AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON *
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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First Enterprise Service Group, Inc.
(Exact name of registrant as specified in its charter)
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<TABLE>
<CAPTION>
Florida 6770 Applied For
<S> <C> <C>
State or other jurisdiction of PRIMARY STANDARD INDUSTRIAL I.R.S. Employer
incorporation or organization CLASSIFICATION CODE NUMBER Identification No.
</TABLE>
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2503 W. Gardner Ct.,
Tampa, FL 33611
813. 831-9348
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Michael T. Williams
PRESIDENT
First Enterprise Service Group, Inc.
2503 W. Gardner Ct.
Tampa, FL 33611
TELEPHONE: 813.831.9348
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As promptly as practicable after this registration statement becomes
effective and after the closing of the merger of the proposed merger described
in this registration statement.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b, under the securities act,check the following box and
list the securities act registration statement number of the earlier effective
registration statement for the same offering. *[ ] *registration number,
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the securities act, check the following box and list the securities act
registration statement number of the earlier effective registration statement
for the same offering. *[ ] *registration number,
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. *[ ]
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CALCULATION OF REGISTRATION FEE
Title of each
class of Amount
securities to be Proposed Proposed Amount of
to be registered maximum maximum registration
registered per unit offering price aggregate fee
Common
Stock, par
Value - no 25,418,423 $.001 $2,541.84 $847.28
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(1) Represents an estimate of the maximum number of shares of common stock of
Registrant which may be issued to former holders of shares of common stock of
Space Systems International pursuant to the merger described herein.
(2) The registration fee has been calculated pursuant to Rule 457(f)(2). As
of the filing of this registration statement, Space Systems International had an
accumulated capital deficit. In addition, Space Systems International's common
stock has no par value. Accordingly, the proposed maximum offering price has
been calculated by multiplying one-third,1/3, of an assumed par value for Space
Systems International's Common Stock of .0001par per share, pursuant to Delaware
law by the maximum number of shares to be issued to the holders of Space Systems
International common stock in the merger.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a)
MAY DETERMINE.
PART II--INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware
Under Section 145 of the Delaware General Corporation Law, the Registrant has
broad powers to indemnify its Directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act.
Under Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are
or are threatened to be made a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in or not opposed to, the best interests of the corporation and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as Directors and officers.
These provisions do not eliminate the Directors' duty of care, and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware Law. In addition,
each Director will continue to be subject to liability (i) for breach of the
Directors' duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the Director derived an
improper personal benefit. The provisions also does not affect a Directors'
responsibilities under any other law, such as the federal securities law or
state or federal environmental laws.
Florida
Florida Business Corporation Act. Section 607.0850(1) of the Florida Business
Corporation Act (the "FBCA") provides that a Florida corporation, such as the
Company, shall have the power to indemnify any person who was or is a party to
any proceeding (other than an action by, or in the right of, the corporation),
by reason of the fact that he is or was a director, officer, employee, or agent
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against liability incurred in connection with such proceeding, including any
appeal thereof, if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
Section 607.0850(2) of the FBCA provides that a Florida corporation shall have
the power to indemnify any person, who was or is a party to any proceeding by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses and amounts paid in
settlement not exceeding, in the judgment of the board of directors, the
estimated expense of litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or settlement of such
II-1
proceeding, including any appeal thereof. Such indemnification shall be
authorized if such person acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be made under this subsection in respect of
any claim, issue, or matter as to which such person shall have been adjudged to
be liable unless, and only to the extent that, the court in which such
proceeding was brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Section 607.850 of the FBCA further provides that: (i) to the extent that a
director, officer, employee or agent of a corporation has been successful on the
merits or otherwise in defense of any proceeding referred to in subsection (1)
or subsection (2), or in defense of any proceeding referred to in subsection (1)
or subsection (2), or in defense of any claim, issue, or matter therein, he
shall be indemnified against expense actually and reasonably incurred by him in
connection therewith; (ii) indemnification provided pursuant to Section 607.0850
is not exclusive; and (iii) the corporation may purchase and maintain insurance
on behalf of a director or officer of the corporation against any liability
asserted against him or incurred by him in any such capacity or arising out of
his status as such whether or not the corporation would have the power to
indemnify him against such liabilities under Section 607.0850.
Notwithstanding the foregoing, Section 607.0850 of the FBCA provides that
indemnification or advancement of expenses shall not be made to or on behalf of
any director, officer, employee or agent if a judgment or other final
adjudication establishes that his actions, or omissions to act, were material to
the cause of action so adjudicated and constitute: (i) a violation of the
criminal law, unless the director, officer, employee or agent had reasonable
cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful; (ii) a transaction from which the director, officer,
employee or agent derived an improper personal benefit; (iii) in the case of a
director, a circumstance under which the liability provisions regarding unlawful
distributions are applicable; or (iv) willful misconduct or a conscious
disregard for the best interests of the corporation in a proceeding by or in the
right of the corporation to procure a judgment in its favor or in a proceeding
by or in the right of a shareholder.
Section 607.0831 of the FBCA provides that a director of a Florida corporation
is not personally liable for monetary damages to the corporation or any other
person for any statement, vote, decision, or failure to act, regarding corporate
management or policy, by a director, unless: (i) the director breached or failed
to perform his duties as a director; and (ii) the director's breach of, or
failure to perform, those duties constitutes: (A) a violation of criminal law,
unless the director had reasonable cause to believe his conduct was lawful or
had no reasonable cause to believe his conduct was unlawful; (B) a transaction
from which the director derived an improper personal benefit, either directly or
indirectly; (C) a circumstance under which the liability provisions regarding
unlawful distributions are applicable; (D) in a proceeding by or in the right of
the corporation to procure a judgment in its favor or by or in the right of a
shareholder, conscious disregard for the best interest of the corporation, or
willful misconduct; or (E) in a proceeding by or in the right of someone other
than the corporation or a shareholder, recklessness or an act or omission which
was committed in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property. Articles and
Bylaws. The Company's Articles of Incorporation and the Company's Bylaws provide
that the Company shall, to the fullest extent permitted by law, indemnify all
directors of the Company, as well as any officers or employees of the Company to
whom the Company has agreed to grant indemnification.
At present, there is no pending litigation or proceeding involving a Director,
officer or key employee of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or Director.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibit Numbers
Exhibit 2.1 Agreement and Plan of Merger and Reorganization
Exhibit 3.1 Articles of Incorporation of the Registrant.
Exhibit 3.2 Bylaws of the Registrant
Exhibit 3.3 Amended and Restated Articles of Incorporation of Registrant,
to be effective after consummation of the proposed Merger.
Exhibit 3.4 Amended and Restated Bylaws of the Registrant, to be effective
after consummation of the proposed Merger.
Exhibit 4.1 Form of Common Stock Certificate of the Registrant.*
Exhibit 5.1 Legal Opinion of Williams Law Group, P.A.**
Exhibit 8.1 Tax Opinion of Williams Law Group, P.A.
Exhibit 10.1a Agreement with Rainbow**
Exhibit 10.1b Agreement with Gulf Atlantic**
Exhibit 10.2 Option Agreement with ITR Marketing Inc.
Exhibit 10.3 Option Agreement with Evan Capital
Exhibit 10.4 Option Agreement with Novak Graphics Ltd.
Exhibit 10.5 Option Agreement with Larix International Ltd.
Exhibit 10.6 Contract with Globalstar**
Exhibit 10.7 Contract with Ericsson
Exhibit 10.8 Promissory note from John Papazian**
Exhibit 10.9 Promissory note from Dennis Appel**
Exhibit 10.10.1 Promissory notes from Barry Berman dated September 24, 1998**
Exhibit 10.10.2 Promissory notes from Barry Berman dated October 6, 1998 **
Exhibit 10.11 Letter from MGM to Williams Law Group **
Exhibit 10.12 Letter from Williams Law Group to MGM **
Exhibit 10.13 Letter from MGM to SSI Board*
Exhibit 10.14 Delaware Statutes
Exhibit 10.15 Schedule of Information resales Representatives
Exhibit 11.1 Statement of computation of per share earnings.*
Exhibit 23.1 Consent of KINGERY, CROUSE & HOHL, P.A.
Exhibit 23.2 Consent of PANNELL KERR FORSTER, CPAs.
Exhibit 23.3 Consent of WILLIAMS LAW GROUP, P.A. (to be included in
Exhibits 5.1 and 8.1).
Exhibit 27. Financial Data Schedule (for SEC use only)
*To be filed by amendment
** Previously Filed
All other Exhibits called for by Rule 601 of Regulation S-1 are not applicable
to this filing.
Information pertaining to our Common Stock is contained in our Articles of
Incorporation and By-Laws.
Ex. 2.1
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION dated as of October 1,
2000(the "Agreement") by and among First Enterprise Service Group, Inc., a
Florida corporation ("First Enterprise") and Space Systems International Inc., a
Delaware corporation ("Space Systems International).
R E C I T A L S
The respective Boards of Directors of FIRST ENTERPRISE and Space Systems
International deem it desirable and in the best interests of their respective
corporations, and of their respective shareholders, subject to, among other
things, the approval of the shareholders of FIRST ENTERPRISE and Space Systems
International, Space Systems International shall merge with and into FIRST
ENTERPRISE; as a result of which the holders of shares of capital stock of Space
Systems International will, in the aggregate, receive the consideration
hereinafter set forth (collectively, the "Merger"). Upon the terms and subject
to the conditions of this Agreement, at the Effective Date (as defined in
Section 2.3 of this Agreement) in accordance with the merger laws of the state
of Delaware ("MERGER LAWS"), Space Systems International shall be merged with
and into FIRST ENTERPRISE and the separate existence of Space Systems
International shall thereupon cease. FIRST ENTERPRISE shall be the surviving
corporation in the Merger and is hereinafter sometimes referred to as the
"Surviving Corporation."
NOW, THEREFORE, in consideration of the terms, conditions, agreements and
covenants contained herein, and in reliance upon the representations and
warranties contained in this Agreement, the parties hereto agree as follows:
I. RECITALS; TRUE AND CORRECT
The above stated recitals are true and correct and are incorporated into
this Agreement.
II. MERGER
2.1 Merger. In the manner and subject to the terms and conditions set forth
herein, Space Systems International shall merge with and into FIRST ENTERPRISE,
and FIRST ENTERPRISE shall be the surviving corporation after the Merger and
shall continue to exist as a corporation governed by the laws of Delaware.
2.2 Incorporation and Name Change. Prior to the closing of the merger,
FIRST ENTERPRISE shall change its state of incorporation to Delaware and in so
doing adopt Space Systems International's Articles of Incorporation and ByLaws
(the "Reincorporation"). Upon the Closing of the Merger, FIRST ENTERPRISE shall
change its name to Space Systems International, Inc. (the "Name Change").
2.3 Effective Date. If all of the conditions precedent to the obligations
of each of the parties hereto as hereinafter set forth shall have been satisfied
or shall have been waived, the Merger shall become effective on the date (the
"Effective Date") the Articles of Merger, together with Plans of Merger
reflecting the Merger, shall be accepted for filing by the Secretary of State of
Delaware.
2.4 Securities of the Corporations. The authorized capital stock of Space
Systems International is comprised of 50,000,000 shares of Common Stock, of
which 24,665,870 shares are issued and outstanding and 10,000,000 shares of
Preferred Stock, of which 7,120,720 Class A shares are outstanding. There are
also outstanding options to acquire 3,500,000 shares of Common Stock (the "Space
Systems International Stock").
The authorized capital stock of FIRST ENTERPRISE is comprised of 50,000,000
shares of Common Stock, no par value per share (the "FIRST ENTERPRISE Stock"),
of which 762,553 shares will be issued and outstanding as of the date of closing
of the Merger. In addition, FIRST ENTERPRISE has authorized but unissued
20,000,000 shares of no par value Preferred Stock
2.5 Shares of the Constituent and Surviving Corporations. The manner and
basis of converting the shares of Space Systems International Stock into shares
of FIRST ENTERPRISE Stock shall be as follows:
At the Effective Date, by virtue of the Merger and without any action on the
part of any holder of any capital stock of either FIRST ENTERPRISE or Space
Systems International, each share of Space Systems International Stock,
including common stock, preferred stock and options, issued and outstanding
shall be converted into the right to receive one share or common or preferred
stock or options, the preferred stock and options having the same terms and
conditions, of FIRST ENTERPRISE Stock (the "Exchange Ratio").
2.6 Effect of the Merger. As of the Effective Date, all of the following
shall occur:
(a) The separate existence and corporate organization of Space Systems
International shall cease (except insofar as it may be continued by statute),
FIRST ENTERPRISE shall exist as a surviving corporation.
(b) Except as otherwise specifically set forth herein, the corporate
identity, existence, purposes, powers, franchises, rights and immunities of
FIRST ENTERPRISE shall continue unaffected and unimpaired by the Merger, and the
corporate identity, existence, purposes, powers, franchises and immunities of
Space Systems International shall be merged with and into FIRST ENTERPRISE as
the surviving corporation, shall be fully vested therewith.
(c) Neither the rights of creditors nor any liens upon or security
interests in the property of Space Systems International shall be impaired by
the Merger.
(d) All corporate acts, plans, policies, agreements approvals and
authorizations of the shareholders and Board of Directors of Space Systems
International and of its respective officers, directors and agents, which were
valid and effective immediately prior to the Effective Date, shall be the acts,
plans, policies, agreements, approvals and authorizations of FIRST ENTERPRISE
and shall be as effective and binding on FIRST ENTERPRISE as the same were on
Space Systems International.
(e) FIRST ENTERPRISE shall be liable for all of the obligations and
liabilities of Space Systems International.
(f) The rights, privileges, goodwill, inchoate rights, franchises and
property, real, personal and mixed, and debts due on whatever account and all
other things in action belonging to Space Systems International, shall be, and
they hereby are, bargained, conveyed, granted, confirmed, transferred, assigned
and set over to and vested in FIRST ENTERPRISE, without further act or deed.
(g) No claim pending at the Effective Date by or against any of Space
Systems International, or any stockholder, officer or director thereof, shall
abate or be discontinued by the Merger, but may be enforced, prosecuted, settled
or compromised as if the Merger had not occurred.
(h) All rights of employees and creditors and all liens upon the
property of Space Systems International shall be preserved unimpaired, limited
in lien to the property affected by such liens at the Effective Date, and all
the debts, liabilities and duties of Space Systems International shall attach to
FIRST ENTERPRISE and shall be enforceable against FIRST ENTERPRISE to the same
extent as if all such debts, liabilities and duties had been incurred or
contracted by Space Systems International.
(i) The Articles of Incorporation of FIRST ENTERPRISE, as in effect on
the Effective Date, shall continue to be the Articles of Incorporation of FIRST
ENTERPRISE without change or amendment.
(j) The Bylaws of FIRST ENTERPRISE, as in effect on the Effective
Date, shall continue to be the Bylaws of FIRST ENTERPRISE without change or
amendment until such time, if ever, as it is amended thereafter in accordance
with the provisions thereof and applicable laws.
(k) Upon the Effective Date, the Board of Directors of FIRST
ENTERPRISE shall consist of those persons set forth in the registration
statement, and the officers of FIRST ENTERPRISE shall be the officers specified
in the registration statement.
III. CONDUCT OF BUSINESS PENDING CLOSING; STOCKHOLDER APPROVAL
Space Systems International and FIRST ENTERPRISE covenant that between the
date hereof and the date of the Closing:
3.1 Access to Space Systems International. Space Systems International
shall (a) give to FIRST ENTERPRISE and to FIRST ENTERPRISE's counsel,
accountants and other representatives reasonable access, during normal business
hours, throughout the period prior to the Closing Date (as defined in Section
6.1), to all of the books, contracts, commitments and other records of Space
Systems International and shall furnish FIRST ENTERPRISE during such period with
all information concerning Space Systems International that FIRST ENTERPRISE may
reasonably request; and (b) afford to FIRST ENTERPRISE and to FIRST ENTERPRISE's
representatives, agents, employees and independent contractors reasonable
access, during normal business hours, to the properties of Space Systems
International, in order to conduct inspections at FIRST ENTERPRISE's expense to
determine that Space Systems International is operating in compliance with all
applicable federal, state, local and foreign statutes, rules and regulations,
and all material building, fire and zoning laws or regulations and that the
assets of Space Systems International are substantially in the condition and of
the capacities represented and warranted in this Agreement; provided, however,
that in every instance described in (a) and (b), FIRST ENTERPRISE shall make
arrangements with Space Systems International reasonably in advance and shall
use its best efforts to avoid interruption and to minimize interference with the
normal business and operations of Space Systems International. Any such
investigation or inspection by FIRST ENTERPRISE shall not be deemed a waiver of,
or otherwise limit, the representations, warranties or covenants of Space
Systems International contained herein.
3.2 Conduct of Business. During the period from the date hereof to the
Closing Date, Space Systems International shall and shall use reasonable
efforts, to the extent such efforts are within Space Systems International's
control, to cause its business to be operated in the usual and ordinary course
of business and in material compliance with the terms of this Agreement.
3.3 Exclusivity to FIRST ENTERPRISE. Neither Space Systems International
nor its respective officers, directors, representatives or agents, as
appropriate, from the date hereof until the Closing or the earlier termination
of this Agreement, shall solicit any inquiries, proposals or offers to purchase
the business of Space Systems International or the shares of capital stock of
Space Systems International, from any person other than FIRST ENTERPRISE. Any
person inquiring as to the availability of the business or shares of capital
stock of Space Systems International or making an offer therefor shall be told
that Space Systems International is bound by the provisions of this Agreement.
Space Systems International as well as its officers, directors, representatives
or agents further agree to advise FIRST ENTERPRISE promptly of any such inquiry
or offer.
3.4 Access to FIRST ENTERPRISE. FIRST ENTERPRISE shall (a) give to Space
Systems International and to Space Systems International's counsel, accountants
and other representatives reasonable access, during normal business hours,
throughout the period prior to the Closing Date, to all of the books, contracts,
commitments and other records of FIRST ENTERPRISE and shall furnish Space
Systems International during such period with all information concerning FIRST
ENTERPRISE that Space Systems International may reasonably request; and (b)
afford to Space Systems International and to Space Systems International's
representatives, agents, employees and independent contractors reasonable
access, during normal business hours, to the properties of FIRST ENTERPRISE in
order to conduct inspections at Space Systems International's expense to
determine that FIRST ENTERPRISE is operating in compliance with all applicable
federal, state, local and foreign statutes, rules and regulations, and all
material building, fire and zoning laws or regulations and that the assets of
FIRST ENTERPRISE are substantially in the condition and of the capacities
represented and warranted in this Agreement; provided, however, that in every
instance described in (a) and (b), Space Systems International shall make
arrangements with FIRST ENTERPRISE reasonably in advance and shall use its best
efforts to avoid interruption and to minimize interference with the normal
business and operations of FIRST ENTERPRISE. Any such investigation or
inspection by Space Systems International shall not be deemed a waiver of, or
otherwise limit, the representations, warranties or covenants of FIRST
ENTERPRISE contained herein.
3.5 Conduct of Business. During the period from the date hereof to the
Closing Date, the business of FIRST ENTERPRISE shall be operated by FIRST
ENTERPRISE in the usual and ordinary course of such business and in material
compliance with the terms of this Agreement. Without limiting the generality of
the foregoing:
(a) FIRST ENTERPRISE shall comply in all material respects with all laws
applicable to it; and
(b) FIRST ENTERPRISE shall timely file all reports required to be filed by
it with the Securities and Exchange Commission (the "SEC").
3.6 Exclusivity to Space Systems International. FIRST ENTERPRISE and its
officers, directors, representatives or agents, as appropriate, shall not, from
the date hereof until the Closing or the earlier termination of this Agreement,
solicit any inquiries, proposals or offers to purchase the business of FIRST
ENTERPRISE or the shares of capital stock of FIRST ENTERPRISE from any person
other than Space Systems International. Any person inquiring as to the
availability of the business or shares of capital stock of FIRST ENTERPRISE or
making an offer therefor shall be told that FIRST ENTERPRISE is bound by the
provisions of this Agreement. Each of FIRST ENTERPRISE and its officers,
directors, representatives or agents further agree to advise Space Systems
International promptly of any such inquiry or offer.
