SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS UNDER SECTION 12(b)
OR 12(g) OF THE SECURITIES ACT OF 1934
LAKSHMI ENTERPRISES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 95-4738432
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
4275 Executive Square Suite 1100, La Jolla, CA 92037
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (858) 558-8450
Securities to be Registered Pursuant to Section 12(b) of the Act:
None
Securities to be Registered Pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value
(Title of Class)
LAKSHMI ENTERPRISES, INC.
FORM 10-SB
TABLE OF CONTENTS
PART I
ITEM No. Page
Item 1. Description of Business 1
Item 2. Management's Discussion and Analysis or Plans of Operation 2
Item 3. Description of Property 3
Item 4. Security Ownership of Certain Beneficial Owners and Management 3
Item 5. Directors, Executive Officers, Promoters and Control Persons 4
Item 6. Executive Compensation 7
Item 7. Certain Relationships and Related Transactions 8
Item 8. Description of Securities 8
PART II
Item 1. Market Price of and Dividends on the Registrants Common Equity and
other Shareholder Matters 9
Item 2. Legal Proceedings 10
Item 3. Changes in and Disagreements with Accountants 10
Item 4. Recent Sales of Unregistered Securities 10
Item 5. Indemnification of Directors and Officers 11
PART F/S
FINANCIAL STATEMENTS F/S
PART III
ITEM 1. INDEX TO EXHIBITS AND DESCRIPTION OF EXHIBITS 13
SIGNATURE PAGE 1
PART I
ITEM 1. DESCRIPTION OF BUSINESS
Lakshmi Enterprises, Inc. ("Lakshmi" or the "Company") was incorporated on
May 9, 1997 under the laws of the State of Delaware. The Company's principal
business is in the information technology industry.
Lakshmi's objective is to become a leading provider of Internet and
electronic commerce professional services and solutions to medium-sized and
large businesses. Upon completion of its initial consolidation,
the Company will have, through its existing subsidiaries, a comprehensive
range of solutions and services, including electronic commerce solutions that
improve communication and commerce between businesses and consumers as well
as among businesses and their trading partners. The Company plans to focus its
efforts on maximizing the opportunities presented by the Internet and
electronic commerce to enhance all aspects of its clients' operations, from
the front end of their business, creative Website design, to the back
end, back-office integration of existing systems and electronic commerce
outsourcing creating an end-to-end solution. Professional services offered
by the Company will include strategic consulting, interactive media services,
Internet-based application development, electronic commerce systems
integration and electronic commerce outsourcing ("e-solutions").
The Company's goal is to bring the Internet to Main Street. Critical to its
strategy is the belief of Lakshmi's founders that the untapped potential of
e-services businesses is in addressing the needs of basic individuals and
basic businesses in America's heartland, away from the coasts. Although the
Company plans to have established bases in Silicon Alley and Silicon Valley
(thus providing access to cutting edge new technologies and key human
resource talent), it believes that the real potential lies in cities such as
Cleveland, Detroit, and St. Louis. As described in further detail below,
much of the marketing and new business development in the e-solutions
industry segment is localized often through word of mouth.
The Company believes that smaller companies that are located in these
geographic regions are better positioned to capture and maintain the
e-solutions business of these Lakshmis.
Industry Overview
The rapid growth in the use of the Internet and electronic commerce has
revolutionized the way businesses operate and interact with their customers
and trading partners. The Internet and electronic commerce have created new
channels of communication and distribution that raise the level and increase
the speed of interaction between a business and its trading partners and
customers. The demand for Internet and electronic commerce services is
increasing as more and more companies develop on-line businesses and employ
Internet and electronic commerce solutions.
The Internet enables businesses to establish an on-line presence through
which they can offer new and complementary products and services to new and
existing markets. As a result, businesses have been able to create new
sources of revenue, improve customer care and retention and streamline their
internal operations by processing orders and payments on-line.
To date, businesses have primarily focused on using Internet and electronic
commerce solutions to improve business-to-consumer relationships. However,
businesses are increasingly using the Internet and electronic commerce to
open cost-effective, reliable, highly efficient channels of communication and
commerce with their suppliers and distributors. Internet and electronic
commerce solutions can improve the way businesses interact with their trading
partners by linking businesses' back-office systems through electronic data
interchange, or EDI, and the Internet to trading partners and suppliers.
Businesses are increasingly discovering that implementing Internet and
electronic commerce solutions is necessary to remain competitive and are
demanding end-to-end Internet and electronic commerce solutions
that can improve every aspect of their operations. As a result, technology
industry research firms predict that the market for Internet and electronic
commerce services worldwide will grow significantly over the next few years.
International Data Corp. estimates that this market will increase from $4.6
billion in 1997 to $43.7 billion by 2002, which represents a compound annual
growth rate of 57%. According to a 1998 Dataquest survey of selected Fortune
1000 companies, 83% of such companies are currently investing, or
plan to invest, in Internet solutions and 48% are currently investing, or
plan to invest, in electronic commerce solutions.
Most businesses rely on outside specialists to design and develop Internet
and electronic commerce solutions for a number of compelling reasons.
Because Internet and electronic commerce technologies have developed so
rapidly, few businesses have employees with the advanced skills necessary to
effectively evaluate and implement these technologies successfully. Given
the pressure to get to market quickly, waiting for in-house employees to be
trained to use these technologies is not practicable. In addition,
hiring trained professionals is difficult because they are in great demand.
At the same time, as business challenges grow increasingly complex, so must
the Internet and electronic commerce solutions required to address them.
Given the significant cost to design, develop, implement, and manage Internet
and electronic commerce solutions, businesses cannot afford to expend
resources developing solutions themselves. Hiring a firm that provides a
comprehensive range of Internet and electronic commerce professional services
is often the most efficient and cost-effective solution for many companies.
The Lakshmi Solution
Lakshmi was founded to address the growing need for end-to-end Internet and
electronic commerce solutions. The Company plans to offer a comprehensive
range of services involving the design, development, implementation and
management of Internet and electronic commerce solutions that facilitate and
promote communication and commerce between businesses and consumers as well
as among businesses and their trading partners. The Company believes that
creating an organization focused on e-solutions (rather than merely
e-commerce solutions) will enable it to better adapt to the anticipated
changes that will shape Internet-related solutions. Key elements of the
Lakshmi solution are:
Web Design & Development. The Company's Internet-based application
development services will include the development of software applications
that are capable of running on the Internet and are written in languages such as
Java, C++ and Visual Basic. These services are designed to help client
companies rapidly develop highly flexible and cost-effective business
applications.
Graphic Branding & Corporate Identity. The creation of any and all of the
visual facets of an organization related to the projection of its identity:
printed and on-screen communications, technical and promotional
information; publications for products, sales and finance; books, magazines
and newspapers; the form and labeling of packaging; and integrated sign
systems and environmental graphics. The design and development of products,
merchandise, packaging and equipment for domestic, commercial and industrial
use and consumption: conceptualization and model-making; definition of
production details and processes; and research and management of
manufacturing and marketing resources.
Interactive media solutions (including video, DVD, and sound). The Company's
interactive media capabilities will enable it to measure, on a real-time
basis, a client's return on investment for its on-line
advertising dollars. Lakshmi's interactive subsidiary will track banner ad
performance and collects real-time data on click-through, lead generation,
customer acquisition and sales. Based on their analysis of this information,
clients will be able to make real-time adjustments to their advertising
campaigns to maximize site traffic and reduce the costs of acquiring new
customers and generating sales.
Interactive Broadcasting High-end Production. Increased network bandwidth,
faster computers and new real-time broadcast streaming technologies have
opened the door to the creative and financial power of broadcasting on the
Internet. The Company will offer reliable and quality delivery of video and
audio over the Internet. It will integrate custom development, platform
tools, and unique intellectual properties to enable efficient and
cost-effective video and audio integration into client Internet communication
programs. The Company will provide digitizing, encoding, storage,
production, delivery and consulting services to power Internet video and
audio applications, using a variety of encoding techniques, including:
MPEG-1, MPEG-2, MPEG-2 VBR, Beta SP (component level) Hi-8, SVHS, 3/4"
Umatic, VHS, and 8mm.
Interactive Corporate Communications, marketing and training applications.
The primary focus of the Company's interactive media services will be its
creative Website design and development, branding, media planning and buying.
These services will be designed to maximize client companies' return on their
investments in on-line businesses by generating and increasing Website
traffic, enhancing user experience and increasing the effectiveness of their
marketing efforts. Lakshmi plans to integrate its creative Website
design, development and branding services, as well as on-line media buying
and planning, on-line ad serving, management, tracking and reporting and
on-line promotion and campaign development, into clients' overall solutions.
Corporate Intranet-Extranet Development. Today's companies are finding it
more effective to manage their workforces through knowledge sharing.
Moreover, secured access extranets allow clients to key in doing develop and
give feedback while projects are under development.
Interactive Systems Development and Legacy Systems Integration. Lakshmi's
electronic commerce systems integration services will involve the integration
of electronic commerce systems with other corporate software and
computer-based applications such as websites, accounting systems and Lakshmi
resource planning systems or systems which enable a company to manage every
aspect of its operations, including financial systems, manufacturing and
human resources. These services are designed to rapidly install and
integrate Lakshmi's solutions with client companies' existing operations so
that Lakshmi's solutions will become an integral part of their critical
business systems. Lakshmi will install its solution, convert and initialize
all necessary data, perform acceptance testing and put the system into
operation.
The Company will also integrate the solution with back-office legacy systems
to ensure that each client's critical applications operate seamlessly and
with maximum security.
Interactive Catalogues, e-commerce solutions, vendor integration. The
Company's anticipated electronic commerce services would help clients rapidly
launch and implement electronic commerce solutions and then cost-effectively
manage, operate, maintain and continue to develop those solutions. The Company
will provide business-to-business outsourcing services such as EDI management
and transaction processing. Lakshmi will provide business-to-consumer
services such as commerce storefront management, transaction processing,
managed Web-hosting and the ongoing management, technical operation,
maintenance and development of electronic commerce systems. Additionally,
the Company will provide e-commerce-outsourcing services.
Custom software development. Lakshmi will also offer its expertise to
clients in interactive and web media solutions in the form of custom software
applications. Lakshmi's team of digital media and business experts will
provide strategic business consulting to clients in need of a custom
e-business solutions defining the goals of the project in advance of
development. The consulting team will have the benefit of a network Lakshmi
of off the shelf digital media solutions to leverage as a starting point for
custom development work. Lakshmi will analyze its client's objectives and
provide recommendations on how to proceed outlining a strategy and managing
each component of development including design, media production, and
programming, to provide a complete solution to the client's project objectives.
