<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF
SMALL BUSINESS ISSUERS
UNDER SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
SWISS ACQUISITION CORP.
(Name of Small Business Issuer in its charter)
Delaware 33-0846321
--------------------------------------- ------------------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
360 N. Sepulveda Boulevard, Suite 3050
El Segundo, California 90245
--------------------------------------- ------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
ISSUER'S TELEPHONE NUMBER, INCLUDING AREA CODE
(310) 524-0111
SECURITIES TO BE REGISTERED UNDER SECTION 12(b) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
None N/A
--------------------------------------- ------------------------
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Common Stock, $.001 par value
- ----------------------------------------------------------------------------
(TITLE OF CLASS)
<PAGE>
- ----------------------------------------------------------------------------
TABLE OF CONTENTS
- ----------------------------------------------------------------------------
<TABLE>
<CAPTION>
Item Number and Caption Page
- ----------------------- ----
PART I
- -------
<S> <C> <C>
1. Description of Business 2
2. Management's Discussion and Analysis or Plan of Operation 6
3. Description of Property 6
4. Security Ownership of Certain Beneficial Owners and Management 7
5. Directors, Executive Officer, Promoters and Control Persons 8
6. Executive Compensation 9
7. Certain Relationships and Related Transactions 10
8. Description of Securities 10
PART II
- -------
1. Market Price of and Dividends on the Registrant's Common Equity
and Other Shareholder Matters 10
2. Legal Proceedings 11
3. Changes in and Disagreements with Accountants 11
4. Recent Sales of Unregistered Securities 11
5. Indemnification of Directors and Officers 11
6. Financial Statements 15
PART III
- --------
1. Index to Exhibits 24
</TABLE>
<PAGE>
PART 1
- ------
ITEM 1. DESCRIPTION OF BUSINESS
Swiss Acquisition Corp., a Delaware corporation (the
"Company"), was incorporated on April 28, 1997. The Company's administrative
offices are located at 360 N. Sepulveda Boulevard, Suite 3050, El Segundo,
California 90245; telephone (310) 524-0111. The Company is newly formed, has
not yet engaged in business and has had no revenues. To date, the Company's
activities have been its organization and the preparation of this
Registration Statement. The Company plans to attempt to acquire an equity
interest in or assets of an operating business to be thereafter operated by
the Company or a subsidiary of the Company.
GENERAL
The Company was organized in April 1997 for the purpose of listing
its securities on an electronic stock exchange and then acquiring an interest
in a suitable operating business, which may include assets or shares of
another entity to be acquired by the Company directly or through a
subsidiary. The Company is newly formed and has no assets, revenues or
operations. The Company and companies of this sort are commonly referred to
as "public shell corporations" and the transactions through which public
shell corporations acquire an interest in a suitable operating business are
commonly referred to as "shell reorganizations." Management believes that
certain privately held businesses are interested in "going public" through a
shell reorganization for a variety of reasons. In the opinion of management,
the most common motivation is the belief that the private business'
reconstitution as a publicly traded corporation will aid the business in
obtaining private equity capital on the theory that investors are more
interested in purchasing equity securities for which a public market exists.
In selecting a suitable business opportunity, management of the
Company intends to focus on the potential for future profits and strength of
current operating management of the business opportunity. Management believes
that the greatest potential lies in technology and goods or products-related
industries, rather than principally service industries. Nevertheless, this
shall not preclude any other category of business or industry to be
investigated and evaluated by the Company as opportunities arise.
The Company will conduct its own investigation to identify a
business it can acquire. After selecting a potential acquisition candidate,
management may prepare a business plan using its general experience and
business acumen, or hire consultants to prepare analyses of the business'
capital, production, marketing, labor and other related requirements. To
date, management has conducted no investigations of any business or company
nor has it met with representatives of any company or business. There can be
no assurance that management of the Company will ever be able to locate a
suitable business opportunity interested in reorganizing with the Company or
that management has the requisite experience to recognize and understand a
business operation that would benefit the Company. In the event that
management is able to locate what it considers to be a suitable business
opportunity, there can be no assurance that such business will be successful.
