U.S. 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 (g) of
the Securities Exchange Act of 1934
WINDSOR ACQUISITION CORPORATION
-----------------------------
(Name of Small Business Issuer)
Delaware 75-2823849
------------------------------- -------------------------------------
(State or Other Jurisdiction of I.R.S. Employer Identification Number
Incorporation or Organization)
2425 North Central Expressway, Suite 400, Richardson, TX 75080-2714
------------------------------------------------------------
(Address of Principal Executive Offices including Zip Code)
501/269-7737
---------------------------
(Issuer's Telephone Number)
Securities to be Registered Under Section 12(b) of the Act: None
Securities to be Registered Under Section 12(g) of the Act: Common Stock
$.0001 Par Value
(Title of Class)
<PAGE>
PART I
ITEM 1. BUSINESS.
Windsor Acquisition Corporation (the "Company") was incorporated on June
11, 1999, under the laws of the State of Delaware to engage in any lawful
corporate undertaking, including, but not limited to, selected mergers and
acquisitions. The Company has been in the developmental stage since inception
and has no operations to date other than issuing shares to its original
shareholders.
The Company will attempt to locate and negotiate with a business entity
for the combination of that target company with the Company. The combination
will normally take the form of a merger, stock-for-stock exchange or
stock-for-assets exchange. In most instances the target company will wish to
structure the business combination to be within the definition of a tax-free
reorganization under Section 351 or Section 368 of the Internal Revenue Code of
1986, as amended. No assurances can be given that the Company will be successful
in locating or negotiating with any target company.
The Company has been formed to provide a method for a foreign or domestic
private company to become a reporting ("public") company whose securities are
qualified for trading in the United States secondary market.
PERCEIVED BENEFITS
There are certain perceived benefits to being a reporting company with a
class of publicly traded securities. These are commonly thought to include the
following:
* the ability to use registered securities to make
acquisitions of assets or businesses;
* increased visibility in the financial community;
* the facilitation of borrowing from financial
institutions;
* improved trading efficiency;
* shareholder liquidity;
* greater ease in subsequently raising capital;
* compensation of key employees through stock options
for which there may be a market valuation;
* enhanced corporate image;
* a presence in the United States capital market.
POTENTIAL TARGET COMPANIES
A business entity, if any, which may be interested in a business
combination with the Company may include the following:
* a company for which a primary purpose of becoming public
is the use of its securities for the acquisition of
assets or businesses;
* a company which is unable to find an underwriter of its
securities or is unable to find an underwriter of
securities on terms acceptable to it;
* a company which wishes to become public with less
dilution of its common stock than would occur upon an
underwriting;
<PAGE>
* a company which believes that it will be able to obtain
investment capital on more favorable terms after it has
become public;
* a foreign company which may wish an initial entry into
the United States securities market;
* a special situation company, such as a company seeking a public
market to satisfy redemption requirements under a qualified Employee
Stock Option Plan;
* a company seeking one or more of the other perceived
benefits of becoming a public company.
A business combination with a target company will normally involve the
transfer to the target company of the majority of the issued and outstanding
common stock of the Company, and the substitution by the target company of its
own management and board of directors.
No assurances can be given that the Company will be able to enter into a
business combination, as to the terms of a business combination, or as to the
nature of the target company.
The Company is voluntarily filing this Registration Statement with the
Securities and Exchange Commission and is under no obligation to do so under the
Securities Exchange Act of 1934.
RISK FACTORS
The Company's business is subject to numerous risk factors, including the
following:
NO OPERATING HISTORY OR REVENUE AND MINIMAL ASSETS. The Company has had no
operating history nor any revenues or earnings from operations. The Company has
no significant assets or financial resources. The Company will, in all
likelihood, sustain operating expenses without corresponding revenues, at least
until the consummation of a business combination. This may result in the Company
incurring a net operating loss, which will increase continuously until the
Company can consummate a business combination with a target company. There is no
assurance that the Company can identify such a target company and consummate
such a business combination.
SPECULATIVE NATURE OF THE COMPANY'S PROPOSED OPERATIONS. The success of
the Company's proposed plan of operation will depend to a great extent on the
operations, financial condition and management of the identified target company.
While management will prefer business combinations with entities having
established operating histories, there can be no assurance that the Company will
be successful in locating candidates meeting such criteria. In the event the
Company completes a business combination, of which there can be no assurance,
the success of the Company's operations will be dependent upon management of the
Target Company and numerous other factors beyond the Company's control.
SCARCITY OF AND COMPETITION FOR BUSINESS OPPORTUNITIES AND COMBINATIONS.
The Company is and will continue to be an insignificant participant in the
business of seeking mergers with and acquisitions of business entities. A large
number of established and well-financed entities, including venture capital
<PAGE>
firms, are active in mergers and acquisitions of companies which may be merger
or acquisition target candidates for the Company. Nearly all such entities have
significantly greater financial resources, technical expertise and managerial
capabilities than the Company and, consequently, the Company will be at a
competitive disadvantage in identifying possible business opportunities and
successfully completing a business combination. Moreover, the Company will also
compete with numerous other small public companies in seeking merger or
acquisition candidates.
IMPRACTICABILITY OF EXHAUSTIVE INVESTIGATION. The Company's limited funds
and the lack of full-time management will likely make it impracticable to
conduct a complete and exhaustive investigation and analysis of a Target
Company. The decision to enter into a business combination, therefore, will
likely be made without detailed feasibility studies, independent analysis,
market surveys or similar information which, if the Company had more funds
available to it, would be desirable. The Company will be particularly dependent
in making decisions upon information provided by the principals and advisors
associated with the business entity seeking the Company's participation.
NO AGREEMENT FOR BUSINESS COMBINATION OR OTHER TRANSACTION-NO STANDARDS
FOR BUSINESS COMBINATION. The Company has no current arrangement, agreement or
understanding with respect to engaging in a business combination with a specific
entity. There can be no assurance that the Company will be successful in
identifying and evaluating suitable business opportunities or in concluding a
business combination. Management has not identified any particular industry or
specific business within an industry for evaluation by the Company. There is no
assurance that the Company will be able to negotiate a business combination on
terms favorable to the Company. The Company has not established a specific
length of operating history or a specified level of earnings, assets, net worth
or other criteria which it will require a target company to have achieved, or
without which the Company would not consider a business combination with such
business entity. Accordingly, the Company may enter into a business combination
with a business entity having no significant operating history, losses, limited
or no potential for immediate earnings, limited assets, negative net worth or
other negative characteristics.
CONTINUED MANAGEMENT CONTROL, LIMITED TIME AVAILABILITY. While seeking a
business combination, management anticipates devoting only a limited amount of
time per month to the business of the Company. The Company's sole officer has
not entered into a written employment agreement with the Company and he is not
expected to do so in the foreseeable future. The Company has not obtained key
man life insurance on its officer and director. Notwithstanding the combined
limited experience and time commitment of management, loss of the services of
this individual would adversely affect development of the Company's business and
its likelihood of continuing operations.
CONFLICTS OF INTEREST--GENERAL. The Company's officers and directors
participate in other business ventures which may compete directly with the
Company. Additional conflicts of interest and non-arms length transactions may
also arise in the future. Management has adopted a policy that the Company will
not seek a business combination with any entity in which any member of
management serves as an officer, director or partner, or in which they or their
family members own or hold any ownership interest. See "ITEM 5. DIRECTORS,
EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS--Conflicts of Interest."
REPORTING REQUIREMENTS MAY DELAY OR PRECLUDE ACQUISITION. Section 13 of
the Securities Exchange Act of 1934 (the "Exchange Act") requires companies
<PAGE>
subject thereto to provide certain information about significant acquisitions
including audited financial statements for the company acquired covering one or
two years, depending on the relative size of the acquisition. The time and
additional costs that may be incurred by some target companies to prepare such
financial statements may significantly delay or essentially preclude
consummation of an otherwise desirable acquisition by the Company. Acquisition
prospects that do not have or are unable to obtain the required audited
statements may not be appropriate for acquisition so long as the reporting
requirements of the Exchange Act are applicable.
LACK OF MARKET RESEARCH OR MARKETING ORGANIZATION. The Company has neither
conducted, nor have others made available to it, market research indicating that
demand exists for the transactions contemplated by the Company. Even in the
event demand exists for a transaction of the type contemplated by the Company,
there is no assurance the Company will be successful in completing any such
business combination.
LACK OF DIVERSIFICATION. The Company's proposed operations, even if
successful, will in all likelihood result in the Company engaging in a business
combination with only one Target Company. Consequently, the Company's activities
will be limited to those engaged in by the business entity, which the Company
merges with or acquires. The Company's inability to diversify its activities
into a number of areas may subject the Company to economic fluctuations within a
particular business or industry and therefore increase the risks associated with
the Company's operations.
REGULATION UNDER INVESTMENT COMPANY ACT. Although the Company will be
subject to regulation under the Exchange Act, management believes the Company
will not be subject to regulation under the Investment Company Act of 1940,
insofar as the Company will not be engaged in the business of investing or
trading in securities. In the event the Company engages in business combinations
which result in the Company holding passive investment interests in a number of
entities, the Company could be subject to regulation under the Investment
Company Act of 1940. In such event, the Company would be required to register as
an investment company and could be expected to incur significant registration
and compliance costs. The Company has obtained no formal determination from the
Securities and Exchange Commission as to the status of the Company under the
Investment Company Act of 1940 and, consequently, any violation of such Act
could subject the Company to material adverse consequences.
PROBABLE CHANGE IN CONTROL AND MANAGEMENT. A business combination
involving the issuance of the Company's common stock will, in all likelihood,
result in shareholders of a Target Company obtaining a controlling interest in
the Company. Any such business combination may require shareholders of the
Company to sell or transfer all or a portion of the Company's common stock held
by them. The resulting change in control of the Company will likely result in
removal of the present officer and director of the Company and a corresponding
reduction in or elimination of his participation in the future affairs of the
Company.
REDUCTION OF PERCENTAGE SHARE OWNERSHIP FOLLOWING BUSINESS COMBINATION.
The Company's primary plan of operation is based upon a business combination
with a business entity which, in all likelihood, will result in the Company
issuing securities to shareholders of such business entity. The issuance of
previously authorized and unissued common stock of the Company would result in
reduction in percentage of shares owned by the present shareholders of the
<PAGE>
Company and would most likely result in a change in control or management of the
Company.
TAXATION. Federal and state tax consequences will, in all likelihood, be
major considerations in any business combination the Company may undertake.
Currently, such transactions may be structured so as to result in tax-free
treatment to both companies, pursuant to various federal and state tax
provisions. The Company intends to structure any business combination so as to
minimize the federal and state tax consequences to both the Company and the
Target Company; however, there can be no assurance that such business
combination will meet the statutory requirements of a tax-free reorganization or
that the parties will obtain the intended tax-free treatment upon a transfer of
stock or assets. A non-qualifying reorganization could result in the imposition
of both federal and state taxes which may have an adverse effect on both parties
to the transaction.