3.7 Stockholder Approval. (a) As promptly as reasonably practicable
following the date of this Agreement, FIRST ENTERPRISE shall take all action
reasonably necessary in accordance with the laws of the State of Florida and its
Articles of Incorporation and Bylaws to secure written consents for the approval
and adoption of the Merger and the Merger Agreement, as well as the
Reincorporation and Name Change. The Board of Directors of FIRST ENTERPRISE
shall unanimously recommend that FIRST ENTERPRISE's shareholders vote to approve
and adopt the Merger, this Agreement and any other matters to be submitted to
FIRST ENTERPRISE's shareholders in connection therewith. FIRST ENTERPRISE shall,
subject as aforesaid, use its best efforts to solicit and secure from
shareholders of FIRST ENTERPRISE such approval and adoption.
(b) As promptly as reasonably practicable following the date of this
Agreement, FIRST ENTERPRISE shall prepare and file with the SEC under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated by the SEC thereunder a registration statement on Form
S-4 (or other form of registration statement as agreed by the parties) (the
"registration statement")covering all shares of FIRST ENTERPRISE Stock issuable
as a consequence of the Merger. FIRST ENTERPRISE may also register shares of
existing shareholders for resale on a companion S-1 or SB-2 filing. Space
Systems International shall cooperate fully with FIRST ENTERPRISE in the
preparation and filing of the Registration Statement and any amendments and
supplements thereto, including, without limitation, the furnishing to FIRST
ENTERPRISE of such information regarding Space Systems International as shall be
required by each of the Securities Act and the Exchange Act and the respective
rules and regulations promulgated by the SEC thereunder.
(d) As promptly as practicable but in no event later than the Effective
Date, FIRST ENTERPRISE shall prepare and file with the NASD OTC Bulletin Board
("BB"), an application to have the FIRST ENTERPRISE Stock listed for trading on
BB.
IV. REPRESENTATIONS AND WARRANTIES OF Space Systems International
Space Systems International represents and warrants to FIRST ENTERPRISE as
follows, with the knowledge and understanding that FIRST ENTERPRISE is relying
materially upon such representations and warranties:
4.1 Organization and Standing. Space Systems International is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Delaware. Space Systems International has all requisite corporate power
to carry on its business as it is now being conducted and is duly qualified to
do business as a foreign corporation and is in good standing in each
jurisdiction where such qualification is necessary under applicable law, except
where the failure to qualify (individually or in the aggregate) does not have
any material adverse effect on the assets, business or financial condition of
Space Systems International, and all states in which each is qualified to do
business as of the date hereof, are listed in the information in the
registration statement concerning Space Systems International. The copies of the
Articles of Incorporation and Bylaws of Space Systems International, as amended
to date, delivered to FIRST ENTERPRISE, are true and complete copies of these
documents as now in effect. Except as otherwise set forth in the information in
the registration statement concerning Space Systems International, Space Systems
International does not own any interest in any other corporation, business trust
or similar entity. The minute book of Space Systems International contains
accurate records of all meetings of its respective Board of Directors and
shareholders since its incorporation.
4.2 Capitalization. The authorized capital stock of Space Systems
International, the number of shares of capital stock which are issued and
outstanding and par value thereof are as set forth in the Registration
Statement. All of such shares of capital stock are duly authorized, validly
issued and outstanding, fully paid and nonassessable, and were not issued in
violation of the preemptive rights of any person. There are no subscriptions,
options, warrants, rights or calls or other commitments or agreements to which
Space Systems International is a party or by which it is bound, calling for any
issuance, transfer, sale or other disposition of any class of securities of
Space Systems International. There are no outstanding securities convertible or
exchangeable, actually or contingently, into shares of common stock or any other
securities of Space Systems International. Space Systems International has no
subsidiaries.
4.3 Authority. This Agreement constitutes, and all other agreements
contemplated hereby will constitute, when executed and delivered by Space
Systems International in accordance therewith (and assuming due execution and
delivery by the other parties hereto), the valid and binding obligation of Space
Systems International, enforceable in accordance with their respective terms,
subject to general principles of equity and bankruptcy or other laws relating to
or affecting the rights of creditors generally.
4.4 Properties. Except as set forth on the information in the registration
statement concerning Space Systems International, Space Systems International
has good title to all of the assets and properties which it purports to own as
reflected on the balance sheet included in the Financial Statements (as
hereinafter defined), or thereafter acquired. Space Systems International has a
valid leasehold interest in all material property of which it is the lessee and
each such lease is valid, binding and enforceable against Space Systems
International, as the case may be, and, to the knowledge of Space Systems
International, the other parties thereto in accordance with its terms. Neither
Space Systems International nor the other parties thereto are in material
default in the performance of any material provisions thereunder. Neither the
whole nor any material portion of the assets of Space Systems International is
subject to any governmental decree or order to be sold or is being condemned,
expropriated or otherwise taken by any public authority with or without payment
of compensation therefor, nor, to the knowledge of Space Systems International,
any such condemnation, expropriation or taking been proposed. None of the assets
of Space Systems International is subject to any restriction which would prevent
continuation of the use currently made thereof or materially adversely affect
the value thereof.
4.5 Contracts Listed; No Default. All contracts, agreements, licenses,
leases, easements, permits, rights of way, commitments, and understandings,
written or oral, connected with or relating in any respect to present or
proposed future operations of Space Systems International (except employment or
other agreements terminable at will and other agreements which, in the
aggregate, are not material to the business, properties or prospects of Space
Systems International and except governmental licenses, permits, authorizations,
approvals and other matters referred to in Section 4.17), which would be
required to be listed as exhibits to a Registration Statement on Form S-4 or an
Annual Report on Form 10-K if Space Systems International were subject to the
reporting requirements of the Exchange Act (individually, the "Space Systems
International Contract" and collectively, the "Space Systems International
Contracts"), are listed and described in the information in the registration
statement concerning Space Systems International. Space Systems International is
the holder of, or party to, all of the Space Systems International Contracts. To
the knowledge of Space Systems International, the Space Systems International
Contracts are valid, binding and enforceable by the signatory thereto against
the other parties thereto in accordance with their terms. Neither Space Systems
International nor any signatory thereto is in default or breach of any material
provision of the Space Systems International Contracts. Space Systems
International's operation of its business has been, is, and will, between the
date hereof and the Closing Date, continue to be, consistent with the material
terms and conditions of the Space Systems International Contracts.
4.6 Litigation. Except as disclosed in the information in the registration
statement concerning Space Systems International, there is no claim, action,
proceeding or investigation pending or, to the knowledge of Space Systems
International, threatened against or affecting Space Systems International
before or by any court, arbitrator or governmental agency or authority which, in
the reasonable judgment of Space Systems International, could have any
materially adverse effect on Space Systems International. There are no decrees,
injunctions or orders of any court, governmental department, agency or
arbitration outstanding against Space Systems International.
4.7 Taxes. For purposes of this Agreement, (A) "Tax" (and, with correlative
meaning, "Taxes") shall mean any federal, state, local or foreign income,
alternative or add-on minimum, business, employment, franchise, occupancy,
payroll, property, sales, transfer, use, value added, withholding or other tax,
levy, impost, fee, imposition, assessment or similar charge, together with any
related addition to tax, interest, penalty or fine thereon; and (B) "Returns"
shall mean all returns (including, without limitation, information returns and
other material information), reports and forms relating to Taxes or to any
benefit plans.
Space Systems International has duly filed all Returns required by any law
or regulation to be filed by it, except for extensions duly obtained. All such
Returns were, when filed, and to the knowledge of Space Systems International
are, accurate and complete in all material respects and were prepared in
conformity with applicable laws and regulations in all material respects. Space
Systems International has paid or will pay in full or has adequately reserved
against all Taxes otherwise assessed against it through the Closing Date, and
the assessment of any material amount of additional Taxes in excess of those
paid and reported is not reasonably expected.
Space Systems International is not a party to any pending action or
proceeding by any governmental authority for the assessment of any Tax, and no
claim for assessment or collection of any Tax has been asserted against Space
Systems International that has not been paid. There are no Tax liens upon the
assets (other than the lien of property taxes not yet due and payable) of Space
Systems International. There is no valid basis, to the knowledge of Space
Systems International, except as set forth in the information in the
registration statement concerning Space Systems International, for any
assessment, deficiency, notice, 30-day letter or similar intention to assess any
Tax to be issued to Space Systems International by any governmental authority.
4.8 Compliance with Laws and Regulations. To its knowledge, Space Systems
International is in compliance, in all material respects, with all laws, rules,
regulations, orders and requirements (federal, state and local) applicable to it
in all jurisdictions where the business of Space Systems International is
currently conducted or to which Space Systems International is currently subject
which has a material impact on Space Systems International, including, without
limitation, all applicable civil rights and equal opportunity employment laws
and regulations, and all state and federal antitrust and fair trade practice
laws and the Federal Occupational Health and Safety Act. Space Systems
International knows of no assertion by any party that Space Systems
International is in violation of any such laws, rules, regulations, orders,
restrictions or requirements with respect to its current operations, and no
notice in that regard has been received by Space Systems International. To the
knowledge of Space Systems International, there is not presently pending any
proceeding, hearing or investigation with respect to the adoption of amendments
or modifications to existing laws, rules, regulations, orders, restrictions or
requirements which, if adopted, would materially adversely affect the current
operations of Space Systems International.
4.9 Compliance with Laws. (a) To its knowledge, the business, operations,
property and assets of Space Systems International (and, to the knowledge of
Space Systems International, the business of any sub-tenant or licensee which is
occupying or has occupied any space on any premises of Space Systems
International and the activities of which could result in any material adverse
liability to Space Systems International) (i) conform with and are in compliance
in all material respects with all, and are not in material violation of any
applicable federal, state and local laws, rules and regulations, including, but
not limited to, the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended (including the 1986 Amendments thereto and the
Superfund Amendments and Reauthorization Act) ("CERCLA"), and the Resource
Conservation and Recovery Act ("RCRA"), as well as any other laws, rules or
regulations relating to tax, product liability, controlled substances, product
registration, environmental protection, hazardous or toxic waste, employment, or
occupational safety matters; and (ii) have been conducted and operated in a
manner such that, to Space Systems International's knowledge, Space Systems
International has foreseeable potential liabilities for environmental clean-up
under CERCLA, RCRA or under any other law, rule, regulation or common or civil
law doctrine.
(b) To its knowledge, no predecessor-in-title to any real property now or
previously owned or operated by Space Systems International, nor any predecessor
operator thereof conducted its business or operated such property in violation
of CERCLA and RCRA or any other applicable federal, state and local laws, rules
and regulations relating to environmental protection or hazardous or toxic waste
matters.
(c) Except as disclosed in the information in the registration statement
concerning Space Systems International, no suit, action, claim, proceeding, nor
investigation, review or inquiry by any court or federal, state, county,
municipal or local governmental department, commission, board, bureau, agency or
instrumentality, including, without limitation, any state or local health
department (all of the foregoing collectively referred to as "Governmental
Entity") concerning any such possible violations by Space Systems International
is pending or, to the knowledge of Space Systems International, threatened,
including, but not limited to, matters relating to diagnostic tests and products
and product liability, environmental protection, hazardous or toxic waste,
controlled substances, employment, occupational safety or tax matters. Space
Systems International does not know of any reasonable basis or ground for any
such suit, claim, investigation, inquiry or proceeding. For purposes of this
Section 4.9, the term "inquiry" includes, without limitation, all pending
regulatory issues (whether before federal, state, local or inter-governmental
regulatory authorities) concerning any regulated product, including, without
limitation, any diagnostic drugs and products.
4.10 Reserved.
4.11 Condition of Assets. The equipment, fixtures and other personal
property of Space Systems International, taken as a whole, is in good operating
condition and repair (ordinary wear and tear excepted) for the conduct of the
business of Space Systems International as is contemplated to be conducted.
4.12 No Breaches. To its knowledge, the making and performance of this
Agreement and the other agreements contemplated hereby by Space Systems
International will not (i) conflict with or violate the Articles of
Incorporation or the Bylaws of Space Systems International; (ii) violate any
material laws, ordinances, rules or regulations, or any order, writ, injunction
or decree to which Space Systems International is a party or by which Space
Systems International or any of its respective assets, businesses, or operations
may be bound or affected; or (iii) result in any breach or termination of, or
constitute a default under, or constitute an event which, with notice or lapse
of time, or both, would become a default under, or result in the creation of any
encumbrance upon any asset of Space Systems International under, or create any
rights of termination, cancellation or acceleration in any person under, any
Space Systems International Contract.
4.13 Employees. Except as set forth in the information in the registration
statement concerning Space Systems International, none of the employees of Space
Systems International is represented by any labor union or collective bargaining
unit and, to the knowledge of Space Systems International, no discussions are
taking place with respect to such representation.
4.14 Financial Statements. To its knowledge, the information in the
registration statement concerning Space Systems International contains, as to
Space Systems International, an unaudited balance sheet as of * and related
statements of operations, statements of cash flows and statements of
shareholders' equity of Space Systems International for the one-year period
ended * and an unaudited balance sheet as of * and related statements of
operations, statements of cash flows and statement of shareholders' equity for
the nine-month period ended * (collectively, the "Financial Statements"). The
Financial Statements present fairly, in all respects, the consolidated financial
position and results of operations of Space Systems International as of the
dates and periods indicated, prepared in accordance with generally accepted
accounting principles consistently applied ("GAAP"). The Financial Statements,
when submitted to FIRST ENTERPRISE for inclusion in the Registration Statement,
will have been prepared in accordance with Regulation S-X of the SEC and, in
particular, Rules 1-02 and 3-05 promulgated thereunder. Without limiting the
generality of the foregoing, (i) there is no basis for any assertion against
Space Systems International as of the date of the Financial Statements of any
debt, liability or obligation of any nature not fully reflected or reserved
against in the Financial Statements; and (ii) there are no assets of Space
Systems International as of the date of the Financial Statements, the value of
which is overstated in the Financial Statements. Except as disclosed in the
Financial Statements, Space Systems International has no known contingent
liabilities (including liabilities for Taxes), forward or long-term commitments
or unrealized or anticipated losses from unfavorable commitments other than in
the ordinary course of business. Space Systems International is not a party to
any contract or agreement for the forward purchase or sale of any foreign
currency that is material to Space Systems International taken as a whole.
4.15 Absence of Certain Changes or Events. Except as set forth in the
information in the registration statement concerning Space Systems
International, since December 31, 1996, there has not been:
(a) Any material adverse change in the financial condition, properties,
assets, liabilities or business of Space Systems International;
(b) Any material damage, destruction or loss of any material properties of
Space Systems International, whether or not covered by insurance;
(c) Any material change in the manner in which the business of Space
Systems International has been conducted;
(d) Any material change in the treatment and protection of trade secrets or
other confidential information of Space Systems International;
(e) Any material change in the business or contractual relationship of
Space Systems International with any customer or supplier which might reasonably
be expected to materially and adversely affect the business or prospects of
Space Systems International;
(f) Any agreement by Space Systems International, whether written or oral,
to do any of the foregoing; and
(g) Any occurrence not included in paragraphs (a) through (f) of this
Section 4.16 which has resulted, or which Space Systems International has reason
to believe, in its reasonable judgment, might be expected to result, in a
material adverse change in the business or prospects of Space Systems
International.
4.16 Governmental Licenses, Permits, Etc. To its knowledge, Space Systems
International has all governmental licenses, permits, authorizations and
approvals necessary for the conduct of its business as currently conducted
("Licenses and Permits"). The information in the registration statement
concerning Space Systems International includes a list of all Licenses and
Permits. All Licenses and Permits are in full force and effect, and no
proceedings for the suspension or cancellation of any thereof is pending or
threatened.
4.17 Employee Agreements. (a) For purposes of this Agreement, the following
definitions apply:
(1) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any regulations promulgated thereunder.
(2) "Multi-employer Plan" means a plan, as defined in ERISA Section
3(37), to which Space Systems International contributes or is required to
contribute.
(3) "Employee Plan" means any pension, retirement, profit sharing,
deferred compensation, vacation, bonus, incentive, medical, vision, dental,
disability, life insurance or any other employee benefit plan as defined in
Section 3(3) of ERISA other than a Multi-employer Plan to which Space Systems
International contributes, sponsors, maintains or otherwise is bound to with
regard to any benefits on behalf of the employees of Space Systems
International.
(4) "Employee Pension Plan" means any Employee Plan for the provision
of retirement income to employees or which results in the deferral of income by
employees extending to the termination of covered employment or beyond as
defined in Section 3(2) of ERISA.
(5) "Employee Welfare Plan" means any Employee Plan other than an
Employee Pension Plan.
(6) "Compensation Arrangement" means any plan or compensation
arrangement other than an Employee Plan, whether written or unwritten, which
provides to employees of Space Systems International, former employees,
officers, directors or shareholders of Space Systems International any
compensation or other benefits, whether deferred or not, in excess of base
salary or wages, including, but not limited to, any bonus or incentive plan,
stock rights plan, deferred compensation arrangement, life insurance, stock
purchase plan, severance pay plan and any other employee fringe benefit plan.
(b) The information in the registration statement concerning Space Systems
International lists, all (1) employment agreements and collective bargaining
agreements to which Space Systems International is a party; (2) Compensation
Arrangements of Space Systems International; (3) Employee Welfare Plans; (4)
Employee Pension Plans; and (5) consulting agreements under which Space Systems
International has or may have any monetary obligations to employees or
consultants of Space Systems International or their beneficiaries or legal
representatives or under which any such persons may have any rights. Space
Systems International has previously made available to FIRST ENTERPRISE true and
complete copies of all of the foregoing employment contracts, collective
bargaining agreements, Employee Plans and Compensation Arrangements, including
descriptions of any unwritten contracts, agreements, Compensation Arrangements
or Employee Plans, as amended to date. In addition, with respect to any Employee
Plan which continues after the Closing Date, Space Systems International has
previously delivered or made available to FIRST ENTERPRISE (1) any related trust
agreements, master trust agreements, annuity contracts or insurance contracts;
(2) certified copies of all Board of Directors' resolutions adopting such plans
and trust documents and amendments thereto; (3) current investment management
agreements; (4) custodial agreements; (5) fiduciary liability insurance
policies; (6) indemnification agreements; (7) the most recent determination
letter (and underlying application thereof and correspondence and supplemental
material related thereto) issued by the Internal Revenue Service with respect to
the qualification of each Employee Plan under the provisions of Section 401(a)
of the Code; (8) copies of all "advisory opinion letters," "private letter
rulings," "no action letters," and any similar correspondence (and the
underlying applications therefor and correspondence and supplemental material
related thereto) that was issued by any governmental or quasigovernmental agency
with respect to the last plan year; (9) Annual Reports (Form 5500 Series) and
Schedules A and B thereto for the last plan year; (10) all actuarial reports
prepared for the last plan year; (11) all certified Financial Statements for the
last plan year; and (12) all current Summary Plan Descriptions, Summaries of
Material Modifications and Summary Annual Reports. All documents delivered by
Space Systems International to FIRST ENTERPRISE as photocopies faithfully
reproduce the originals thereof, such originals are authentic and were, to the
extent execution was required, duly executed.
(c) Except as otherwise disclosed in the information in the registration
statement concerning Space Systems International:
(1) It is not a party to and has, in effect or to become effective
after the date of this Agreement, any bonus, cash or deferred compensation,
severance, medical, health or hospitalization, pension, profit sharing or
thrift, retirement, stock option, employee stock ownership, life or group
insurance, death benefit, welfare, incentive, vacation, sick leave, cafeteria,
so-called "golden parachute" payment, disability or trust agreement or
arrangement.
4.18 Brokers. Space Systems International has not made any agreement or
taken any action with any person or taken any action which would cause any
person to be entitled to any agent's, broker's or finder's fee or commission in
connection with the transactions contemplated by this Agreement.
4.19 Business Locations. Space Systems International does not nor does it
own or lease any real or personal property in any state except as set forth on
the information in the registration statement concerning Space Systems
International. Space Systems International does not have a place of business
(including, without limitation, Space Systems International's executive offices
or place where Space Systems International's books and records are kept) except
as otherwise set forth on the information in the registration statement
concerning Space Systems International.