Management believes that the reorganization of the Company with a
suitable operating business will be in the form of a stock-for-stock exchange
conducted pursuant to a written stock purchase agreement. Management intends
to pursue a structure that will provide for a tax free reorganization under
Sections 355 and 368 of the Internal Revenue Code of 1986, as amended.
Management expects that the terms of the stock purchase agreement will
require the owners of the operating business to transfer the entire equity
ownership of the business opportunity to the Company in exchange for the
Company's issuance of a large block of its Common Stock to the owners of the
operating business. The Company expects that the owners of the business
opportunity will receive a block of stock that equals 90% to 95% of the
issued and outstanding shares of the Common Stock of the Company after giving
effect to the close of the stock-for stock exchange, depending on the
qualities and strengths of the business opportunity. The Company expects that
immediately after the close of the stock-for-stock exchange, the existing
directors and officers of the Company will resign and that a new slate of
officers and directors nominated by the former owners of the operating
business will be appointed. In summary, after giving effect to the expected
terms of a proposed shell reorganization with a suitable business
opportunity, the Company will stand as the publicly-listed holding
corporation for the business opportunity, which will be wholly-owned by the
Company. The present shareholders of the Company, as a group, will own
approximately 5% to 10% of the issued and outstanding shares of
2
<PAGE>
Common Stock of the Company (with the other 90% to 95% held by the former
owners of the operating business), and the officers and directors of the
Company will consist exclusively of those persons nominated by the former
owners of the operating business, presumably the same persons that served in
similar positions with the pre-reorganization operating business.
INVESTORS IN THE COMPANY ARE CAUTIONED AND SHOULD BE AWARE THAT MANAGEMENT OF
THE COMPANY, ACTING IN COMPLIANCE WITH THE BYLAWS OF THE COMPANY AND DELAWARE
GENERAL CORPORATION LAW, INTENDS TO STRUCTURE ANY REORGANIZATION WITH AN
OPERATING BUSINESS IN A MANNER THAT WILL ALLOW THE BOARD OF DIRECTORS OF THE
COMPANY TO APPROVE THE SELECTION OF THE OPERATING BUSINESS AND ALL OF THE
TERMS OF THE REORGANZIATION, INCLUDING THE APPOINTMENT OF THE SUCCESSOR
OFFICERS AND DIRECTORS, WITHOUT THE NEED OR REQUEST FOR SHAREHOLDER APPROVAL.
SEE "RISK FACTORS," BELOW.
As of the date of this Registration Statement, the Company has no
agreements, understandings or arrangements concerning its acquisition or
potential acquisition of a specific business opportunity. If the Company
enters into any agreements, understandings or arrangements prior to the
effectiveness of this Registration Statement, it will file an appropriate
amendment to this Registration Statement for purposes of disclosing terms of
the transaction. Upon the effectiveness of this Registration Statement, the
Company will become subject to the periodic reporting requirements of Section
12(g) of the Securities Exchange Act of 1934 (the "Exchange Act"). These
requirements will oblige the Company to file with the Commission specified
information regarding companies with which the Company may merge or
reorganize, including audited financial statements for any acquired companies
covering one or two years depending on the relative size of the acquisition.
The financial statement requirements imposed by the Exchange Act will
necessarily limit the Company's pool of candidates with which it may merge or
reorganize to those entities with the proper audited financial statements.
There is no assurance that management can find a suitable prospect,
or that it has the requisite experience to recognize and understand a
business operation that would benefit the Company.
COMPETITION
Numerous large, well-financed firms with large cash reserves are
engaged in the acquisition of companies and businesses. The Company expects
competition to be intense for available target businesses.