These capabilities will enable Lakshmi to provide clients with end-to-end
Internet and electronic commerce solutions. The services will enable the
Company's clients to recognize significant cost and time savings and receive
integrated solutions because they can obtain all of the Internet and
electronic commerce professional services they need from one company with a
single point of contact or interface.
Most significantly, however, Lakshmi aims to bring the Internet to Main
Street. Critical to its strategy is the belief of Lakshmi's founders that
the untapped potential of e-services businesses is in addressing the
needs of basic individuals and basic businesses in America's heartland, away
from the coasts. Although the Company plans to have established bases in
Silicon Alley and Silicon Valley (thus providing access to cutting edge new
technologies and key human resource talent), it believes that the real
potential lies in cities such as Cleveland, Detroit, and St. Louis. As
described in further detail below, much of the marketing and new business
development in the e-solutions industry segment is localized often through
word of mouth. The Company believes that smaller companies that are located
in these geographic regions are better positioned to capture and maintain the
e-solutions business of these Lakshmis.
Execution Strategy
The Company's goal is to become recognized and sought-after provider of
Internet and electronic commerce services to medium-sized and large business
clients, particularly in the Midwest [and Southeast/Southwest/Plains] state.
[Why these are the right companies.]
In order to achieve its goal, the Company will focus on: (1) identifying
acquisition candidates which meet the Company's consolidation or operation
criteria; (2) attracting and acquiring companies through implementation of
the Company's operating model approach, which the Company believes will
differentiate it from other similar situated entities; and (3) achieving
operating efficiencies and synergies by combining administrative functions
and achieving economies of scale from implementation of, among other
things, a single health care program.
Identify and Pursue Strategic Consolidation Opportunities. The Company
intends to capitalize upon the consolidation opportunities by acquiring
companies with established sales presence's and/or local brand
names. The Company believes that the geography in which it will pursue
consolidation opportunities are fragmented and often characterized by
privately held or family-owned businesses, whose owner/operators
desire liquidity and may be unable to gain the scale necessary to access the
capital markets effectively or to expand beyond a local or regional base.
In general, the Company plans to acquire smaller companies, or "spokes," in
secondary markets surrounding the hubs of Cleveland, Ohio, San Francisco,
California, and New York City. Where possible, the operations of the spokes
will be integrated into the operations of existing hubs, thereby enabling the
Company to achieve the economies of scale necessary to decrease operating cost
and increase operating margin. The Company believes that another competitive
advantage will be the Company's ability to deploy rapidly its significant
financial resources and/or to use its publicly traded stock as consideration in
selected acquisitions.
The Company intends to pursue growing markets that are fragmented with no
clear market leader and that will benefit from economies of scale.
Within such industries, the Company intends to focus on the acquisition of
companies having some or all of the following characteristics: (i) stable
cash flows and recurring revenue streams from long-term customer
relationships; (ii) long-term growth prospects for products and services
offered; (iii) a strong "franchise" or presence in the communities served by
the acquisition candidate; (iv) an experienced team; (v) an ability to
retain, promote, and motivate teams; (vi) favorable demographic trends within
the local regions serviced; and (vii) an underpenetrated market for
products or services provided by the acquisition candidate. The Company
believes that even if consolidation in a market has begun, there may still
exist opportunities to create niche businesses within its larger, regional
reach.
Additionally, the Company plans to:
Cross Sell Services. Cross-selling of services in order to provide
comprehensive solutions to the consolidated entities varied client base will
be the foundation of Lakshmi's initial marketing campaign. As Lakshmi
integrates the diverse client bases of the companies it plans to acquire, it
will take advantage of opportunities to cross-sell its services to existing
clients. Part of the integration and consolidation methodology will be to
train every member of the Company's sales force to cross-sell the entire
range of anticipated services. In addition, Lakshmi will create uniform
marketing and sales materials that will describe the wide range of services
that the Company intends to offer and position Lakshmi as a leading
provider of end-to-end Internet and electronic commerce solutions.
Differentiate Through Corporate Democracy. The Company believes that its
implementation of corporate democracy will give the Company a competitive
advantage over rival consolidators in attracting, buying and integrating
acquired companies. The Company's business model entails both a decentralized
management philosophy and a centralized operating approach. Each of the
acquired companies will continue to manage all functions that touch the
customer, including sales, marketing, and customer service. The Company will
manage functions such as purchasing, accounting, human resources, and
finance centrally where it can leverage its size and scale. Principles of
corporate democracy that will be used by the Company include:
Control by Owner/Operator. The corporate democracy approach to consolidation is
designed to allow the owners and operators who have built an acquired company to
retain operational control of the business while the Company centralizes
certain administrative functions to provide benefits from operating
efficiencies and synergies resulting from the consolidation of the acquired
company into a larger Lakshmi. This is in contrast to the traditional
consolidation approach used by other consolidators in which the
owner/operators and their employees are often relieved of management
responsibility as a result of a complete centralization of management in the
consolidated Lakshmi.
Think Consolidated, Act Local Management. The Company plans to provide
strategic oversight and guidance with respect to acquisitions, financing,
marketing, and operations. At the same time, managers of acquired companies
will be responsible for the day-to-day operations of each of the acquired
companies. As part of its Think Consolidated, Act Local management
strategy, the Company intends to foster a culture of cooperation and teamwork
that emphasizes dissemination of "best practices" among its local or
acquired management teams. The Company believes that this decentralized
management philosophy results in better customer service by allowing local
management the flexibility to implement policies and make decisions based
upon the needs and desires of local customers and the context of local market
conditions. The decentralized sales and customer contact also facilitates the
retention of historical customers of the acquired companies.
Local Business Identity, Management and Sales Organization. The corporate
democracy approach to consolidation permits the Company to capitalize on the
strength of the owner/operator's connection to his locality, region, or
community by maintaining the original name of the acquired company in the given
geographic location. This contrasts with other consolidation approaches which
often eliminate the local name of the acquired company and replace it with a
single or "national" business name. The Company believes that many customers
purchase products and services based upon long-term commercial relationships.
The Company believes that corporate democracy best preserves the business
customer relationships by, in most circumstances, retaining the management,
sales organizations, and brand name identity of acquired companies and
minimizing operational changes that adversely affect the customer.
Use of Stock as Currency and Incentive Compensation. The Company intends to
structure many of its acquisitions using the Company's stock as currency.
This use of stock as acquisition currency, coupled with the retention of
experienced owner/operators and established sales organizations, creates a high
percentage of employee ownership and strong incentives for good performance.
The Company believes that this stock ownership plan, in conjunction with the
implementation of incentive compensation programs geared to specific
performance goals, will help to align the objectives of the acquired companies
managers and employees with those of the Company's stockholders.
Achieve Operating Efficiencies. The Company believes that it will be able to
achieve certain operating efficiencies and synergies among its acquired
companies. Such operating efficiencies include:
Combining Administrative Functions. The Company will seek to institute a
Company-wide management information system and to combine at the corporate
level certain administrative functions, such as financial reporting and
finance, insurance, employee benefits, and legal support.
Using Hub and Spoke System to Eliminate Redundant Facilities and Service.
The hub and spoke strategy involves using larger, established, high-quality
company in a targeted geographic area into which the facilities and
operations of local, smaller acquired companies, or "spokes", are folded,
allowing the elimination of redundant facilities and reducing overhead.
Implementing Strategic Marketing and Cross-Functional Selling. The Company
believes that, with respect to certain vertical functions in the target and
related industries that may be consolidated by the Company, it may achieve
certain efficiencies through strategic marketing plans to be shared by acquired
companies as well as selling products and services that are not part of the
company or its consolidated operating companies. These synergies of
strategic marketing and outselling may allow additional services to be
provided or goods to be sold, resulting in additional revenues for the
Company. These synergies may also provide broader geographic sales and
service reach for each of the acquired companies, increasing the customer
base of the acquired companies.
Competition
The markets for Internet and electronic commerce professional services are
relatively new, intensely competitive, quickly evolving and subject to rapid
technological change. The Company expects competition to continue and
intensify in the foreseeable future.
Lakshmi expects that its competitors will fall into five major categories:
(1) Internet professional services providers, such as Agency.com, AppNet,
iXL, Proxicom, Razorfish, Scient, Think New Ideas, US Interactive, USWeb/CKS
and Viant;
(1) large information technology consulting services providers, such as
Andersen Consulting, Cambridge Technology Partners, CSC, EDS, IBM, and Sapient;
(1) interactive advertising agencies, such as Darwin Digital, Giant Step,
Grey Interactive, Modem Media, Poppe Tyson and Thunderhouse;
(1) electronic commerce software and service providers, such as BroadVision,
Harbinger, Open Market and Sterling Commerce; and Internet access and
value-added service providers, such as Abovenet, Exodus and Frontier/ Global.
The Company believes it can distinguish itself from its competitors by
offering its clients end-to-end Internet and electronic commerce solutions.
Additionally, Lakshmi believes it can compete effectively on the basis of a
comprehensive range of services, technical expertise, creative talent, brand
or name recognition and the speed, reliability and price of the services to
be provided. However, some of the Company's anticipated competitors have
already begun to offer a variety of Internet and electronic commerce
professional services or have begun their own consolidations and
acquisitions, rather than specialize in one particular area, and several
others have announced their intention to do so. These companies may continue to
expand their operations so that they offer a full range of business-to-business
and business-to-consumer Internet and electronic commerce professional
services and products.
ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
RESULTS OF OPERATIONS
The following discussion and analysis below should be read in conjunction
with the financial statements, including the notes thereto, appearing
elsewhere in this Registration Statement. For the period since inception
(May 9, 1997) through June 30, 1999, during the Company's development stage,
the Company has a positive cash balance of $12.00 and has generated a net
loss of ($19,988).
FINANCIAL CONDITION AND LIQUIDITY
The Company has limited liquidity and has an ongoing need to finance its
activities. To date, the Company currently has funded these cash
requirements by offering and selling its Common Stock, and has issued 750,000
shares of Common Stock for net proceeds of $20,010.00
ITEM 3. DESCRIPTION OF PROPERTIES
The Company's executive and administrative offices are located at 4275
Executive Square Suite 1100, La Jolla, California, 92037. Except for one
month's payment, the Company pays no rent for use of the office and does not
believe that it will require any additional office space in the foreseeable
future in order to carry out its plan of operations described herein.
Such shareholder 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 information regarding the beneficial ownership
of the Company's Common Stock as of the date hereof by (i) each person known
by the Company to be the beneficial owner of more than five percent of its
Common Stock; (ii) each director; (iii) each executive officer listed in the
Summary Compensation Table in Item 6 of this Form 10; and (iv) all directors
and executive officers as a group. Unless otherwise indicted, each of the
following stockholders has sole voting and investment power with respect to
the shares beneficially owned, except to the extent that such authority is
shared by spouses under applicable law.