4.20 Intellectual Property. The information in the registration statement
concerning Space Systems International lists all of the Intellectual Property
(as hereinafter defined) used by Space Systems International which constitutes a
material patent, trade name, trademark, service mark or application for any of
the foregoing. "Intellectual Property" means all of Space Systems
International's right, title and interest in and to all patents, trade names,
assumed names, trademarks, service marks, and proprietary names, copyrights
(including any registration and pending applications for any such registration
for any of them), together with all the goodwill relating thereto and all other
intellectual property of Space Systems International. Other than as disclosed in
the information in the registration statement concerning Space Systems
International, Space Systems International does not have any licenses granted by
or to it or other agreements to which it is a party, relating in whole or in
part to any Intellectual Property, whether owned by Space Systems International
or otherwise. All of the patents, trademark registrations and copyrights listed
in the information in the registration statement concerning Space Systems
International that are owned by Space Systems International are valid and in
full force and effect. To the knowledge of Space Systems International, it is
not infringing upon, or otherwise violating, the rights of any third party with
respect to any Intellectual Property. No proceedings have been instituted
against or claims received by Space Systems International, nor to its knowledge
are any proceedings threatened alleging any such violation, nor does Space
Systems International know of any valid basis for any such proceeding or claim.
To the knowledge of Space Systems International, there is no infringement or
other adverse claims against any of the Intellectual Property owned or used by
Space Systems International. To the knowledge of Space Systems International,
its use of software does not violate or otherwise infringe the rights of any
third party. 4.21 Warranties. The information in the registration statement
concerning Space Systems International sets forth a true and complete list of
the forms of all express warranties and guaranties made by Space Systems
International to third parties with respect to any services rendered by Space
Systems International.
4.22 Suppliers. Except as set forth in the information in the registration
statement concerning Space Systems International, Space Systems International
knows and has no reason to believe that, either as a result of the transactions
contemplated hereby or for any other reason (exclusive of expiration of a
contract upon the passage of time), any present material supplier of Space
Systems International will not continue to conduct business with Space Systems
International after the Closing Date in substantially the same manner as it has
conducted business prior thereto.
4.23 Accounts Receivable. The accounts receivable reflected on the balance
sheets included in the Financial Statements, or thereafter acquired by Space
Systems International, consists, in the aggregate in all material respects, of
items which are collectible in the ordinary and usual course of business.
4.24 Governmental Approvals. To its knowledge, other than as set forth
herein, no authorization, license, permit, franchise, approval, order or consent
of, and no registration, declaration or filing by Space Systems International
with, any governmental authority, federal, state or local, is required in
connection with Space Systems International's execution, delivery and
performance of this Agreement.
4.25 No Omissions or Untrue Statements. None of the information relating to
Space Systems International supplied or to be supplied in writing by it
specifically for inclusion in the Registration Statement, at the respective
times that the Registration Statement becomes effective (or any registration
statement included therein), the Proxy Statement is first mailed to FIRST
ENTERPRISE's shareholders and the meeting of FIRST ENTERPRISE's shareholders
takes place, as the case may be, contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. FIRST ENTERPRISE
shall give notice to Space Systems International in advance of the dates of such
effectiveness, mailing and meeting sufficient to permit Space Systems
International to fulfill its obligations under the second sentence of this
Section.
4.26 information in the registration statement concerning Space Systems
International Complete. Space Systems International shall promptly supplement
the information in the registration statement concerning Space Systems
International if events occur prior to the Closing Date that would have been
required to be disclosed had they existed at the time of executing this
Agreement. The information in the registration statement concerning Space
Systems International, as supplemented prior to the Closing Date, will contain a
true, correct and complete list and description of all items required to be set
forth therein. The information in the registration statement concerning Space
Systems International, as supplemented prior to the Closing Date, is expressly
incorporated herein by reference. Notwithstanding the foregoing, any such
supplement to the information in the registration statement concerning Space
Systems International following the date hereof shall not in any way affect
FIRST ENTERPRISE's right not to consummate the transactions contemplated hereby
as set forth in Section 8.2 hereof.
V. REPRESENTATIONS AND WARRANTIES OF FIRST ENTERPRISE
FIRST ENTERPRISE represents and warrants to Space Systems International as
follows, with the knowledge and understanding that Space Systems International
is relying materially on such representations and warranties:
5.1 Organization and Standing of FIRST ENTERPRISE. FIRST ENTERPRISE is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida, and has the corporate power to carry on its business as
now conducted and to own its assets and it not required to qualify to transact
business as a foreign corporation in any state or other jurisdiction. The copies
of the Articles of Incorporation and Bylaws of FIRST ENTERPRISE, delivered to
Space Systems International, are true and complete copies of those documents as
now in effect. FIRST ENTERPRISE does not own any capital stock in any other
corporation, business trust or similar entity, and is not engaged in a
partnership, joint venture or similar arrangement with any person or entity. The
minute books of FIRST ENTERPRISE contain accurate records of all meetings of its
incorporator, shareholders and Board of Directors since its date of
incorporation.
5.2 FIRST ENTERPRISE's Authority. FIRST ENTERPRISE's Board of Directors has
approved and adopted this Agreement and the Merger and has resolved to recommend
approval and adoption of this Agreement and the Merger by FIRST ENTERPRISE's
shareholders. This Agreement constitutes, and all other agreements contemplated
hereby will constitute, when executed and delivered by FIRST ENTERPRISE in
accordance herewith (and assuming due execution and delivery by the other
parties hereto), the valid and binding obligations of FIRST ENTERPRISE,
enforceable in accordance with their respective terms, subject to general
principles of equity and bankruptcy or other laws relating to or affecting the
rights of creditors generally.
5.4 No Breaches. To its knowledge, the making and performance of this
Agreement (including, without limitation, the issuance of the FIRST ENTERPRISE
Stock) by FIRST ENTERPRISE will not (i) conflict with the Articles of
Incorporation or the Bylaws of FIRST ENTERPRISE; (ii) violate any order, writ,
injunction, or decree applicable to FIRST ENTERPRISE; or (iii) result in any
breach or termination of, or constitute a default under, or constitute an event
which, with notice or lapse of time, or both, would become a default under, or
result in the creation of any encumbrance upon any asset of FIRST ENTERPRISE
under, or create any rights of termination, cancellation or acceleration in any
person under, any agreement, arrangement or commitment, or violate any
provisions of any laws, ordinances, rules or regulations or any order, writ,
injunction or decree to which FIRST ENTERPRISE is a party or by which FIRST
ENTERPRISE or any of its assets may be bound.
5.5 Capitalization. The FIRST ENTERPRISE Stock consists of 50,000,000
shares of common stock, no par value per share, of which 1,000,000 shares are
issued and outstanding. All of the outstanding FIRST ENTERPRISE Stock is duly
authorized, validly issued, fully paid and nonassessable, and was not issued in
violation of the preemptive rights of any person. The FIRST ENTERPRISE Stock to
be issued upon effectiveness of the Merger, when issued in accordance with the
terms of this Agreement shall be duly authorized, validly issued, fully paid and
nonassessable. Other than as stated in this Section 5.5, there are no
outstanding subscriptions, options, warrants, calls or rights of any kind issued
or granted by, or binding upon, FIRST ENTERPRISE, to purchase or otherwise
acquire any shares of capital stock of FIRST ENTERPRISE, or other equity
securities or equity interests of FIRST ENTERPRISE or any debt securities of
FIRST ENTERPRISE. There are no outstanding securities convertible or
exchangeable, actually or contingently, into shares of FIRST ENTERPRISE Stock or
other stock of FIRST ENTERPRISE.
5.6 Business. FIRST ENTERPRISE, since its formation, has engaged in no
business other than to seek to serve as a vehicle for the acquisition of an
operating business, and, except for this Agreement, is not a party to any
contract or agreement for the acquisition of an operating business.
5.7 Governmental Approval; Consents. To its knowledge, except for the
reports required to be filed in the future by FIRST ENTERPRISE, as a reporting
company, under the Exchange Act, and under the Securities Act with respect to
the shares of FIRST ENTERPRISE Stock issuable upon exercise of the FIRST
ENTERPRISE Warrants, the filing of the Registration Statement under the
Securities Act, the Proxy Statement under the Exchange Act for the purpose of
seeking stockholder approval of the Merger referred to in Section 2.1 and the
issuance of the FIRST ENTERPRISE Stock pursuant to the Merger and the filing of
the S-4 Registration Statement (or other form of registration statement as
agreed by the parties), no authorization, license, permit, franchise, approval,
order or consent of, and no registration, declaration or filing by FIRST
ENTERPRISE with, any governmental authority, federal, state or local, is
required in connection with FIRST ENTERPRISE's execution, delivery and
performance of this Agreement. No consents of any other parties are required to
be received by or on the part of FIRST ENTERPRISE to enable FIRST ENTERPRISE to
enter into and carry out this Agreement.
5.8 Financial Statements. To its knowledge, the financial statements of
FIRST ENTERPRISE included in FIRST ENTERPRISE's SEC Reports, as hereinafter
defined (collectively, the "FIRST ENTERPRISE Financial Statements") present
fairly, in all material respects, the financial position of FIRST ENTERPRISE as
of the respective dates and the results of its operations for the periods
covered in accordance with GAAP. Without limiting the generality of the
foregoing, (i) except as set forth in the FIRST ENTERPRISE Disclosure Schedule,
there is no basis for any assertion against FIRST ENTERPRISE as of the date of
said balance sheets of any material debt, liability or obligation of any nature
not fully reflected or reserved against in such balance sheets or in the notes
thereto; and (ii) there are no assets of FIRST ENTERPRISE, the value of which
(in the reasonable judgment of FIRST ENTERPRISE) is materially overstated in
said balance sheets. Except as disclosed therein, FIRST ENTERPRISE has no known
material contingent liabilities (including liabilities for taxes), unusual
forward or long-term commitments or unrealized or anticipated losses from
unfavorable commitments. FIRST ENTERPRISE is not a party to any contract or
agreement for the forward purchase or sale of any foreign currency.
5.9 Adverse Developments. Except as expressly provided or set forth in, or
required by, this Agreement, or as set forth in the FIRST ENTERPRISE Financial
Statements, since March, 1997, there have been no materially adverse changes in
the assets, liabilities, properties, operations or financial condition of FIRST
ENTERPRISE, and no event has occurred other than in the ordinary and usual
course of business or as set forth in FIRST ENTERPRISE's SEC Reports or in the
FIRST ENTERPRISE Financial Statements which could be reasonably expected to have
a materially adverse effect upon FIRST ENTERPRISE, and FIRST ENTERPRISE does not
know of any development or threatened development of a nature that will, or
which could be reasonably expected to, have a materially adverse effect upon
FIRST ENTERPRISE's operations or future prospects.
5.10 Reserved.
5.11 Contracts Listed; No Default. All material contracts, agreements,
licenses, leases, easements, permits, rights of way, commitments, and
understandings, written or oral, connected with or relating in any respect to
the present operations of FIRST ENTERPRISE are, with the exception of this
Agreement, described in FIRST ENTERPRISE's SEC Reports. All of such contracts,
agreements, leases, commitments and understandings, written or oral, and any
other contract, agreement, lease, commitment or understanding, written or oral,
binding upon FIRST ENTERPRISE, are listed in the FIRST ENTERPRISE Disclosure
Schedule (the "FIRST ENTERPRISE Contracts"). To the knowledge of FIRST
ENTERPRISE, the FIRST ENTERPRISE Contracts are valid, binding and enforceable by
FIRST ENTERPRISE against the other parties thereto in accordance with their
terms. Neither FIRST ENTERPRISE nor, to the knowledge of FIRST ENTERPRISE, any
of the other parties thereto is in default or breach of any material provision
of the FIRST ENTERPRISE Contracts. FIRST ENTERPRISE has furnished Space Systems
International with a true and complete copy of each FIRST ENTERPRISE Contract,
as amended.
5.12 Taxes. FIRST ENTERPRISE has duly filed all Returns required by any law
or regulation to be filed by it except for extensions duly obtained. All such
Returns were, when filed, and to the best of FIRST ENTERPRISE's knowledge are,
accurate and complete in all material respects and were prepared in conformity
with applicable laws and regulations. FIRST ENTERPRISE has paid or will pay in
full or has adequately reserved against all Taxes otherwise assessed against it
through the Closing Date, and the assessment of any material amount of
additional Taxes in excess of those paid and reported is not reasonably
expected.
FIRST ENTERPRISE is not a party to any pending action or proceeding by any
governmental authority for the assessment of any Tax, and no claim for
assessment or collection of any Tax has been asserted against FIRST ENTERPRISE
that has not been paid. There are no Tax liens upon the assets of FIRST
ENTERPRISE (other than the lien of personal property taxes not yet due and
payable). There is no valid basis, to the best of FIRST ENTERPRISE's knowledge,
except as set forth in the FIRST ENTERPRISE Disclosure Schedule, for any
assessment, deficiency, notice, 30-day letter or similar intention to assess any
Tax to be issued to FIRST ENTERPRISE by any governmental authority.
5.13 Litigation. Except as disclosed in the FIRST ENTERPRISE Disclosure
Schedule, there is no claim, action, proceeding or investigation pending or, to
FIRST ENTERPRISE's knowledge, threatened against or affecting FIRST ENTERPRISE
before or by any court, arbitrator or governmental agency or authority which, in
the reasonable judgment of FIRST ENTERPRISE, could have a materially adverse
effect on FIRST ENTERPRISE. There are no decrees, injunctions or orders of any
court, governmental department, agency or arbitration outstanding against FIRST
ENTERPRISE.
5.14 Compliance with Laws and Regulations. To its knowledge, FIRST
ENTERPRISE is in compliance, in all material respects, with all laws, rules,
regulations, orders and requirements (federal, state and local) applicable to it
in all jurisdictions in which the business of FIRST ENTERPRISE is currently
conducted or to which FIRST ENTERPRISE is currently subject, which may have a
material impact on FIRST ENTERPRISE, including, without limitation, all
applicable civil rights and equal opportunity employment laws and regulations,
all state and federal antitrust and fair trade practice laws and the Federal
Occupational Health and Safety Act. FIRST ENTERPRISE does not know of any
assertion by any party that FIRST ENTERPRISE is in violation of any such laws,
rules, regulations, orders, restrictions or requirements with respect to its
current operations, and no notice in that regard has been received by FIRST
ENTERPRISE. To FIRST ENTERPRISE's knowledge, there is not presently pending any
proceeding, hearing or investigation with respect to the adoption of amendments
or modifications of existing laws, rules, regulations, orders, restrictions or
requirements which, if adopted, would materially adversely affect the current
operations of FIRST ENTERPRISE.
5.15 Compliance with Laws. (a) To its knowledge, the business operations,
property and assets of FIRST ENTERPRISE (and to the knowledge of FIRST
ENTERPRISE, the business of any sub-tenant or license which is occupying or has
occupied any space on any premises of FIRST ENTERPRISE and the activities of
which could result in any material adverse liability to FIRST ENTERPRISE) (i)
conform with and are in compliance in all material respects with all, and are
not in material violation of any applicable federal, state and local laws, rules
and regulations, including, but not limited to, CERCLA and RCRA, as well as any
other laws, rules or regulations relating to tax, product liability, controlled
substances, product registration, environmental protection, hazardous or toxic
waste, employment, or occupational safety matters; and (ii) have been conducted
and operated in a manner such that, to FIRST ENTERPRISE's knowledge, FIRST
ENTERPRISE has no foreseeable potential liabilities for environmental clean-up
under CERCLA, RCRA or under any law, rule, regulation or common or civil law
doctrine.
(b) To its knowledge, no predecessor-in-title to any real property now or
previously owned or operated by FIRST ENTERPRISE, nor any predecessor operator
thereof conducted its business or operated such property in violation of CERCLA
and RCRA or any other applicable, federal, state and local laws, rules and
regulations relating to environmental protection or hazardous or toxic waste
matters.
(c) Except as disclosed in the FIRST ENTERPRISE Disclosure Schedule, no
suit, action, claim, proceeding nor investigation review or inquiry by any
Government Entity (as defined in Section 4.9) concerning any such possible
violations by FIRST ENTERPRISE is pending or, to FIRST ENTERPRISE's knowledge,
threatened, including, but not limited to, matters relating to diagnostic tests
and products and product liability, environmental protection, hazardous or toxic
waste, controlled substances, employment, occupational safety or tax matters.
FIRST ENTERPRISE does not know of any reasonable basis or ground for any such
suit, claim, investigation, inquiry or proceeding.
5.16 Governmental Licenses, Permits, Etc. To its knowledge, FIRST
ENTERPRISE has all governmental licenses, permits, authorizations and approvals
necessary for the conduct of its business as currently conducted. All such
licenses, permits, authorizations and approvals are in full force and effect,
and no proceedings for the suspension or cancellation of any thereof is pending
or threatened.
5.17 Brokers. FIRST ENTERPRISE has not made any agreement or taken any action
with any person or taken any action which would cause any person to be entitled
to any agent's, broker's or finder's fee or commission in connection with the
transactions contemplated by this Agreement.
5.18 Employee Plans. Except as listed in FIRST ENTERPRISE's SEC Reports,
FIRST ENTERPRISE has no employees, consultants or agents, and FIRST ENTERPRISE
has no Employee Plans or Compensation Arrangements.
VI. STOCKHOLDER APPROVAL; CLOSING DELIVERIES
6.1 Stockholder Approval. Space Systems International shall submit the
Merger and this Agreement to its shareholders for approval and adoption at the
Meeting or by written consent as soon as practicable following the date the SEC
declares the registration statement effective in accordance with Section 3.7
hereof. Subject to the Merger and this Agreement receiving all approvals of
Space Systems International and Space Systems International shareholders and
regulatory approvals and the absence of 97% or more of the non-affiliated
shareholders of Space Systems International (i) voting against the Merger; and
(ii) requesting redemption of their shares of Space Systems International Stock
in the manner to be set forth in the Information Statement, and subject to the
other provisions of this Agreement, the parties shall hold a closing (the
"Closing") no later than the fifth business day (or such later date as the
parties hereto may agree) following the later of (a) the date of the Meeting of
Shareholders of Space Systems International to consider and vote upon the Merger
and this Agreement or the receipt of the requisite percentage of written
consents or (b) the business day on which the last of the conditions set forth
in Articles VII and VIII hereof is fulfilled or waived (such later date, the
"Closing Date"), at 10:00 A.M. at the offices of WILLIAMS LAW GROUP, P.A., or at
such other time and place as the parties may agree upon.
6.2 Closing Deliveries of Space Systems International. At the Closing,Space
Systems International shall deliver, or cause to be delivered, to FIRST
ENTERPRISE:
(a) A certificate dated as of the Closing Date, to the effect that the
representations and warranties of Space Systems International contained in this
Agreement are true and correct in all material respects at and as of the Closing
Date and that Space Systems International has complied with or performed in all
material respects all terms, covenants and conditions to be complied with or
performed by Space Systems International on or prior to the Closing Date;
(b) An opinion of Space Systems International's counsel, *, in form
and substance reasonably satisfactory to FIRST ENTERPRISE, in a form to be
mutually agreed to prior to the Closing;
(c) a certificate, dated as of the Closing Date, certifying as to the
Articles of Incorporation and Bylaws of Space Systems International, the
incumbency and signatures of the officers of each of Space Systems International
and copies of the directors' and shareholders' resolutions of Space Systems
International approving and authorizing the execution and delivery of this
Agreement, and the consummation of the transactions contemplated hereby;
(d) Such other documents, at the Closing or subsequently, as may be
reasonably requested by FIRST ENTERPRISE as necessary for the implementation and
consummation of this Agreement and the transactions contemplated hereby.