EMPLOYEES
The Company has only two employees at the present time, Kevin DeVito
and Candace Beaver, the Company's Chief Executive Officer and Chief Financial
Officer, respectively, and does not contemplate hiring anyone until a
business is acquired. Mr. DeVito and Ms. Beaver intend to devote no more than
10% of their time to the Company's affairs.
THE INVESTMENT COMPANY ACT OF 1940
The Company's business plan may involve changes in its capital
structure, management, control and business. These activities may be
regulated by the Investment Company Act of 1940 ("Investment Act"). The
Company will attempt to avoid this regulatory jurisdiction to preclude costly
and restrictive registration and other provisions of the Investment Act.
The Investment Act excludes from the effects of the Act entities
which have not conducted a public offering and which do not have in excess of
99 shareholders. The Company believes that it presently complies with this
exclusion and that it will continue to do so until such time as it acquires a
business opportunity, at which time the Company should no longer be
potentially subject to the Investment Act. The Company intends to operate in
a manner which will maintain its exclusion from the "investment company"
category.
3
<PAGE>
RISK FACTORS
AN INVESTMENT IN THE SECURITIES OF THE COMPANY PRESENTS CERTAIN
MATERIAL RISKS TO INVESTORS. ANY INVESTOR IN THE COMPANY IS ENCOURAGED TO
CAREFULLY CONSIDER THE FOLLOWING RISKS BEFORE PURCHASING THE SECURITIES OF
THE COMPANY.
1. SHELL CORPORATION. This type of company is commonly called a
"shell" corporation because the company does not have any assets or
operations and has been formed for the specific purpose of acquiring all or
substantially all of the ownership of an existing business. These
transactions are consummated by issuing or transferring large blocks of the
Company's equity shares to the principals of the business that is acquired.
Any such issuance will involve significant dilution in the equity interest in
the Company held by the pre-reorganization shareholders of the Company with
the result that the pre-reorganization shareholders of the Company will have
a substantially lower aggregate interest in the outstanding shares of the
Company after giving effect to the reorganization. See, "Description of
Business."
Prospective investors should be aware that privately-held companies
often times merge or reorganize with a public shell as a means of
"going-public" without having to incur the time, expense and disclosure
obligations normally associated with the going-public process. In the event
the Company merges with a privately-held company subsequent to the close of
this offering, investors will not have had the benefit of receiving
disclosure of such company's operations and financial condition prior to
making their investment. See, "Description of Business."
Prospective investors should also be aware that management of the
Company, acting in compliance with the Bylaws of the Company and Delaware
General Corporation Law, intends to structure any reorganization with an
operating business in a manner that will allow the Board of Directors of the
Company to approve the selection of the operating business and all of the
terms of the reorganization, including the appointment of the successor
officers and directors, without the need or request for shareholder approval.
See, "Description of Business."
2. RISK OF PROPOSED NEW BUSINESS; LACK OF ASSETS, REVENUES OR
OPERATIONS. The Company was only recently formed and has no assets, revenues
or operations. The Company was originally capitalized with $2,000 in April
1997. Management expects that the Company's working capital requirements will
be nominal and will be satisfied through additional capital contributions by
management as required. The report of the Company's independent auditors on
the Company's 1998 financial statements includes a qualification regarding
the Company's ability to continue as a going concern. In its report, the
Company's independent auditors state that the Company needs an additional
capital infusion in order to fund current expenditures, acquire business
opportunities and achieve profitable operations, and that such factors raise
substantial doubt about the Company's ability to continue as a going concern.
3. RELIANCE ON MANAGEMENT; LACK OF EXPERIENCE. The Company is
dependent on its officers and directors' personal abilities to evaluate
business opportunities that may be presented in the future. No member of
management has previously operated a shell corporation, although management
has experience in the analysis and acquisition of businesses. Since
management has not identified a proposed business or industry in which it
will search for an acquisition target, it is unlikely that management will
have any prior experience in the technical aspects of the industry or the
business within that industry which may be acquired. See, "Description of
Business" and "Management."