POSSIBLE RELIANCE UPON UNAUDITED FINANCIAL STATEMENTS. The Company will
require audited financial statements from any business entity that it proposes
to acquire. No assurance can be given, however, that audited financials will be
available to the Company prior to a business combination. In cases where audited
financials are unavailable, the Company will have to rely upon unaudited
information that has not been verified by outside auditors in making its
decision to engage in a transaction with the business entity. The lack of the
type of independent verification which audited financial statements would
provide increases the risk that the Company, in evaluating a transaction with
such a Target Company, will not have the benefit of full and accurate
information about the financial condition and operating history of the target
company. This risk increases the prospect that a business combination with such
a business entity might prove to be an unfavorable one for the Company.
COMPUTER SYSTEMS REDESIGNED FOR YEAR 2000. Many existing computer programs
use only two digits to identify a year in such program's date field. These
programs were designed and developed without consideration of the impact of the
change in the century for which four digits will be required to accurately
report the date. If not corrected, many computer applications could fail or
create erroneous results by or following the year 2000 ("Year 2000 Problem").
The companies or governments operating such programs have not corrected many of
the computer programs containing such date language problems. It is impossible
to predict what computer programs will be effected, the impact any such computer
disruption will have on other industries or commerce or the severity or duration
of a computer disruption.
The Company does not have operations and does not maintain computer
systems. Before the Company enters into any business combination, it may inquire
as to the status of any Target Company's Year 2000 Problem, the steps such
Target Company has taken or intends to take to correct any such problem and the
probable impact on such Target Company of any computer disruption. However,
there can be no assurance that the Company will not enter into a business
combination with a target company that has an uncorrected Year 2000 Problem or
that any planned Year 2000 Problem corrections will be sufficient. The extent of
the Year 2000 Problem of a Target Company may be impossible to ascertain and any
impact on the Company will likely be impossible to predict.
ITEM 2. PLAN OF OPERATION
The Company intends to enter into a business combination with a target
company in exchange for the Company's securities. As of the initial filing date
<PAGE>
of this Registration Statement, neither the Company's officers and directors nor
any affiliate has engaged in any negotiations with any representative of any
specific entity regarding the possibility of a business combination with the
Company.
Management anticipates seeking out a Target Company through solicitation.
Such solicitation may include newspaper or magazine advertisements, mailings and
other distributions to law firms, accounting firms, investment bankers,
financial advisors and similar persons, the use of one or more World Wide Web
sites and similar methods. No estimate can be made as to the number of persons
who will be contacted or solicited. Management may engage in such solicitation
directly or may employ one or more other entities to conduct or assist in such
solicitation. Management and its affiliates will pay referral fees to
consultants and others who refer target businesses for mergers into public
companies in which management and its affiliates have an interest. Payments are
made if a business combination occurs, and may consist of cash or a portion of
the stock in the Company retained by management and its affiliates, or both.
The Company has entered into an agreement with Castle Rock Capital
Corporation to supervise the search for Target Companies as potential candidates
for a business combination. Castle Rock Capital Corporation has received common
stock of the Company in consideration of its agreement to provide such services.
Castle Rock Capital Corporation will pay as its own expenses any costs it incurs
in supervising the search for a Target Company. Castle Rock Capital Corporation
anticipates that it will enter into agreements with other consultants to assist
in locating a Target Company and may share stock received by it or cash
resulting from the sale of its securities with such other consultants. Castle
Rock Capital Corporation is not authorized to enter into any agreement binding
the Company, which can only be done by action of the Company's officers,
directors and shareholders, as may be required. Castle Rock Capital Corporation
is an affiliate of the Company's management. See "ITEM 4: SECURITIES OWNERSHIP
OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT."
The Company has no full time employees. The Company's president has agreed
to allocate a portion of his time to the activities of the Company, without
compensation. The president anticipates that the business plan of the Company
can be implemented by his devoting no more than 10 hours per month to the
business affairs of the Company and, consequently, conflicts of interest may
arise with respect to the limited time commitment by such officer.
Management is currently involved with other blank check companies, and is
involved in creating additional blank check companies similar to this one. A
conflict may arise in the event that another blank check Company with which
management is affiliated is formed and actively seeks a target company.
Management anticipates that Target Companies will be located for the Company and
other blank check companies in chronological order of the date of formation of
such blank check companies or, in the case of blank check companies formed on
the same date, alphabetically. However, other blank check companies with which
management is or may be affiliated may differ from the Company in certain items
such as place of incorporation, number of shares and shareholders, working
capital, types of authorized securities, or other items. It may be that a target
company may be more suitable for or may prefer a certain blank check company
formed after the Company. In such case, a business combination might be
negotiated on behalf of the more suitable or preferred blank check company
regardless of date of formation. See "ITEM 5, DIRECTORS, EXECUTIVE OFFICERS,
PROMOTERS AND CONTROL PERSONS--Current Blank Check Companies."
<PAGE>
The Certificate of Incorporation of the Company provides that the Company
may indemnify officers and/or directors of the Company for liabilities, which
can include liabilities arising under the securities laws. Therefore, assets of
the Company could be used or attached to satisfy any liabilities subject to such
indemnification.
GENERAL BUSINESS PLAN
The Company's purpose is to seek, investigate and, if such investigation
warrants, acquire an interest in a business entity which desires to seek the
perceived advantages of a corporation which has a class of securities registered
under the Exchange Act. The Company will not restrict its search to any specific
business, industry, or geographical location and the Company may participate in
a business venture of virtually any kind or nature. Management anticipates that
it will be able to participate in only one potential business venture because
the Company has nominal assets and limited financial resources. See ITEM F/S,
"FINANCIAL STATEMENTS." This lack of diversification should be considered a
substantial risk to the shareholders of the Company because it will not permit
the Company to offset potential losses from one venture against gains from
another.
The Company may seek a business opportunity with entities which have
recently commenced operations, or which wish to utilize the public marketplace
in order to raise additional capital in order to expand into new products or
markets, to develop a new product or service, or for other corporate purposes.
The Company anticipates that the selection of a business opportunity in
which to participate will be complex and extremely risky. Management believes
(but has not conducted any research to confirm) that there are business entities
seeking the perceived benefits of a publicly registered corporation. Such
perceived benefits may include facilitating or improving the terms on which
additional equity financing may be sought, providing liquidity for incentive
stock options or similar benefits to key employees, increasing the opportunity
to use securities for acquisitions, providing liquidity for shareholders and
other factors. Business opportunities may be available in many different
industries and at various stages of development, all of which will make the task
of comparative investigation and analysis of such business opportunities
difficult and complex.
The Company has, and will continue to have, no capital with which to
provide the owners of business entities with any cash or other assets. However,
management believes the Company will be able to offer owners of acquisition
candidates the opportunity to acquire a controlling ownership interest in a
public company without incurring the cost and time required to conduct an
initial public offering. Management has not conducted market research and is not
aware of statistical data to support the perceived benefits of a business
combination for the owners of a Target Company.
The analysis of new business opportunities will be undertaken by, or under
the supervision of, the officer and director of the Company, who is not a
professional business analyst. In analyzing prospective business opportunities,
management may consider such matters as the available technical, financial and
managerial resources; working capital and other financial requirements; history
of operations, if any; prospects for the future; nature of present and expected
competition; the quality and experience of management services which may be
available and the depth of that management; the potential for further research,
development, or exploration; specific risk factors not now foreseeable but which
then may be anticipated to impact the proposed activities of the Company; the
potential for growth or expansion; the potential for profit; the perceived
<PAGE>
public recognition or acceptance of products, services, or trades; name
identification; and other relevant factors. This discussion of the proposed
criteria is not meant to be restrictive of the Company's virtually unlimited
discretion to search for and enter into potential business opportunities.
The Exchange Act requires that any merger or acquisition candidate comply
with certain reporting requirements, which include providing audited financial
statements to be included in the reporting filings made under the Exchange Act.
The Company will not acquire or merge with any company for which audited
financial statements cannot be obtained at or within the required period of time
after closing of the proposed transaction.
The Company may enter into a business combination with a business entity
that desires to establish a public trading market for its shares. A target
company may attempt to avoid what it deems to be adverse consequences of
undertaking its own public offering by seeking a business combination with the
Company. Such consequences may include, but are not limited to, time delays of
the registration process, significant expenses to be incurred in such an
offering, loss of voting control to public shareholders or the inability to
obtain an underwriter or to obtain an underwriter on satisfactory terms.
The Company will not restrict its search for any specific kind of business
entities, but may acquire a venture which is in its preliminary or development
stage, which is already in operation, or in essentially any stage of its
business life. It is impossible to predict at this time the status of any
business in which the Company may become engaged, in that such business may need
to seek additional capital, may desire to have its shares publicly traded, or
may seek other perceived advantages which the Company may offer.
Management of the Company, which in all likelihood will not be experienced
in matters relating to the business of a Target Company, will rely upon its own
efforts in accomplishing the business purposes of the Company. Following a
business combination the Company may benefit from the services of others in
regard to accounting, legal services, underwriting and corporate public
relations. If requested by a Target Company, management may recommend one or
more underwriters, financial advisors, accountants, public relations firms or
other consultants to provide such services.
A potential Target Company may have an agreement with a consultant or
advisor providing those services of the consultant or advisor be continued after
any business combination. Additionally, a Target Company may be presented to the
Company only on the condition that the services of a consultant or advisor be
continued after a merger or acquisition. Such preexisting agreements of Target
Companies for the continuation of the services of attorneys, accountants,
advisors or consultants could be a factor in the selection of a Target Company.
ACQUISITION OF OPPORTUNITIES
In implementing a structure for a particular business acquisition, the
Company may become a party to a merger, consolidation, reorganization, joint
venture, or licensing agreement with another corporation or entity. On the
consummation of a transaction, it is likely that the present management and
shareholders of the Company will no longer be in control of the Company. In
addition, it is likely that the Company's officers and directors will, as part
of the terms of the acquisition transaction, resign and be replaced by one or
more new officers and directors.
<PAGE>
It is anticipated that any securities issued in any such reorganization
would be issued in reliance upon exemption from registration under applicable
federal and state securities laws. In some circumstances, however, as a
negotiated element of its transaction, the Company may agree to register all or
a part of such securities immediately after the transaction is consummated or at
specified times thereafter. If such registration occurs, it will be undertaken
by the surviving entity after the Company has entered into an agreement for a
business combination or has consummated a business combination and the Company
is no longer considered a blank check company. The issuance of additional
securities and their potential sale into any trading market which may develop in
the Company's securities may depress the market value of the Company's
securities in the future if such a market develops, of which there is no
assurance.
While the terms of a business transaction to which the Company may be a
party cannot be predicted, it is expected that the parties to the business
transaction will desire to avoid the creation of a taxable event and thereby
structure the acquisition in a tax-free reorganization under Sections 351 or 368
of the Internal Revenue Code of 1986, as amended.
With respect to negotiations with a Target Company, management expects to
focus on the percentage of the Company which Target Company shareholders would
acquire in exchange for their shareholdings in the target company. Depending
upon, among other things, the Target Company's assets and liabilities, the
Company's shareholders will in all likelihood hold a substantially lesser
percentage ownership interest in the Company following any merger or
acquisition. The percentage of ownership may be subject to significant reduction
in the event the Company acquires a Target Company with substantial assets. Any
merger or acquisition effected by the Company can be expected to have a
significant dilutive effect on the percentage of shares held by the Company's
shareholders at such time.