6.3 Closing Deliveries of FIRST ENTERPRISE. At the Closing, FIRST
ENTERPRISE shall deliver to Space Systems International:
(a) A certificate of FIRST ENTERPRISE, dated as of the Closing Date,
to the effect that the representations and warranties of FIRST ENTERPRISE
contained in this Agreement are true and correct in all material respects and
that FIRST ENTERPRISE has complied with or performed in all material respects
all terms, covenants and conditions to be complied with or performed by FIRST
ENTERPRISE on or prior to the Closing Date;
(b) A certificate, dated as of the Closing Date, executed by the
Secretary of FIRST ENTERPRISE, certifying the Articles of Incorporation, Bylaws,
incumbency and signatures of officers of FIRST ENTERPRISE and copies of FIRST
ENTERPRISE's directors' and shareholders' resolutions approving and authorizing
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby;
(c) An opinion of FIRST ENTERPRISE's counsel, WILLIAMS LAW GROUP,
P.A., in form and substance reasonably satisfactory to Space Systems
International, in a form to be mutually agreed to prior to the Closing;
(d) The written resignations of all officers, and all directors of
FIRST ENTERPRISE.
(e) Certificates representing the FIRST ENTERPRISE Stock issuable upon
consummation of the Merger;
(f) The books and records of FIRST ENTERPRISE; and
(h) Documentation satisfactory to Space Systems International
evidencing the fact that the signatories on all relevant bank accounts of FIRST
ENTERPRISE have been changed to signatories designated by Space Systems
International.
VII. CONDITIONS TO OBLIGATIONS OF Space Systems International
The obligation of Space Systems International to consummate the Closing is
subject to the following conditions, any of which may be waived by Space Systems
International in its sole discretion:
7.1 Compliance by FIRST ENTERPRISE. FIRST ENTERPRISE shall have performed
and complied in all material respects with all agreements and conditions
required by this Agreement to be performed or complied with by FIRST ENTERPRISE
prior to or on the Closing Date.
7.2 Accuracy of FIRST ENTERPRISE's Representations. FIRST ENTERPRISE's
representations and warranties contained in this Agreement (including the FIRST
ENTERPRISE Disclosure Schedule) or any schedule, certificate or other instrument
delivered pursuant to the provisions hereof or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects at and as of the Closing Date (except for such changes permitted by
this Agreement) and shall be deemed to be made again as of the Closing Date.
7.3 Material Adverse Change. No material adverse change shall have occurred
subsequent to March, 1999 in the financial position, results of operations,
assets, liabilities or prospects of FIRST ENTERPRISE, nor shall any event or
circumstance have occurred which would result in a material adverse change in
the financial position, results of operations, assets, liabilities or prospects
of FIRST ENTERPRISE within the reasonable discretion of Space Systems
International.
7.4 Documents. All documents and instruments delivered by FIRST ENTERPRISE
to Space Systems International at the Closing shall be in form and substance
reasonably satisfactory to Space Systems International and its counsel.
7.5 Capitalization. At the Closing Date, FIRST ENTERPRISE shall have, other
than with respect to the issuance of shares underlying the FIRST ENTERPRISE
Warrants, not more than * shares of FIRST ENTERPRISE Stock issued and
outstanding.
7.6 Effectiveness of Registration Statement; No Stop Order. The
Registration Statement shall be effective under the Securities Act and shall not
be subject to a stop order or any threatened stop order.
7.7 Reorganization. The Merger shall qualify as a tax-free reorganization
under Section 368 of the Code.
7.8 Litigation. No litigation seeking to enjoin the transactions
contemplated by this Agreement or to obtain damages on account hereof shall be
pending or, to Space Systems International's knowledge, be threatened.
VIII. CONDITIONS TO FIRST ENTERPRISE'S OBLIGATIONS
FIRST ENTERPRISE's obligation to consummate the closing is subject to the
following conditions, any of which may be waived by FIRST ENTERPRISE in its sole
discretion:
8.1 Compliance by Space Systems International. Space Systems International
shall have performed and complied in all material respects with all agreements
and conditions required by this Agreement to be performed or complied with prior
to or on the Closing Date.
8.2 Accuracy of Space Systems International's Representations. Space
Systems International's representations and warranties contained in this
Agreement (including the exhibits hereto and the FIRST ENTERPRISE Disclosure
Schedule) or any schedule, certificate or other instrument delivered pursuant to
the provisions hereof or in connection with the transactions contemplated hereby
shall be true and correct in all material respects at and as of the Closing Date
(except for such changes permitted by this Agreement) and shall be deemed to be
made again as of the Closing Date.
8.3 Material Adverse Change. No material adverse change shall have occurred
subsequent to * in the financial position, results of operations, assets,
liabilities or prospects of Space Systems International taken as a whole, nor
shall any event or circumstance have occurred which would result in a material
adverse change in the business, assets or condition, financial or otherwise, of
Space Systems International taken as a whole, within reasonable discretion of
FIRST ENTERPRISE.
8.4 Litigation. No litigation seeking to enjoin the transactions
contemplated by this Agreement or to obtain damages on account hereof shall be
pending or, to FIRST ENTERPRISE's knowledge, be threatened.
8.5 Reorganization. The Merger shall qualify as a tax-free reorganization
under Section 368 of the Code and there are no material adverse tax consequences
to the Merger.
8.6 Documents. All documents and instruments delivered by Space Systems
International to FIRST ENTERPRISE at the Closing shall be in form and substance
reasonably satisfactory to FIRST ENTERPRISE and its counsel.
IX. INDEMNIFICATION
9.1 By Space Systems International. Subject to Section 9.4, Space Systems
International shall indemnify, defend and hold FIRST ENTERPRISE, its directors,
officers, shareholders, attorneys, agents and affiliates, harmless from and
against any and all losses, costs, liabilities, damages, and expenses (including
legal and other expenses incident thereto) of every kind, nature and
description, including any undisclosed liabilities (collectively, "Losses") that
result from or arise out of (i) the breach of any representation or warranty of
Space Systems International set forth in this Agreement or in any certificate
delivered to FIRST ENTERPRISE pursuant hereto; or (ii) the breach of any of the
covenants of Space Systems International contained in or arising out of this
Agreement or the transactions contemplated hereby.
9.2 By FIRST ENTERPRISE. Subject to Section 9.4, FIRST ENTERPRISE shall
indemnify, defend, and hold Space Systems International its directors, officers,
shareholders, attorneys, agents and affiliates harmless from and against any and
all Losses that arise out of (i) the breach of any representation or warranty of
FIRST ENTERPRISE set forth in this Agreement or in any certificate delivered to
Space Systems International pursuant hereto; or (ii) the breach of any of the
covenants of FIRST ENTERPRISE contained in or arising out of this Agreement or
the transactions contemplated hereby.
9.3 Claims Procedure. Should any claim covered by Sections 9.1 or 9.2 be
asserted against a party entitled to indemnification under this Article (the
"Indemnitee"), the Indemnitee shall promptly notify the party obligated to make
indemnification (the "Indemnitor"); provided, however, that any delay or failure
in notifying the Indemnitor shall not affect the Indemnitor's liability under
this Article if such delay or failure was not prejudicial to the Indemnitor. The
Indemnitor upon receipt of such notice shall assume the defense thereof with
counsel reasonably satisfactory to the Indemnitee and the Indemnitee shall
extend reasonable cooperation to the Indemnitor in connection with such defense.
No settlement of any such claim shall be made without the consent of the
Indemnitor and Indemnitee, such consent not to be unreasonably withheld or
delayed, nor shall any such settlement be made by the Indemnitor which does not
provide for the absolute, complete and unconditional release of the Indemnitee
from such claim. In the event that the Indemnitor shall fail, within a
reasonable time, to defend a claim, the Indemnitee shall have the right to
assume the defense thereof without prejudice to its rights to indemnification
hereunder.
9.4 Limitations on Liability. Neither Space Systems International nor FIRST
ENTERPRISE shall be liable hereunder as a result of any misrepresentation or
breach of such party's representations, warranties or covenants contained in
this Agreement unless and until the Losses incurred by each, as the case may be,
as a result of such misrepresentations or breaches under this Agreement shall
exceed, in the aggregate, $200,000 (in which case the party liable therefor
shall be liable for the entire amount of such claims, including the first
$200,000).
X. TERMINATION
10.1 Termination Prior to Closing. (a) If the Closing has not occurred by
any date as mutually agreed upon by the parties (the "Termination Date"), any of
the parties hereto may terminate this Agreement at any time thereafter by giving
written notice of termination to the other parties; provided, however, that no
party may terminate this Agreement if such party has willfully or materially
breached any of the terms and conditions hereof.
(b) Prior to the Termination Date either party to this Agreement may
terminate this Agreement following the insolvency or bankruptcy of the other, or
if any one or more of the conditions to Closing set forth in Article VI, Article
VII or Article VIII shall become incapable of fulfillment and shall not have
been waived by the party for whose benefit the condition was established, then
either party may terminate this Agreement.
10.2 Consequences of Termination. Upon termination of this Agreement
pursuant to this Article X or any other express right of termination provided
elsewhere in this Agreement, the parties shall be relieved of any further
obligation to the others except as specified in Section 12.3. No termination of
this Agreement, however, whether pursuant to this Article X hereof or under any
other express right of termination provided elsewhere in this Agreement, shall
operate to release any party from any liability to any other party incurred
before the date of such termination or from any liability resulting from any
willful misrepresentation made in connection with this Agreement or willful
breach hereof.
XI. ADDITIONAL COVENANTS
11.1 Mutual Cooperation. The parties hereto will cooperate with each other,
and will use all reasonable efforts to cause the fulfillment of the conditions
to the parties' obligations hereunder and to obtain as promptly as possible all
consents, authorizations, orders or approvals from each and every third party,
whether private or governmental, required in connection with the transactions
contemplated by this Agreement.
11.2 Changes in Representations and Warranties of Space Systems
International. Between the date of this Agreement and the Closing Date, Space
Systems International shall not, directly or indirectly, except as contemplated
in the information in the registration statement concerning Space Systems
International, enter into any transaction, take any action, or by inaction
permit an event to occur, which would result in any of the representations and
warranties of Space Systems International herein contained not being true and
correct at and as of (a) the time immediately following the occurrence of such
transaction or event or (b) the Closing Date. Space Systems International shall
promptly give written notice to FIRST ENTERPRISE upon becoming aware of (i) any
fact which, if known on the date hereof, would have been required to be set
forth or disclosed pursuant to this Agreement and (ii) any impending or
threatened breach in any material respect of any of the representations and
warranties of Space Systems International contained in this Agreement and with
respect to the latter shall use all reasonable efforts to remedy same.
11.3 Changes in Representations and Warranties of FIRST ENTERPRISE. Between
the date of this Agreement and the Closing Date, FIRST ENTERPRISE shall not,
directly or indirectly, enter into any transaction, take any action, or by
inaction permit an event to occur, which would result in any of the
representations and warranties of FIRST ENTERPRISE herein contained not being
true and correct at and as of (a) the time immediately following the occurrence
of such transaction or event or (b) the Closing Date. FIRST ENTERPRISE shall
promptly give written notice to Space Systems International upon becoming aware
of (i) any fact which, if known on the date hereof, would have been required to
be set forth or disclosed pursuant to this Agreement and (ii) any impending or
threatened breach in any material respect of any of the representations and
warranties of FIRST ENTERPRISE contained in this Agreement and with respect to
the latter shall use all reasonable efforts to remedy same.
XII. MISCELLANEOUS
12.1 Expenses. FIRST ENTERPRISE will pay for its counsel and financial
consultant and all their costs. Space Systems International will pay for your
accountants and attorneys and all their costs. Space Systems International will
be responsible for paying the SEC filing fee, and state filing fees and all
costs of converting your documents to they can be filed with the SEC.
.
12.2 Survival of Representations, Warranties and Covenants. All statements
contained in this Agreement or in any certificate delivered by or on behalf of
Space Systems International or FIRST ENTERPRISE pursuant hereto or in connection
with the transactions contemplated hereby shall be deemed representations,
warranties and covenants by Space Systems International or FIRST ENTERPRISE, as
the case may be, hereunder. All representations, warranties and covenants made
by Space Systems International and by FIRST ENTERPRISE in this Agreement, or
pursuant hereto, shall survive through the Closing Date.
12.3 Nondisclosure. FIRST ENTERPRISE will not at any time after the date of
this Agreement, without Space Systems International' consent, divulge, furnish
to or make accessible to anyone (other than to its representatives as part of
its due diligence or corporate investigation) any knowledge or information with
respect to confidential or secret processes, inventions, discoveries,
improvements, formulae, plans, material, devices or ideas or know-how, whether
patentable or not, with respect to any confidential or secret aspects
(including, without limitation, customers or suppliers) ("Confidential
Information") of Space Systems International.
Space Systems International will not at any time after the date of this
Agreement, without FIRST ENTERPRISE's consent (except as may be required by
law), use, divulge, furnish to or make accessible to anyone any Confidential
Information (other than to its representatives as part of its due diligence or
corporate investigation) with respect to FIRST ENTERPRISE. The undertakings set
forth in the preceding two paragraphs of this Section 12.3 shall lapse if the
Closing takes place as to FIRST ENTERPRISE and Space Systems International, but
shall not lapse as to the officers and directors of FIRST ENTERPRISE,
individually.
Any information, which (i) at or prior to the time of disclosure by either
of Space Systems International or FIRST ENTERPRISE was generally available to
the public through no breach of this covenant, (ii) was available to the public
on a non-confidential basis prior to its disclosure by either of Space Systems
International or FIRST ENTERPRISE or (iii) was made available to the public from
a third party, provided that such third party did not obtain or disseminate such
information in breach of any legal obligation to Space Systems International or
FIRST ENTERPRISE, shall not be deemed Confidential Information for purposes
hereof, and the undertakings in this covenant with respect to Confidential
Information shall not apply thereto.
12.4 Succession and Assignments; Third Party Beneficiaries. This Agreement
may not be assigned (either voluntarily or involuntarily) by any party hereto
without the express written consent of the other party. Any attempted assignment
in violation of this Section shall be void and ineffective for all purposes. In
the event of an assignment permitted by this Section, this Agreement shall be
binding upon the heirs, successors and assigns of the parties hereto. Except as
expressly set forth in this Section, there shall be no third party beneficiaries
of this Agreement.
12.5 Notices. All notices, requests, demands or other communications with
respect to this Agreement shall be in writing and shall be (i) sent by facsimile
transmission, (ii) sent by the United States Postal Service, registered or
certified mail, return receipt requested, or (iii) personally delivered by a
nationally recognized express overnight courier service, charges prepaid, to the
addresses specified in writing by each party.
Any such notice shall, when sent in accordance with the preceding sentence,
be deemed to have been given and received on the earliest of (i) the day
delivered to such address or sent by facsimile transmission, (ii) the fifth
(5th) business day following the date deposited with the United States Postal
Service, or (iii) twenty-four (24) hours after shipment by such courier service.
12.6 Construction. This Agreement shall be construed and enforced in accordance
with the internal laws of the State of Florida without giving effect to the
principles of conflicts of law thereof, except to the extent that the Securities
Act or the Exchange Act applies to the Registration Statements and the Proxy
Statement.
12.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same Agreement.
12.8 No Implied Waiver; Remedies. No failure or delay on the part of the
parties hereto to exercise any right, power or privilege hereunder or under any
instrument executed pursuant hereto shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. All rights, powers and privileges granted herein shall be in addition
to other rights and remedies to which the parties may be entitled at law or in
equity.
12.9 Entire Agreement. This Agreement, including the Exhibits and Schedules
attached hereto, sets forth the entire understandings of the parties with
respect to the subject matter hereof, and it incorporates and merges any and all
previous communications, understandings, oral or written, as to the subject
matter hereof, and cannot be amended or changed except in writing, signed by the
parties.
12.10 Headings. The headings of the Sections of this Agreement, where
employed, are for the convenience of reference only and do not form a part
hereof and in no way modify, interpret or construe the meanings of the parties.
12.11 Severability. To the extent that any provision of this Agreement
shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect.
12.12 Public Disclosure. From and after the date hereof through the Closing
Date, FIRST ENTERPRISE shall not issue a press release or any other public
announcement with respect to the transactions contemplated hereby without the
prior consent of Space Systems International, which consent shall not be
unreasonably withheld or delayed. It is understood by Space Systems
International that FIRST ENTERPRISE is required under the Exchange Act to make
prompt disclosure of any material transaction.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, HAVE HAD THE
OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF THEIR OWN CHOICE, AND
UNDERSTAND EACH OF THE PROVISIONS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
First Enterprise Service Group, Inc.
By:____________________________
Its:_____________________________
Space Systems International, Inc.
By:____________________________
Its:____________________________
<PAGE>
Ex. 3.1
ARTICLES OF INCORPORATION
OF
First Enterprise Service Group, Inc.
ARTICLE I - NAME AND MAILING ADDRESS
The name of this corporation is First Enterprise Service Group, Inc. and
the mailing address of this corporation is 2503 W. Gardner Ct. Tampa Fl 33611.
ARTICLE II - DURATION
This corporation shall have perpetual existence.
ARTICLE III - PURPOSE
This corporation is organized to include the transaction of any or all
lawful business for which corporations may be incorporated under Chapter 607,
Florida Statutes (1975) as presently enacted and as it may be amended from time
to time.
ARTICLE IV - CAPITAL STOCK
This corporation is authorized to issue 50,000,000 shares of no par
value common stock, which shall be designated as "Common Shares" and Twenty
Million shares of no par value preferred stock, which shall be designated as
"Preferred Shares."
The Preferred Shares may be issued in such series and with such rights,
privileges, and preferences as determined solely by the Board of Directors.
ARTICLE V - INITIAL REGISTERED OFFICE AND AGENT
The street address of theinitial registered office of this corporation is
2503 W. Gardner Ct. Tampa Fl 33611, and the name of the initial registered agent
of this corporation at that address is Michael T. Williams.
<PAGE>
-3-
ARTICLE VI - INITIAL BOARD OF DIRECTORS
This corporation shall have One director(s) initially. The number of
directors may be either increased or decreased from time to time by the Bylaws,
but shall never be less than one (1). The name(s) and address(es) of the initial
director(s) of this corporation are:
NAME ADDRESS
Michael T. Williams 2503 W. Gardner Ct. Tampa Fl 33611
ARTICLE VII - INCORPORATOR(S)
The name and address of the person(s) signing these Articles of
Incorporation is (are):
NAME ADDRESS
Michael T. Williams 2503 W. Gardner Ct. Tampa Fl 33611
ARTICLE VIII - INDEMNIFICATION
The corporation shall indemnify any officer or director, or any former
officer or director, to the full extent permitted by law.
ARTICLE IX - AMENDMENT
This corporation reserves the right to amend or repeal any provisions
contained in these Articles of Incorporation, or any amendment thereto, and any
right conferred upon the shareholders is subject to this reservation.
ARTICLE X - AFFILIATED TRANSACTIONS AND CONTROL SHARE ACQUISITIONS
The Corporation expressly elects not to be governed by Sections
607.0901 and 607.0902 of the Florida Enterprise Corporations Act, relating to
affiliated transactions and control share acquisitions, respectively.
IN WITNESS WHEREOF, the undersigned incorporator(s) has (have) executed
these Articles of Incorporation this April 4, 1999.
-------------------------------
Michael T. Williams
<PAGE>
CERTIFICATE DESIGNATING REGISTERED AGENT
AND STREET ADDRESS FOR SERVICE OF PROCESS
WITHIN FLORIDA
Pursuant to Florida Statutes Section 48.091, First Enterprise Service
Group, desiring to organize under the laws of the State of Florida, hereby
designates Michael T. Williams, located at 2503 W. Gardner Ct. Tampa Fl 33611 as
its registered agent to accept service of process within the State of Florida.
ACCEPTANCE OF DESIGNATION
The undersigned hereby accepts the above designation as registered
agent to accept service of process for the above-named corporation, at the place
designated above, and agrees to comply with the provisions of Florida Statutes
Section 48.091(2) relative to maintaining an office for the service of process.
-------------------------------
Michael T. Williams
Ex. 3.2
BYLAWS
OF
ARTICLE I - MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders of
this corporation shall be held at the time and place designated by the Board of
Directors of the corporation. The annual meeting of shareholders for any year
shall be held no later than thirteen (13) months after the last preceding annual
meeting of shareholders. Business transacted at the annual meeting shall include
the election of directors of the corporation.
