assistant Treasurer, if any,
or, if there be more than one, the Assistant Treasurers, in the order determined
by the Board of Directors or by the Chairman, shall, in the absence or
disability of the Treasurer, exercise the powers and perform the duties of the
Treasurer; and he or they shall perform such other duties as the Board of
Directors or the Chairman may from time to time prescribe.
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SECTION 7.12. The Secretary. The Secretary shall attend all meetings of
the shareholders and of the Board of Directors and shall record the minutes of
all proceedings taken at such meetings, or maintain all documents evidencing
corporate actions taken by written consent of the shareholders or of the Board
of Directors, in a book to be kept for that purpose; and he shall perform like
duties for any committees of the Board of Directors when required. He shall see
to it that all notices of meetings of the shareholders and of special meetings
of the Board of Directors are duly given in accordance with these By-Laws or as
required by statute; he shall be the custodian of the seal of the Corporation,
and, when authorized by the Board of Directors, he shall cause the corporate
seal to be affixed to any document requiring it, and, when so affixed, attested
by his signature of an Assistant Secretary or by the signature of an Assistant
Secretary; and he shall perform such other duties as the Board of Directors or
the Chairman may from time to time prescribe.
SECTION 7.13. The Assistant Secretaries. The Assistant Secretary, if
any, or, if there be more than one, the Assistant Secretaries, in the order
determined by the Board of Directors or by the Chairman, shall, in the absence
or disability of the Secretary, exercise the powers and perform the duties of
the Secretary; and he or they shall perform such other duties as the Board of
Directors or the Chairman may from time to time prescribe.
ARTICLE VIII
SHARE CERTIFICATES
SECTION 8.1 Form and Signature of Share Certificates. The certificates
for shares of the Corporation shall be in such form as shall be determined by
the Board of Directors, and shall be numbered and entered in the books of the
Corporation as they are issued. Each certificate shall exhibit the registered
holder's name and the number and class of shares, and the designation of any
series, that it evidences, shall set forth such other statements as may be
required by statute, and shall be signed by the Chairman of the Board, President
or a Vice President and by the Treasurer or an Assistant Treasurer or by the
Secretary or an Assistant Secretary, any or all of whose signatures may be
facsimile if such certificate is countersigned by a transfer agent or registered
by a registrar. In case any one or more of the officers who have signed or whose
facsimile signatures appear on any such certificate shall cease to be such
officer or officers of the Corporation, whether because of death, resignation or
otherwise, before such certificate is issued and delivered, it may nonetheless
be issued and delivered with the same effect as if such officer or officers had
continued in office.
SECTION 8.2. Lost Share Certificates. The Board of Directors may direct
that a new share certificate or certificates be issued in place of any
certificate or certificates theretofore issued by the Corporation which have
been mutilated or which are alleged to have been lost, stolen or destroyed, upon
presentation of each such mutilated certificate or the making by the person
claiming any such certificate to have been lost, stolen or destroyed of an
affidavit as to the fact and circumstances of the loss, theft or destruction
thereof. The Board of Directors, in its discretion and as a condition precedent
to the issuance of any new certificate, may require the owner of any certificate
alleged to have lost, stolen or destroyed, or his legal representative,
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to furnish the Corporation with a bond, in such sum and with such surety or
sureties as it may direct, as indemnity against any claim that may be made
against the Corporation in respect of such lost, stolen or destroyed
certificate.
SECTION 8.3. Registration of Transfer. Upon surrender to the Corporation
or any transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation shall issue or cause its transfer agent
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. Record Date.
(a) For the purpose of determining the shareholders entitled to notice
of, or to vote at, any meeting of shareholders or at any adjournment thereof in
respect of which a new record date is not fixed, or to express written consent
to or dissent from the taking of corporate action without a meeting, or to
receive notice that any such corporate action was taken without a meeting, or
for the purpose of determining the shareholders entitled to receive payment of
any dividend or other distribution or allotment of any rights, or to exercise
any rights in respect of any change, conversion or exchange of shares, or for
the purpose of any other lawful action, the Board of Directors may fix, in
advance, a date as the record date for any such determination of shareholders.
Such date shall not be more than sixty (60) nor less than ten (10) days before
the date of any such meeting nor more than sixty (60) days before any such other
action.
(b) If no record date is fixed:
(1) The record date for determining the shareholders entitled to
notice of or to vote at a meeting shall be at the close of business on the day
next preceding the date on which notice is given, or, if no notice is given, on
the day next preceding the day on which the meeting is held;
(2) The record date for determining the shareholders entitled to
express written consent to the taking of any corporate action without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed; and
(3) The record date for determining shareholders for any purpose
other than those specified in subparagraphs (1) and (2) shall be at the close of
business on the day on which the resolution of the Board of Directors relating
thereto is adopted.