Name and Address of Beneficial
Owner
Amount of Beneficial
Ownership
Percentage of
Outstanding Shares
Anglo Irish Nominee (Trusts)
Limited A/c 391 (1)
C/o Anglo Irish Trust (I.O.M.)
69 Athol Street
Douglas, Isle of Man 1M1 1JE
227,420
30.32%
Appletree Investment Co., Ltd.(2)
C/o Anglo Irish Trust (I.O.M.)
69 Athol Street
Douglas, Isle of Man 1M1 1JE
227,419
30.32%
Whitestone Trust (3)
Century Trust Company, Ltd.
Zetlands, Nevis, West Indies
48,968
6.53%
PageOne Business Productions(4)
860 Via de la Paz, Suite E-1
Pacific Palisades, CA 90272
44,438
5.93%
Timothy Hipsher(5)
0
0.0%
James F. Walters (6)
9,610
1.28%
Laurie Todt(7)
1,734
0.23%
All executive officers and directors
as a group (3 persons)
11,344
1.51%
(1) Anglo Irish Nominee (Trusts) is a bank affiliated with Anglo Irish Trust, a
trust company located in the Isle of Man.
(2) Appletree Investment Company, Ltd., is a European investment group
domiciled on the Isle of Man, 69 Athol Street, Douglas, Isle of Man, 1M1 1JE.
Appletree Investment Company, Ltd. is owned by an Isle of Man trust.
(3) Whitestone is a privately owned foreign trust located in the West Indies.
(4) PageOne Business Productions, LLC is a Limited Liability Company located in
Los Angeles, CA.
(5) Timothy Hipsher is the President of the Company.
(6) James F. Walters is the Vice President, Treasurer and Chief Financial
Officer of the Company and a managing member of PageOne Business Productions,
LLC, and has shared voting power and dispositive power over such shares.
(7) Laurie Todt is the Secretary and Vice President of the Company.
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
The names of the directors and executive officers of the Company, as well as
their respective ages and positions with the Company, are as follows:
Name
Age
Position
Timothy Hipsher
44
President
Laurie Todt
34
Vice President and Secretary
James F. Walters
45
Treasurer and Chief Financial Officer
Timothy Hipsher has been the President of the Company since April 1999.
From April 1995, Mr. Hipsher has served as a Partner of Rubicon Capital Corp, a
merchant bank focused on small to mid-cap technology companies. From April
1996 to January 1997, Mr. Hipsher served as a consultant with Webcentric
Communications, Inc., an Internet telecommunications company providing
creative audio and video conferencing solutions; from January 1994 to July
1995, he served as a Director of Cranefield International, Inc., a
Canadian-based forestry products company employing innovative and sustainable
development in South and Central America; from March 1993 to May 1996, he
served as a Director of Lodestar Explorations Inc., a mining exploration
company developing properties in North and South America; from January 1992
to January 1994, he served as Vice President of AFF Automated Fast Foods
Ltd., a robotics technology company specializing in the delivery and
preparation of food for the vending industry; from July 1991 to January 1993,
he served as a Director of Infinicom International Corp., a company
specializing in the production of infomercial sales campaigns; from January
1990 to May 1991, he served as a Director of Protech Enviro Solutions, Corp., a
manufacturer of collection and recycling equipment for toxic
chemicals used in the dry cleaning business; from October 1988 to January
1990, he served as a Vice President and Director of Foxx Petroleum Products,
Inc., a company packaging and distributing petroleum products to gasoline
retailers; and from January 1988 to January 1989, he served as a Director of
Soil Technologies, Inc., a manufacturer of Bio-Tech organism used to promote
growth in agricultural applications.
Mr. Hipsher received his B.S. degree in Economics from the University of
Illinois in 1971, and formerly was a securities licensee.
Laurie Todt has served as the Vice President and Secretary of the Company
since its inception. Prior to that, she served as a business consultant to
various U.S. corporations.
James F. Walters has served as the Treasurer and Chief Financial Officer of
the Company since its inception. Mr. Walters joined Kellogg & Andelson as an
accountant in 1976, was elected a partner in 1980, was promoted to Managing
Partner in 1984, and elected Chairman of the Board of Kellogg & Andelson
Accountancy Corporation in 1995. As Chairman, Mr. Walters is currently
responsible for the overall management of the 80-person firm. Mr. Walters
has assisted the firm's clients in connection with the preparation of their
initial public offerings, private finance, merger, acquisition and
restructuring strategies. He continues to be an active consultant in the
many phases of client business operations, such as operational control
systems, general management and capital funding, servicing middle market
companies in many different industries, including aerospace, mail order,
entertainment, high tech, retail, import/export, graphic design, business
management, plastics and publishing.
Mr. Walters previously served as a member of the Board of Directors of
Kistler Aerospace, a manufacturer of reusable rockets that deliver satellites
into orbit, and was instrumental in the initial financing of that company.
Mr. Walters also serves as a member of the Board of Directors of California
Fitnuts, Inc., a start-up company which produces, through a patented process,
nuts that have 50% less fat. In addition, Mr. Walters has founded, owned and
managed companies in the commercial photography, corporate events, auto
repair and concrete molding industries.
Mr. Walters received an M.B.A. degree from Pepperdine University (Malibu,
California) in 1981, and a B.S. degree in Accounting from California State
University, Northridge (CSUN) in 1976.
Directors of the Company are elected annually by the stockholders of the
Company to serve for a term of one year or until their successors are duly
elected and qualified. Officers serve at the pleasure of the Board of
Directors subject to any rights under employment agreements. All directors
will receive reimbursement of reasonable out-of-pocket expenses incurred in
connection with meetings of the Board. No other compensation is, or will be,
paid to directors for services rendered as directors. From the Company's
inception to the date of this filing, there have been no meetings of the
Company's Board of Directors. Other actions of the Company's Board of
Directors were taken pursuant to unanimous written consents. There are
no family relationships between any directors or officers of the Company.
ITEM 6. EXECUTIVE COMPENSATION
Consistent with our present policy, no director or executive officer of
Lakshmi receives compensation for services rendered to the company. Payment
will occur at such time as proceeds are available through financing and
sufficient cash flow. However, such persons are entitled to be reimbursed
for expenses incurred by them in pursuit of GlobaLock's business objectives.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
VALUE
The Company does not have any officer or director stock option plan. The
Company intends to incorporate one after a public offering. The Company does
not have an employee stock option plan.
(ESOP). The Company intends to incorporate one after a public offering.
Long Term Compensation
Annual Compensation Awards Payouts
(a) (b) (c) (d) (e) (f) (g) (h) (i)
Other
Name and Annual Restricted All Other
Principal Compen- Stock Options LTIP Compen-
Position Year Salary($) Bonus($) sation($) Awards($) SAR Payouts($) sation($)
None.
OPTION/SAR GRANTS IN LAST FISCAL YEAR
There were no option/SAR Grants in the last fiscal year.
COMPENSATION OF DIRECTORS
The Company's directors serve without compensation.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
ITEM 8. DESCRIPTION OF SECURITIES
Lakshmi's Restated Certificate of Incorporation provides for an authorized
capital stock of 100,000,000 shares of Common Stock, $.001 par value (the
"Common Stock"), and 8,000,000 shares of Preferred Stock, $.001 par value
(the "Preferred Stock"). At June 30, 1999, the Company had 750,000 shares
of Common Stock issued and outstanding. At such date, there were no shares
of Preferred Stock issued and outstanding.
COMMON STOCK
Each share of Common Stock entitles the holder thereof to one vote for each
share on all matters submitted to the stockholders. The Common Stock is not
subject to redemption or to liability for further calls. Holders of Common
Stock will be entitled to receive such dividends as may be declared by the
Board of Directors of the Company out of funds legally available therefor and to
share pro rata in any distribution to stockholders. The stockholders have no
conversion, preemptive or other subscription rights. Shares of authorized
and unissued Common Stock are issuable by the Board of Directors without any
further stockholder approval.
PREFERRED STOCK
The Board of Directors is authorized, without further action by the
stockholders, to issue from time to time shares of Preferred Stock in one or
more classes or series and to fix the designations, voting rights,
liquidation preferences, dividend rights, conversion rights, rights and terms of
redemption (including sinking fund provisions) and certain other rights and
preferences of the Preferred Stock. The issuance of shares of
Preferred Stock under certain circumstances could adversely affect the voting
power of the holders of Common Stock and may have the effect of delaying,
deferring or preventing a change in control of the Company. As of the date
of this Prospectus, the Company has no plan or arrangement for the issuance of
any shares of Preferred Stock.
TRANSFER AGENT
The Company has appointed American Securities Transfer and Trust as the
transfer agent and registrar of the Common Stock.
PART II
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON
EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock is not presently traded on an established public
trading market.
Following the filing on this Form 10, the Company anticipates that it will
submit its Common Stock for listing on the OTC Electronic Bulletin Board.
The approximate number of record holders of the Company's Common Stock as of
June 30, 1999 was 301, inclusive of those brokerage firms and/or clearing
houses holding the Company's common shares for their clientele (with each
such brokerage house and/or clearing house being considered as one holder).
The aggregate number of shares of Common Stock outstanding as of June 30,
1999 was 750,000.
The Company has not declared or paid any cash dividends on its Common Stock
and does not intend to declare any dividends in the foreseeable future. The
payment of dividends, if any, is within the discretion of the Board of
Directors and will depend on the Company's earnings, if any, its capital
requirements and financial condition, and such other factors as the Board of
Directors may consider. In addition, if the Company is able to negotiate new
credit facilities, such facilities may include restrictions on the Company's
ability to pay dividends.
ITEM 2. LEGAL PROCEEDINGS
There are no pending legal proceedings to which the Company is a party or to
which any of the Company's assets or properties are subject.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
Weinberg & Company, P.A., Certified Public Accountants ("Weinberg"), has
served as the Company's principal accountant since inception. There were no
accounting or auditing disagreements between the Company and Weinberg.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES
In June 1997 and in April 1999, the Company issued unregistered securities
to the initial shareholders of the Company resulting in the issuance and
delivery of 1,500 shares and 500 shares of the Company's Common Stock to
PageOne Business Productions, LLC, and Appletree Investment Company, Ltd.,
respectively. Such securities were issued for aggregate consideration
totalling $20,010 pursuant to the exemptions from registration provided under
the Delaware General Corporation Law and the exemption provided by
Section 4(2) of the Securities Act of 1933, as amended, for issuances of
securities not involving any public offering.