Section 2. Special Meetings. Special meetings of the shareholders shall
be held when directed by the Board of Directors, or when requested in writing by
the holders of not less than ten percent (10%) of all the shares entitled to
vote at the meeting. A meeting requested by shareholders shall be called for a
date not less than ten (10) or more than sixty (60) days after the request is
made, unless the shareholders requesting the meeting designate a later date. The
call for the meeting shall be issued by the Secretary, unless the President,
Board of Directors, or shareholders requesting the meeting designate another
person to do so.
Section 3. Place. Meetings of shareholders may be held within or
-----------------
without the State of Florida.
Section 4. Notice. Written notice stating the place, day and hour of
the meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten (10) nor more
than sixty (60) days before the meeting, either personally or by first class
mail, by or at the direction of the President, the Secretary, or the officer or
persons calling the meeting to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the shareholder at his address
as it appears on the stock transfer books of the corporation, with postage
thereon prepaid.
Section 5. Notice of Adjourned Meetings. When a meeting is adjourned to
another time or place, it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been transacted on the
original date of the meeting. If, however, after the adjournment the Board of
Directors fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given as provided in this section to each shareholder
of record on the new record date entitled to vote at such meeting.
<PAGE>
-14-
Section 6. Closing of Transfer Books and Fixing Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholder of any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other purpose, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period but not to exceed, in any case, sixty
(60) days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten (10) days immediately
preceding such meeting.
In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any determination of shareholders,
such date in any case to be not more than sixty (60) days and, in case of a
meeting of shareholders, not less than ten (10) days prior to the date on which
the particular action requiring such determination of shareholders is to be
taken.
If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice or to vote at a meeting
of shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, unless the Board of Directors fixes a new
record date for the adjourned meeting.
Section 7. Voting Record. The officers or agent having charge of the
stock transfer books for shares of the corporation shall make, at least ten (10)
days before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, with the address of
and the number and class and series, if any, of shares held by each. The list,
for a period of ten (10) days prior to such meeting, shall be kept on file at
the registered office of the corporation, at the principal place of business of
the corporation or at the office of the transfer agent or register of the
corporation and any shareholder shall be entitled to inspect the list at any
time during usual business hours. The list shall also be produced and kept open
at the time and place of the meeting and shall be subject to the inspection of
any shareholder at any time during the meeting.
If the requirements of this section have not been substantially
complied with, the meeting on demand of any shareholder in person or by proxy,
shall be adjourned until the requirements are complied with. If no such demand
is made, failure to comply with the requirements of this section shall not
affect the validity of any action taken at such meeting.
<PAGE>
Section 8. Shareholder Quorum and Voting. A majority of the shares
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of shareholders. When a specified item of business is required to
be voted on by a class or series a majority of the shares of such class or
series shall constitute a quorum for the transaction of such item of business by
that class or series.
If a quorum is present, the affirmative vote of the majority of the
shares represented at the meeting and entitled to vote on the subject matter
shall be the act of the shareholders unless otherwise provided by law.
After a quorum has been established at a shareholders' meeting, the
subsequent withdrawal of shareholders, so as to reduce the number of
shareholders entitled to vote at the meeting below the number required for a
quorum, shall not affect the validity of any action taken at the meeting or any
adjournment thereof.
Section 9. Voting of Shares. Each outstanding share, regardless of
----------------------------
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders.
Treasury shares, shares of stock of this corporation owned by another
corporation the majority of the voting stock of which is owned or controlled by
this corporation, and shares of stock of this corporation held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time.
A shareholder may vote either in person or by proxy executed in writing
by the shareholder or his duly authorized attorney-in-fact.
At each election for directors, every shareholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected at
that time and for whose election he has a right to vote.
Shares standing in the name of another corporation, domestic or
foreign, may be voted by the officer, agent, or proxy designated by the bylaws
of the corporate shareholder; or, in the absence of any applicable bylaw, by
such person as the Board of Directors of the corporate shareholder may
designate. Proof of such designation may be made by presentation of a certified
coy of the bylaws or other instrument of the corporate shareholder. In the
absence of any such designation, or in case of conflicting designation by the
corporate shareholder, the chairman of the board, president, any vice president,
secretary and treasurer of the corporate shareholder shall be presumed to
possess, in that order, authority to vote such shares.
Shares held by an administrator, executor, guardian or conservator may
be voted by him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing gin the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name.
<PAGE>
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee or his nominee shall be entitled to vote the shares so
transferred.
On and after the date on which written notice of redemption of
redeemable shares has been mailed to the holders thereof and a sum sufficient to
redeem such shares has been deposited with a bank or trust company with
irrevocable instruction and authority to pay the redemption price to the holders
thereof upon surrender of certificates therefor, such shares shall not be
entitled to vote on any matter and shall not be deemed to be outstanding shares.
Section 10. Proxies. Every shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting or a
shareholders' duly authorized attorney-in-fact may authorize another person or
persons to act for him by proxy.
Every proxy must be signed by the shareholder or his attorney-in-fact.
No proxy shall be valid after the expiration of eleven (11) months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the shareholder executing it, except as otherwise provided by
law.
The authority of the holder of a proxy to act shall not be revoked by
the incompetence or death of the shareholder who executed the proxy unless,
before the authority is exercised, written notice of an adjudication of such
incompetence or of such death is received by the corporate officer responsible
for maintaining the list of shareholders.
If a proxy for the same shares confers authority upon two (2) or more
persons and does not otherwise provide, a majority of them present at the
meeting, or if only one (1) is present then that one, may exercise all the
powers conferred by the proxy; but if the proxy holders present at the meeting
are equally divided as to the right and manner of voting in any particular case,
the voting of such shares shall be prorated.
If a proxy expressly provides, any proxy holder may appoint in writing
a substitute to act in his place.
<PAGE>
Section 11. Voting Trusts. Any number of shareholders of this
corporation may create a voting trust for the purpose of conferring upon a
trustee or trustees the right to vote or otherwise represent their shares, as
provided by law. Where the counterpart of a voting trust agreement and the copy
of the record of the holders of voting trust certificates has been deposited
with the corporation as provided by law, such documents shall be subject to the
same right of examination by a shareholder of the corporation, in person or by
agent or attorney, as are the books and records of the corporation, and such
counterpart and such copy of such record shall be subject to examination by any
holder or record of voting trust certificates either in person or by agent or
attorney, at any reasonable time for any proper purpose.
Section 12. Shareholders' Agreements. Two (2) or more shareholders, of
this corporation may enter an agreement providing for the exercise of voting
rights in the manner provided in the agreement or relating to any phase of the
affairs of the corporation as provided by law. Nothing therein shall impair the
right of this corporation to treat the shareholders of record as entitled to
vote the shares standing in their names.
Section 13. Action by Shareholders Without a Meeting. Any action
required by law, these bylaws, or the articles of incorporation of this
corporation to be taken at any annual or special meeting of shareholders of the
corporation, or any action which may be taken at any annual or special meeting
of such shareholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. If any class of shares is entitled to vote thereon as a class, such
written consent shall be required of the holders of a majority of the shares of
each class of shares entitled to vote as a class thereon and of the total shares
entitled to vote thereon.
Within ten (10) days after obtaining such authorization by written
consent, notice shall be given to those shareholders who have not consented in
writing. The notice shall fairly summarize the material features of the
authorized action and, if the action be a merger, consolidated or sale or
exchange of assets for which dissenters rights are provided under this act, the
notice shall contain a clear statement of the right of shareholders dissenting
therefrom to be paid the fair value of their shares upon compliance with further
provisions of this act regarding the rights of dissenting shareholders.
ARTICLE II - DIRECTORS
Section 1. Function. All corporate powers shall be exercised by
---------------------
or under the authority of, and business and affairs of the corporation shall
be managed under the direction of, the Board of Directors.
Section 2. Qualification. Directors need not be residents of this
--------------------------
state or shareholders of this corporation.
<PAGE>
Section 3. Compensation. The Board of Directors shall have authority
-------------------------
to fix the compensation of directors.
Section 4. Duties of Directors. A director shall perform his duties as
a director, including his duties as a member of any committee of the board upon
which he may serve, in good faith, in a manner he reasonably believes to be in
the best interests of the corporation, and with such care as an ordinarily
prudent person in a like position would use under similar circumstances.
In performing his duties, a director shall be entitled to rely on
information, opinions, reports or statements, including financial statements and
other financial data, in each case prepared or presented by:
(a) one (1) or more officers or employees of the corporation whom the
director reasonably believes to be reliable and competent in the matters
presented,
(b) counsel, public accountants or other persons as to matters which
the director reasonably believes to be within such person's professional or
expert competence, or
(c) a committee of the board upon which he does not serve, duly
designated in accordance with a provision of the articles of incorporation or
the bylaws, as to matters within its designated authority, which committee the
director reasonable believes to merit confidence.
A director shall not be considered to be acting in good faith if he has
knowledge concerning the matter in question that would cause such reliance
described above to be unwarranted.
A person who performs his duties in compliance with this section shall
have no liability by reason of being or having been a director of the
corporation.
Section 5. Presumption of Assent. A director of the corporation who is
present at a meeting of its Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless he
votes against such action or abstains from voting in respect thereto because of
an asserted conflict of interest.
Section 6. Number. The corporation shall have at least one (1)
director. The minimum number of directors may be increased or decreased from
time to time by amendment to these bylaws, but no decrease shall have the effect
of shortening the terms of any incumbent director and no amendment shall
decrease the number of directors below one (1), unless the stockholders have
voted to operate the corporation.
<PAGE>
Section 7. Election and Term. Each person named in the articles of
incorporation as a member of the initial board of directors shall hold office
until the first annual meeting of shareholders, and until his successor shall
have been elected and qualified or until his earlier resignation, removal from
office or death.
At the first annual meeting of shareholders and at each annual meeting
thereafter, the shareholders shall elect directors to hold office until the next
succeeding annual meeting. Each director shall hold office for the term for
which he is elected and until his successor shall have been elected and
qualified or until his earlier resignation, removal from office or death.
Section 8. Vacancies. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall hold office only until the next election of
directors by the shareholders.
Section 9. Removal of Directors. At a meeting of shareholders called
expressly for that purpose, any director or the entire Board of Directors may be
removed, with or without cause, by a vote of the holders of a majority of the
shares then entitled to vote at an election of directors.
Section 10. Quorum and Voting. A majority of the number of directors
fixed by these bylaws shall constitute a quorum for the transaction of business.
The act of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors.
Section 11. Director Conflicts of Interest. No contract or other
transaction between this corporation and one (1) or more of its directors or any
other corporation, firm, association or entity in which one (1) or more of the
directors are directors or officers or are financially interested, shall be
either void or voidable because of such relationship or interest or because such
director or directors are present at the meeting of the Board of Directors or a
committee thereof which authorizes, approves or ratifies such contract or
transaction or because his or their votes are counted for such purpose, if:
(a) The fact of such relationship or interest is disclosed or known to
the Board of Directors or committee which authorizes, approves or ratifies the
contract or transaction by a vote or consent sufficient for the purpose without
counting the votes or consents of such interested directors; or
(b) The fact of such relationship or interest is disclosed or known to
the shareholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote or written consent; or
<PAGE>
(c) The contract or transaction is fair and reasonable as to the
corporation at the time it is authorized by the board, a committee or
shareholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
Section 12. Executive and Other Committees. The Board of Directors, by
resolution adopted by a majority of the full Board of Directors, may designate
from among its members an executive committee and one (1) or more other
committees each of which, to the extent provided in such resolution shall have
and may exercise all the authority of the Board of Directors, except that no
committee shall have the authority to:
(a) approve or recommend to shareholders actions or proposals required
by law to be approved by shareholders,
(b) designate candidates for the office of director, for purposes
of proxy solicitation or otherwise,
(c) fill vacancies on the Board of Directors or any committee thereof,
(d) amend the bylaws,
(e) authorize or approve the reacquisition of shares unless pursuant
to a general formula or method specified by the Board of Directors, or
(f) authorize or approve the issuance or sale of, or any contract to
issue or sell, shares or designate the terms of a series of a class of shares,
except that the Board of Directors, having acted regarding general authorization
for the issuance or sale of shares, or any contract therefor, and, in the case
of a series, the designation thereof, may, pursuant to a general formula or
method specified by the Board of Directors, by resolution or by adoption of a
stock option or other plan, authorize a committee to fix the terms of any
contract for the sale of the shares and to fix the terms upon which such shares
may be issued or sold, including, without limitation, the price, the rate or
manner of payment of dividends, provisions for redemption, sinking fund,
conversion, voting or preferential rights, and provisions for other features of
a class of shares, or a series of a class of shares, with full power in such
committee to adopt any final resolution setting forth all the terms thereof and
to authorize the statement of the terms of a series for filing with the
Department of State.
<PAGE>
The Board of Directors, by resolution adopted in accordance with this
section, may designate one (1) or more directors as alternate members of any
such committee, who may act in the place and stead of any member or members at
any meeting of such committee.
Section 13. Place of Meetings. Regular and special meetings by
--------------------------------
the Board of Directors may be held within or without the State of Florida.
Section 14. Time, Notice and Call of Meetings. Regular meetings by the
Board of Directors shall be held without notice. Written notice of the time and
place of special meetings of the Board of Directors shall be given to each
director by either personal delivery, telegram or cablegram at least two (2)
days before the meeting or by notice mailed to the director at least five (5)
days before the meeting.
Notice of a meeting of the Board of Directors need not be given to any
director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting shall constitute a waiver of notice of
such meeting and waiver of any and all objections to the place of the meeting,
the time of the meeting, or the manner in which it has been called or convened,
except when a director states, at the beginning of the meeting, any objection to
the transaction of business because the meeting is not lawfully called or
convened.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
A majority of the directors present, whether or not a quorum exists,
may adjourn any meeting of the Board of Directors to another time and place.
Notice of any such adjourned meeting shall be given to the directors who were
not present at the time of the adjournment and, unless the time and place of the
adjourned meeting are announced at the time of the adjournment, to the other
directors.
Meetings of the Board of Directors may be called by the chairman of the
board, by the president of the corporation, or by any two (2) directors.
Members of the Board of Directors may participate in a meeting of such
board by means of a conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other at
the same time. Participation by such means shall constitute presence in person
at a meeting.
<PAGE>
Section 15. Action Without a Meeting. Any action required to be taken
at a meeting of the directors of a corporation, or any action which may be taken
at a meeting of the directors or a committee thereof, may be taken without a
meeting if a consent in writing, setting forth the action so to be taken, signed
by all of the directors, or all the members of the committee, as the case may
be, is filed in the minutes of the proceedings of the board or of the committee.
Such consent shall have the same effect as a unanimous vote.
ARTICLE III - OFFICERS
Section 1. Officers. The officers of this corporation shall consist of
a president, a secretary and a treasurer, each of whom shall be elected by the
Board of Directors. Such other officers and assistant officers and agents as may
be deemed necessary may be elected or appointed by the Board of Directors from
time to time. Any two (2) or more offices may be held by the same person. The
failure to elect a president, secretary or treasurer shall not affect the
existence of this corporation.
Section 2. Duties. The officers of this corporation shall have the
------------------
following duties:
The President shall be the chief executive officer of the corporation,
shall have general and active management of the business and affairs of the
corporation subject to the directions of the Board of Directors, and shall
preside at all meetings of the stockholders and Board of Directors.
The Secretary shall have custody of, and maintain, all of the corporate
records except the financial records; shall record the minutes of all meetings
of the stockholders and Board of Directors, send all notice of meetings out, and
perform such other duties as may be prescribed by the Board of Directors or the
President.
The Treasurer shall have custody of all corporate funds and financial
records, shall keep full and accurate accounts of receipts and disbursements and
render accounts thereof at the annual meetings of stockholders and whenever else
required by the Board of Directors or the President, and shall perform such
other duties as may be prescribed by the Board of Directors or the President.
Section 3. Removal of Officers. Any officer or agent elected or
appointed by the Board of Directors may be removed by the board whenever in its
judgment the best interest of the corporation will be served thereby.
Any officer or agent elected by the shareholders may be removed only by
vote of the shareholders, unless the shareholders shall have authorized the
directors to remove such officer or agent.
Any vacancy, however occurring, in any office may be filled by the
Board of Directors, unless the bylaws shall have expressly reserved such power
to the shareholders.
<PAGE>
Removal of any officer shall be without prejudice to the contract
rights, if any, of the person so removed; however, election or appointment of an
officer or agent shall not of itself create contract rights.
ARTICLE IV - STOCK CERTIFICATES
Section 1. Issuance. Every holder of shares in this corporation shall
be entitled to have a certificate, representing all shares to which he is
entitled. No certificate shall be issued for any share until such share is fully
paid.
Section 2. Form. Certificates representing shares in this corporation
shall be signed by the President or Vice-President and the Secretary or an
Assistant Secretary and may be sealed with the seal of this corporation or a
facsimile thereof. The signatures of the President or Vice-President and the
Secretary or Assistant Secretary may be facsimiles if the certificate is
manually signed on behalf of a transfer agent or a registrar, other than the
corporation itself or an employee of the corporation. In case any officer who
signed or whose facsimile signature has been placed upon such certificate shall
have ceased to be such officer before such certificate is issued, it may be
issued by the corporation with the same effect as if he were such officer at the
date of its issuance.
Every certificate representing shares which are restricted as to the
sale, disposition or other transfer of such shares shall state that such shares
are restricted as to transfer and shall set forth or fairly summarize upon the
certificate, or shall state that the corporation will furnish to any shareholder
upon request and without charge a full statement of, such restrictions.
Each certificate representing shares shall state upon the fact thereof:
the name of the corporation; that the corporation is organized under the laws of
this state; the name of the person or persons to whom issued; the number and
class of shares, and the designation of the series, if any, which such
certificate represents; and the par value of each share represented by such
certificate, or a statement that the shares are without par value.
Section 3. Transfer of Stock. The corporation shall register a stock
certificate presented to it for transfer if the certificate is properly endorsed
by the holder or record of by his duly authorized attorney, and the signature of
such person has been guaranteed by a commercial bank or trust company or by a
member of the New York or American Stock Exchange.
<PAGE>
Section 4. Lost, Stolen, or Destroyed Certificates. The corporation
shall issue a new stock certificate in the place of any certificate previously
issued if the holder of record of the certificate (a) makes proof in affidavit
form that it has been lost, destroyed or wrongfully taken; (b) requests the
issue of a new certificate before the corporation has notice that the
certificate has been acquired by a purchaser for value in good faith and without
notice of any adverse claim; (c) gives bond in such form as the corporation may
direct, to indemnify the corporation, the transfer agent, and registrar against
any claim that may be made on account of the alleged loss, destruction, or theft
of a certificate; and (d) satisfies any other reasonable requirements imposed by
the corporation.
ARTICLE V - BOOKS AND RECORDS
Section 1. Books and Records. This corporation shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of its shareholders, board of directors and committees of directors.
This corporation shall keep at its registered office or principal place
of business, or at the office of its transfer agent or registrar, a records of
its shareholders, giving the names and addresses of all shareholders, and the
number, class and series, if any, of the shares held by each.
Any books, records and minutes may be in written form or in any other
form capable of being converted into written form within a reasonable time.
Section 2. Shareholders' Inspection Rights. Any person who shall have
been a holder of record of shares or of voting trust certificates therefor at
least six (6) months immediately preceding his demand or shall be the holder of
record of, or the holder of record of voting trust certificates for, at least
five percent (5%) of the outstanding shares of any class or series of the
corporation, upon written demand stating the purpose thereof, shall have the
right to examine, in person or by agent or attorney, at any reasonable time or
times, for any proper purpose its relevant books and records of accounts,
minutes and records of shareholders and to make extracts therefrom.
Section 3. Financial Information. Not later than four (4) months after
the close of each fiscal year, this corporation shall prepare a balance sheet
showing in reasonable detail the financial condition of the corporation as of
the close of its fiscal year, and a profit and loss statement showing the
results of the operations of the corporation during its fiscal year.
Upon the written request of any shareholder or holder of voting trust
certificates for shares of the corporation, the corporation shall mail to such
shareholder or holder of voting trust certificates a copy of the most recent
such balance sheet and profit and loss statement.
The balance sheets and profit and loss statements shall be filed in the
registered office of the corporation in this state, shall be kept for at least
five (5) years, and shall be subject to inspection during business hours by any
shareholder or holder of voting trust certificates, in person or by agent.