4. MINIMAL TIME COMMITMENT OF MANAGEMENT. The current officers and
directors engage in other activities and will devote less than 10% of their
time to the Company. See, "Management."
5. CONTROL BY PRESENT SHAREHOLDERS. Management of the Company
presently controls approximately 80% of the outstanding Common Stock of the
Company. Therefore, until such time as the Company acquires an operating
business, management of the Company will have the power to elect all of the
Company's Board of Directors, amend the Company's Certificate of
Incorporation, and approve a merger, consolidation with another company or
sale of all or substantially all of the Company's assets. See, "Principal
Shareholders" and "Description of Securities."
4
<PAGE>
6. PREFERRED STOCK. The Company is authorized to issue 10,000,000
shares of $.001 par value preferred stock ("Preferred Stock"). The Preferred
Stock may be issued from time to time in one or more series, and the Board of
Directors, without action by the holders of the Common Stock, may fix or
alter the voting rights, redemption provisions, (including sinking fund
provisions), dividend rights, dividend rates, liquidation preferences,
conversion rights and any other rights preferences, privileges and
restrictions of any wholly unissued series of Preferred Stock. The Board of
Directors, without stockholder approval, can issue shares of Preferred Stock
with rights that could adversely affect the rights of the holders of Common
Stock. No shares of Preferred Stock presently are outstanding, and the
Company has no present plans to issue any such shares. The issuance of shares
of Preferred Stock could adversely affect the voting power of holders of
Common Stock and could have the effect of delaying, deferring or preventing a
change in control of the Company or other corporate action.
7. COMPETITION. Numerous large, well-financed firms with large cash
reserves are engaged in the acquisition of companies and businesses. The
Company expects competition to be intense for available target businesses.
8. LACK OF FACILITIES. The Company's office is located within a
suite of offices leased by the consulting firm owned by the Company's Chief
Executive Officer. The use of the facilities is provided to the Company at no
charge and the Company does not intend to rent other office space until an
acquisition target business is identified and acquired. The lack of any
separate facilities for the Company's operations may work to the Company's
future detriment. See, "Property."
9. POTENTIAL SALES PURSUANT TO RULE 144. All 1,000,000 shares of
Common Stock currently outstanding are "restricted securities" as that term
is defined in Rule 144 promulgated under the Securities Act of 1933, as
amended. In addition, all 1,00,000 shares of Common Stock are eligible for
resale under Rule 144. In general, under Rule 144 a person (or persons whose
shares are aggregated) who has satisfied a one-year holding period may, under
certain circumstances, sell within any three month period, a number of shares
which does not exceed the greater of 1% of the then outstanding shares of
Common Stock, or the average weekly trading volume during the four calendar
weeks prior to such sale. Rule 144 also permits, under certain circumstances,
the sale of shares without any quantity limitation by a person who is not an
affiliate of the Company and who has satisfied a two-year holding period.
The Company is unable to predict the effect that sales of the
Company's securities under Rule 144 or otherwise, may have on the then
prevailing market price of the Common Stock; it can be expected, however,
that the sale of any substantial number of shares of Common Stock would have
a depressive effect on the market price of the Common Stock.
10. MARKET FOR THE COMMON STOCK OF THE COMPANY. As of the date of
this Registration Statement, there is no market for the securities of the
Company. Upon the effectiveness of this Registration Statement, the Company
intends to apply for a listing of its Common Stock on the OTC Bulletin Board.
There can be no assurance, however, that the OTC Bulletin Board will approve
the listing application or, if the application is approved, that a market
will develop for the Common Stock of the Company. In the event that the
Company's listing application is approved, management believes that the
market for the Common Stock of the Company will be thinly traded, if traded
at all, until such time as the Company acquires an operating business.