The following table sets forth the names of the recipients and amounts
received in connection with said transactions:
Number of Shares of
Name of Stockholder Common Stock Acquired
PageOne Business 1,500
Productions, LLC
Appletree Investment 500
Company, Ltd.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that, except to the
extent prohibited by the Delaware General Corporation Law (the "DGCL"), its
directors shall not be personally liable to the Company or its stockholders
for monetary damages for any breach of fiduciary duty as directors of the
Company. Under Delaware law, the directors have fiduciary duties to the
Company that are not eliminated by this provision of the Certificate of
Incorporation and, in appropriate circumstances, equitable remedies
such as injunctive or other forms of non-monetary relief will remain
available. In addition, each director will continue to be subject to
liability under Delaware law for breach of the director's duty of loyalty to
the Company for acts or omissions that are found by a court of competent
jurisdiction to be not in good faith or involving intentional misconduct, for
knowing violations of law, for action leading to improper personal
benefit to the director and for payment of dividends or approval of stock
repurchases or redemptions that are prohibited by Delaware law. This
provision also does not affect the director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws. In addition, the Company intends to maintain liability insurance for
its officers and directors.
Section 145 of the DGCL permits the Company to, and the Certificate of
Incorporation provides that the Company may, indemnify each person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was, or has agreed
to become, a director or officer of the Company, or is or was serving, or has
agreed to serve, at the request of the Company, as a director, officer or
trustee of, or in a similar capacity with, another corporation, partnership,
joint venture, trust or other Lakshmis (including any employee benefit plan), or
by reason of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or on
his behalf in connection with such action, suit or proceeding and any appeal
therefrom. Such right of indemnification shall inure to such individuals
whether or not the claim asserted is based on matters that antedate the
adoption of the Certificate of Incorporation. Such right of indemnification
shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs and personal representatives of such
a person. The indemnification provided by the Certificate of Incorporation
shall not be deemed exclusive of any other rights that may be provided now or in
the future under any provision currently in effect or hereafter adopted by the
Certificate of Incorporation, by any agreement, by vote of stockholders, by
resolution of directors, by provision of law or otherwise. Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors of the Company pursuant to the foregoing provision, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
Section 102(b)(7) of the DGCL permits a corporation to eliminate or limit
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 of the DGCL relating to unlawful dividends, stock purchases or
redemptions or (iv) for any transaction from which the director derived an
improper personal benefit. Section 102(b)(7) of the DGCL is designed,
among other things, to encourage qualified individuals to serve as directors
of Delaware corporations. The Company believes this provision will assist it
in securing the services of qualified directors who are not
employees of the Company. This provision has no effect on the availability of
equitable remedies, such as injunction or rescission. If equitable remedies
are found not to be available to stockholders in any particular case,
stockholders may not have any effective remedy against actions taken by
directors that constitute negligence or gross negligence.
PART F/S
LAKSHMI ENTERPRISES, INC.
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENTS
AS OF June 30, 1999
LAKSHMI ENTERPRISES, INC.
(A DEVELOPMENT STAGE COMPANY)
CONTENTS
PAGE 1 - INDEPENDENT AUDITORS' REPORT
PAGE 2 - BALANCE SHEET AS OF JUNE 30, 1999
PAGE 3 - STATEMENT OF OPERATIONS FOR THE PERIODS
FROM JANUARY 1, 1999 TO JUNE 30, 1999 AND
MAY 9, 1997 (INCEPTION) TO JUNE 30, 1999
PAGE 4 - STATEMENT OF CHANGES IN STOCKHOLDERS'
EQUITY FOR THE PERIOD FROM MAY 9, 1997,
(INCEPTION) TO JUNE 30, 1999
PAGE 5 - STATEMENT OF CASH FLOWS FOR THE PERIODS
FROM JANUARY 1, 1999 TO JUNE 30, 1999 AND
MAY 9, 1997 (INCEPTION) TO JUNE 30, 1999
PAGES 6 - 8 - NOTES TO FINANCIAL STATEMENTS AS OF
JUNE 30, 1999
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of:
Lakshmi Enterprises, Inc.
(A Development Stage Company)
We have audited the accompanying balance sheet of Lakshmi Enterprises, Inc. (a
development stage company) as of June 30, 1999 and the related statements of
operations, changes in stockholders' equity and cash flows for the periods from
January 1, 1999 to June 30, 1999 and May 9, 1997 (inception) to June 30,
1999. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements 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 financial statements are 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 statement 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 Lakshmi Enterprises, Inc. (a
development stage company) as of June 30, 1999, and the results of its
operations and its cash flows for the periods from January 1, 1999 to June
30, 1999 and May 9, 1997 (inception) to June 30, 1999, in conformity with
generally accepted accounting principles.
WEINBERG & COMPANY, P.A.
Boca Raton, Florida
October 5, 1999
LAKSHMI ENTERPRISES, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
AS OF JUNE 30, 1999
ASSETS
Cash $ 12
Note receivable - related party 10
TOTAL ASSETS $ 22
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES $ -
STOCKHOLDERS' EQUITY
Preferred stock, $.001 par value 8,000,000 shares
authorized, none issued and outstanding -
Common Stock, $.001 par value, 100,000,000 shares
authorized, 750,000 issued and outstanding 750
Additional paid-in capital 19,260
Accumulated deficit during development stage (19,988)
Total Stockholders' Equity 22
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 22
See accompanying notes to financial statements.
2
LAKSHMI ENTERPRISES, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
FOR THE PERIODS FROM JANUARY 1, 1999 TO JUNE 30,
1999 AND MAY 9, 1997 (INCEPTION) TO JUNE 30, 1999
MAY 9, 1997
JANUARY 1, 1999 (INCEPTION) TO
TO JUNE 30, 1999 JUNE 30, 1999
Income $ - $ -
Expenses
Accounting fees 2,500 2,500
Bank charges 38 38
Consulting fees 8,700 8,700
Legal fees 7,250 7,250
Rent 1,500 1,500
NET LOSS $ (19,988) $ (19,988)
See accompanying notes to financial statements.
3
LAKSHMI ENTERPRISES, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN
STOCKHOLDERS' EQUITY
FOR THE PERIOD FROM MAY 9, 1997
(INCEPTION) TO JUNE 30, 1999
Deficit
Accumulated
Common During Devel-
Stock opment Stage Total
Common stock issuance $ 20,010 $ - $ 20,010
Net loss for the period
ended June 30, 1999 - (19,988) (19,988)
BALANCE AT JUNE 30, 1999 $ 20,010 $ (19,988) $ 22
See accompanying notes to financial statements.
4
LAKSHMI ENTERPRISES, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
FOR THE PERIODS FROM JANUARY 1, 1999 TO JUNE 30,
1999 AND MAY 9, 1997 (INCEPTION) TO JUNE 30, 1999
MAY 9, 1997
JANUARY 1, 1999 (INCEPTION) TO
TO JUNE 30, 1999 JUNE 30, 1999
CASH FLOWS FROM
OPERATING ACTIVITIES:
Net loss $ (19,988) $ (19,988)
Adjustments to reconcile
net loss to net cash used in
operating activities: - -
Net cash used in
operating activities (19,988) (19,988)
CASH FLOWS FROM INVESTING
ACTIVITIES - -
CASH FLOWS FROM FINANCING
ACTIVITIES:
Proceeds from issuance
of common stock 20,000 20,000
Net cash provided by
financing activities 20,000 20,000
INCREASE IN CASH AND
CASH EQUIVALENTS 12 12
CASH AND CASH EQUIVALENTS -
BEGINNING OF PERIOD - -
CASH AND CASH EQUIVALENTS -
END OF PERIOD $ 12 $ 12
See accompanying notes to financial statements.
5
LAKSHMI ENTERPRISES, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JUNE 30, 1999
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. Organization and Business Operations
Lakshmi Enterprises, Inc. (a development stage company) ("the
Company") was incorporated in Delaware on May 9, 1997 to serve as
a vehicle to effect a merger, exchange of capital stock, asset
acquisition or other business combination with a domestic private
business. At June 30, 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 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.
C. Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considers
all highly liquid investments purchased with an original maturity
of three months or less to be cash equivalents.
6
LAKSHMI ENTERPRISES, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JUNE 30, 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 was no current
or deferred income tax benefit arising from the Company's net
operating loss at June 30, 1999 because any deferred tax benefit
has been fully offset by a valuation allowance.
NOTE 2 - STOCKHOLDERS' EQUITY
The Company was originally authorized to issue 2,000 shares of
common stock at no par value. The Company issued 500 and 1,500
shares to AppleTree Investment Company, Ltd. and PageOne Business
Productions, LLC, respectively.
Management subsequently filed a restated certificate of
incorporation with the state of Delaware which increased the
number of authorized common shares to 100,000,000, effected a 375
to 1 split of the 2,000 previously issued common shares and
created 8,000,000 authorized shares of preferred stock. In
addition, the par value of the common stock was changed to $.001
7
LAKSHMI ENTERPRISES, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JUNE 30, 1999
NOTE 2 - STOCKHOLDERS' EQUITY - (CONT'D)
per share and the par value of the new preferred stock was set at
$.001 per share.
The financial statements at June 30, 1999 give effect to capital
stock amounts and par values enumerated in the restated
certificate of incorporation.
NOTE 3 - NOTE RECEIVABLE - RELATED PARTY
The note receivable - related party is a non-interest bearing note
due from PageOne Business Productions, LLC for the issuance of
common stock. The note was due on June 10, 1999 and payment was
received and deposited on July 9, 1999.
8
PART III
ITEM 1. INDEX TO EXHIBITS
Description Page
3.1 Certificate of Incorporation.......a
3.2 Restated Certification of Incorporation.......b
3.3 Bylaws...........h
23.1 Consent of Weinberg & Company, P.A., Independent Certified
Public Accountants...........r
24.1 Power of Attorney..........s
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Company has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
LAKSHMI ENTERPRISES, INC.,
By:
Timothy Hipsher, President
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
President and Director , 1999
Timothy Hipsher
Vice President, Secretary, 1999
Laurie Todt and Director
Treasurer, Chief , 1999
James F. Walters Financial Officer and Director
(Principal Accounting Officer)
_______________________
Laurie Todt
Power of Attorney
EXHIBIT 3.1
State of Delaware
Certificate of Incorporation
FIRST: The name of this Delaware corporation is:
Lakshmi Enterprises, Inc.
SECOND: The name and address of the Corporation's Registered Agent is:
Corporate Creations Lakshmis, Inc.
686 North Dupont Boulevard #302
Milford DE 19963
Kent County
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under Delaware law.
FOURTH: The Corporation shall have the authority to issue 2,000 shares of
common stock, par value zero per share.
FIFTH: The directors shall be protected from personal liability to the
fullest extent permitted by law.
SIXTH: The name and address of the incorporator is:
Corporate Creations International Inc.
941 Fourth Street #200
Miami Beach, FL 33139
The undersigned incorporator executed this Certificate of Incorporation on
the date shown below.