<PAGE>
ARTICLE VI - DIVIDENDS
The Board of Directors of this corporation may, from time to time,
declare and the corporation may pay dividends on its shares in cash, property or
its own shares, except when the corporation is insolvent or when the payment
thereof would render the corporation insolvent or when the declaration or
payment thereof would be contrary to any restrictions contained in the articles
of incorporation, subject to the following provisions:
(a) Dividends in cash or property may be declared and paid, except as
otherwise provided in this section, only out of the unreserved and unrestricted
earned surplus of the corporation or out of capital surplus, howsoever arising
but each dividend paid out of capital surplus, and the amount per share paid
from such surplus shall be disclosed to the shareholders receiving the same
concurrently with the distribution.
(b) Dividends may be declared and paid in the corporation's own
treasury shares.
(c) Dividends may be declared and paid in the corporation's own
authorized but unissued shares out of any unreserved and unrestricted surplus of
the corporation upon the following conditions:
(1) If a dividend is payable in shares having a par value,
such shares shall be issued at not less than the par value thereof and there
shall be transferred to stated capital at the time such dividend is paid an
amount of surplus equal to the aggregate par value of the shares to be issued as
a dividend.
(2) If a dividend is payable in shares without a par value,
such shares shall be issued at such stated value as shall be fixed by the Board
of Directors by resolution adopted at the time such dividend is declared, and
there shall be transferred to stated capital at the time such dividend is paid
an amount of surplus equal to the aggregate stated value so fixed in respect of
such shares; and the amount per share so transferred to stated capital shall be
disclosed to the shareholders receiving such dividend concurrently with the
payment thereof.
(d) No dividend payable in shares of any class shall be paid to the
holders of shares of any other class unless the articles of incorporation so
provide or such payment is authorized by the affirmative vote or the written
consent of the holders of at least a majority of the outstanding shares of the
class in which the payment is to be made.
(e) A split-up or division of the issued shares of any class into a
greater number of shares of the same class without increasing the stated capital
of the corporation shall not be construed to be a share dividend within the
meaning of this section.
<PAGE>
ARTICLE VII - CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation as
it appears on page 1 of these bylaws.
ARTICLE VIII - AMENDMENTS
These bylaws may be repealed or amended, and new bylaws may be adopted,
by the Board of Directors.
End of bylaws adopted by the Board of Directors.
Ex. 3.3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
Space Systems Imaging Corporation
Space Systems Imaging Corporation, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware.
DOES HEREBY CERTIFY:
First: That at a meeting of the Board of Directors of Space Systems Imaging
Corporation resolutions were duly adopted setting forth a proposed amendment of
the Certificate of Incorporation of said corporation, declaring sold amendment
to be advisable and resolution setting forth the proposed amendment is as
follows:
RESOLVED: that the Certificate of Incorporation of this corporation be
amended by changing the Article thereof numbered "First" so that, as amended
said Article shall be and read as follows:
FIRST: The name of the corporation is Space Systems International
Corporation.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
a special meeting of the stockholders of said corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation law
off the State of Delaware at which meeting the necessary number of shares as
required by stature were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Space Systems Imaging Corporation has caused this
certificate to be signed by its Authorized Officer the 25th day of February,
1998
By: /s/ John Papazian
Name: John Papazian
Title: President
CERTIFICATE OF INCORPORATION
OF
Space Systems Imaging Corporation
FIRST: The name of the corporation is: Space Systems Imaging Corporation
SECOND: Its registered office in the State of Delaware is located at 25
Greystone Manor, Lewes, Delaware 19958-9776, County of Sussex. The registered
agent in charge thereof is Harvard Business Services, Inc.
THIRD: The purpose of the corporation is to engage in any lawful activity
for which corporations may be organized under the General Corporation Law of
Delaware.
FOURTH: The total number of authorized shares which the corporation is
authorized to issue 50,000,000 shares of common stock having a par value of
0.0001 per share. The number of authorized shares of preferred stock or of
common stock may be raised by the affirmative vote of the holders of a majority
of the outstanding shares of the corporation entitled to vote thereon. All
shares of common shares shall be identical and each share of common stock shall
be entitled to one vote on all matters. The board of directors is authorized,
subject to limitations prescribed by law and the provisions of the Article
Fourth, to provide by resolution or resolutions for the issuance of the shares
of preferred stock in one or more series, and by filing a certificate pursuant
to the applicable law of the State of Delaware, to establish form time to time
the number of shares included in any such series and to fix the designation,
powers, preferences and rights of the shares of any such series and the
qualifications, limitations or restrictions thereof.
FIFTH: The business and affairs of the corporation shall be managed by or
under the direction of the board of directors, and the directors need not by
elected by ballot unless required by the bylaws of the corporation.
SIXTH: This corporation shall be perpetual unless otherwise decided by a
majority of the Board of Directors.
SEVENTH: In furtherance and not n limitation of the powers conferred by the
laws of Delaware, the board of directors is authorized to amend or repeal the
bylaws.
EIGHTH: The corporation reserves the right to amend or repeal any
provisions in this Certificate of Incorporation in the manner prescribed by the
laws of Delaware.
NINTH: the incorporator is Harvard business Services, Inc., whose mailing
address is 25 Greystone Manor, Lewes, DE 19958-9766. the powers of the
Incorporator are to file this certificate of incorporation, approve the by-laws
of the corporation and elect the initial directors.
TENTH: to the fullest extent permitted by the Delaware General Corporation
Law a director of this corporation shall not be liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director. 1.
Richard H. Bell, for the purpose of forming a corporation under the laws of the
State of Delaware do make and tile this certificate, and do certify that the
facts herein stated are true: and have accordingly signed below, this 19th day
of February, 1998.
Signed by: /s/ Richard H. Bell
Name: Richard H. Bell
HARVARD BUSINESS SERVICES, INC.
Ex. 3.4
SPACE SYSTEMS INTERNATIONAL INCORPORATED
BYLAWS
ARTICLE I -STOCKHOLDERS
Section 1. Annual Meeting.
An annual meeting of the stockholders, for the election of directors to succeed
those whose terms expire and for the transaction of such other business as may
properly come before the meeting, shall be held on such date, and at such time
and at such place within or without the State of Delaware, as the Board of
Directors shall each year fix, which date shall be within thirteen months
subsequent to the later of the date of incorporation or the last annual meeting
of stockholders.
Section 2. Special Meetings.
Special meetings of the stockholders, for any purpose or purposes prescribed in
the notice of the meeting, may be called by the Board of Directors or the chief
executive officer and shall be held at such place, on such date, and at such
time as they or he or she shall fix.
Section 3. Notice ice of Meetings.
Written notice of the place, date, and time of all meetings of the stockholders
shall be given, not less than ten nor more than sixty days before the date on
which the meeting is to be held, to each stockholder entitled to vote at such
meeting, except as otherwise provided herein or required by law (meaning, here
and hereinafter, as required from time to time by the Delaware General
Corporation Law or the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date and time thereof are
announced at the meeting at which the adjournment is taken; provided, however,
that if the date of any adjourned meeting is more than thirty days after the
date for which the meeting was originally noticed, or if a new record date is
fixed for the adjourned meeting, written notice of the place, date, and time of
the adjourned meeting shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been transacted at the
original meeting.
Section 4. Quorum.
At any meeting of the stockholders, the holders of a majority of all of the
shares of the stock entitled to vote at the meeting, present in person or by
proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law.
If a quorum shall fail to attend any meeting, the chairman of the meeting or the
holders of a majority of the shares of stock entitled to vote who are present,
in person or by proxy, may adjourn the meeting to another place, date, or time.
If a notice of any adjourned special meeting of stockholders is sent to all
stockholders entitled to vote thereat, stating that it will be held with those
present constituting a quorum, then except as otherwise required by law, those
present at such adjourned meeting shall constitute a quorum, and all matters
shall be determined by a majority of the votes cast at such meeting.
Section 5. Organization.
Such person as the Board of Directors may have designated or, in the absence of
such a person, the chief executive officer of the Corporation or, in his or her
absence, such person as may be chosen by the holders of a majority of the shares
entitled to vote who are present, in person or by proxy, shall call to order any
meeting of the stockholders and act as chairman of the meeting. In the absence
of the Secretary of the Corporation, the secretary of the meeting shall be such
person as the chairman appoints.
Section 6. Conduct of Business.
The chairman of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him or her in order.
Section 7. Proxies and Voting.
At any meeting of the stockholders, every stockholder entitled to vote may vote
in person or by proxy authorized by an instrument in writing filed in accordance
with the procedure established for the meeting.
Each stockholder shall have one vote for every share of stock entitled to vote
which is registered in his or her name on the record date for the meeting,
except as otherwise provided herein or required by law.
All voting, including on the election of directors but excepting where otherwise
required by law, may be by a voice vote; provided, however, that upon demand
therefore by a stockholder entitled to vote or his or her proxy, a stock vote
shall be taken. Every stock vote shall be taken by ballots, each of which shall
state the name of the stockholder or proxy voting and such other information as
may be required under the procedure established for the meeting. Every vote
taken by ballots shall be counted by an inspector or inspectors appointed by the
chairman of the meeting.
All elections shall be determined by a plurality of the votes cast, and except
as otherwise required by law, all other matters shall be determined by a
majority of the votes cast
Section 8. Stock List.
A complete list of stockholders entitled to vote at any meeting of stockholders,
arranged in alphabetical order for each class of stock and showing the address
of each such stockholder and the number of shares registered in his or her name,
shall be open to the examination of any such stockholder, for any purpose
germane to the meeting, during ordinary business hours for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the whole
time thereof and shall be open to the examination of any such stockholder who is
present This list shall presumptively determine the identity of the stockholders
entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Consent of Stockholders in Lieu of Meeting
Any action required to be taken at any annual or special meeting of stockholders
of the Corporation, or any action which may be taken at any annual or special
meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted.
ARTICLE 11- BOARD OF DIRECTORS
Section 1. Number and Term of Office.
The number of directors who shall constitute the whole board shall be such
number as the Board of Directors shall at the time have designated, except that
in the absence of any such designation, such number shall be (5). Each director
shall be elected for a term of one year and until his or her successor is
elected and qualified, except as otherwise provided herein or required by law.
Whenever the authorized number of directors is increased between annual meetings
of the stockholders, a majority of the directors then in office shall have the
power to elect such new directors for the balance of a term and until their
successors are elected and qualified Any decrease in the authorized number of
directors shall not become effective until the expiration of the term of the
directors then in office unless, at the time of such decrease, there shall be
vacancies on the board which are being eliminated by the decrease.
Section 2. Vacancies.
If the office of any director becomes vacant by reason of death, resignation,
disqualification, removal or other cause, a majority of the directors remaining
in office, although less than a quorum, may elect a successor for the unexpired
term and until his or her successor is elected and qualified
Section 3. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place or
places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required
Section 4. Special Meetings.
Special meetings of the Board of Directors may be called by one-third of the
directors then in office (rounded up to the nearest whole number) or by the
chief-executive officer and shall be held at such place, on such date, and at
such time as they or he or she shall fix. Notice of the place, date, and time of
each such special meeting shall be given each director by whom it is not waived
by mailing written notice not less than five days before the meeting or by
telegraphing the same not less than twenty-/our hours before the meeting. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
Section S. Quorum.
At any meeting of the Board of Directors, a majority of the total number of the
whole Board shall constitute a quorum for all purposes. If a quorum shall fail
to attend any meeting, a majority of those present may adjourn the meeting to
another place, date, or time, without further notice or waiver thereof.
Section 6. Participation in Meetings By Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may participate
in a meeting of such Board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other and such participation shall constitute presence
in person at such meeting.
Section 7; Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted in such
order and manner as the Board may from time to time determine, and all matters
shall be determined by the vote of a majority of the directors present, except
as otherwise provided herein or required by law. Action may be taken by the
Board of Directors without a meeting if all members thereof consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors.
Section 8. Powers.
The Board of Directors may, except as otherwise required by law, exercise all
such powers and do all such acts and things as may be exercised or done by the
Corporation, including, without limiting the generality of the foregoing, the
unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or privileges on such
terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form as it may
determine, of written obligations of every kind, negotiable or non-negotiable,
secured or unsecured, and to do all things necessary in connection therewith;
(4) To remove any officer of the Corporation with or without cause, and from
time to time to devolve the powers and duties of any officer upon any other
person for the time being;
(5) To confer upon any officer of the Corporation the power to appoint, remove
and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock, option, stock purchase, bonus or
other compensation plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and other benefit
plans for directors, officers, employees and agents of the Corporation and its
subsidiaries as it may determine; and,
(8) To adopt from time to time regulations, not inconsistent with these bylaws,
for the management of the Corporation's business and affairs.
Section 9. Compensation of Directors.
Directors, as such, may receive, pursuant to resolution of the Board of
Directors, fixed fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the
Board of Directors.
Section 7. Removal.
Any officer of the Corporation may be removed at any time, with or without
cause, by the Board of Directors.
Section 8. Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the President or any
officer of the Corporation authorized by the President shall have power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders of or with respect to any action of stockholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE V -STOCK
Section 1. Certificates of Stock.
Each stockholder shall be entitled to a certificate signed by, or in the name of
the Corporation by, the President or a Vice President, and by the Secretary or
an Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying
the number of shares owned by him or her. Any of or all the signatures on the
certificate may be facsimile.
Section 2. Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the Corporation
kept at an office of the Corporation or by transfer agents designated to
transfer shares of the stock of the Corporation. Except where a certificate is
issued in accordance with Section 4 of Article V of these bylaws, an outstanding
certificate for the number of shares involved shall be surrendered for
cancellation before a new certificate is issued therefor.
Section 3. Record Date.
The Board of Directors may fix a record date, which shall not he more than sixty
nor less than ten days before the date of any meeting of stockholders, nor more
than sixty days prior to the time for the other action hereinafter described, as
ofwhich there shall be determined the stockholders who are entitled: to notice
of or to vote at any meeting of stockholders or any adjournment thereof; to
express consent to corporate action in writing without a meeting; to receive
payment of any dividend or other distribution or allotment of any rights; or to
exercise any rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
Section 4. Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft or destruction of any certificate of stock,
another may be issued in its place pursuant to such regulations as the Board of
Directors may establish concerning proof of such loss, theft or destruction and
concerning the giving of a satisfactory bond or bonds of indemnity.
Section S. Regulations.
The issue, transfer, conversion and registration of certificates of stock shall
be governed by such other regulations as the Board of Directors may establish.
ARTICLE VI- NOTICES
Section 1. Notices.
Except as otherwise specifically provided herein or required by law, all notices
required to be given to any stockholder, director, officer, employee or agent
shall be in writing and may in every instance be effectively given by hand
delivery to the recipient thereof, by depositing such notice in the mails,
postage paid, or by sending such notice by prepaid telegram or mailgram. Any
such notice shall be addressed to such stockholder, director, officer, employee
or agent at his or her last known address as the same appears on the books of
the Corporation. The time when such notice is received, if hand delivered, or
dispatched, if delivered through the mails or by telegram or mailgram, shall be
the time of the giving of the notice.
Section 2. Waivers.
A written waiver of any notice, signed by a stockholder, director, officer,
employee or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be
given to such stockholder, director, officer, employee or agent. Neither the
business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE VII -MISCELLANEOUS
Section 1. Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these by-laws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
Section 2. Corporate Seal
The Board of Directors may provide a suitable seal, containing the name of the
Corporation, which seaJ shall be in the charge of the Secretary. If and when so
directed by the Board of Directors or a committee thereof, duplicates of the
seal may be kept and used by the Treasurer or by an Assistant Secretary or
Assistant Treasurer.
Section 3. Reliance upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance of his
duties, be fully protected in relying in good faith upon the books of account or
other records of the Corporation, including reports made to the Corporation by
any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
Section 4. Fiscal Year.
The fiscal year of the Corporation shall be as fixed by the Board of Directors.
Section S. Time Periods.
In applying any provision of these bylaws which require that an act be done or
not done a specified number of days prior to an event or that an act be done
during a period of a specified number of days prior to an event, calendar days
shall be used, the day of the doing of the act shall be excluded, and the day of
the event shall be included.
ARTICLE VIII -INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Section 1. 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 in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director, officer, [employee
or agent] of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, 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 such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA 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 2 hereof 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 shall be
a contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided, however, that,
if the Delaware General Corporation Law requires, an advancement 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 ndemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter 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 (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise.
Section 2. Right of Indemnitee to Bring Suit.
If a claim under Section 1 of this Article is not paid in full by the
Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. h (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that; the
indemnitee has not met the applicable standard of conduct set forth in the
Delaware General Corporation Law. 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
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee 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 indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
Section 3. Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses conferred in
this Article shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, the Corporation's certificate of
incorporation, bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
Section 4. Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and
any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, 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.
ARTICLE IX -AMENDMENTS
These bylaws may be amended or repealed by the Board of Directors at any meeting
or by the stockholders at any meeting.
(SEAL)
Special meeting of the Board or Directors
October 2, 1998
Subject: Amendment of the By-laws from a California Corp. to a Delaware corp.
A telecom meeting of the members of the Board was held at 9:05 PDT to amend
the by-laws to reflect that Space Systems International Corp. is a Delaware
Corp. and not a California Corporation. In conference were Benjamin
Russo---N.Y., Dennis Appet---Moscow Russia, John Papazian-San Diego, Ed
Daley---San Diego, Martin Flaherty---Los Angeles. All mebers of the Board of
Directors, John Papazian made the motion and seconded by Ed Daley the motion was
approved unanimously The special meeting was adjourned at 9:15 PDT
/s/ John Papazian
John Papazian
President, CEO, Member of the Board
Form of Consent of Stockholders
CONSENT OF STOCKHOLDERS OF
SPACE SYSTEMS INTERNATIONAL INCORPORATED
THE UNDERSIGNED stockholder, does hereby consent to the adoption of the
following resolution:
"RESOLVED, that the attached bylaws of SPACE SYSTEMS INTERNATIONAL INCORPORATED
be adopted as presented and attached hereto, which shall supercede and replace
entirely any other by-laws that SPACE SYSTEMS INTERNATIONAL INCORPORATED may
have adopted.
This written consent may be executed in one or more counterparts, each of which
shall constitute an original document, but all of which, taken together, shall
constitute one instrument.
Stockholder:
Number of Shares Owned:
DATED:
Ex. 8.1
WILLIAMS LAW GROUP, P.A.
2503 W. Gardner Ct.
Tampa FL 33611
October 6, 2000
First Enterprise Service Group, Inc.
Tampa, FL
Re: Federal Income Tax Consequences of Merger of Space Systems International,
Inc. and First Enterprise Service Group, Inc.
Gentlemen:
As special counsel to First Enterprise Service Group, Inc., a Florida
corporation ("First Enterprise Service Group"), we have been asked to advise you
concerning the anticipated federal income tax consequences of the merger
pursuant to the Agreement and Plan of Merger (the "Merger Agreement") of Space
Systems International into First Enterprise Service Group in exchange for shares
of First Enterprise Service Group's Common Stock (the "Common Stock"). The
transfer of the assets and liabilities in exchange for the Common Stock (the
"Merger") will be carried out pursuant to the Merger Agreement, as described in
the Registration Statement on Form S-4, as amended, filed by First Enterprise
Service Group, File No. 333-31072 (the "Registration Statement"). Unless
otherwise specified, all capitalized terms have the meaning assigned to them in
the Registration Statement.
In connection with the preparation of this opinion, we have examined such
documents concerning the Merger, including the Merger Agreement, as we deemed
necessary (the "Examined Documents"). In our review and examination we have
assumed, without independent investigation or examination, (a) the genuineness
of all signatures, the authenticity of all documents submitted to us, the
conformity to all original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of all such originals of
such latter documents; (b) the due execution, completion, acknowledgment and
public filing, where applicable, of any of the Examined Documents, as indicated
in such documents, and the delivery of all documents and instruments and the
consideration recited in such documents by all parties; (c) that all parties
have the necessary power and authority, corporate or otherwise, to execute and
deliver the Examined Documents, and documents attendant therewith, to which they
are a party and to perform their obligations under such documents, and that all
such actions have been duly and validly authorized by all necessary proceedings;
(d) that the Examined Documents and the documents attendant therewith,
constitute legal, valid and binding obligations to each party thereto
enforceable against each party in accordance with their respective terms, except
(i) as enforcement of such documents may be limited by applicable
bankruptcy, insolvency, reorganization, receivership,
moratorium, and other similar laws, both state and federal,
affecting the enforcement of creditors' rights or remedies in
general, from time to time in effect;
(ii) subject to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or
at law and the availability of equitable remedies; and
(iii) subject to implied covenants of good faith, fair dealing and
commercially reasonable conduct, judicial discretion and
instances of multiple or equitable remedies and applicable
public policies and laws.