The Company will participate in a business opportunity only after the
negotiation and execution of appropriate agreements. Although the terms of such
agreements cannot be predicted, generally such agreements will require certain
representations and warranties of the parties thereto, will specify certain
events of default, will detail the terms of closing and the conditions which
must be satisfied by the parties prior to and after such closing and will
include miscellaneous other terms.
The Company will not enter into a business combination with any entity,
which cannot provide audited financial statements at or within the required
period of time after closing of the proposed transaction. The Company is subject
to all of the reporting requirements included in the Exchange Act. Included in
these requirements is the duty of the Company to file audited financial
statements as part of or within 60 days following the due date for filing its
Form 8-K which is required to be filed with the Securities and Exchange
Commission within 15 days following the completion of the business combination.
If such audited financial statements are not available at closing, or within
time parameters necessary to insure the Company's compliance with the
requirements of the Exchange Act, or if the audited financial statements
provided do not conform to the representations made by the target company, the
closing documents may provide that the proposed transaction will be voidable at
the discretion of the present management of the Company.
Management has orally agreed that it will advance to the Company any
additional funds, which the Company needs for operating capital and for costs in
<PAGE>
connection with searching for or completing an acquisition or merger. Such
advances will be made without expectation of repayment. There is no minimum or
maximum amount management will advance to the Company. The Company will not
borrow any funds to make any payments to the Company's management, its
affiliates or associates.
The Board of Directors has passed a resolution, which contains a policy
that the Company will not seek a business combination with any entity in which
the Company's officer, director, shareholders or any affiliate or associate
serves as an officer or director or holds any ownership interest.
UNDERTAKINGS AND UNDERSTANDINGS REQUIRED OF TARGET COMPANIES
As part of a business combination agreement, the Company intends to
obtain certain representations and warranties from a Target Company as to its
conduct following the business combination. Such representations and warranties
may include (i) the agreement of the Target Company to make all necessary
filings and to take all other steps necessary to remain a reporting company
under the Exchange Act (ii) imposing certain restrictions on the timing and
amount of the issuance of additional free-trading stock, including stock
registered on Form S-8 or issued pursuant to Regulation S and (iii) giving
assurances of ongoing compliance with the Securities Act, the Exchange Act, the
General Rules and Regulations of the Securities and Exchange Commission, and
other applicable laws, rules and regulations.
A prospective Target Company should be aware that the market price and
volume of its securities, when and if listed for secondary trading, may depend
in great measure upon the willingness and efforts of successor management to
encourage interest in the Company within the United States financial community.
The Company does not have the market support of an underwriter that would
normally follow a public offering of its securities. Initial market makers are
likely to simply post bid and asked prices and are unlikely to take positions in
the Company's securities for their own account or customers without active
encouragement and a basis for doing so. In addition, certain market makers may
take short positions in the Company's securities, which may result in a
significant pressure on their market price. The Company may consider the ability
and commitment of a Target Company to actively encourage interest in its
securities following a business combination in deciding whether to enter into a
transaction with such company.
A business combination with the Company separates the process of
becoming a public company from the raising of investment capital. As a result, a
business combination with Company normally will not be a beneficial transaction
for a Target Company whose primary reason for becoming a public company is the
immediate infusion of capital. The Company may require assurances from the
Target Company that it has or that it has a reasonable belief that it will have
sufficient sources of capital to continue operations following the business
combination. However, it is possible that a Target Company may give such
assurances in error, or that the basis for such belief may change as a result of
circumstances beyond the control of the Target Company.
Prior to completion of a business combination, the Company will
generally require that it be provided with written materials regarding the
Target Company containing such items as a description of products, services and
company history; management resumes; financial information; available
projections, with related assumptions upon which they are based; an explanation
of proprietary products and services; evidence of existing patents, trademarks,
<PAGE>
or service marks, or rights thereto; present and proposed forms of compensation
to management; a description of transactions between such company and its
affiliates during relevant periods; a description of present and required
facilities; an analysis of risks and competitive conditions; a financial plan of
operation and estimated capital requirements; audited financial statements, or
if they are not available, unaudited financial statements, together with
reasonable assurances that audited financial statements would be able to be
produced within a reasonable period of time not to exceed 75 days following
completion of a business combination; and other information deemed relevant.
COMPETITION
The Company will remain an insignificant participant among the firms,
which engage in the acquisition of business opportunities. There are many
established venture capital and financial concerns which have significantly
greater financial and personnel resources and technical expertise than the
Company. In view of the Company's combined extremely limited financial resources
and limited management availability, the Company will continue to be at a
significant competitive disadvantage compared to the Company's competitors.
ITEM 3. DESCRIPTION OF PROPERTY
The Company has no properties and at this time has no agreements to
acquire any properties. The Company currently uses the offices of management at
no cost to the Company. Management has agreed to continue this arrangement until
the Company completes an acquisition or merger.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.
The following table sets forth each person known by the Company to be the
beneficial owner of five percent or more of the Company's Common Stock, all
directors individually and all directors and officers of the Company as a group.
Except as noted, each person has sole voting and investment power with respect
to the shares shown.
Name and Address Amount of Beneficial Percentage
of Beneficial Owner Ownership of Class
- ------------------- --------- --------
Castle Rock Capital Corporation (1) 5,000,000 100%
2425 North Central Expressway, Suite 400
Richardson, TX 75080-2714
A. DeWayne Davis (2) 1,000,000 20%
2425 North Central Expressway, Suite 400
Richardson, TX 75080-2714
Andrew P. Davis (3) 2,000,000 40%
2425 North Central Expressway, Suite 400
Richardson, TX 75080-2714
DeWayne Davis Children's Trust (4) 2,000,000 40%
2425 North Central Expressway, Suite 400
Richardson, TX 75080-2714
<PAGE>
All Executive Officers
and Directors as a Group
5,000,000 100%
(1) Both Andrew Davis and DeWayne Davis are shareholders, directors and
officers of Castle Rock Capital Corporation. Castle Rock Capital Corporation
acts as a marketing and consulting company for its affiliated companies. Castle
Rock Capital Corporation has agreed to provide certain services to the Company.
See "PLAN OF OPERATIONS General Business Plan".
(2) As a shareholder, director and officer of Castle Rock Capital
Corporation, DeWayne Davis is deemed to be the beneficial owner of 20% of the
common stock of the Company owned by Castle Rock Capital Corporation.
(3) As a shareholder, director and officer of Castle Rock Capital
Corporation, Andrew Davis is deemed to be the beneficial owner of 40% of the
common stock of the Company owned by Castle Rock Capital Corporation.
(4) As a shareholder of Castle Rock Capital Corporation, the DeWayne
Davis Children's Trust is deemed to be the beneficial owner of 40% of the common
stock of the Company owned by Castle Rock Capital Corporation.
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
The Company has one Director and Officer as follows:
Name Age Positions and Offices Held
---- --- --------------------------
A. DeWayne Davis 50 President, Director
Andrew P. Davis 26 Vice President, Secretary, Director
There are no agreements or understandings for the officers or directors to
resign at the request of another person and the above-named officers and
directors are not acting on behalf of nor will act at the direction of any other
person.
Set forth below is the name of the directors and officers of the Company,
all positions and offices with the Company held, the period during which they
have served as such, and the business experience during at least the last five
years:
DeWayne Davis received a Bachelor of Business Administration in Accounting
from the University of Central Arkansas in 1970. From 1970-1973, Mr. Davis
worked for a CPA firm in Little Rock, AR. From 1974-present, Mr. Davis has been
self-employed. During his self-employment Mr. Davis has owned many businesses in
areas such as, retail stores, insurance agencies, construction and development
companies, and manufacturing companies. From 1997 to date, Mr. Davis has been a
principal of Pinnacle Investments, LLC. His firm specializes in business
consulting.
Andrew Davis received a Bachelor of Business Administration in Accounting
from the University of Central Arkansas in 1997. From 1995 to 1998 Mr. Davis
worked for an investment advisory firm in Little Rock, AR. His position was that
of Assistant Portfolio Manager. From 1998 to date, Mr. Davis has been a
consultant for Pinnacle Investments, LLC. This firm specializes in business
consulting.
<PAGE>
PREVIOUS BLANK CHECK COMPANIES
To date management has never been involved in any blank check offerings.
CURRENT BLANK CHECK COMPANIES
Management may be in the future, an officer, director and/or beneficial
shareholder of other blank check companies. The initial business purpose of each
of these companies is to engage in a business combination with an unidentified
company or companies and each were or will be classified as a blank check
company until completion of a business combination. The following chart
summarizes certain information concerning blank check companies with which
management is or has been involved whose registration statements are effective
as of the date hereof. In most instances that a business combination is
transacted with one of these companies, it is required to file a Current Report
on Form 8-K describing the transaction. Reference is made to the Form 8-K filed
for any company listed below for detailed information concerning the business
combination entered into by that company.
RECENT TRANSACTIONS BY BLANK CHECK COMPANIES
To date management has never been involved in any blank check offerings.
CONFLICTS OF INTEREST
The Company's officers and directors expect to organize other companies of
a similar nature and with a similar purpose as the Company. Consequently, there
are potential inherent conflicts of interest in acting as an officer and
director of the Company. Insofar as the officer and director is engaged in other
business activities, management anticipates that it will devote only a minor
amount of time to the Company's affairs. The Company does not have a right of
first refusal pertaining to opportunities that come to management's attention
insofar as such opportunities may relate to the Company's proposed business
operations.
A conflict may arise in the event that another blank check company with
which management is affiliated is formed and actively seeks a target company. It
is anticipated that target companies will be located for the Company and other
blank check companies in chronological order of the date of formation of such
blank check companies or, in the case of blank check companies formed on the
same date, alphabetically. However, any blank check companies with which
management is, or may be, affiliated may differ from the Company in certain
items such as place of incorporation, number of shares and shareholders, working
capital, types of authorized securities, or other items. It may be that a target
company may be more suitable for or may prefer a certain blank check company
formed after the Company. In such case, a business combination might be
negotiated on behalf of the more suitable or preferred blank check company
regardless of date of formation. Both Mr. Davis' will be responsible for
seeking, evaluating, negotiating and consummating a business combination with a
Target Company, which may result in terms providing benefits to both Mr. Davis'.
DeWayne Davis is the principal of Pinnacle Investments, LLC, a
business-consulting firm. Andrew Davis is a consultant for Pinnacle Investments,
LLC. As such, demands may be placed on the time of DeWayne or Andrew Davis,
which will detract from the amount of time they are able to devote to the
<PAGE>
Company. Both Mr. Davis' intends to devote as much time to the activities of the
Company as required. However, should such a conflict arise, there is no
assurance that either Mr. Davis' would not attend to other matters prior to
those of the Company. Both Mr. Davis' project that initially up to ten hours per
month of their time may be spent locating a target company, which amount of time
would increase when the analysis of, and negotiations and consummation with, a
Target Company are conducted.
DeWayne Davis is the president, director, and a shareholder of Castle Rock
Capital Corporation, a Delaware corporation, which owns 5,000,000 shares of the
Company's common stock. At the time of a business combination, management
expects that some or all of the shares of Common Stock owned by Castle Rock
Capital Corporation will be purchased by the Target Company or retired by the
Company. The amount of Common Stock sold or continued to be owned by Castle Rock
Capital Corporation cannot be determined at this time.