/s/ Greg K. Kuroda
CORPORATE CREATIONS INTERNATIONAL INC.
Greg K. Kuroda, Vice President
Date: May 9, 1997
EXHIBIT 3.2
RESTATED CERTIFICATE OF INCORPORATION
OF
LAKSHMI ENTERPRISES, INC.
UNDER SECTIONS 242 & 245
OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
We, Timothy Hipsher, President, and Laurie Todt, Secretary, of LAKSHMI
ENTERPRISES, INC., do hereby certify under the seal of said corporation as
follows:
1. That the name of the corporation is LAKSHMI ENTERPRISES, INC.
2. That the Certificate of Incorporation of the corporation was filed by the
Secretary of State of the State of Delaware in Dover, Delaware, on the 9th day
of May, 1997.
3. That the amendment to the Certificate of Incorporation effected by this
Certificate, among others, is as follows:
To amend Article FOURTH thereof by increasing the number of authorized
shares of capital stock of the corporation, effecting a 375:1 stock split, and
creating preferred stock.
4. That the amendment and the restatement of the Certificate of
Incorporation have been duly adopted in accordance with the requirements of
Sections 242 and 245 of the General Corporation Law of the State of Delaware.
5. That the text of the Certificate of Incorporation of said LAKSHMI
ENTERPRISES, INC., is hereby amended and restated by this Certificate, to
read in full, as follows:
CERTIFICATE OF INCORPORATION
OF
LAKSHMI ENTERPRISES, INC.
FIRST: The name of the corporation is LAKSHMI ENTERPRISES, INC.
(hereinafter referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the State
of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at that address
is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "Delaware General Corporation
Law").
FOURTH: (a) General. The number of shares of capital stock that the
Corporation is authorized to have at any one time is one hundred eight
million (108,000,000) shares, consisting of: (i) one hundred million
(100,000,000) shares of Common Stock, par value
$0.001 per share (the "Common Stock") and (ii) eight million (8,000,000)
shares of Preferred Stock, par value $0.001 per share (the "Preferred Stock").
(b) Upon the amendment of this article to read as herein set forth, each
issued share of Common Stock of the Corporation shall be split up and
converted into three hundred seventy-five (375) shares of Common Stock. The
stock split and conversion shall automatically occur on the effective date of
this provision. The relative rights and preferences of the issued
shares of Common Stock shall remain unchanged; only the number of issued
shares of Common Stock shall increase. Outstanding certificates representing
shares of Common Stock shall, upon the effective date of this provision, be
deemed to represent 375 times the number of shares of
Common Stock stated thereon. Holders of certificates of shares of Common
Stock may tender such certificates in exchange for new certificates stating
the correct number of shares the previously issued certificates are deemed to
represent upon the effective date of this provision, but failure to tender
will not affect the stock split and conversion provided herein. The resulting
shares shall be deemed fully paid and non-assessable and the holders of such
shares shall be entitled to exercise voting rights, receive dividends and
participate in the Corporation to the extent allowed and subject to the
limitations provided under applicable law and the Corporation's
certificate of incorporation.
(c) Preferred Stock. Authority is hereby expressly vested in the Board of
Directors of the Corporation, subject to the provisions of this ARTICLE
FOURTH and to the limitations prescribed by law, to authorize the issuance
from time to time of one or more series of Preferred Stock. The authority of
the Board of Directors with respect to each series shall
include, but not be limited to, the determination or fixing of the following
by resolution or resolutions adopted by the affirmative vote of a majority of
the total number of the Directors then in office:
(i) The designation of such series;
(ii) The dividend rate of such series, the conditions and dates upon
which such dividends shall be payable, the relation which such dividends shall
bear to the dividends payable on any other class or classes or series of the
Corporation's capital stock and whether such dividends shall be cumulative or
non-cumulative;
(iii) Whether the shares of such series shall be subject to redemption for
cash, property or rights, including securities of any other corporation, by
the Corporation or upon the happening of a specified event and, if made
subject to any such redemption, the times or events, prices, rates,
adjustments and other terms and conditions of such redemptions;
(iv) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(v) Whether or not the shares of such series shall be convertible into,
or exchangeable for, at the option of either the holder or the Corporation or
upon the happening of a specified event, shares of any other class or classes or
of any other series of the same class of the Corporation's capital stock and, if
provision be made for conversion or exchange, the times or
events, prices, rates, adjustments and other terms and conditions of such
conversions or exchanges;
(vi) The restrictions, if any, on the issue or reissue of any additional
Preferred Stock;
(vii) The rights of the holders of the shares of such series upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; and
(viii) The provisions as to voting, optional and/or other special rights
and preferences, if any, including, without limitation, the right to elect
one or more Directors.
(d) Common Stock. Except as otherwise provided by the Delaware General
Corporation Law or this Certificate of Incorporation (the "Certificate"), the
holders of Common Stock (i) subject to the rights of holders of any series of
Preferred Stock, shall share ratably in all dividends payable in cash, stock
or otherwise and other distributions, whether in respect of liquidation or
dissolution (voluntary or involuntary) or otherwise and (ii) are subject to
all the powers, rights, privileges, preferences and priorities of any series
of Preferred Stock as provided herein or in any resolution or resolutions
adopted by the Board of Directors pursuant to authority expressly vested in
it by the provisions of Section (c) of this ARTICLE FOURTH.
(i) The Common Stock shall not be convertible into, or exchangeable
for, shares of any other class or classes or of any other series of the same
class of the Corporation's capital stock.
(ii) No holder of Common Stock shall have any preemptive,
subscription, redemption, conversion or sinking fund rights with respect to
the Common Stock, or to any obligations convertible (directly or indirectly)
into stock of the Corporation whether now or hereafter authorized.
(iii) Except as otherwise provided by the Delaware General
Corporation Law or this Certificate, and subject to the rights of holders of
any series of Preferred Stock, all of the voting power of the stockholders of
the Corporation shall be vested in the holders of the Common Stock, and each
holder of Common Stock shall have one vote for each share held by such holder on
all matters voted upon by the stockholders of the Corporation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors of the Corporation
is expressly authorized to make, alter, amend, change, add to or repeal the
By-laws of the Corporation by the affirmative vote of a majority of the total
number of Directors then in office. Any alteration or repeal of the By-laws
of the Corporation by the stockholders of the Corporation shall require the
affirmative vote of at least a majority of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote on
such alteration or repeal, subject to ARTICLE NINTH hereof and applicable
provisions of the Corporation's By-laws.
SEVENTH: (a) Stockholder Action. Election of Directors need not be by
written ballot unless the By-laws of the Corporation so provide. Subject to
any rights of holders of any series of Preferred Stock, from and after the
date on which the Common Stock of the Corporation is registered pursuant to
the Exchange Act, (i) any action required or permitted to be
taken by the stockholders of the Corporation must be effected at an annual or
special meeting of stockholders of the Corporation and may not be effected in
lieu thereof by any consent in writing by such stockholders, (ii) special
meetings of stockholders of the Corporation may be called only
by either the Board of Directors pursuant to a resolution adopted by the
affirmative vote of the majority of the total number of Directors then in
office or by the chief executive officer of the Corporation, and (iii)
advance notice of stockholder nominations of persons for election to the
Board of Directors of the Corporation and of business to be brought before
any annual meeting of the stockholders by the stockholders of the Corporation
shall be given in the manner provided in the By-laws of the Corporation.
(b) Number of Directors and Term of Office. Subject to any rights of holders
of any series of Preferred Stock to elect additional Directors under specified
circumstances, the number of Directors which shall constitute the Board of
Directors of the Corporation shall be fixed from time to time in the manner
set forth in the By-laws of the Corporation.
(c) Removal and Resignation. No Director may be removed from office
without cause and without the affirmative vote of the holders of a majority
of the voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of Directors voting
together as a single class; provided, however, that if the holders of
any class or series of capital stock are entitled by the provisions of this
Certificate (it being understood that any references to this Certificate
shall include any duly authorized certificate of designation) to elect one or
more Directors, such Director or Directors so elected may be removed
without cause only by the vote of the holders of a majority of the
outstanding shares of that class or series entitled to vote. Any Director
may resign at any time upon written notice to the Corporation.
(d) Vacancies and Newly Created Directorships. Subject to any rights of
holders of any series of Preferred Stock to fill such newly created
Directorships or vacancies, any newly created Directorships resulting from
any increase in the authorized number of Directors and any vacancies in the
Board of Directors resulting from death, resignation, disqualification or
removal from office for cause shall, unless otherwise provided by law or by
resolution approved by the affirmative vote of a majority of the total number of
Directors then in office, be filled only by resolution approved by the
affirmative vote of a majority of the total number of Directors
then in office. Any Director so chosen shall hold office until the next
election of the class for which such Director shall have been chosen, and
until his successor shall have been duly elected and qualified, unless he
shall resign, die, become disqualified or be removed for cause.
EIGHTH: (a) Dividends. The Board of Directors shall have authority
from time to time to set apart out of any assets of the Corporation otherwise
available for dividends a reserve or reserves as working capital or for any
other purpose or purposes, and to abolish or add to any such reserve or
reserves from time to time as said Board may deem to be in the interest of
the Corporation; and said Board shall likewise have power to determine in its
discretion, except as herein otherwise provided, what part of the assets of
the Corporation available for dividends in excess of such reserve or reserves
shall be declared in dividends and paid to the stockholders of the Corporation.
(b) Issuance of Stock. The shares of all classes of stock of the Corporation
may be issued by the Corporation from time to time for such consideration as
from time to time may be fixed by the Board of Directors of the Corporation,
provided that shares of stock having a par value shall not be issued for a
consideration less than such par value, as determined by the
Board. At any time, or from time to time, the Corporation may grant rights
or options to purchase from the Corporation any shares of its stock of any
class or classes to run for such period of time, for such consideration, upon
such terms and conditions, and in such form as the Board of Directors may
determine. The Board of Directors shall have authority, as provided by
law, to determine that only a part of the consideration which shall be
received by the Corporation for the shares of its stock which it shall issue
from time to time, shall be capital; provided, however, that, if all the
shares issued shall be shares having a par value, the amount of the part of
such consideration so determined to be capital shall be equal to the
aggregate par value of such shares. The excess, if any, at any time, of the
total net assets of the Corporation over the amount
so determined to be capital, as aforesaid, shall be surplus. All classes of
stock of the Corporation shall be and remain at all times nonassessable.
The Board of Directors is hereby expressly authorized, in its discretion, in
connection with the issuance of any obligations or stock of the Corporation
(but without intending hereby to limit its general power so to do in other
cases), to grant rights or options to purchase stock of the Corporation of
any class upon such terms and during such period as the Board of Directors
shall determine, and to cause such rights to be evidenced by such warrants or
other instruments as it may deem advisable.