In rendering our opinion, we have made the following factual assumptions:
1. The factual representations and warranties of the parties contained in
the Merger Agreement, which we may deem material to our opinion, are all true in
all respects as of the date of our opinion, except as may otherwise be set forth
in or contemplated by, any of the Examined Documents.
2. The factual representations and warranties, other than those matters
about which we specifically opine, of the parties contained in the Examined
Documents, which we may deem material to our opinion, are all true in all
respects as of the date hereof, except as may be otherwise set forth in or
contemplated by the Examined Documents.
3. The transaction contemplated by the Examined Documents and all the
transactions related thereto or contemplated thereby shall be consummated in
accordance with the terms and conditions of such documents, except as may be set
forth in and or contemplated by any closing document delivered by the parties at
the closing of the Merger.
4. Each document derived from a public authority is accurate, complete and
authentic and all official records (including their proper indexing and filing)
are accurate and complete.
5. There are no agreements or understandings among the parties, written or
oral, and there is no usage of trade or course of prior dealings among any of
the foregoing which would, in any case, define, supplement or qualify the terms
of the Examined Documents.
LIMITATIONS ON OUR OPINION
The following limitations shall apply with respect to our opinion:
1) Our opinion is based upon the various provisions of the Internal
Revenue Code of 1986, as amended, the Treasury Regulations promulgated
thereunder and the interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters as of the
date hereof, all of which are subject to change either prospectively or
retroactively. No opinion is rendered with respect to the effect, if
any, of any pending or future legislation, judicial or administrative
regulations or rulings, which may have a bearing on any of the
foregoing. We have not been asked to render an opinion with respect to
any federal income tax matters except those set forth below. Likewise,
we have not been asked to render any opinion with respect to any
foreign, local or state income tax consequences of the Merger. By
rendering our opinion, we undertake no responsibility to advise you of
any new developments in the application or interpretation of the
federal income tax laws. Accordingly, our opinion should not be
construed as applying in any manner to any aspect of the transactions
contemplated by the Examined Documents, other than as set forth below.
2) Our opinion does not consider the tax consequences of other
transactions effected prior to or after the Merger (whether or not such
transactions are consummated in connection with the Merger).
3) We have not discussed this opinion with representatives of the Internal
Revenue Service, and it is not binding on the Service. The Service is
not bound by and may not concur in the conclusions we have reached.
4) We have addressed this opinion to most of the typical shareholders of
companies such as Space Systems International. However, some special
categories of shareholders listed below will have special tax
considerations that need to be addressed by their individual tax
advisors:
o Dealers in securities
o Banks
o Insurance companies
o Foreign persons
o Tax-exempt entities
o Taxpayers holding stock as part of a conversion, straddle, hedge or
other risk reduction transaction o Taxpayers who acquired their shares
in connection with stock option or stock purchase plans or in other
compensatory transactions
5) We also do not address the tax consequences of the merger under
foreign, state or local tax laws.
6) Neither First Enterprise Service Group nor Space Systems International
has requested, or will request, a ruling from the Internal Revenue
Service, IRS, with regard to any of the federal income tax consequences
of the merger. The tax opinions will not be binding on the IRS or
preclude the IRS from adopting a contrary position.
OPINION
It is the opinion of Williams Law Group, P.A., counsel to First Enterprise
Service Group , that the merger will constitute a reorganization under Section
368(a) of the code. As a result of the merger's qualifying as a reorganization,
the following federal income tax consequences will, under currently applicable
law, result:
o No gain or loss will be recognized for federal income tax purposes by
the holders of Space Systems International common stock upon the
receipt of First Enterprise Service Group common stock solely in
exchange for Space Systems International common stock in the merger,
except to the extent that cash is received by the exercise of
dissenters' rights.
o The aggregate tax basis of the First Enterprise Service Group common
stock received by Space Systems International shareholders in the
merger will be the same as the aggregate tax basis of the Space Systems
International common stock surrendered in merger.
o The holding period of the First Enterprise Service Group common stock
received by each Space Systems International shareholder in the merger
will include the period for which the Space Systems International
common stock surrendered in merger was considered to be held, provided
that the Space Systems International common stock so surrendered is
held as a capital asset at the closing of the merger.
o A holder of Space Systems International common stock who exercises
dissenters' rights for the Space Systems International common stock and
receives a cash payment for the shares generally will recognize capital
gain or loss, if the share was held as a capital asset at the closing
of the merger, measured by the difference between the shareholder's
basis in the share and the amount of cash received, provided that the
payment is not essentially equivalent to a dividend within the meaning
of Section 302 of the code or does not have the effect of a
distribution of a dividend within the meaning of Section 356(a)(2) of
the code after giving effect to the constructive ownership rules of the
code.
o Neither First Enterprise Service Group nor Space Systems International
will recognize gain solely as a result of the merger.
o There is a continuity of interest for IRS purposes with respect to the
business of Space Systems International. This is because shareholders
of Space Systems International have represented to us that they will
not, under a plan or intent existing at or prior to the closing of the
merger of the merger, dispose of so much of their Space Systems
International common stock in anticipation of the merger, plus the
First Enterprise Service Group ommon stock received in the merger that
the Space Systems International shareholders, as a group, would no
longer have a significant equity interest in the Space Systems
International business being conducted by First Enterprise Service
Group after the merger. Our opinion is based upon IRS ruling guidelines
that require eighty percent continuity, although the guidelines do not
purport to represent the applicable substantive law.
A successful IRS challenge to the reorganization status of the merger would
result in significant tax consequences. For example,
o Space Systems International would recognize a corporate level gain
or loss on the deemed sale of all of its assets equal to the
difference between
o the sum of the fair market value, as of the closing of the
merger, of the First Enterprise Service Group common stock
issued in the merger plus the amount of the liabilities of
Space Systems International assumed by First Enterprise
Service Group
and
o Space Systems International's basis in the assets
o Space Systems International shareholders would recognize gain or
loss with respect to each share of Space Systems International
common stock surrendered equal to the difference between the
shareholder's basis in the share and the fair market value, as of
the closing of the merger, of the First Enterprise Service Group
common stock received in merger therefore.
In this event, a shareholder's aggregate basis in the First Enterprise Service
Group common stock so received would equal its fair market value and the
shareholder's holding period for this stock would begin the day after the merger
is consummated.
Even if the merger qualifies as a reorganization, a recipient of First
Enterprise Service Group common stock would recognize income to the extent if,
among other reasons any shares were determined to have been received in merger
for services, to satisfy obligations or in consideration for anything other than
the Space Systems International common stock surrendered. Generally, income is
taxable as ordinary income upon receipt. In addition, to the extent that Space
Systems International shareholders were treated as receiving, directly or
indirectly, consideration other than First Enterprise Service Group common stock
in merger for Space Systems International's shareholder's common stock, gain or
loss would have to be recognized.
Sincerely,
Michael T. Williams, Esq.
Ex.10.2
Number of Common Shares: 500,000
Date of Grant: November 20, 1999
STOCK OPTION affective November: 20, 1999, between ITR
MARKETING INC. (the "Optionee") and SPACE SYSTEMS INTERNATIONAL
CORP. (the "Grantor") .
1. Grant of Option. The Grantor hereby qrants to the Optionee, subject to the
terms and conditions set forth or incorporated herein, an Option to purchase
from the Grantor 500,000 shares of the Common Shares of Space Systems
Intenrnational Corp., $.0001 par value per share, as such Common Shares are now
constituted, at the exercise price of .50 share, equal to an aggregate of
$250,000.
2. Exercise Period. The Option granted hereby shall be
exercisable for a period of twelve months from tha date that the
common stock of the Grnntor is publicly traded or December 31,
2009, whichever first occus.
3. Exercise. The Option shall be exercisable in whole or in part at any time and
from time to time during the term of the Option by written notice delivered to
the Secretary of the company at its offices at 11440 West Bernardo Court, San
Diego, CA 92121. The notice shall state the number of shares with respect to
which the Option is being exercised, shall be signed by the Optionee and shall
be accompanied by payment. The Option shall not be exrciercised at any time when
its exercise or the delivery of the shares referred to in the notice would, in
the optnion of the Company, be a violation of any law, qovernmental requlation
or ruling. The option shall be exercisable only by Optionee. Any election to
exercise this Grant shall be for increments of 10,000 Shares at a time and not
for any lessar amounts.
4 Securities to be Unregistered. Unless registered, both the Option and the
shares covered by the Option shall be "restricted securities" as defined in Ru1e
144 of the General Rules and Regulations under the Securities Act of 1933 (the
"Act"), and may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of which is to be
establiahed to the satisfaction of the Company. Accordinqly, all certificates
evidencing shares
-1-
Ex. 10.3
Number of Common Shares: 500,000
Date of Grant: October 15, 1999
STOCK OPTION
STOCK OPTION effective October 15, 1999, between EVAN CAPITAL (the 'Optionee")
and SPACE SYSTEMS INTERNATIONAL CORP. (the "Grantor).
1. Grant of Option. The Grantor hereby grants to the Optionee, subject to the
terms and conditions set forth or incorporated herein, an Option to purchase
from the Grantor 500,000 shares of the Common Shares of Space Systems
International Corp., $.0001 par value per share, as such Common Shares are now
constituted, at the exercise price of $.50 share, equal to an aggregate of
$250,000.
2. Exercise Period. The Option granted hereby shall be exercisable for a period
of twelve months from the date that the common stock of the Grantor is publicly
traded or December 31, 2009, whichever first occurs.
3. Exercise. The Option shall be exercisable in whole or in part at any time and
from time to time during the term of the Option by written notice delivered to
the Secretary of the Company at its offices at 11440 West Bernardo Court, San
Diego, CA 92127. The notice shall state the number of shares with respect to
which the Option is being exercised, shall be signed by the Optionee and shall
be accompanied by payment. The Option shall not be exercised at any time when
its exercise or the delivery of the shares referred to in the notice would, in
the opinion of the Company, be a violation of any law, governmental regulation
or ruling. The option shall be exercisable only by Optionee. Any election to
exercise this Grant shall be for increments of 10,000 Shares at a time and not
for any lesser amounts.
4. Securities to be unregistered. Unless registered, both the Option and the
shares covered by the Option shall be "restricted securities" as defined in Rule
144 of the General Rules and Regulations under the Securities Act of 1933 (the
"Act"), and may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of the Company. Accordingly, all certificates
evidencing shares
-1-
covered by the Option, and any securities issued in replacement or exchange
therefore shall bear a restrictive legend to this effect unless the option and
any underlying shares have been registered.
5. Assignment and Transfer. The Option and the rights and obligations of the
parties hereunder shall inure to the benefit of and shall be binding upon their
successors and assigns; but in no event may the Option be exercised subsequent
to December 31, 2009.
6. Optionee as Shareholder. Optionee shall have all rights as a shareholder with
respect to the shares covered by the option on and subsequent to the date of the
issuance of a stock certificate or stock certificates to it. Adjustment will be
made for dividends or other rights with respect to which the record date is on
or subsequent to the date such stock certificate or certificates is issued.
7. Adjustment for changes in Capital Structure. In the event of a change in the
capital structure of the Company as a result of any stock dividend, stock split,
combination or reclassification of shares covered by the Option, the shares of
Directors, whose determination shall be final.
8. Notices. All notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by registered or
certified mail to the principal office of each party.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
SPACE SYSTEMS INTERNATIONAL CORP.
By: /s/ John Papazian
John Papazian
President
Ex.10.4
Number of Common Shares: 500,000
Date 0f Grant: November 20, 1999
STOCK OPTION
STOCK OPTION effective November 20, 1999, between NOVAK GRAPHICS LTD. (the
"Optionee") and SPACE SYSTEMS INTERNATIONAL CORP. (the '"Grantor").
1. Grant of Option. The Grantor hereby grants to the Optionee, subject to the
terms and conditions set forth or incorporated herein, an Option to purchase
from the Grantor 5001000 shares of the Common Shares of Space Systems
International Corp., $.0001 par value per share, as such Common Shares are now
constituted, at the exercise price of $.50 share, equal to an aggregate of
$250,000.
2. Exercise Period. The Option granted hereby shall be exercisable for a period
of twelve months from the date that the common stock of the Grantor is publicly
traded or December 31, 2009, whichever first occurs.
3. Exercise. The Option shall be exercisable in whole or in part at any time and
from time to time during the term of the Option by written notice delivered to
the Secretary of the Company at its offices at 11440 West Bernardo Court, San
Diego, CA 92127. The notice shall state the number of shares with respect to
which the Option is being exercised, shall be signed by the Optionee and shall
be accompanied by payment. The Option shall not be exercised at any time when
its exercise or the delivery 0(pound) the shares referred to in the notice
would, in the opinion of the Company, be a violation of any law, governmental
regulation or ruling. The option shall be exercisable only by Optionee. Any
election to exercise this Grant shall be for increments of 10,000 Shares at a
time and not for any lesser amounts.
4. Securities to be Unregistered. Unless registered, both the Option and the
shares covered by the Option shall be "restricted securities" as defined in Rule
144 of the General Rules and Regulations under the Securities Act of 1933 (the
"Act") , and may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of the Company. Accordingly, all certificates
evidencing shares
-1-
covered by the Option, and any securities issued in replacement or exchange
therefore shall bear a restrictive legend to this effect unless the option and
any underlying shares have been registered.
5. Assignment and Transfer. The Option and the rights and obligations of the
parties hereunder shall inure to the benefit of and shall be binding upon their
successors and assigns; but in no event may the Option be exercised subsequent
to December 31, 2009.
6. Optionee as Shareholder. Optionee shall have all rights as a shareholder with
respect to the shares covered by the option on and subsequent to the date of the
issuance of a stock certificate or stock certificates to it. Adjustment will be
made for dividends or other rights with respect to which the record date is on
or subsequent to the date such stock certificate or certificates is issued.
7. Adjustment for changes in Capital Structure. In the event of a change in the
capital structure of the Company as a result of any stock dividend, stock split,
combination or reclassification of shares covered by the Option, the shares of
Directors, whose determination shall be final.
8. Notices. All notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by registered or
certified mail to the principal office of each party.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
SPACE SYSTEMS INTERNATIONAL CORP.
By: /s/ John Papazian
John Papazian
President
Ex. 10.5
Number 0f Common Shares: 750,000
Date 0f Grant: December 10, 1999
STOCK OPTION
STOCK OPTION effective December 10, 1999, between LARIX
INTERNATIONAL LTD. (the "Optionee") and SPACE SYSTEMS INTERNATIONAL
CORP. (the "Grantor").
1. Grant of Option. The Grantor hereby grants to the Optionee, subject to the
terms and conditions set forth or incorporated herein, an Option to purchase
from the Grantor 750,000 shares of the Common Shares of Space Systems
International Corp., $.0001 par value per share, as such Common Shares are now
constituted, at the exercise price of $.50 share, equal to an aggregate of
$375,000.
2. Exercise Period. The Option granted hereby shall be exercisable for a period
of twelve months from the date that the common stock of the Grantor is publicly
traded or December 31, 2009, whichever first occurs.
3. Exercise. The Option shall be exercisable in whole or in part at any time and
from time to time during the term of the Option by written notice delivered to
the Secretary of the Company at its offices at 11440 West Bernardo Court, San
Diego, CA 92127. The notice shall state the number of shares with respect to
which the Option is being exercised, shall be signed by the Optionee and shall
be accompanied by payment. The Option shall not be exercised at any time when
its exercise or the delivery of the shares referred to in the notice would, in
the opinion of the Company, be a violation of any law, governmental regulation
or ruling. The option shall be exercisable only by Optionee. Any election to
exercise this Grant shall be for increments of 10,000 Shares at a time and not
for any lesser amounts.
4. Securities to be Unregistered. Unless registered, both the Option and the
shares covered by the Option shall be "restricted securities" as defined in Rule
144 of the General Rules and Regulations under the Securities Act of 1933 (the
"Act"), and may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of the Company. Accordingly, all certificates
evidencing shares
-1-
covered by the Option, and any securities issued in replacement or exchange
therefore shall bear a restrictive legend to this effect unless the option and
any underlying shares have been registered.
5. Assignment and Transfer. The Option and the rights and obligations of the
parties hereunder shall inure to the benefit of and shall be binding upon their
successors and assigns; but in no event may the Option be exercised subsequent
to December 31, 2009.
6. Optionee as Shareholder. Optionee shall have all rights as a shareholder with
respect to the shares covered by the option on and subsequent to the date of the
issuance of a stock certificate or stock certificates to it. Adjustment will be
made for dividends or other rights with respect to which the record date is on
or subsequent to the date such stock certificate or certificates is issued.
7. Adjustment for changes in Capital Structure. In the event of a change in the
capital structure of the Company as a result of any stock dividend, stock split,
combination or reclassification of shares covered by the Option, the shares of
Directors, whose determination shall be final.
8. Notices. All notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered or sent by registered or
certified mail to the principal office of each party.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
SPACE SYSTEMS INTERNATIONAL CORP.
By: /s/ John Papazian
John Papazian
President
Ex. 10.7
Amendment No. One (I)
INDEPENDENT CONTRACTOR AGREEMENT
This Amendment to the Independent Contractor Agreement (the " Amendment") is
entered into as of May 6, 1999 (the "Effective Date") by and between QUALCOMM
Global Services, Inc., a California corporation, with a place of business at San
Diego, California (hereinafter "QUALCOMM") and Space Systems International
Corporation, a Delaware corporation with a place of business at 11440 W.
Bernardo Court, Suite 300, San Diego, California 92127-9788 (hereinafter
"Independent Contractor"), amends certain provisions of the Independent
Contractor Agreement (the " Agreement") dated January 5, 1999 with regard to the
following facts:
A. Independent Contractor and QUALCOMM have begun performance under the
Agreement and its Exhibits.
B. QUALCOMM Incorporated has sold, assigned, transferred, conveyed and set over
to QUALCOMM Global Services, Inc. all of QUALCOMM Incorporated's right, title
and interest in and to, and QUALCOMM Global Services Inc. assumes all of
QUALCOMM Incorporated's obligations under the Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the
receipt and sufficiency of which is hereby acknowledged, QUALCOMM and
Independent Contractor agree as follows:
1. QUALCOMM Global Services, Inc. shall assume the rights and obligations
currently under QUALCOMM Incorporated. Where "QUALCOMM" had previously been
designated in the Agreement to mean QUALCOMM Incorporated, shall now be
designated to mean QUALCOMM Global Services, Inc.
All other terms and conditions of the Agreement which are not expressly modified
or amended by this Amendment remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly
executed as of the day and year first above written.
QUALCOMM Global Services, Inc. Space Systems International Corporation
By: /s/ M. Terrell Colvin By: /s/ Ed Daley
Name: M. Terrell Colvin Name: Ed Daley
Title: Subcontracts Manager Title: Chief Financial Officer
AMENDMENT NO. TWO (2)
INDEPENDENT CONTRACTOR AGREEMENT
This Amendment to the Independent Contractor Agreement (the " Amendment") is
entered into as of May 7, 1999 between QUALCOMM Global Services, Inc, a
California corporation with a place of business at San Diego, California
(hereinafter "QUALCOMM"), and Space Systems International Corporation, a
Delaware corporation, with a place of business at 11440 W. Bernardo Court, Suite
300, San Diego, California 92127-9788 (hereinafter "Independent Contractor"),
amends certain provisions of the Independent Contractor (the " Agreement") dated
January 5, 1999 with regard to the following facts::
1. Section 2. Compensation, a. Payment. is modified to read:
a. Payment. QUALCOMM shall compensate Independent Contractor for the
Services in accordance with Exhibit B. All pricing items are "Not-To-Exceed" in
value. Independent Contractor must advise QUALCOMM's Subcontracts Manager upon
reaching seventy-five percent (75%) expenditure. Should Independent Contractor
exceed the Not-To-Exceed value, such costs will be borne at Independent
contractor's sole expense.