Andrew Davis is the vice-president, director, and a shareholder of Castle
Rock Capital Corporation, a Delaware corporation, which owns 5,000,000 shares of
the Company's common stock. At the time of a business combination, management
expects that some or all of the shares of Common Stock owned by Castle Rock
Capital Corporation will be purchased by the Target Company or retired by the
Company. The amount of Common Stock sold or continued to be owned by Castle Rock
Capital Corporation cannot be determined at this time.
The terms of business combination may include such terms as either of Mr.
Davis' remaining as directors or officers of the Company and/or the continuing
securities or other consulting work of the Company being handled by the
consulting firm of which DeWayne Davis is the principal and Andrew Davis is a
consultant. The terms of a business combination may provide for a payment by
cash or otherwise to Castle Rock Capital Corporation for the purchase or
retirement of all or part of its common stock of the Company by a Target Company
or for services rendered incident to or following a business combination. Both
Mr. Davis' would directly benefit from such employment or payment. Such benefits
may influence both Mr. Davis' choice of a target company.
The Company may agree to pay finder's fees, as appropriate and allowed, to
unaffiliated persons who may bring a Target Company to the Company where that
reference results in a business combination. No finder's fee of any kind will be
paid by the Company to management or promoters of the Company or to their
associates or affiliates. No loans of any type have, or will be, made by the
Company to management or promoters of the Company or to any of their associates
or affiliates.
The Company will not enter into a business combination, or acquire any
assets of any kind for its securities, in which management of the Company or any
affiliates or associates have any interest, direct or indirect.
There are no binding guidelines or procedures for resolving potential
conflicts of interest. Failure by management to resolve conflicts of interest in
favor of the Company could result in liability of management to the Company.
However, any attempt by shareholders to enforce a liability of management to the
Company would most likely be prohibitively expensive and time consuming.
INVESTMENT COMPANY ACT OF 1940
Although the Company will be subject to regulation under the Securities
Act of 1933 and the Securities Exchange Act of 1934, management believes the
Company will not be subject to regulation under the Investment Company Act of
<PAGE>
1940 insofar as the Company will not be engaged in the business of investing or
trading in securities. In the event the Company engages in business combinations
which result in the Company holding passive investment interests in a number of
entities the Company could be subject to regulation under the Investment Company
Act of 1940. In such event, the Company would be required to register as an
investment company and could be expected to incur significant registration and
compliance costs. The Company has obtained no formal determination from the
Securities and Exchange Commission as to the status of the Company under the
Investment Company Act of 1940. Any violation of such Act would subject the
Company to material adverse consequences.
ITEM 6. EXECUTIVE COMPENSATION.
The Company's officer and director does not receive any compensation for
his services rendered to the Company, has not received such compensation in the
past, and is not accruing any compensation pursuant to any agreement with the
Company. However, the officer and director of the Company anticipates receiving
benefits as a beneficial shareholder of the Company and, possibly, in other
ways. See "ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
Conflicts of Interest".
No retirement, pension, profit sharing, stock option, insurance programs,
or other similar programs have been adopted by the Company for the benefit of
its employees.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The Company has issued a total of 5,000,000 shares of Common Stock to the
following persons for a total of $500 in cash:
Name Number of Total Shares Consideration
- ---- ---------------------- -------------
Castle Rock Capital Corporation 5,000,000 $500
DeWayne Davis and Andrew Davis are directors, shareholders, and
president/vice-president (respectively) of Castle Rock Capital Corporation. With
respect to the sales made Castle Rock Capital Corporation, the Company relied
upon Section 4(2) of the Securities Act of 1933, as amended (the "Securities
Act") and Rule 506 promulgated thereunder.
ITEM 8. DESCRIPTION OF SECURITIES.
The authorized capital stock of the Company consists of 100,000,000 shares
of Common Stock, par value $.0001 per share. The following statements relating
to the capital stock set forth the material terms of the Company's securities;
however, reference is made to the more detailed provisions of, and such
statements are qualified in their entirety by reference to, the Certificate of
Incorporation and the By-laws, copies of which are filed as exhibits to this
registration statement.
COMMON STOCK
Holders of shares of common stock are entitled to one vote for each share
on all matters to be voted on by the stockholders. Holders of common stock do
not have cumulative voting rights. Holders of common stock are entitled to share
ratably in dividends, if any, as may be declared from time to time by the Board
of Directors in its discretion from funds legally available therefor. In the
<PAGE>
event of a liquidation, dissolution or winding up of the Company, the holders of
common stock are entitled to share pro rata all assets remaining after payment
in full of all liabilities. All of the outstanding shares of common stock are
fully paid and non-assessable.
Holders of common stock have no preemptive rights to purchase the Company's
common stock. There are no conversion or redemption rights or sinking fund
provisions with respect to the common stock.
DIVIDENDS
Dividends, if any, will be contingent upon the Company's revenues and
earnings, if any, capital requirements and financial conditions. The payment of
dividends, if any, will be within the discretion of the Company's Board of
Directors. The Company presently intends to retain all earnings, if any, for use
in its business operations and accordingly, the Board of Directors does not
anticipate declaring any dividends prior to a business combination.
TRADING OF SECURITIES IN SECONDARY MARKET
The National Securities Market Improvement Act of 1996 limited the
authority of states to impose restrictions upon sales of securities made
pursuant to Sections 4(1) and 4(3) of the Securities Act of companies which file
reports under Sections 13 or 15(d) of the Exchange Act. Upon effectiveness of
this Registration Statement, the Company will be required to, and will, file
reports under Section 13 of the Exchange Act. As a result, sales of the
Company's common stock in the secondary market by the holders thereof may then
be made pursuant to Section 4(1) of the Securities Act (sales other than by an
issuer, underwriter or broker).
Following a business combination, a Target Company will normally wish to
list the Company's common stock for trading in one or more United States
markets. The Target Company may elect to apply for such listing immediately
following the business combination or at some later time.
In order to qualify for listing on the Nasdaq SmallCap Market, a company
must have at least (i) net tangible assets of $4,000,000 or market
capitalization of $50,000,000 or net income for two of the last three years of
$750,000; (ii) public float of 1,000,000 shares with a market value of
$5,000,000; (iii) a bid price of $4.00; (iv) three market makers; (v) 300
shareholders and (vi) an operating history of one year or, if less than one
year, $50,000,000 in market capitalization. For continued listing on the Nasdaq
SmallCap Market, a company must have at least (i) net tangible assets of
$2,000,000 or market capitalization of $35,000,000 or net income for two of the
last three years of $500,000; (ii) a public float of 500,000 shares with a
market value of $1,000,000; (iii) a bid price of $1.00; (iv) two market makers;
and (v) 300 shareholders.
If, after a business combination, the Company does not meet the
qualifications for listing on the Nasdaq SmallCap Market, the Company's may
apply for quotation of its securities on the NASD OTC Bulletin Board. In certain
cases the Company may elect to have its securities initially quoted in the "pink
sheets" published by the National Quotation Bureau, Inc.
TRANSFER AGENT
<PAGE>
It is anticipated that StockTrans, Inc., Ardmore, Pennsylvania will act as
transfer agent for the common stock of the Company.
GLOSSARY
"Blank Check" Company
As defined in Section 7(b)(3) of the Securities Act, a "blank check"
company is a development stage company that has no specific business plan
or purpose or has indicated that its business plan is to engage in a merger
or acquisition with an unidentified company or companies and is issuing
"penny stock" securities as defined in Rule 3a51-1 of the Exchange Act.
Business Combination
Normally a merger, stock-for-stock exchange or stock-for-assets exchange
between the Registrant and a target company.
The Registrant
The Company or the corporation whose common stock is the subject of this
Registration Statement.
Exchange Act
The Securities Exchange Act of 1934, as amended.
"Penny Stock" Security
As defined in Rule 3a51-1 of the Exchange Act, a "penny stock" security is
any equity security other than a security (i) that is a reported security
(ii) that is issued by an investment company (iii) that is a put or call
issued by the Option Clearing Corporation (iv) that has a price of $5.00 or
more (except for purposes of Rule 419 of the Securities Act) (v) that is
registered on a national securities exchange (vi) that is authorized for
quotation on the Nasdaq Stock Market, unless other provisions of Rule
3a51-1 are not satisfied, or (vii) that is issued by an issuer with (a) net
tangible assets in excess of $2,000,000, if in continuous operation for
more than three years or $5,000,000 if in operation for less than three
years or (b) average revenue of at least $6,000,000 for the last three
years.
Securities Act
The Securities Act of 1933, as amended.
PART II
ITEM 1. MARKET PRICE FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
(A) MARKET PRICE. There is no trading market for the Company's Common Stock
at present and there has been no trading market to date. There is no assurance
that a trading market will ever develop or, if such a market does develop that
it will continue.
The Securities and Exchange Commission has adopted Rule 15g-9, which
establishes the definition of a "penny stock," for purposes relevant to the
<PAGE>
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.
(B) HOLDERS. There is one holder of the Company's Common Stock. The issued
and outstanding shares of the Company's Common Stock were issued in accordance
with the exemptions from registration afforded by Section 4(2) of the Securities
Act of 1933 and Rule 506 promulgated thereunder.
(C) DIVIDENDS. The Company has not paid any dividends to date, and has no
plans to do so in the immediate future.
ITEM 2. LEGAL PROCEEDINGS.
There is no litigation pending or threatened by or against the Company.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
The Company has not changed accountants since its formation and there are
no disagreements with the findings of its accountants.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, the Company has sold securities, which were
not registered as follows:
Date Name Number of Shares Consideration
---- ---- ---------------- -------------
June 12, 1999 Castle Rock Capital Corporation 5,000,000 $500
Both DeWayne and Andrew Davis are the directors, controlling shareholders
and president/vice-president (respectively) of Castle Rock Capital Corporation.
With respect to the sales made to Castle Rock Capital Corporation, the Company
<PAGE>
relied upon Section 4(2) of the Securities Act of 1933, as amended and Rule 506
promulgated thereunder.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides that a certificate of incorporation may contain a provision eliminating
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director provided that such
provision shall not eliminate or limit the liability of a director (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 (relating to
liability for unauthorized acquisitions or redemption's of, or dividends on,
capital stock) of the General Corporation Law of the State of Delaware, or (iv)
for any transaction from which the director derived an improper personal
benefit. The Company's Certificate of incorporation contains such a provision.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT OF
1933, AS AMENDED, MAY BE PERMITTED TO DIRECTORS, OFFICERS OR PERSONS CONTROLLING
THE COMPANY PURSUANT TO THE FOREGOING PROVISIONS, IT IS THE OPINION OF THE
SECURITIES AND EXCHANGE COMMISSION THAT SUCH INDEMNIFICATION IS AGAINST PUBLIC
POLICY AS EXPRESSED IN THE ACT AND IS THEREFORE UNENFORCEABLE.
<PAGE>
PART F/S
FINANCIAL STATEMENTS.
Set forth below are the audited financial statements for the Company for
the period ended July 12, 1999. The following financial statements are attached
to this report and filed as a part thereof.