(c) Inspection of Books and Records. The Board of Directors shall have
power from time to time to determine to what extent and at what times and
places and under what conditions and regulations the accounts and books of
the Corporation, or any of them, shall be open to the inspection of the
stockholders; and no stockholder shall have any right to inspect
any account or book or document of the Corporation, except as conferred by
the laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the Corporation.
(d) Location of Meetings, Books and Records. Except as otherwise provided
in the By-laws, the stockholders of the Corporation and the Board of
Directors may hold their meetings and have an office or offices outside of
the State of Delaware and, subject to the provisions of the laws of said
State, may keep the books of the Corporation outside of said State
at such places as may, from time to time, be designated by the Board of
Directors.
NINTH: The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate in the manner now or hereinafter
prescribed herein and by the laws of the State of Delaware, and all rights
conferred upon stockholders herein are granted subject to this reservation.
Notwithstanding anything contained in this Certificate to the contrary,
Sections (a), (c) and (d) of ARTICLE FOURTH, ARTICLE TENTH, ARTICLE
SEVENTH, and this ARTICLE NINTH of this Certificate shall not be altered,
amended or repealed and no provision inconsistent therewith shall be adopted
without the affirmative vote of the holders of at least a majority of the
voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote on such alteration, amendment or repeal, voting
together as a single class.
TENTH: (a) Limitation of Liability.
(i) To the fullest extent permitted by the Delaware General
Corporation Law as it now exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than permitted
prior thereto), and except as otherwise provided in the Corporation's
By-laws, no Director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages arising from a breach of fiduciary duty
owed to the Corporation or its stockholders.
(ii) Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing at the time of such
repeal or modification.
(b) Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of the
fact that he or she is or was a Director or officer of the Corporation or,
while a Director or officer of the Corporation, is or was serving at the
request of the Corporation as a Director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan (an
"indemnitee"), whether the basis of such proceeding is alleged action in
an official capacity as a Director or officer or in any other capacity while
serving as a Director or officer, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than
permitted prior thereto), against all expense, liability and loss (including
attorneys' fees, judgments, fines, excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a Director, officer, employee or agent and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in Section (c) of
this ARTICLE TENTH with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred in this
Section (b) of this ARTICLE TENTH shall be a contract right and shall include
the obligation of the Corporation to pay the expenses incurred in defending
any such proceeding in advance of its final disposition (an "advance of
expenses"); provided, however, that, if and to the extent that the
Delaware General Corporation Law requires, an advance of expenses incurred by
an indemnitee in his or her capacity as a Director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(an "undertaking"), by or on behalf of such indemnitee, to repay all amounts
so advanced if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal (a "final adjudication") that
such indemnitee is not entitled to be indemnified for such expenses under this
Section (b) or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same or lesser scope and effect as the foregoing indemnification of
Directors and officers.
(c) Procedure for Indemnification. Any indemnification of a Director or
officer of the Corporation or advance of expenses under Section (b) of this
ARTICLE TENTH shall be made promptly, and in any event within forty-five (45)
days (or, in the case of an advance of expenses, twenty (20) days), upon the
written request of the Director or officer. If a determination by the
Corporation that the Director or officer is entitled to indemnification
pursuant to this ARTICLE TENTH is required, and the Corporation fails to
respond within sixty (60) days to a written request for indemnity, the
Corporation shall be deemed to have approved the request. If the Corporation
denies a written request for indemnification or advance of expenses, in whole
or in part, or if payment in full pursuant to such request is not made within
forty-five (45) days (or, in the case of an advance of expenses, twenty (20)
days), the right to indemnification or advances as granted by this ARTICLE
TENTH shall be enforceable by the Director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in
connection with successfully establishing his or her right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for the advance of expenses
where the undertaking required pursuant to Section (b) of this ARTICLE TENTH,
if any, has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed, but the burden of such defense shall be on the Corporation. Neither
the failure of the Corporation (including its Board of Directors, independent
legal counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
The procedure for indemnification of other employees and agents for whom
indemnification is provided pursuant to Section (b) of this ARTICLE TENTH
shall be the same procedure set forth in this Section (c) for Directors or
officers, unless otherwise set forth in the action of the Board of Directors
providing indemnification for such employee or agent.
(d) Insurance. The Corporation may purchase and maintain insurance on its
own behalf and on behalf of any person who is or was a Director, officer,
employee or agent of the Corporation or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
expense, liability or loss asserted against him or her and incurred by him or
her in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
(e) Service for Subsidiaries. Any person serving as a Director, officer,
employee or agent of another corporation, partnership, limited liability
company, joint venture or other enterprise, at least 50% of whose equity
interests are owned by the Corporation (a "subsidiary" for this ARTICLE
TENTH) shall be conclusively presumed to be serving in such capacity at the
request of the Corporation.
(f) Reliance. Persons who after the date of the adoption of this provision
become or remain Directors or officers of the Corporation or who, while a
Director or officer of the Corporation, become or remain a Director, officer,
employee or agent of a subsidiary, shall be conclusively presumed to have
relied on the rights to indemnity, advance of expenses and other rights
contained in this ARTICLE TENTH in entering into or continuing such service.
The rights to indemnification and to the advance of expenses conferred in this
ARTICLE TENTH shall apply to claims made against an indemnitee arising out of
acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof.
(g) Non-Exclusivity of Rights. The rights to indemnification and to the
advance of expenses conferred in this ARTICLE TENTH shall not be exclusive of
any other right which any person may have or hereafter acquire under this
Certificate or under any statute, by-law, agreement, vote of stockholders or
disinterested Directors or otherwise.
(h) Merger or Consolidation. For purposes of this ARTICLE TENTH,
references to the "Corporation" shall include, in addition to the resulting
Corporation, any constituent Corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors, officers and employees or agents, so that any person who is or was a
Director, officer, employee or agent of such constituent Corporation, or is or
was serving at the request of such constituent Corporation as a Director,
officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position
under this ARTICLE TENTH with respect to the resulting or surviving
Corporation as he or she would have with respect to such constituent
Corporation if its separate existence had continued.
ELEVENTH: The Corporation expressly elects not to be governed by Section
203 of the Delaware General Corporation Law with respect to business
combinations with interested stockholders.
IN WITNESS WHEREOF, the undersigned hereby executed this instrument and
affirms, under penalty of perjury, that this instrument is the act and deed of
the undersigned and that the facts stated herein are true, and accordingly
have hereunto set our hands as of
.
Timothy Hipsher, President
Laurie Todt, Secretary
EXHIBIT 3.3
BY-LAWS
OF
LAKSHMI ENTERPRISES, INC.,
A Delaware Corporation
(Adopted as of May 9, 1997)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of LAKSHMI ENTERPRISES,
INC. (the "Corporation") in the State of Delaware shall be located at 1013
Centre Road, in the City of Wilmington, Delaware, County of New Castle,
19805. The name of the Corporation's registered agent at such address shall
be Corporation Service Company. The registered office and/or registered agent
of the Corporation may be changed from time to time by action of the Board
of Directors.
Section 2. Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. An annual meeting of the stockholders shall be
held each year within 150 days after the close of the immediately preceding
fiscal year of the Corporation or at such other time specified by the Board of
Directors for the purpose of electing Directors and conducting such other
proper business as may come before the annual meeting. At the annual meeting,
stockholders shall elect Directors and transact such other business as
properly may be brought before the annual meeting pursuant to Section 11 of
ARTICLE II hereof.
Section 2. Special Meetings. Special meetings of the stockholders may only
be called in the manner provided in the Certificate of Incorporation, as
amended from time to time (the "Certificate of Incorporation").
Section 3. Place of Meetings. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of
meeting for any annual meeting or for any special meeting. If no designation
is made, or if a special meeting be otherwise called, the place of meeting
shall be the principal executive office of the Corporation. If for any reason
any annual meeting shall not be held during any year, the business thereof
may be transacted at any special meeting of the stockholders.
Section 4. Notice. Whenever stockholders are required or permitted to take
action at a meeting, written or printed notice stating the place, date, time
and, in the case of special meetings, the purpose or purposes, of such
meeting, shall be given to each stockholder entitled to vote at such meeting
not less than 10 nor more than 60 days before the date of the meeting. All
such notices shall be delivered, either personally or by mail, by or at the
direction of the Board of Directors, the chairman of the board, the president
or the secretary, and if mailed, such notice shall be deemed to be delivered
when deposited in the United States mail, postage prepaid, addressed to the
stockholder at his, her or its address as the same appears on the records of
the Corporation. Attendance of a person at a meeting 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.
Section 5. Stockholders List. The officer having charge of the stock ledger
of the Corporation shall make, at least 10 days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote at such
meeting arranged in alphabetical order, showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 6. Quorum. The holders of a majority of the outstanding shares of
capital stock entitled to vote, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders, except as
otherwise provided by the General Corporation Law of the State of Delaware or
by the Certificate of Incorporation. If a quorum is not present, the holders of
a majority of the shares present in person or represented by proxy at the
meeting, and entitled to vote at the meeting, may adjourn the meeting to
another time and/or place. When a specified item of business requires
a vote by a class or series (if the Corporation shall then have outstanding
shares of more than one class or series) voting as a class or series, the
holders of a majority of the shares of such class or series shall constitute
a quorum (as to such class or series) for the transaction of such item of
business.
Section 7. Adjourned Meetings. When a meeting is adjourned to another time
and place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting. If the adjournment
is for more than 30 days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 8. Vote Required. When a quorum is present, the affirmative vote of
the majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless (i) by express provisions of an applicable law or of the
Certificate of Incorporation a different vote is required, in which case such
express provision shall govern and control the decision of such question, or
(ii) the subject matter is the election of Directors, in which case Section 2
of ARTICLE III hereof shall govern and control the approval of such subject
matter.
Section 9. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation of
the Corporation or any amendments thereto or these By-laws, every stockholder
shall at every meeting of the stockholders be entitled to (i) one vote in
person or by proxy for each share of common stock held by such stockholder.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him or
her by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is coupled is an interest in the stock
itself or an interest in the Corporation generally. Any proxy is suspended
when the person executing the proxy is present at a meeting of stockholders
and elects to vote, except that when such proxy is coupled with an interest
and the fact of the interest appears on the face of the proxy, the
agent named in the proxy shall have all voting and other rights referred to
in the proxy, notwithstanding the presence of the person executing the proxy.
At each meeting of the stockholders, and before any voting commences, all
proxies filed at or before the meeting shall be submitted to and examined by
the secretary or a person designated by the secretary, and no shares may be
represented or voted under a proxy that has been found to be invalid or
irregular.