2. Section 5. Term. is modified as follows:
a. Delete the title "Term" and substitute "Term and Termination" in lieu
thereof.
b. Designate the first paragraph as paragraph "a. Term".
c. Add paragraphs 5b. Termination for Convenience, 5c. Termination for
Default, 5d. Rights Upon Termination and 5e. Stop Work Order as
follows:
5b. Termination for Convenience. QUALCOMM may terminate this
Agreement or any portion of this Agreement at any time, effective upon delivery
of written notice thereof (the "Termination Notice") to Independent Contractor.
Upon any such termination QUALCOMM's sole and exclusive liability to Independent
Contractor shall be to pay to Independent Contractor the prices specified in
this Agreement for any Services which have been performed for QUALCOMM, to the
extent not previously paid. Any request by Independent Contractor for
termination charges shall be deemed waived if not asserted within twenty (20)
business days after the date of the Termination Notice.
5c. Termination for Default. QUALCOMM may terminate this Agreement or any
portion of this Agreement immediately upon written notice to Independent
Contractor, if Independent Contractor: (i) fails to make adequate progress to
complete the Services required in accordance with Exhibit A or does not complete
the Services in accordance with the documentation applicable to such Services,
(ii) fails to act promptly upon receipt of QUALCOMM's request for Services,
(iii)
-1-
fails to utilize QUALCOMM approved personnel. Independent Contractor or
QUALCOMM may terminate this Agreement upon written notice to the other
party if (a) the other party files or has filed against it any proceeding in
bankruptcy or insolvency, (b) makes a general assignment for the benefit of
creditors, or (c) otherwise fails to comply in any other respect. other than
(i)-(iii), with the terms and conditions of this Agreement within thirty (30)
days after the date of written notice of such non-compliance.
5d. Rights Upon Termination. Any and all Services to be performed pursuant to
this Agreement shall cease immediately upon any expiration or termination of
this Agreement. Independent Contractor shall mitigate its damages upon receipt
of any termination notice. QUALCOMM shall be liable to Independent Contractor
for equitable and mutually agreeable compensation for Independent Contractor's
direct and indirect cost of labor, materials and expenses which Independent
Contractor shall not have been able to reasonably mitigate. Upon any such
expiration or termination of this Agreement, Supplier shall immediately deliver
to QUALCOMM all Deliverables as described in the SOW in whatever their current
state of production. fu addition, upon termination or expiration, Independent
Contractor shall return to QUALCOMM, or destroy and provide written
certification of its destruction to QUALCOMM, all proprietary and confidential
infomlation received from QUALCOMM.
5e. Stop Work Order. QUALCOMM shall have the right at any time during the
performance of Services to direct Independent Contractor, in writing. to
temporarily stop all or portions of the Services covered by this Agreement (such
direction is referred to herein as a "Stop Work Order"). Upon receipt of any
Stop Work Order Independent Contractor will immediately stop all activities to
the extent specified in the Stop Work Order and will take all reasonable steps
to minimize the occurrence of costs allocable to the Services covered by the
Stop Work Order. If QUALCOMM exercises this right. the length of a Stop Work
Order shall be for a maximum duration of twenty-six (26) weeks (the "Stop Work
Period"). Prior to the conclusion of the Stop Work Period, QUALCOMM may either
(1) direct Independent Contractor to resume all or part of the Services to which
the Stop Work Order applied. or (2) terminate the whole Agreement, or the
portion of the Services to which the Stop Work Order applied pursuant to
Termination for Convenience, or (3) request Independent Contractor to accept a
further delay in the performance of the Services to which the Stop Work Order
applied. fu the event of a Stop Work Order, QUALCOMM shall be liable to
Independent Contractor for equitable and mutually agreeable compensation for
Independent Contractor's direct and indirect cost of labor, materials and
expenses which Independent Contractor shall not have been able to reasonably
mitigate. QUALCOMM shall have the right to direct Independent Contractor to
resume Services at any time during the Stop Work Period. In the event QUALCOMM
-2-
orders Independent Contractor, in writing, to resume Services, Independent
Contractor shall receive an equitable adjustment in the price, delivery schedule
and other affected provisions of this Agreement.
3. Add Section 14.h. Responsibility for OUALCOMM Equipment as follows:
h. Responsibility for QUALCOMM Equipment. All property and equipment, including
software, which is furnished to Independent Contractor by QUALCOMM for
performance of Services under this Agreement shall be and remain the property of
QUALCOMM, and title to such property shall not be affected by incorporation or
attachment to any other property. All property and equipment furnished or
consigned to Independent Contractor by QUALCOMM under this Agreement, shall be
kept and maintained in first class condition and replaced to the extent
necessary for performance under this Agreement. Such property shall be used by
Independent Contractor only in the performance of this Agreement or as may
otherwise be authorized in writing by QUALCOMM, and shall remain the property of
QUALCOMM. When instructed by QUALCOMM, Independent Contractor shall hand deliver
the property covered by this Section to QUALCOMM. at the completion or
termination of this Agreement, or shall make such other disposition F.O.B.
destination as QUALCOMM may direct. Independent Contractor shall bear the risk
of loss or destruction of and damage to property covered by this Section until
delivered or returned to QUALCOMM. Independent Contractor shall deliver or
return such property in the same condition as when manufactured, acquired or
received. except for reasonable wear for utilization thereof in accordance with
the term s of this Agreement.
4. Modify Exhibit A. Independent Contractor Services Statement of Work as
attached.
5. Modify Exhibit B. Compensation and Reimbursement as attached.
All other terms and conditions of the Agreement which are not expressly modified
or amended by this Amendment remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of
the date first above written.
QUALCOMM Global Services Space Systems International Corporation
By: /s/ M. Terrell Colvin By: /s/ Ed Daley
Name: M. Terrell Colvin Name: Ed Daley
Title: Subcontracts Manager Title: Chief Financial Officer
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Exhibit A
Independent Contractor Services
Statement of Work
Les Bender, John Castro or their appointee of QUALCOMM will be Independent
Contractor's Point of Contact (POC) and will provide all technical direction
under the Agreement. Best commercial practices will be used.
Such tasks may include but are not limited to:
1.0 Independent Contractor shall provide Management and System Integration
services for the deployment of QUALCOMM's wireless infrastructure products.
These services include but not limited to: 1.1 Coordinate with the Business
Development and Project Management Departments to generate project plans,
schedules and cost estimates for assigned markets. 1.2 Perform and lead system
level network design activities and complete product questionnaires for the
purpose of configuring QUALCOMM's wireless infrastructure for assigned markets.
1.3 Manage deployment teams in San Diego and at QUALCOMM's customer/partner
locations as directed by the POC.
1.4 Coordinate with logistics teams for the delivery of equipment and
documentation as specified by the POC.
1.5 Travel to customer/partner locations as agreed to with the POC.
1.6 RF Network Planning and System Design.
1.7 Network hardware installation.
1.8 Hardware/software commissioning.
1.9 Acceptance testing and commercial launch of deployed networks.
1.10 Network operations and maintenance support.
1.11 Hotline support and technical interface to San Diego.
1.12 Deployment coordination and customer interface.
2.0 Communications: Independent Contractor shall be available for discussions
and meetings at QUALCOMM's principle place of work as required. Independent
Contractor shall be available to exchange informatio n and for telephone
conferences during the entire workweek if not physically at QUALCOMM facilities.
-4-
3.0 Deliverables: Independent Contractor shall generate documents as required by
the POC. The documents shall be informally submitted and include but not limited
to:
3.1 Project Plans
3.2 Project Schedules
3.3 Manpower estimates and project loading
3.4 BSC and BTS configuration questionnaires
3.5 Letters to customers/partners
3.6 A report submittedwith the invoice summarizing activities perfol1l1ed
during the previous month
-5-
Exhibit B
Compensation and Reimbursement
Independent Contractor will provide personnel to support the project, upon prior
written approval from QUALCOMM, in accordance with the following personnel
categories and rates. Independent Contractor personnel will support the project
as necessary and not less than 40 hours of Services per week, with the exception
that driver and translator personnel are on an "as required" basis only. All
rates are all inclusive and include, but are not limited to, labor supervision,
office space, foreign and domestic taxes, fees, duties, applicable laws,
overhead, general and administrative costs, profit and all items associated with
payment to Independent Contractor under the Agreement. All rates are in U .S.
dollars ($).
1. Project Manager:
Labor cost for 1 year: 2080 hrs x $75.00/hr. = $156,000.00
Travel Expenses: 6 trips x $10.000.00/trip = $ 60,000.00
TOTAL NOT -TO-EXCEED $216,000.00
2. Russian Labor:
Category Hourly Rate Weekly Rate
Lead Field Engineer-LFE $72.18 $2887.20
Site Manager-SM1 $59.54 $2381.60
Site Manager-SM2 $30.70 $1228.00
Network Planner-NP $36.10 $1444.00
Field Engineer 1-FEl $50.04 $2001.60
Field Engineer 2-FE2 $30.93 $1237.20
Driver w/Foreign Car-DRF * $19.04 $761.60
Driver w/Russian Car-DRR * $16.99 $679.60
Translator- TR * $8.58 $343.20
TOTAL NOT-TO-EXCEED $900.000.00
(Weekly Rates shall apply with the exception of * Category Personnel)
-6-
3. Expenses:
Prior written approval from QUALCOMM is mandatory for all travel or other
expenses required in performance of Services by Independent Contractor
personnel. Travel and associated expenses are only applicable for Independent
Contractor personnel traveling outside of Independent Contractor personnel' s
assigned location. Should prior written approval not be obtained, such cost may
be borne by Independent Contractor. Travel expenses will be reimbursed to
Independent Contractor at actual costs. Expenses must be confirmed by original
receipts, or legible copies, attached to each invoice.
Lodging will be reimbursed to Independent Contractor at actual costs not to
exceed the US State Department Lodging Rate schedule for the month and city in
which the expense occurs. Expenses must be confirmed by original receipts, or
legible copies, attached to each invoice.
Meals and Incidental Expenses (M&IEs) will be reimbursed to Independent
Contractor at actual costs not to exceed the US State Department M&IE Rate for
the month and city in which the expense occurs. Expenses must be confirmed by
original receipts, or legible copies, attached to each invoice.
Expenses, incurred other than in U .S. Dollars ($) will be converted to US
dollars ($) at the exchange rate in effect on the date of each invoice period
incurring such expense. The exchange rate used will be the published rate of
Citibank.
-7-
Ex. 10.14
ss.262. Appraisal rights.
(a) Any stockholder of a corporation of this State who holds shares of stock on
the date of the making of a demand pursuant to subsection (d) of this section
with respect to such shares, who continuously holds such shares through the
effective date of the merger or consolidation, who has otherwise complied with
subsection (d) of this section and who has neither voted in favor of the merger
or consolidation nor consented thereto in writing pursuant to ss. 228 of this
title shall be entitled to an appraisal by the Court of Chancery of the fair
value of the stockholder's shares of stock under the circumstances described in
subsections (b) and (c) of this section. As used in this section, the word
"stockholder" means a holder of record of stock in a stock corporation and also
a member of record of a nonstock corporation; the words "stock" and "share" mean
and include what is ordinarily meant by those words and also membership or
membership interest of a member of a nonstock corporation; and the words
"depository receipt" mean a receipt or other instrument issued by a depository
representing an interest in one or more shares, or fractions thereof, solely of
stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or series of
stock of a constituent corporation in a merger or consolidation to be effected
pursuant to ss. 251 (other than a merger effected pursuant to ss. 251(g) of this
title), ss. 252, ss. 254, ss. 257, ss. 258, ss. 263 or ss. 264 of this title:
(1) Provided, however, that no appraisal rights under this section shall be
available for the shares of any class or series of stock, which stock, or
depository receipts in respect thereof, at the record date fixed to determine
the stockholders entitled to receive notice of and to vote at the meeting of
stockholders to act upon the agreement of merger or consolidation, were either
(i) listed on a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or (ii) held of record by more than 2,000 holders;
and further provided that no appraisal rights shall be available for any shares
of stock of the constituent corporation surviving a merger if the merger did not
require for its approval the vote of the stockholders of the surviving
corporation as provided in subsection (f) of ss. 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights under
this section shall be available for the shares of any class or series of stock
of a constituent corporation if the holders thereof are required by the terms of
an agreement of merger or consolidation pursuant to ss.ss. 251, 252, 254, 257,
258, 263 and 264 of this title to accept for such stock anything except:
a. Shares of stock of the corporation surviving or resulting from such merger or
consolidation, or depository receipts in respect thereof; b. Shares of stock of
any other corporation, or depository receipts in respect thereof, which shares
of stock (or depository receipts in respect thereof) or depository receipts at
the effective date of the merger or consolidation will be either listed on a
national securities exchange or designated as a national market system security
on an interdealer quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 holders; c. Cash in lieu of
fractional shares or fractional depository receipts described in the foregoing
subparagraphs a. and b. of this paragraph; or d. Any combination of the shares
of stock, depository receipts and cash in lieu of fractional shares or
fractional depository receipts described in the foregoing subparagraphs a., b.
and c. of this paragraph. (3) In the event all of the stock of a subsidiary
Delaware corporation party to a merger effected under ss. 253 of this title is
not owned by the parent corporation immediately prior to the merger, appraisal
rights shall be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows: (1) If a proposed merger or
consolidation for which appraisal rights are provided under this section is to
be submitted for approval at a meeting of stockholders, the corporation, not
less than 20 days prior to the meeting, shall notify each of its stockholders
who was such on the record date for such meeting with respect to shares for
which appraisal rights are available pursuant to subsection (b) or (c) hereof
that appraisal rights are available for any or all of the shares of the
constituent corporations, and shall include in such notice a copy of this
section. Each stockholder electing to demand the appraisal of such stockholder's
shares shall deliver to the corporation, before the taking of the vote on the
merger or consolidation, a written demand for appraisal of such stockholder's
shares. Such demand will be sufficient if it reasonably informs the corporation
of the identity of the stockholder and that the stockholder intends thereby to
demand the appraisal of such stockholder's shares. A proxy or vote against the
merger or consolidation shall not constitute such a demand. A stockholder
electing to take such action must do so by a separate written demand as herein
provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become effective;
or (2) If the merger or consolidation was approved pursuant to ss. 228 or ss.
253 of this title, each consitutent corporation, either before the effective
date of the merger or consolidation or within ten days thereafter, shall notify
each of the holders of any class or series of stock of such constitutent
corporation who are entitled to appraisal rights of the approval of the merger
or consolidation and that appraisal rights are available for any or all shares
of such class or series of stock of such constituent corporation, and shall
include in such notice a copy of this section; provided that, if the notice is
given on or after the effective date of the merger or consolidation, such notice
shall be given by the surviving or resulting corporation to all such holders of
any class or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective date
of the merger or consolidation, shall, also notify such stockholders of the
effective date of the merger or consolidation. Any stockholder entitled to
appraisal rights may, within 20 days after the date of mailing of such notice,
demand in writing from the surviving or resulting corporation the appraisal of
such holder's shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of such holder's shares. If such notice
did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constitutent corporation shall send a second
notice before the effective date of the merger or consolidation notifying each
of the holders of any class or series of stock of such constitutent corporation
that are entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send such a
second notice to all such holders on or within 10 days after such effective
date; provided, however, that if such second notice is sent more than 20 days
following the sending of the first notice, such second notice need only be sent
to each stockholder who is entitled to appraisal rights and who has demanded
appraisal of such holder's shares in accordance with this subsection. An
affidavit of the secretary or assistant secretary or of the transfer agent of
the corporation that is required to give either notice that such notice has been
given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. For purposes of determining the stockholders entitled to receive
either notice, each constitutent corporation may fix, in advance, a record date
that shall be not more than 10 days prior to the date the notice is given,
provided, that if the notice is given on or after the effective date of the
merger or consolidation, the record date shall be such effective date. If no
record date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the day on
which the notice is given.
(e) Within 120 days after the effective date of the merger or consolidation, the
surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) hereof and who is otherwise entitled to appraisal
rights, may file a petition in the Court of Chancery demanding a determination
of the value of the stock of all such stockholders. Notwithstanding the
foregoing, at any time within 60 days after the effective date of the merger or
consolidation, any stockholder shall have the right to withdraw such
stockholder's demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not voted
in favor of the merger or consolidation and with respect to which demands for
appraisal have been received and the aggregate number of holders of such shares.
Such written statement shall be mailed to the stockholder within 10 days after
such stockholder's written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in Chancery
in which the petition was filed a duly verified list containing the names and
addresses of all stockholders who have demanded payment for their shares and
with whom agreements as to the value of their shares have not been reached by
the surviving or resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be accompanied by such a
duly verified list. The Register in Chancery, if so ordered by the Court, shall
give notice of the time and place fixed for the hearing of such petition by
registered or certified mail to the surviving or resulting corporation and to
the stockholders shown on the list at the addresses therein stated. Such notice
shall also be given by 1 or more publications at least 1 week before the day of
the hearing, in a newspaper of general circulation published in the City of
Wilmington, Delaware or such publication as the Court deems advisable. The forms
of the notices by mail and by publication shall be approved by the Court, and
the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the stockholders
who have complied with this section and who have become entitled to appraisal
rights. The Court may require the stockholders who have demanded an appraisal
for their shares and who hold stock represented by certificates to submit their
certificates of stock to the Register in Chancery for notation thereon of the
pendency of the appraisal proceedings; and if any stockholder fails to comply
with such direction, the Court may dismiss the proceedings as to such
stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted
such stockholder's certificates of stock to the Register in Chancery, if such is
required, may participate fully in all proceedings until it is finally
determined that such stockholder is not entitled to appraisal rights under this
section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state. (j) The
costs of the proceeding may be determined by the Court and taxed upon the
parties as the Court deems equitable in the circumstances. Upon application of a
stockholder, the Court may order all or a portion of the expenses incurred by
any stockholder in connection with the appraisal proceeding, including, without
limitation, reasonable attorney's fees and the fees and expenses of experts, to
be charged pro rata against the value of all the shares entitled to an
appraisal. (k) From and after the effective date of the merger or consolidation,
no stockholder who has demanded appraisal rights as provided in subsection (d)
of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation); provided,
however, that if no petition for an appraisal shall be filed within the time
provided in subsection (e) of this section, or if such stockholder shall deliver
to the surviving or resulting corporation a written withdrawal of such
stockholder's demand for an appraisal and an acceptance of the merger or
consolidation, either within 60 days after the effective date of the merger or
consolidation as provided in subsection (e) of this section or thereafter with
the written approval of the corporation, then the right of such stockholder to
an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding
in the Court of Chancery shall be dismissed as to any stockholder without the
approval of the Court, and such approval may be conditioned upon such terms as
the Court deems just. (l) The shares of the surviving or resulting corporation
to which the shares of such objecting stockholders would have been converted had
they assented to the merger or consolidation shall have the status of authorized
and unissued shares of the surviving or resulting corporation.
EX 10.15
Resales Representatives
All representatives listed are obligated to represent the corporation in the
resales of our product line. In this capacity they will be paid a commission.
All individuals were recommended to the corporation through business contacts.
All relationships are as resale representatives.
The following sales agent represent the company in these 21 country's. The U.S.
is covered by Corporate Officers Dennis Appel and John Papazian.
Arthor Low Taiwan
Ted Vorachard Thailand, Malaysia, Singapore
Ara Prestayo Indonesia
Carlos Abohassen Turkey, Greece, Isreal, Venezuela, Brazil, Agrentina
Omar Barayan Saudi Arabia, Egypt and Kuwait
Leslie J. Martinkovics Hungry, Germany
Victor Arhipov Russia, Ukraine
Barry berman Canada
Manual Angolo Jerez Spain
Grace Wn China
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Tampa, State of Florida,
on October 13, 2000 .
FIRST ENTERPRISE SERVICE GROUP, INC.
By: /s/ MICHAEL T. WILLIAMS.
President and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
/s/ Michael Williams President and Treasurer October 13, 2000