WINDSOR ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENT
AS OF JULY 12, 1999
WINDSOR ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
CONTENTS
PAGE 1 - INDEPENDENT AUDITORS' REPORT
PAGE 2 - BALANCE SHEET AS OF JULY 12, 1999
PAGE 3 - STATEMENT OF CHANGES IN STOCKHOLDER'S
EQUITY FOR THE PERIOD FROM JUNE 11, 1999
(INCEPTION) TO JULY 12, 1999
PAGE 4 - STATEMENT OF CASH FLOWS FOR THE PERIOD
FROM JUNE 11, 1999 (INCEPTION) TO
JULY 12, 1999
PAGE 5 - 7 - NOTES TO FINANCIAL STATEMENTS AS OF
JULY 12, 1999
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of:
Windsor Acquisition Corporation
(A Development Stage Company)
We have audited the accompanying balance sheet of Windsor Acquisition
Corporation (a development stage company) as of July 12, 1999 and the related
statements of changes in stockholder's equity and cash flows for the period from
June 11, 1999 (inception) to July 12, 1999. These financial statements are 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 financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by management, as well
as evaluating the overall financial statements presentation. We believe that our
audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly in all
material respects, the financial position of Windsor Acquisition Corporation (a
development stage company) as of July 12, 1999, in conformity with generally
accepted accounting principles.
WEINBERG & COMPANY, P.A.
Boca Raton, Florida
July 15, 1999
1
<PAGE>
WINDSOR ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
AS OF JULY 12, 1999
ASSETS
Cash $ 500
TOTAL ASSETS $ 500
LIABILITIES AND STOCKHOLDER'S EQUITY
LIABILITIES $ -
STOCKHOLDER'S EQUITY
Common Stock, $.0001 par
value, 100,000,000 shares
authorized 5,000,000 issued
and outstanding 500
Total Stockholder's Equity 500
TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY $ 500
See accompanying notes to financial statements.
2
<PAGE>
WINDSOR ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN
STOCKHOLDER'S EQUITY
FOR THE PERIOD FROM JUNE 11, 1999
(INCEPTION) TO JULY 12, 1999
Common
Stock Total
---------- ----------
Common Stock issuance $ 500 $ 500
Net income for the period
Ended July 12, 1999 - -
BALANCE AT JULY 12, 1999 $ 500 $ 500
See accompanying notes to financial statements.
3
<PAGE>
WINDSOR ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
STOCKHOLDER'S EQUITY
FOR THE PERIOD FROM JUNE 11, 1999
(INCEPTION) TO JULY 12, 1999
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net income $ -
Adjustments to
reconcile net income
to net cash provided
by operating activites: -
----------
Net cash provided by
operating activities -
----------
CASH FLOWS FROM INVESTING
ACTIVITIES -
----------
CASH FLOWS FROM FINANCING
ACTIVITIES
Proceeds from issuance
Of common stock 500
----------
Net cash provided by
Financing activities 500
----------
INCREASE IN CASH AND CASH EQUIVALENTS
CASH AND CASH
EQUIVALENTS - BEGINNING
OF PERIOD -
----------
CASH AND CASH EQUIVALENTS
- END OF PERIOD $ 500
----------
See accompanying notes to financial statements.
4
<PAGE>
WINDSOR ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JULY 12, 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. Organization and Business Operations
Windsor Acquisition Corporation (a development stage company) ("the
Company") was incorporated in Delaware on June 11, 1999 to serve as a
vehicle to effect a merger, exchange of capital stock, asset acquisition or
other business combination with a domestic or foreign private business. At
July 12, 1999, the Company had not yet commenced any formal business
operations, and all activity to date relates to the Company's formation and
proposed fund raising. The Company's fiscal year end is December 31.
The Company's ability to commence operations is contingent upon its ability
to identify a prospective target business and raise the capital it will
require through the issuance of equity securities, debt securities, bank
borrowings or a combination thereof.
B. Use of Estimates
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Cash and Cash Equivalents
For purposes of the statements of cash flows, the Company considers all
highly liquid investments purchased with an original maturity of three
months or less to be cash equivalents.
5
<PAGE>
WINDSOR ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JULY 12, 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONT'D)
D. Income Taxes
The Company accounts for income taxes under the Financial Accounting
Standards Board of Financial Accounting Standards No. 109, "Accounting for
Income Taxes" ("Statement 109"). Under Statement 109, deferred tax assets
and liabilities are recognized for the future tax consequences attributable
to differences between the financial statement carrying amounts of existing
assets and liabilities and their respective tax basis. Deferred tax assets
and liabilities are measured using enacted tax rates expected to apply to
taxable income in the years in which those temporary differences are
expected to be recovered or settled. Under Statement 109, the effect on
deferred tax assets and liabilities of a change in tax rates is recognized
in income in the period that includes the enactment date. There were no
current or deferred income tax expense or benefits due to the Company not
having any operations for the period ended July 12, 1999.
New Accounting Pronouncements
The Financial Accounting Standards Board has recently issued Several new
accounting pronouncements. Statement No. 129, "Disclosure of Information
about Capital Structure" establishes standards for disclosing information
about an entity's capital structure, is effective for financial statements
for periods ending after December 15, 1998 and has been adopted by the
Company as of December 31, 1998. Statement No. 130, "Reporting
Comprehensive Income" establishes Standards for reporting and display of
comprehensive income and its components, and is effective for fiscal years
beginning after December 15, 1997. Statement No. 131, "Disclosures about
Segments of an Enterprise and Related Information" establishes standards
for the way that public business enterprises report information about
operating segments in annual financial statements and require that
6
<PAGE>
WINDSOR ACQUISITION CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JULY 12, 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONT'D)
New Accounting Pronouncements - (CONT'D)
Those enterprises report selected information about operating Segments in
interim financial reports issued to shareholders. It also establishes
standards for related disclosure about products and services, geographic
areas, and major customers, and is effective for financial statements for
periods beginning after December 15, 1997. The Company believes that its
adoption of Statements 130 and 131 will not have a material effect on the
Company's financial position or results of operations.
NOTE 2 - STOCKHOLDERS' EQUITY
Preferred Stock
The Board of Directors of the Company may designate from time to time
different series of preferred stock and may fix the authorized shares for
each series. The holders of each series of preferred stock shall have such
rights, preferences and privileges as may be determined by the Board of
Directors prior to the issuance of such shares. As of the date of this
report the Board of Directors has not authorized or issued any preferred
stock.
Common Stock
The Company is authorized to issue 100,000,000 shares of common stock at
$.0001 par value. The Company issued 5,000,000 shares to Castle Rock
Capital Corporation, which is owned in the majority by the officers of the
Company.
7
<PAGE>
PART III
ITEM 1. INDEX TO EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
(2) Articles of Incorporation and By-laws:
2.1 Certificate of Incorporation
2.2 By-Laws
(10)(a) Consents - Experts
10.1 Consent of Accountants
SIGNATURES In accordance with Section 12 of the Securities Exchange Act of
1934, the Registrant caused this Registration Statement to be signed on its
behalf by the undersigned thereunto duly authorized.
WINDSOR ACQUISITION CORPORATION
By: /s/ A. DeWayne Davis
--------------------
A. DeWayne Davis, Director and President
June 16, 1999
<PAGE>
ARTICLES OF INCORPORATION OF WINDSOR ACQUISITION CORPORATION
ARTICLE ONE
Name
The name of the Corporation is Windsor Acquisition Corporation.
ARTICLE TWO
Duration
The Corporation shall have perpetual existence.
ARTICLE THREE
Purpose
The purpose for which this Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE FOUR
Shares
The total number of shares of stock which the Corporation shall have
authority to issue is 100,000,000 shares, consisting of 100,000,000 shares of
Common Stock having a par value of $.0001 per share.
The Board of Directors is authorized to provide for the issuance of the
shares of Preferred Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series of
Preferred Stock shall include, but not be limited to, determination of the
following:
A. The number of shares constituting that series and the distinctive
designation of that series;
B. The dividend rate on the shares of that series, whether dividends shall
be cumulative, and, if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on share of that series;
C. Whether that series shall have voting rights, in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
D. Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board of Directors shall determine;
<PAGE>
E. Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates;
F. Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
G. The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of that series; and
H. Any other relative rights, preferences and limitations of that series.
ARTICLE FIVE
Commencement of Business
The Corporation is authorized to commence business as soon as its
certificate of incorporation has been filed.
ARTICLE SIX
Principal Office and Registered Agent
The post office address of the initial registered office of the Corporation
and the name of its initial registered agent and its business address is:
Registered Agents, LTD. (USA)
1220 North Market Street, Suite 606
Wilmington, Delaware 19801 (County of New Castle)
The initial registered agent is a resident of the State of Delaware.
ARTICLE SEVEN
Incorporator
A. DeWayne Davis, 2425 North Central Expressway, Suite 400, Richardson, TX
75080-2714.
ARTICLE EIGHT
Pre-Emptive Rights
No Shareholder or other person shall have any pre-emptive rights
whatsoever.
ARTICLE NINE
By-Laws
The initial by-laws shall be adopted by the Shareholders or the Board of
Directors. The power to alter, amend, or repeal the by-laws or adopt new by-laws
is vested in the Board of Directors, subject to repeal or change by action of
the Shareholders.
ARTICLE TEN
Number of Votes
<PAGE>
Each share of Common Stock has one vote on each matter on which the share
is entitled to vote.
ARTICLE ELEVEN
Majority Votes
A majority vote of a quorum of Shareholders (consisting of the holders of a
majority of the shares entitled to vote, represented in person or by proxy) is
sufficient for any action which requires the vote or concurrence of
Shareholders, unless otherwise required or permitted by law or the by-laws of
the Corporation.
ARTICLE TWELVE
Non-Cumulative Voting
Directors shall be elected by majority vote. Cumulative voting shall not be
permitted.
ARTICLE THIRTEEN
Interested Directors, Officers and Securityholders
A. Validity. If Paragraph (B) is satisfied, no contract or other
transaction between the Corporation and any of its directors, officers or
securityholders, or any corporation or firm in which any of them are directly or
indirectly interested, shall be invalid solely because of this relationship or
because of the presence of the director, officer or securityholder at the
meeting of the Board of Directors or committee authorizing the contract or
transaction, or his participation or vote in the meeting or authorization.
B. Disclosure, Approval, Fairness. Paragraph (A) shall apply only if:
(1) The material facts of the relationship or interest of each such
director, officer or security holder are known or disclosed:
(a) to the Board of Directors or the committee and it nevertheless
authorizes or ratifies the contract or transaction by a majority
of the directors present, each such interested director to be
counted in determining whether a quorum is present but not in
calculating the majority necessary to carry the vote; or
(b) to the Shareholders and they nevertheless authorize or ratify the
contract or transaction by a majority of the shares present, each
such interested person to be counted for quorum and voting
purposes; or
(2) the contract or transaction is fair to the Corporation as of the time
it is authorized or ratified by the Board of Directors, the committee
or the Shareholders.
<PAGE>
ARTICLE FOURTEEN
Indemnification and Insurance
A. Persons. The Corporation shall indemnify, to the extent provided in
Paragraphs (B), (D) or (F) and to the extent permitted from time to time by law:
(1) any person who is or was director, officer, agent or employee of the
Corporation, and
(2) any person who serves or served at the Corporation's request as a
director, officer, agent, employee, partner or trustee of another
corporation or of a partnership, joint venture, trust or other
enterprise.