Section 11. Business Brought Before an Annual Meeting. At an annual meeting
of the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an
annual meeting, business must be (i) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of
Directors, (ii) brought before the meeting by or at the direction of the
Board of Directors or (iii) otherwise properly brought before the meeting by
a stockholder. For business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than 60 days nor
more than 90 days prior to the meeting;provided, however, that in
the event that less than 70 days' notice or prior public announcement of the
date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the date on which such notice of the date
of the annual meeting was mailed or such public announcement
was made. A stockholder's notice to the secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought before the annual
meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business, (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder and (iv) any material interest of the stockholder in such
business. Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this section. The presiding officer of
an annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of this section; if he should so determine, he
shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted. For purposes of this section,
"public announcement" shall mean disclosure in a press release reported by
Dow Jones News Service, Associated Press or a comparable national news
service. Nothing in this section shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. In addition to
such powers as are herein and in the Certificate of Incorporation expressly
conferred upon it, the Board of Directors shall have and may exercise all the
powers of the Corporation, subject to the provisions of the laws of Delaware,
the Certificate of Incorporation and these By-laws.
Section 2. Number, Election and Term of Office. Subject to any rights of the
holders of any series of Preferred Stock to elect additional Directors under
specified circumstances, the number of Directors which shall constitute the
Board of Directors shall be fixed at one (1), and hereafter such number shall
be fixed from time to time by resolution adopted by the affirmative vote of a
majority of the total number of Directors then in office. The Directors shall
be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote in the election of
Directors; provided that, whenever the holders of any class or series of
capital stock of the Corporation are entitled to elect one or more Directors
pursuant to the provisions of the Certificate of Incorporation of the
Corporation (including, but not limited to, for purposes of these By-laws,
pursuant to any duly authorized certificate of designation), such Directors
shall be elected by a plurality of the votes of such class or series present
in person or represented by proxy at the meeting and entitled to vote in the
election of such Directors. The Directors shall be elected and shall hold
office only in the manner provided in the Certificate of Incorporation.
Section 3. Removal and Resignation. No Director may be removed from office
without cause and without the affirmative vote of the holders of a majority
of the voting power of the then outstanding shares of capital stock entitled to
vote generally in the election of Directors voting together as a single
class; provided, however, that if the holders of any class or series of
capital stock are entitled by the provisions of the Certificate of
Incorporation (it being understood that any references to the Certificate of
Incorporation shall include any duly authorized certificate of designation)
to elect one or more Directors, such Director or Directors so elected may be
removed without cause only by the vote of the holders of a majority of the
outstanding shares of that class or series entitled to vote. Any Director may
resign at any time upon written notice to the Corporation.
Section 4. Vacancies. Vacancies and newly created directorships resulting
from any increase in the total number of Directors may be filled only in the
manner provided in the Certificate of Incorporation.
Section 5. Nominations.
(a) Only persons who are nominated in accordance with the procedures set
forth in these By-laws shall be eligible to serve as Directors. Nominations
of persons for election to the Board of Directors of the Corporation may be
made at a meeting of stockholders (i) by or at the direction of the Board of
Directors, or (ii) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of notice provided for in this
By-law, who is entitled to vote generally in the election of Directors at the
meeting and who shall have complied with the notice procedures set
forth below in Section 5(b).
(b) In order for a stockholder to nominate a person for election to the
Board of Directors of the Corporation at a meeting of stockholders, such
stockholder shall have delivered timely notice of such stockholder's intent
to make such nomination in writing to the secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received
at the principal executive offices of the Corporation (i) in the case of an
annual meeting, not less than 60 nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is changed by more than
30 days from such anniversary date, notice by the stockholder to be timely must
be so received not later than the close of business on the 10th day following
the earlier of the day on which notice of the date of the meeting was mailed
or public disclosure of the meeting was made, and (ii) in the case of a
special meeting at which Directors are to be elected, not later than the
close of business on the 10th day following the earlier of the day on which
notice of the date of the meeting was mailed or public disclosure of the
meeting was made. Such stockholder's notice shall set forth (i) as to each
person whom the stockholder proposes to nominate for election as a Director
at such meeting all information relating to such person that is required to
be disclosed in solicitations of proxies for election of Directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Exchange Act (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a Director if elected); (ii)
as to the stockholder giving the notice (A) the name and address, as they
appear on the Corporation's books, of such stockholder and (B) the class and
number of shares of the Corporation which are beneficially owned by such
stockholder and also which are owned of record by such stockholder; and (iii)
as to the beneficial owner, if any, on whose behalf the nomination is made, (A)
the name and address of such person and (B) the class and number of shares of
the Corporation which are beneficially owned by such person. At the request of
the Board of Directors, any person nominated by the Board of Directors for
election as a Director shall furnish to the secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee.
(c) No person shall be eligible to serve as a Director of the Corporation
unless nominated in accordance with the procedures set forth in this section.
The chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that a nomination was not made in accordance with the
procedures prescribed by this section, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded. A stockholder seeking to nominate a person to serve as a
Director must also comply with all applicable requirements of the Exchange
Act, and the rules and regulations thereunder with respect to the matters set
forth in this Section.
Section 6. Annual Meetings. The annual meeting of the Board of Directors
shall be held without other notice than this By-law immediately after, and at
the same place as, the annual meeting of stockholders.
Section 7. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution of
the Board of Directors. Special meetings of the Board of Directors may be
called by the chairman of the board, the president (if the president is a
Director) or, upon the written request of at least a majority of the
Directors then in office, the secretary of the Corporation on at least 24
hours notice to each Director, either personally, by telephone, by mail or by
telecopy.
Section 8. Chairman of the Board, Quorum, Required Vote and Adjournment. The
Board of Directors shall elect, by the affirmative vote of a majority of the
total number of Directors then in office, a chairman of the board, who shall
preside at all meetings of the stockholders and Board of Directors at which
he or she is present and shall have such powers and perform such duties as
the Board of Directors may from time to time prescribe. If the chairman of
the board is not present at a meeting of the stockholders or the Board of
Directors, the president (if the president is a Director and is not also the
chairman of the board) shall preside at such meeting, and, if the president
is not present at such meeting, a majority of the Directors present at such
meeting shall elect one of their members to so preside. A majority of the total
number of Directors then in office shall constitute a quorum for the
transaction of business. Unless by express provision of an applicable law,
the Certificate of Incorporation or these By-laws a different vote is
required, the vote of a majority of Directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the Directors
present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 9. Committees. The Board of Directors may, by resolution passed by a
majority of the total number of Directors then in office, designate one or
more committees, each committee to consist of one or more of the Directors of
the Corporation, which to the extent provided in such resolution or these
By-laws shall have, and may exercise, the powers of the Board of Directors in
the management and affairs of the Corporation, except as otherwise limited by
law. The Board of Directors may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors upon request.
Section 10. Committee Rules. Each committee of the Board of Directors may
fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by a resolution of the Board of
Directors designating such committee. Unless otherwise provided in such a
resolution, the presence of at least a majority of the members of the
committee shall be necessary to constitute a quorum. Unless otherwise
provided in such a resolution, in the event that a member and that member's
alternate, if alternates are designated by the Board of Directors,
of such committee is or are absent or disqualified, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not such member or members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of
any such absent or disqualified member.
Section 11. Communications Equipment. Members of the Board of Directors or
any committee thereof may participate in and act at any meeting of such board
or committee through the use of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear and speak with each other, and participation in the meeting
pursuant to this section shall constitute presence in person at the meeting.
Section 12. Waiver of Notice and Presumption of Assent. Any member of the
Board of Directors or any committee thereof who is present at a meeting shall
be conclusively presumed to have waived notice of such meeting except when
such member 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. Such member shall be conclusively presumed to have
assented to any action taken unless his or her dissent shall be entered in
the minutes of the meeting or unless his or her written dissent to such
action shall be filed with the person acting as the secretary of the meeting
before the adjournment thereof or shall be forwarded by registered mail to
the secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to any member who voted in
favor of such action.
Section 13. Action by Written Consent. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors, or of any committee thereof, may be
taken without a meeting if all members of such board or committee, as the
case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be elected by the
Board of Directors and shall consist of a chairman of the board, a chief
executive officer, a president, one or more vice-presidents, a secretary, a
chief financial officer and such other officers and assistant officers as may
be deemed necessary or desirable by the Board of Directors.
Any number of offices may be held by the same person, except that neither the
chief executive officer nor the president shall also hold the office of
secretary. In its discretion,the Board of Directors may choose not to fill
any office for any period as it may deem advisable, except that the offices
of president and secretary shall be filled as expeditiously as possible.
Section 2. Election and Term of Office. The officers of the Corporation
shall be elected annually by the Board of Directors at its first meeting held
after each annual meeting of stockholders or as soon thereafter as
convenient. Vacancies may be filled or new offices created and filled at any
meeting of the Board of Directors. Each officer shall hold office until a
successor is duly elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the Board of Directors
may be removed by the Board of Directors at its discretion, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 4. Vacancies. Any vacancy occurring in any office because of death,
resignation, removal, disqualification or otherwise may be filled by the
Board of Directors.
Section 5. Compensation. Compensation of all executive officers shall be
approved by the Board of Directors, and no officer shall be prevented from
receiving such compensation by virtue of his or her also being a Director of
the Corporation; provided, however, that compensation of all executive
officers may be determined by a committee established for that purpose if so
authorized by the unanimous vote of the Board of Directors.
Section 6. Chairman of the Board. The chairman of the board shall preside at
all meetings of the stockholders and of the Board of Directors and shall have
such other powers and perform such other duties as may be prescribed to him or
her by the Board of Directors or provided in these By-laws.
Section 7. Vice-Chairman of the Board. Whenever the chairman of the board is
unable to serve, by reason of sickness, absence, or otherwise, the
vice-chairman shall have the powers and perform the duties of the chairman of
the board. The vice-chairman shall have such other powers and perform such
other duties as may be prescribed by the chairman of the board, the board of
directors or these By-laws.
Section 8. Chief Executive Officer. The chief executive officer shall have the
powers and perform the duties incident to that position. Subject to the powers
of the Board of Directors and the chairman of the board, the chief
executive officer shall be in the general and active charge of the entire
business and affairs of the Corporation, and shall be its chief policymaking
officer. The chief executive officer shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors or provided
in these By-laws. The chief executive officer is authorized to
execute bonds,mortgages and other contracts requiring a seal, under the seal
of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Corporation. Whenever the president is unable to serve, by reason of
sickness, absence or otherwise, the chief executive officer shall perform all
the duties and responsibilities and exercise all the powers of the president.