SECTION 9.2. Registered Shareholders. Except as otherwise required by
law, the Corporation shall be entitled to recognize a person registered on its
books as the holder of shares as the sole owner of such shares for all purposes,
and shall not be bound to recognize any equitable or legal claim to or interest
in such shares on the part of any person other than such registered holder,
regardless of whether it shall have knowledge or notice of any such claim or
10
<PAGE>
interest. Without limiting the generality of the foregoing, the Corporation
shall be entitled to recognize the exclusive right of a person whose holding of
shares is so registered on its books as of any record date fixed or determined
pursuant to section 9.1 of these By-Laws to be treated as the sole owner of such
shares for the purpose for which such record date was so fixed or determined and
to hold a person registered on its books as the holder of share liable for calls
and assessments in respect of such shares.
SECTION 9.3 Dividends and Distributions; Reserves. Subject to all
applicable requirements of law and to any applicable provisions of the
Certificate of Incorporation, these By-Laws and any indenture or other agreement
to which the Corporation is a party or by which it is bound, the Board of
Directors may declare to be payable, in cash, in other property or in shares of
the Corporation of any class or series, such dividends and distributions upon or
in respect of outstanding shares of the Corporation of any class or series as
the Board may at any time or from time to time deem to be advisable. Before
declaring any such dividend or distribution, the Board of Directors may cause to
be set aside, out of any funds or other property or assets of the Corporation
legally available for the payment of dividends or distributions, such sum or
sums as the Board, in the absolute discretion of its members, may consider to be
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 Board may deem conducive to the interest of the
Corporation, and the Board may modify or abolish any such reserve in the manner
in which it was created.
SECTION 9.4. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the shareholders when called
for by vote of the shareholders, a full and clear statement of the business and
financial condition of the Corporation.
SECTION 9.5. Checks, Notes, etc. All checks or other orders for the
payment of money and all notes or other instruments evidencing indebtedness of
the Corporation shall be signed on its behalf by such officer or officers or
such other person or persons as the Board of Directors may from time designate.
SECTION 9.6. Fiscal Year. The fiscal year of the Corporation shall be
fixed and may from time to time be changed by resolution of the Board of
Directors; PROVIDED, that if a different fiscal year shall not have been fixed
by the Board on or before December 31, 1999 the first fiscal year of the
Corporation shall end on that date, and thereafter, unless and until the Board
shall fix a different fiscal year, it shall be the period of twelve (12)
consecutive calendar months ending on the 31st day of December in each year.
SECTION 9.7. Voting of Securities of Other Corporations. In the event
that the Corporation, shall at any time or from time to time own and have power
to vote any securities (including but not limited to shares of stock) of any
other issuer, they shall be voted by such person or persons, to such extent and
in such manner, as may be determined by the Board of Directors.
11
<PAGE>
ARTICLE X
INDEMNIFICATION
SECTION 10.1. Indemnification. The Corporation shall (a) indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, 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 or such action or suit, (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, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he is or was a director or
officer of the Corporation, or served at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with any such action, suit or proceeding, in each case to
the fullest extent permissible under subsections (a) through (f) of Section 145
of General Corporation Law of the State of Delaware of the indemnification
provisions of any successor statute and (c) advance reasonable and necessary
expenses in connection with such actions or suits, and not seek reimbursement of
such expenses unless there is a specific determination that the officer or
director is not entitled to such indemnification. The foregoing right of
indemnification shall in no way be exclusive of any other rights of
indemnification to which any such person may be entitled, under any by-law,
agreement, vote of shareholders or disinterested directors or otherwise, and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
ARTICLE XI
AMENDMENTS
SECTION 11.1. Power to Amend. These By-Laws may be amended or repealed,
and new By-Laws may be adopted, by vote of the shareholders entitled at the time
to vote for the election of directors [or by resolution adopted by a majority of
the whole Board if Directors at any regular or special meeting; provided,
however, that any By-Law or amendment to the By-Laws so adopted by the Board of
Directors may be amended or repealed, and any By-Law so repealed by the Board
may be reinstated, by vote of the shareholders entitled at the time to vote for
the election of directors, in which case the Board shall not thereafter take
action with respect to the By-Laws which is inconsistent with the action so
taken by such shareholders; and provided further, that the Board of Directors
shall not have power to amend or repeal any existing By-Law, or to adopt any new
By-Law containing provisions inconsistent with any existing By-Law, which by its
terms may be amended or repealed only by the shareholders.
12
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