B. Extent--Derivative Suits. In case of a suit by or in the right of the
Corporation against a person named in Paragraph (A) by reason of his holding a
position named in Paragraph (A), the Corporation shall indemnify him, if he
satisfies the standard in Paragraph (C), for expenses (including attorney's fees
but excluding amounts paid in settlement) actually and reasonably incurred by
him in connection with the defense or settlement of the suit.
C. Standard--Derivative Suits. In case of a suit by or in the right of the
Corporation, a person named in Paragraph (A) shall be indemnified only if:
(1) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the subject of the
suit, and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Corporation. However, he shall not be
indemnified in respect of any claim, issue or matter as to which he
has been adjudged liable for negligence or misconduct in the
performance of his duty to the Corporation unless (and only to the
extent that) the court in which the suit was brought shall determine,
upon application, that despite the adjudication but in view of all the
circumstances, he is fairly and reasonably entitled to indemnity for
such expenses as the court shall deem proper.
D. Extent-Non derivative Suits. In case of a suit, action or proceeding
(whether civil, criminal, administrative or investigative), other than a suit by
or in the right of the Corporation against a person named in Paragraph (A) by
reason of his holding a position named in Paragraph (A), the Corporation shall
indemnify him, if he satisfies the standard in Paragraph (E), for amounts
actually and reasonably incurred by him in connection with the defense or
settlement of the suit as
(1) expenses (including attorneys' fees),
(2) amounts paid in settlement
(3) judgments, and
(4) fines.
E. Standard-Non derivative Suits. In case of a non derivative suit, a
person named in Paragraph (A) shall be indemnified only if:
(1) he is successful on the merits or otherwise, or
(2) he acted in good faith in the transaction which is the subject of the
non derivative suit, and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Corporation and , with
<PAGE>
respect to any criminal action or proceeding, he had no reason to
believe his conduct was unlawful. The termination of a non derivative
suit by judgement, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a
presumption that the person failed to satisfy this Paragraph (E) (2).
F. Determination That Standard Has Been Met. A determination that the
standard of Paragraph (C) or (E) has been satisfied may be made by a court of
law or equity or the determination may be made by:
(1) a majority of the directors of the Corporation (whether or not a
quorum) who were not parties to the action, suit or proceeding, or
(2) independent legal counsel (appointed by a majority of the directors of
the Corporation, whether or not a quorum, or elected by the
Shareholders of the Corporation) in a written opinion, or
(3) the Shareholders of the Corporation.
G. Proration. Anyone making a determination under Paragraph (F) may
determine that a person has met the standard as to some matters but not as to
others, and may reasonably prorate amounts to be indemnified.
H. Advance Payment. The Corporation may pay in advance any expenses
(including attorney's fees) which may become subject to indemnification under
paragraphs (A) - (G) if:
(1) the Board of Directors authorizes the specific payment and
(2) the person receiving the payment undertakes in writing to repay unless
it is ultimately determined that he is entitled to indemnification by
the Corporation under Paragraphs (A) - (G).
I. Nonexclusive. The indemnification provided by Paragraphs (A) - (G) shall
not be exclusive of any other rights to which a person may be entitled by law or
by by-law, agreement, vote of Shareholders or disinterested directors, or
otherwise.
J. Continuation. The indemnification and advance payment provided by
Paragraphs (A) - (H) shall continue as to a person who has ceased to hold a
position named in paragraph (A) and shall inure to his heirs, executors and
administrators.
K. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who holds or who has held any position named in Paragraph (A)
against any liability incurred by him in any such positions or arising out of
this status as such, whether or not the Corporation would have power to
indemnify him against such liability under Paragraphs (A) - (H).
L. Reports. Indemnification payments, advance payments, and insurance
purchases and payments made under Paragraphs (A) - (K) shall be reported in
writing to the Shareholders of the Corporation with the next notice of annual
meeting, or within six months, whichever is sooner.
M. Amendment of Article. Any changes in the General Corporation Law of
Delaware increasing, decreasing, amending, changing or otherwise effecting the
indemnification of directors, officers, agents, or employees of the Corporation
<PAGE>
shall be incorporated by reference in this Article as of the date of such
changes without further action by the Corporation, its Board of Directors, of
Shareholders, it being the intention of this Article that directors, officers,
agents and employees of the Corporation shall be indemnified to the maximum
degree allowed by the General Corporation Law of the State of Delaware at all
times.
ARTICLE FIFTEEN
Limitation On Director Liability
A. Scope of Limitation. No person, by virtue of being or having been a
director of the Corporation, shall have any personal liability for monetary
damages to the Corporation or any of its Shareholders for any breach of
fiduciary duty except as to the extent provided in Paragraph (B).
B. Extent of Limitation. The limitation provided for in this Article shall
not eliminate or limit the liability of a director to the Corporation or its
Shareholders (i) for any breach of the director's duty of loyalty to the
Corporation or its Shareholders (ii) for any acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law (iii) for
any unlawful payment of dividends or unlawful stock purchases or redemptions in
violation of Section 174 of the General Corporation Law of Delaware or (iv) for
any transaction for which the director derived an improper personal benefit.
IN WITNESS WHEREOF, the incorporator hereunto has executed this certificate
of incorporation on this 11th day of June, 1999.
A. DeWayne Davis, Incorporator
BY-LAWS OF WINDSOR ACQUISITION CORPORATION
ARTICLE I
The Stockholders
SECTION 1.1. ANNUAL MEETING. The annual meeting of the stockholders of
Windsor Acquisition Corporation (the "Corporation") shall be held on the third
Thursday in May of each year at 10:30 a.m. local time, or at such other date or
time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, for the election of directors and for the
transaction of such other business as may come before the meeting.
SECTION 1.2. SPECIAL MEETINGS. A special meeting of the stockholders may
be called at any time by the written resolution or request of two-thirds or more
of the members of the Board of Directors, the president, or any executive vice
president and shall be called upon the written request of the holders of
two-thirds or more in amount, of each class or series of the capital stock of
the Corporation entitled to vote at such meeting on the matters(s) that are the
subject of the proposed meeting, such written request in each case to specify
the purpose or purposes for which such meeting shall be called, and with respect
to stockholder proposals, shall further comply with the requirements of this
Article.
<PAGE>
SECTION 1.3. NOTICE OF MEETINGS. Written notice of each meeting of
stockholders, whether annual or special, stating the date, hour and place where
it is to be held, shall be served either personally or by mail, not less than
fifteen nor more than sixty days before the meeting, upon each stockholder of
record entitled to vote at such meeting, and to any other stockholder to whom
the giving of notice may be required by law. Notice of a special meeting shall
also state the purpose or purposes for which the meeting is called and shall
indicate that it is being issued by, or at the direction of, the person or
persons calling the meeting. If, at any meeting, action is proposed to be taken
that would, if taken, entitle stockholders to receive payment for their stock,
the notice of such meeting shall include a statement of that purpose and to that
effect. If mailed, notice shall be deemed to be delivered when deposited in the
United States mail or with any private express mail service, postage or delivery
fee prepaid, and shall be directed to each such stockholder at his address, as
it appears on the records of the stockholders of the Corporation, unless he
shall have previously filed with the secretary of the Corporation a written
request that notices intended for him be mailed to some other address, in which
case, it shall be mailed to the address designated in such request.
SECTION 1.4. FIXING DATE OF RECORD. (a) In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders, or any adjournment thereof, 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) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting (to the extent that
such action by written consent is permitted by law, the Certificate of
Incorporation or these By-Laws), 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 date shall not
be more than ten days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. If no record date has 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 its state
of incorporation, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made 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 entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
<PAGE>
(c) In order that the Corporation may determine 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 of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, 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, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
SECTION 1.5. INSPECTORS. At each meeting of the stockholders, the polls
shall be opened and closed and the proxies and ballots shall be received and be
taken in charge. All questions touching on the qualification of voters and the
validity of proxies and the acceptance or rejection of votes, shall be decided
by one or more inspectors. Such inspectors shall be appointed by the Board of
Directors before or at the meeting, or, if no such appointment shall have been
made, then by the presiding officer at the meeting. If for any reason any of the
inspectors previously appointed shall fail to attend or refuse or be unable to
serve, inspectors in place of any so failing to attend or refusing or unable to
serve shall be appointed in like manner.
SECTION 1.6. QUORUM. At any meeting of the stockholders, the holders of a
majority of the shares entitled to vote, represented in person or by proxy,
shall constitute a quorum of the stockholders for all purposes, unless the
representation of a larger number shall be required by law, and, in that case,
the representation of the number so required shall constitute a quorum.
If the holders of the amount of stock necessary to constitute a quorum
shall fail to attend in person or by proxy at the time and place fixed in
accordance with these By-Laws for an annual or special meeting, a majority in
interest of the stockholders present in person or by proxy may adjourn, from
time to time, without notice other than by announcement at the meeting, until
holders of the amount of stock requisite to constitute a quorum shall attend. At
any such adjourned meeting at which a quorum shall be present, any business may
be transacted which might have been transacted at the meeting as originally
notified.
SECTION 1.7. BUSINESS. The chairman of the Board, if any, the president,
or in his absence the vice-chairman, if any, or an executive vice president, in
the order named, shall call meetings of the stockholders to order, and shall act
as chairman of such meeting; provided, however, that the Board of Directors or
executive committee may appoint any stockholder to act as chairman of any
meeting in the absence of the chairman of the Board. The secretary of the
Corporation shall act as secretary at all meetings of the stockholders, but in
the absence of the secretary at any meeting of the stockholders, the presiding
officer may appoint any person to act as secretary of the meeting.
SECTION 1.8. STOCKHOLDER PROPOSALS. No proposal by a stockholder shall be
presented for vote at a special or annual meeting of stockholders unless such
stockholder shall, not later than the close of business on the fifth day
following the date on which notice of the meeting is first given to
stockholders, provide the Board of Directors or the secretary of the Corporation
<PAGE>
with written notice of intention to present a proposal for action at the
forthcoming meeting of stockholders, which notice shall include the name and
address of such stockholder, the number of voting securities that he holds of
record and that he holds beneficially, the text of the proposal to be presented
to the meeting and a statement in support of the proposal.
Any stockholder who was a stockholder of record on the applicable record
date may make any other proposal at an annual meeting or special meeting of
stockholders and the same may be discussed and considered, but unless stated in
writing and filed with the Board of Directors or the secretary prior to the date
set forth herein above, such proposal shall be laid over for action at an
adjourned, special, or annual meeting of the stockholders taking place sixty
days or more thereafter. This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors,
and committees, but in connection with such reports, no new business proposed by
a stockholder, qua stockholder, shall be acted upon at such annual meeting
unless stated and filed as herein provided.
Notwithstanding any other provision of these By-Laws, the Corporation
shall be under no obligation to include any stockholder proposal in its proxy
statement materials or otherwise present any such proposal to stockholders at a
special or annual meeting of stockholders if the Board of Directors reasonably
believes the proponents thereof have not complied with Sections 13 or 14 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder; nor shall the Corporation be required to include any stockholder
proposal not required to be included in its proxy materials to stockholders in
accordance with any such section, rule or regulation.