Section 9. The President. The president of the Corporation shall, subject to
the powers of the Board of Directors, the chairman of the board and the chief
executive officer, have general charge of the business, affairs and property
of the Corporation, and control over its officers, agents and employees. The
president shall see that all orders and resolutions of the Board of Directors
are carried into effect. The president is authorized to execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent
of the Corporation. The president shall have such other powers and perform
such other duties as may be prescribed by the chairman of the board, the
chief executive officer, the Board of Directors or as may be
provided in these By-laws.
Section 10. Vice-Presidents. The vice-president, or if there shall be more
than one, the vice-presidents in the order determined by the Board of
Directors or the chairman of the board, shall, in the absence or disability
of the president, act with all of the powers and be subject to all the
restrictions of the president. The vice-presidents shall also perform such
other duties and have such other powers as the Board of Directors, the
chairman of the board, the chief executive officer, the president or these
By-laws may, from time to time, prescribe. The vice-presidents may also be
designated as executive vice-presidents or senior vice-presidents, as the
Board of Directors may from time to time prescribe.
Section 11. The Secretary and Assistant Secretaries. The secretary shall
attend all meetings of the Board of Directors, all meetings of the committees
thereof and all meetings of the stockholders and record all the proceedings of
the meetings in a book or books to be kept for that purpose or shall ensure
that his or her designee attends each such meeting to act in such capacity.
Under the chairman of the board's supervision, the secretary shall give, or
cause to be given, all notices required to be given by these By-laws or by
law; shall have such powers and perform such duties as the Board of
Directors, the chairman of the board, the chief executive officer, the
president or these By-laws may, from time to time, prescribe; and shall have
custody of the corporate seal of the Corporation. The secretary, or an
assistant secretary, shall have authority to affix the corporate seal to any
instrument requiring it and when so affixed, it may be attested by his or her
signature or by the signature of such assistant secretary. The Board of
Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his or her signature. The
assistant secretary, or if there be more than one, any of the assistant
secretaries, shall in the absence or disability of the secretary, perform the
duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as the Board of Directors, the chairman of
the board, the chief executive officer, the president, or secretary
may, from time to time, prescribe.
Section 12. The Chief Financial Officer. The chief financial officer shall
have the custody of the corporate funds and securities; shall keep full and
accurate all books and accounts of the Corporation as shall be necessary or
desirable in accordance with applicable law or generally accepted accounting
principles; shall deposit all monies and other valuable effects in the name
and to the credit of the Corporation as may be ordered by the chairman of the
board or the Board of Directors; shall cause the funds of the Corporation to
be disbursed when such disbursements have been duly authorized,
taking proper vouchers for such disbursements; and shall render to the Board
of Directors, at its regular meeting or when the Board of Directors so
requires, an account of the Corporation; shall have such powers and perform
such duties as the Board of Directors, the chairman of the board, the chief
executive officer, the president or these By-laws may, from time
to time, prescribe. If required by the Board of Directors, the chief
financial officer shall give the Corporation a bond (which shall be rendered
every six years) in such sums and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of the office of chief financial officer and for the restoration to
the Corporation, in case of death, resignation, retirement or removal from
office of all books, papers, vouchers, money and other property of whatever
kind in the possession or under the control of the chief financial officer
belonging to the Corporation.
Section 13. Other Officers, Assistant Officers and Agents. Officers, assistant
officers and agents, if any, other than those whose duties are provided for
in these By-laws, shall have such authority and perform such duties as may from
time to time be prescribed by resolution of the Board of Directors.
Section 14. Absence or Disability of Officers. In the case of the absence or
disability of any officer of the Corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the Board of Directors may by resolution delegate the powers and
uties of such officer to any other officer or to any Director, or to any
other person selected by it.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form. Every holder of stock in the Corporation shall be entitled
to have a certificate, signed by, or in the name of the Corporation by the
chairman of the board, the chief executive officer or the president and the
secretary or an assistant secretary of the Corporation, certifying the number
of shares owned by such holder in the Corporation. If such a certificate is
countersigned (i) by a transfer agent or an assistant transfer agent other
than the Corporation or its employee or (ii) by a registrar, other than the
Corporation or its employee, the signature of any such chairman of the
board, chief executive officer, president, secretary or assistant secretary
may be facsimiles. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on, any such certificate or
certificates shall cease to be such officer or officers of the Corporation
whether because of death, resignation or otherwise before such certificate or
certificates have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates or whose facsimile
signature or signatures have been used thereon had not ceased to be such
officer or officers of the Corporation. All certificates for shares
shall be consecutively numbered or otherwise identified. The name of the
person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the books of the Corporation.
Shares of stock of the Corporation shall only be transferred on the books of
the Corporation by the holder of record thereof or by such holder's attorney
duly authorized in writing, upon surrender to the Corporation of the
certificate or certificates for such shares endorsed by the appropriate
person or persons, with such evidence of the authenticity of such endorsement,
transfer, authorization and other matters as the Corporation may reasonably
require, and accompanied by all necessary stock transfer stamps. In that
event, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate or certificates and
record the transaction on its books. The Board of Directors may appoint a
bank or trust company organized under the laws of the United States or any
state thereof to act as its transfer agent or registrar, or both in
connection with the transfer of any class or series of securities of the
Corporation.
Section 2. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Corporation
may, in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or
certificates, or his or her legal representative, to give the Corporation a
bond sufficient to indemnify the Corporation against any claim that may be
made against the Corporation on account of the loss, theft or destruction of
any such certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. 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 60 nor less than 10
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 the close of business on
the next day preceding the day on which notice is first given. 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.
Section 4. Fixing a Record Date for Other Purposes. In order that the
Corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment or any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purposes 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 60 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 5. Registered Stockholders. Prior to the surrender to the Corporation
of the certificate or certificates for a share or shares of stock with a
request to record the transfer of such share or shares, the Corporation may
treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications and otherwise to exercise all the rights and
powers of an owner. The Corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice
thereof.
Section 6. Subscriptions for Stock. Unless otherwise provided for in the
subscription agreement, subscriptions for shares shall be paid in full at
such time, or in such installments and at such times, as shall be determined
by the Board of Directors. Any call made by the Board of Directors for
payment on subscriptions shall be uniform as to all shares of the same class
or as to all shares of the same series. In case of default in the payment of
any installment or call when such payment is due, the Corporation may proceed
to collect the amount due in the same manner as any debt due the Corporation.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, in
accordance with applicable law. Dividends may be paid in cash, in property or
in shares of the capital stock, subject to the provisions of the Certificate of
Incorporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
Directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or any other
purpose, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts or other orders for
the payment of money by or to the Corporation and all notes and other
evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the Corporation, and
in such manner, as shall be determined by resolution of the Board of
Directors or a duly authorized committee thereof.
Section 3. Contracts. In addition to the powers otherwise granted to
officers pursuant to ARTICLE IV hereof, the Board of Directors may authorize
any officer or officers, or any agent or agents, of the Corporation to enter
into any contract or to 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 4. Loans. The Corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
Corporation or of its subsidiaries, including any officer or employee who is
a Director of the Corporation or its subsidiaries, whenever, in the judgment
of the Directors, such loan, guaranty or assistance may reasonably be
expected to benefit the Corporation. The loan, guaranty or other assistance
may be with or without interest, and may be unsecured, or secured in such
manner as the Board of Directors shall approve, including, without
limitation, a pledge of shares of stock of the Corporation. Nothing in this
section shall be deemed to deny, limit or restrict the powers of guaranty or
warranty of the Corporation at common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 6. Corporate Seal. The Board of Directors may provide a corporate
seal which shall be in the form of a circle and shall have inscribed thereon
the name of the Corporation and the words "Corporate Seal, Delaware." The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 7. Voting Securities Owned By Corporation. Voting securities in any
other Corporation held by the Corporation shall be voted by the chief
executive officer, the president or a vice-president, unless the Board of
Directors specifically confers authority to vote with respect thereto, which
authority may be general or confined to specific instances, upon some other
person or officer. Any person authorized to vote securities shall have the
power to appoint proxies, with general power of substitution.
Section 8. Inspection of Books and Records. The Board of Directors shall have
power from time to time to determine to what extent and at what times and
places and under what conditions and regulations the accounts and
books of the Corporation, or any of them, shall be open to the inspection of
the stockholders; and no stockholder shall have any right to inspect any
account or book or document of the Corporation, except as conferred by the
laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the Corporation.
Section 9. Section Headings. Section headings in these By-laws are for
convenience of reference only and shall not be given any substantive effect
in limiting or otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that any provision of
these By-laws is or becomes inconsistent with any provision of the
Certificate of Incorporation, the General Corporation Law of the State of
Delaware or any other applicable law, the provision of these By-laws shall
not be given any effect to the extent of such inconsistency but shall
otherwise be given full force and effect.
ARTICLE VII
AMENDMENTS
In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors of the Corporation is expressly authorized to make, alter,
amend, change, add to or repeal these By-laws by the affirmative vote of a
majority of the total number of Directors then in office. Any alteration or
repeal of these By-laws by the stockholders of the Corporation shall require
the affirmative vote of a majority of the outstanding shares of the
Corporation entitled to vote on such alteration or repeal; provided, however,
that Section 11 of ARTICLE II and Sections 2, 3, 4 and 5 of ARTICLE
III and this ARTICLE VII of these By-laws shall not be altered, amended or
repealed and no provision inconsistent therewith shall be adopted without the
affirmative vote of the holders of at least a majority of the outstanding
shares of the Corporation entitled to vote on such alteration or repeal.
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the use in the Form 10-SB Registration Statement of
Lakshmi Enterprises, Inc., our report as of June 30, 1999 and for the period
from May 9, 1997 (inception) to June 30, 1999 dated October 5, 1999 relating
to the financial statements of Lakshmi Enterprises, Inc. which appear in such
Form 10-SB.
WEINBERG & COMPANY, P.A.
Certified Public Accountants
Boca Raton, Florida
October 26, 1999
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned director or officer of LAKSHMI ENTERPRISES, INC., a Delaware
corporation (the "Company"), does hereby constitute and appoint Timothy
Hipsher and Laurie Todt, and each of them, with full power of substitution
and resubstitution, as his or her true and lawful attorney(s) to do any and
all things, and to execute any and all instruments, which said attorney(s)
and agent(s) may deem necessary or advisable to enable the Company to comply
with the Securities Exchange Act of 1934, as amended, and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities
Exchange Act of 1934, as amended, of shares of capital stock of the Company,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in the capacities
indicated below to the Registration Statement on Form 10, and any and all
amendments thereto on Form 8, to be filed for such registration.
Signature Title Date
President and Director , 1999
Timothy Hipsher
Vice President Secretary , 1999
Laurie Todt and Director
Treasurer, Chief , 1999
James F. Walters Financial Officer and Director
(Principal Accounting Officer)
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