SECTION 1.9. PROXIES. At all meetings of stockholders, a stockholder
entitled to vote may vote either in person or by proxy executed in writing by
the stockholder or by his duly authorized attorney-in-fact. Such proxy shall be
filed with the secretary before or at the time of the meeting. No proxy shall be
valid after eleven months from the date of its execution, unless otherwise
provided in the proxy.
SECTION 1.10. VOTING BY BALLOT. The votes for directors, and upon the
demand of any stockholder or when required by law, the votes upon any question
before the meeting, shall be by ballot.
SECTION 1.11. VOTING LISTS. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares of stock registered in the name of
eachstockholder. 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 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or if not so specified, at the place where the meeting is
to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
stockholder who is present.
SECTION 1.12. PLACE OF MEETING. The Board of Directors may designate any
place, either within or without the state of incorporation, as the place of
meeting for any annual meeting or any special meeting called by the Board of
<PAGE>
Directors. If no designation is made or if a special meeting is otherwise called
the place of meeting shall be the principal office of the Corporation.
SECTION 1.13. VOTING OF STOCK OF CERTAIN HOLDERS. Shares of capital stock
of the Corporation standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent, or proxy as the by-laws of such
corporation may prescribe, or in the absence of such provision, as the board of
directors of such corporation may determine.
Shares of capital stock of the Corporation standing in the name of a
deceased person, a minor ward or an incompetent person may be voted by his
administrator, executor, court-appointed guardian or conservator, either in
person or by proxy, without a transfer of such stock into the name of such
administrator, executor, court-appointed guardian or conservator. Shares of
capital stock of the Corporation standing in the name of a trustee may be voted
by him, either in person or by proxy.
Shares of capital stock of the Corporation standing in the name of a
receiver may be voted, either in person or by proxy, by such receiver, and stock
held by or under the control of a receiver may be voted by such receiver without
the transfer thereof into his name if authority to do so is contained in any
appropriate order of the court by which such receiver was appointed.
A stockholder whose stock is pledged shall be entitled to vote such
stock, either in person or by proxy, until the stock has been transferred into
the name of the pledgee, and thereafter the pledgee shall be entitled to vote,
either in person or by proxy, the stock so transferred.
Shares of its own capital stock belonging to this Corporation shall not
be voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding stock at any given time, but shares
of its own stock held by it in a fiduciary capacity may be voted and shall be
counted in determining the total number of outstanding stock at any given time.
ARTICLE II
Board of Directors
SECTION 2.1. GENERAL POWERS. The business, affairs, and the property of
the Corporation shall be managed and controlled by the Board of Directors (the
"Board"), and, except as otherwise expressly provided by law, the Certificate of
Incorporation or these By-Laws, all of the powers of the Corporation shall be
vested in the Board.
SECTION 2.2. NUMBER OF DIRECTORS. The number of directors which shall
constitute the whole Board shall be not fewer than one nor more than five.
Within the limits above specified, the number of directors shall be determined
by the Board of Directors pursuant to a resolution adopted by a majority of the
directors then in office.
SECTION 2.3. ELECTION, TERM AND REMOVAL. Directors shall be elected at
the annual meeting of stockholders to succeed those directors whose terms have
expired. Each director shall hold office for the term for which elected and
until his or her successor shall be elected and qualified. Directors need not be
stockholders. A director may be removed from office at a meeting expressly
called for that purpose by the vote of not less than a majority of the
outstanding capital stock entitled to vote at an election of directors.
SECTION 2.4. VACANCIES. Vacancies in the Board of Directors, including
vacancies resulting from an increase in the number of directors, may be filled
<PAGE>
by the affirmative vote of a majority of the remaining directors then in office,
though less than a quorum; except that vacancies resulting from removal from
office by a vote of the stockholders may be filled by the stockholders at the
same meeting at which such removal occurs provided that the holders of not less
than a majority of the outstanding capital stock of the Corporation (assessed
upon the basis of votes and not on the basis of number of shares) entitled to
vote for the election of directors, voting together as a single class, shall
vote for each replacement director. All directors elected to fill vacancies
shall hold office for a term expiring at the time of the next annual meeting of
stockholders and upon election and qualification of his successor. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of an incumbent director.
SECTION 2.5. RESIGNATIONS. Any director of the Corporation may resign at
any time by giving written notice to the president or to the secretary of the
Corporation. The resignation of any director shall take effect at the time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 2.6. PLACE OF MEETINGS, ETC. The Board of Directors may hold its
meetings, and may have an office and keep the books of the Corporation (except
as otherwise may be provided for by law), in such place or places in or outside
the state of incorporation as the Board from time to time may determine.
SECTION 2.7. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held as soon as practicable after adjournment of the annual meeting of
stockholders at such time and place as the Board of Directors may fix. No notice
shall be required for any such regular meeting of the Board.
SECTION 2.8. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at places and times fixed by resolution of the Board of Directors,
or upon call of the chairman of the Board, if any, or vice-chairman of the
Board, if any, the president, an executive vice president or two-thirds of the
directors then in office.
The secretary or officer performing the secretary's duties shall give not
less than twenty-four hours' notice by letter, telegraph or telephone (or in
person) of all special meetings of the Board of Directors, provided that notice
need not given of the annual meeting or of regular meetings held at times and
places fixed by resolution of the Board. Meetings may be held at any time
without notice if all of the directors are present, or if those not present
waive notice in writing either before or after the meeting. The notice of
meetings of the Board need not state the purpose of the meeting.
SECTION 2.9. PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board
of Directors of the Corporation, or any committee thereof, may participate in a
regular or special or any other meeting of the Board or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
shall constitute presence in person at such meeting.
SECTION 2.10. ACTION BY WRITTEN CONSENT. 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 prior or subsequent to such
action all the members of the Board or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of the Board or committee.
<PAGE>
SECTION 2.11. QUORUM. A majority of the total number of directors then in
office shall constitute a quorum for the transaction of business; but if at any
meeting of the Board there be less than a quorum present, a majority of those
present may adjourn the meeting from time to time.
SECTION 2.12. BUSINESS. Business shall be transacted at meetings of the
Board of Directors in such order as the Board may determine. At all meetings of
the Board of Directors, the chairman of the Board, if any, the president, or in
his absence the vice-chairman, if any, or an executive vice president, in the
order named, shall preside.
SECTION 2.13. INTEREST OF DIRECTORS IN CONTRACTS. (a) No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of the Corporation's
directors or officers, are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board or
committee which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if:
The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee of the Board of Directors or the stockholders.
Interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee, which
authorizes the contract or transaction.
SECTION 2.14. COMPENSATION OF DIRECTORS. Each director of the Corporation
who is not a salaried officer or employee of the Corporation, or of a subsidiary
of the Corporation, shall receive such allowances for serving as a director and
such fees for attendance at meetings of the Board of Directors or the executive
committee or any other committee appointed by the Board as the Board may from
time to time determine.
SECTION 2.15. LOANS TO OFFICERS OR EMPLOYEES. The Board of Directors may
lend money to, guarantee any obligation of, or otherwise assist, any officer or
other employee of the Corporation or of any subsidiary, whether or not such
officer or employee is also a director of the Corporation, whenever, in the
judgment of the directors, such loan, guarantee, or assistance may reasonably be
expected to benefit the Corporation; provided, however, that any such loan,
guarantee, or other assistance given to an officer or employee who is also a
director of the Corporation must be authorized by a majority of the entire Board
of Directors. Any such loan, guarantee, or other assistance may be made with or
<PAGE>
without interest and may be unsecured or secured in such manner as the Board of
Directors shall approve, including, but not limited to, a pledge of shares of
the Corporation, and may be made upon such other terms and conditions as the
Board of Directors may determine.
SECTION 2.16. NOMINATION. Subject to the rights of holders of any class
or series of stock having a preference over the common stock as to dividends or
upon liquidation, nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such stockholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the secretary of the Corporation
not later than (i) with respect to an election to be held at an annual meeting
of stockholders, the close of business on the last day of the eighth month after
the immediately preceding annual meeting of stockholders, and (ii) with respect
to an election to be held at a special meeting of stockholders for the election
of directors, the close of business on the fifth day following the date on which
notice of such meeting is first given to stockholders. Each such notice shall
set forth: (a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors,
and; (e) the consent of each nominee to serve as a director of the Corporation
if so elected. The presiding officer at the meeting may refuse to acknowledge
the nomination of any person not made in compliance with the foregoing
procedure.
ARTICLE III
Committees
SECTION 3.1. COMMITTEES. The Board of Directors, by resolution adopted by
a majority of the number of directors then fixed by these By-Laws or resolution
thereto, may establish such standing or special committees of the Board as it
may deem advisable, and the members, terms, and authority of such committees
shall be set forth in the resolutions establishing such committee.
SECTION 3.2. EXECUTIVE COMMITTEE NUMBER AND TERM OF OFFICE. The Board of
Directors may, at any meeting, by majority vote of the Board of Directors, elect
from the directors an executive committee. The executive committee shall consist
of such number of members as may be fixed from time to time by resolution of the
Board of Directors. The Board of Directors may designate a chairman of the
committee who shall preside at all meetings thereof, and the committee shall
designate a member thereof to preside in the absence of the chairman.
SECTION 3.3. EXECUTIVE COMMITTEE POWERS. The executive committee may,
while the Board of Directors is not in session, exercise all or any of the
powers of the Board of Directors in all cases in which specific directions shall
not have been given by the Board of Directors; except that the executive
<PAGE>
committee shall not have the power or authority of the Board of Directors to (i)
amend the Certificate of Incorporation or the By-Laws of the Corporation, (ii)
fill vacancies on the Board of Directors, (iii) adopt an agreement or
certification of ownership, merger or consolidation, (iv) recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, or a dissolution of the Corporation or a
revocation of a dissolution, (v) declare a dividend, or (vi) authorize the
issuance of stock.
SECTION 3.4. EXECUTIVE COMMITTEE MEETINGS. Regular and special meetings
of the executive committee may be called and held subject to the same
requirements with respect to time, place and notice as are specified in these
By-Laws for regular and special meetings of the Board of Directors. Special
meetings of the executive committee may be called by any member thereof. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special or regular meeting of the executive meeting if a quorum
is present. At any meeting at which every member of the executive committee
shall be present, in person or by telephone, even though without any notice, any
business may be transacted. All action by the executive committee shall be
reported to the Board of Directors at its meeting next succeeding such action.
The executive committee shall fix its own rules of procedure, and shall
meet where and as provided by such rules or by resolution of the Board of
Directors, but in every case the presence of a majority of the total number of
members of the executive committee shall be necessary to constitute a quorum. In
every case, the affirmative vote of a quorum shall be necessary for the adoption
of any resolution.
SECTION 3.5. EXECUTIVE COMMITTEE VACANCIES. The Board of Directors, by
majority vote of the Board of Directors then in office, shall fill vacancies in
the executive committee by election from the directors.
ARTICLE IV
The Officers
SECTION 4.1. NUMBER AND TERM OF OFFICE. The officers of the Corporation
shall consist of, as the Board of Directors may determine and appoint from time
to time, a chief executive officer, a president, one or more executive
vice-presidents, a secretary, a treasurer, a controller, and/or such other
officers as may from time to time be elected or appointed by the Board of
Directors, including such additional vice-presidents with such designations, if
any, as may be determined by the Board of Directors and such assistant
secretaries and assistant treasurers. In addition, the Board of Directors may
elect a chairman of the Board and may also elect a vice-chairman as officers of
the Corporation. Any two or more offices may be held by the same person. In its
discretion, the Board of Directors may leave unfilled any office except as may
be required by law.
The officers of the Corporation shall be elected or appointed from time
to time by the Board of Directors. Each officer shall hold office until his
successor shall have been duly elected or appointed or until his death or until
he shall resign or shall have been removed by the Board of Directors.
Each of the salaried officers of the Corporation shall devote his entire
time, skill and energy to the business of the Corporation, unless the contrary
is expressly consented to by the Board of Directors or the executive committee.
<PAGE>
SECTION 4.2. REMOVAL. Any officer may be removed by the Board of
Directors whenever, in its judgment, the best interests of the Corporation would
be served thereby.
SECTION 4.3. THE CHAIRMAN OF THE BOARD. The chairman of the Board, if
any, shall preside at all meetings of stockholders and of the Board of Directors
and shall have such other authority and perform such other duties as are
prescribed by law, by these By-Laws and by the Board of Directors. The Board of
Directors may designate the chairman of the Board as chief executive officer, in
which case he shall have such authority and perform such duties as are
prescribed by these By-Laws and the Board of Directors for the chief executive
officer.
SECTION 4.4. THE VICE-CHAIRMAN. The vice-chairman, if any, shall have
such authority and perform such other duties as are prescribed by these By-Laws
and by the Board of Directors. In the absence or inability to act of the
chairman of the Board and the president, he shall preside at the meetings of the
stockholders and of the Board of Directors and shall have and exercise all of
the powers and duties of the chairman of the Board. The Board of Directors may
designate the vice-chairman as chief executive officer, in which case he shall
have such authority and perform such duties as are prescribed by these By-Laws
and the Board of Directors for the chief executive officer.
SECTION 4.5. THE PRESIDENT. The president shall have such authority and
perform such duties as are prescribed by law, by these By-Laws, by the Board of
Directors and by the chief executive officer (if the president is not the chief
executive officer). The president, if there is no chairman of the Board, or in
the absence or the inability to act of the chairman of the Board, shall preside
at all meetings of stockholders and of the Board of Directors. Unless the Board
of Directors designates the chairman of the Board or the vice-chairman as chief
executive officer, the president shall be the chief executive officer, in which
case he shall have such authority and perform such duties as are prescribed by
these By-Laws and the Board of Directors for the chief executive officer.
SECTION 4.6. THE CHIEF EXECUTIVE OFFICER. Unless the Board of Directors
designates the chairman of the Board or the vice-chairman as chief executive
officer, the president shall be the chief executive officer. The chief executive
officer of the Corporation shall have, subject to the supervision and direction
of the Board of Directors, general supervision of the business, property and
affairs of the Corporation, including the power to appoint and discharge agents
and employees, and the powers vested in him by the Board of Directors, by law or
by these By-Laws or which usually attach or pertain to such office.
SECTION 4.7. THE EXECUTIVE VICE-PRESIDENTS. In the absence of the
chairman of the Board, if any, the president and the vice-chairman, if any, or
in the event of their inability or refusal to act, the executive vice-president
(or in the event there is more than one executive vice-president, the executive
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 chairman of
the Board, of the president and of the vice-chairman, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the chairman
of the Board, the president and the vice-chairman. Any executive vice-president
may sign, with the secretary or an authorized assistant secretary, certificates
for stock of the Corporation and shall perform such other duties as from time to
<PAGE>
time may be assigned to him by the chairman of the Board, the president, the
vice-chairman, the Board of Directors or these By-Laws.
SECTION 4.8. THE VICE-PRESIDENTS. The vice-presidents, if any, shall
perform such duties as may be assigned to them from time to time by the chairman
of the Board, the president, the vice-chairman, the Board of Directors, or these
By-Laws.
SECTION 4.9. THE TREASURER. Subject to the direction of chief executive
officer and the Board of Directors, the treasurer shall have charge and custody
of all the funds and securities of the Corporation; when necessary or proper he
shall endorse for collection, or cause to be endorsed, on behalf of the
Corporation, checks, notes and other obligations, and shall cause the deposit of
the same to the credit of the Corporation in such bank or banks or depositary as
the Board of Directors may designate or as the Board of Directors by resolution
may authorize; he shall sign all receipts and vouchers for payments made to the
Corporation other than routine receipts and vouchers, the signing of which he
may delegate; he shall sign all checks made by the Corporation (provided,
however, that the Board of Directors may authorize and prescribe by resolution
the manner in which checks drawn on banks or depositories shall be signed,
including the use of facsimile signatures, and the manner in which officers,
agents or employees shall be authorized to sign); unless otherwise provided by
resolution of the Board of Directors, he shall sign with an officer-director all
bills of exchange and promissory notes of the Corporation; whenever required by
the Board of Directors, he shall render a statement of his cash account; he
shall enter regularly full and accurate account of the Corporation in books of
the Corporation to be kept by him for that purpose; he shall, at all reasonable
times, exhibit his books and accounts to any director of the Corporation upon
application at his office during business hours; and he shall perform all acts
incident to the position of treasurer. If required by the Board of Directors,
the treasurer shall give a bond for the faithful discharge of his duties in such
sum and with such sure ties as the Board of Directors may require.
SECTION 4.10. THE SECRETARY. The secretary shall keep the minutes of all
meetings of the Board of Directors, the minutes of all meetings of the
stockholders and (unless otherwise directed by the Board of Directors) the
minutes of all committees, in books provided for that purpose; he shall attend
to the giving and serving of all notices of the Corporation; he may sign with an
officer-director or any other duly authorized person, in the name of the
Corporation, all contracts authorized by the Board of Directors or by the
executive committee, and, when so ordered by the Board of Directors or the
executive committee, he shall affix the seal of the Corporation thereto; he may
sign with the president or an executive vice-president all certificates of
shares of the capital stock; he shall have charge of the certificate books,
transfer books and stock ledgers, and such other books and papers as the Board
of Directors or the executive committee may direct, all of which shall, at all
reasonable times, be open to the examination of any director, upon application
at the secretary's office during business hours; and he shall in general perform
all the duties incident to the office of the secretary, subject to the control
of the chief executive officer and the Board of Directors.
SECTION 4.11. THE CONTROLLER. The controller shall be the chief
accounting officer of the Corporation. Subject to the supervision of the Board
of Directors, the chief executive officer and the treasurer, the controller
shall provide for and maintain adequate records of all assets, liabilities and
transactions of the Corporation, shall see that accurate audits of the
<PAGE>
Corporation's affairs are currently and adequately made and shall perform such
other duties as from time to time may be assigned to him.
SECTION 4.12. THE ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
assistant treasurers shall respectively, if required by the Board of Directors,
give bonds for the faithful discharge of their duties in such sums and with such
sureties as the Board of Directors may determine. The assistant secretaries as
thereunto authorized by the Board of Directors may sign with the chairman of the
Board, the president, the vice-chairman or an executive vice-president,
certificates for stock of the Corporation, the issue of which shall have been
authorized by a resolution of the Board of Directors. The assistant treasurers
and assistant secretaries, in general, shall perform such duties as shall be
assigned to them by the treasurer or the secretary, respectively, or chief
executive officer, the Board of Directors, or these By-Laws.
SECTION 4.13. SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors, and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
Corporation.
SECTION 4.14. VOTING UPON STOCKS. Unless otherwise ordered by the Board
of Directors or by the executive committee, any officer, director or any person
or persons appointed in writing by any of them, shall have full power and
authority in behalf of the Corporation to attend and to act and to vote at any
meetings of stockholders of any corporation in which the Corporation may hold
stock, and at any such meeting shall possess and may exercise any and all the
rights and powers incident to the ownership of such stock, and which, as the
owner thereof, the Corporation might have possessed and exercised if present.
The Board of Directors may confer like powers upon any other person or persons.
ARTICLE V
Contracts and Loans
SECTION 5.1. 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 5.2. 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.
ARTICLE VI
Certificates for Stock and Their Transfer
SECTION 6.1. CERTIFICATES FOR STOCK. Certificates representing stock of
the Corporation shall be in such form as may be determined by the Board of
Directors. Such certificates shall be signed by the chairman of the Board, the
president, the vice-chairman or an executive vice-president and/or by the
secretary or an authorized assistant secretary and shall be sealed with the seal
of the Corporation. The seal may be a facsimile. If a stock certificate is
countersigned (i) by a transfer agent other than the Corporation or its
employee, or (ii) by a registrar other than the Corporation or its employee, any
other signature on the certificate may be a facsimile. In the event that any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
<PAGE>
agent or registrar at the date of issue. All certificates for stock shall be
consecutively numbered or otherwise identified. The name of the person to whom
the shares of stock represented thereby are issued, with the number of shares of
stock and date of issue, shall be entered on the books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be canceled and
no new certificates shall be issued until the former certificate for a like
number of shares of stock shall have been surrendered and canceled, except that,
in the event of a lost, destroyed or mutilated certificate, a new one may be
issued therefor upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
SECTION 6.2. TRANSFERS OF STOCK. Transfers of stock 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 attorney thereunto authorized by power of
attorney duly executed and filed with the secretary of the Corporation, and on
surrender for cancellation of the certificate for such stock. The person in
whose name stock stands on the books of the Corporation shall be deemed the
owner thereof for all purposes as regards the Corporation.
ARTICLE VII
Fiscal Year
SECTION 7.1. FISCAL YEAR. The fiscal year of the Corporation shall begin
on the first day of January in each year and end on the last day of December in
each year.
ARTICLE VIII
Seal
SECTION 8.1. SEAL. The Board of Directors shall approve a corporate seal
which shall be in the form of a circle and shall have inscribed thereon the name
of the Corporation.
ARTICLE IX
Waiver of Notice
SECTION 9.1. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of these By-Laws or under the provisions of the
Certificate of Incorporation or under the provisions of the corporation law of
the state of incorporation, waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Attendance of
any person at a meeting for which any notice is required to be given under the
provisions of these By-Laws, the Certificate of Incorporation or the corporation
law of the state of incorporation shall constitute a waiver of notice of such
meeting except when the person attends 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.
ARTICLE X
Amendments
<PAGE>
SECTION 10.1. AMENDMENTS. These By-Laws may be altered, amended or
repealed and new By-Laws may be adopted at any meeting of the Board of Directors
of the Corporation by the affirmative vote of a majority of the members of the
Board, or by the affirmative vote of a majority of the outstanding capital stock
of the Corporation (assessed upon the basis of votes and not on the basis of
number of shares) entitled to vote generally in the election of directors,
voting together as a single class.
ARTICLE XI
Indemnification
SECTION 11.1. INDEMNIFICATION. The Corporation shall indemnify its
officers, directors, employees and agents to the fullest extent permitted by the
General Corporation Law of Delaware, as amended from time to time.
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in the Form 10-SB Registration Statement of
Windsor Acquisition Corporation our report as of July 12, 1999 dated July 15,
1999 relating to the financial statement of Windsor Acquisition Corporation
which appears in such Form 10-SB.
WEINBERG & COMPANY, P.A.
Certified Public Accountants
Boca Raton, Florida
July 1, 1999