5
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
PLAN OF OPERATIONS
The Company was organized in April 1997 for the purpose of listing
its securities on an electronic stock exchange and then acquiring an interest
in a suitable operating business, which may include assets or shares of
another entity to be acquired by the Company directly or through a
subsidiary. The Company is newly formed, has not yet engaged in business and
has had no revenues. As of December 31, 1998, the Company had $239 of assets
and a book deficit of $929. The Company was originally capitalized with
$2,000 in April 1997. Management expects that the Company's working capital
requirements will be nominal and will be satisfied through additional capital
contributions by management as required.
FORWARD LOOKING STATEMENTS
This Registration Statement contains forward-looking statements that
are based on the Company's beliefs as well as assumptions made by and
information currently available to the Company. When used in this
Registration Statement, the words "believe," "endeavor," "expect,"
"anticipate," "estimate," "intends," and similar expressions are intended to
identify forward-looking statements. Such statements are subject to certain
risks, uncertainties and assumptions which described in Part I, Item 1,
Description of Business - Risk Factors," above. Should one or more of those
risks or uncertainties materialize, or should underlying assumptions prove
incorrect, actual results may vary materially from those anticipated,
estimated, or projected. The Company cautions potential investors not to
place undue reliance on any such forward-looking statements all of which
speak only as of the date made.
ITEM 3. DESCRIPTION OF PROPERTY
Through an oral agreement with Kevin DeVito, Chief Executive Officer
of the Company, the Company's operations are located at 360 N. Sepulveda
Boulevard, Suite 3050, El Segundo, California 90245. The Company's office is
located within a suite of offices leased by the consulting firm owned by Mr.
DeVito. There is no rental charge to the Company for office space, equipment
rental or phone usage. The Company does not anticipate acquiring separate
office facilities until such time as a business has been acquired by the
Company.
6
<PAGE>
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth certain information regarding the
beneficial ownership of the shares of Common Stock as of October 31, 1999 by
(i) each person who is known by the Company to be the beneficial owner of
more than five percent (5%) of the issued and outstanding shares of Common
Stock, (ii) each of the Company's directors and executive officers and (iii)
all directors and executive officers as a group.
<TABLE>
<CAPTION>
NAME AND ADDRESS NUMBER OF SHARES PERCENTAGE OWNED
--------------------------- ---------------------------
<S> <C> <C>
Deleco Investment Company (1) 800,000 80%
Kevin DeVito (1) 802,000 (2) 80%
Candace Beaver (1) 2,000 (3)
All officers and directors 804,000 80%
as a group(2)
</TABLE>
(1) Address is 360 N. Sepulveda Boulevard, Suite 3050, El Segundo,
California 90245.
(2) Includes 800,000 shares held by Deleco Investment Company. Kevin
DeVito, the Company's Chief Executive Officer, is the Managing Director
of Deleco Investment Company.
(3) Less than one percent.
7
<PAGE>
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
Set forth below are the directors and officers of the Company.
<TABLE>
<CAPTION>
Name Age Position
---- --- --------
<S> <C> <C>
Kevin DeVito 39 Chairman of the Board and Chief Executive Officer
Candace Beaver 38 Secretary and Chief Financial Officer
</TABLE>
Mr. DeVito co-founded the Company in April 1997 and has served as
Chairman of the Board and Chief Executive Officer since inception. Mr. DeVito
has served as a director of COPE, Inc. since June 1992. From 1992 to
September 25, 1998, Mr. DeVito served as President of COPE, Inc., which
during that period was known as Harrier, Inc. From 1996 to July 1999, Mr.
DeVito served as a principal of New Capital AG, a Zurich based financial and
management consulting firm. Since July 1999, Mr. DeVito has served as a
principal of New Capital Horizons, a California based financial and
management consulting firm.
Ms. Beaver co-founded the Company in April 1997 and has served as
Secretary and Chief Financial Officer since inception. Ms. Beaver has served
as Chief Financial Officer of COPE, Inc. from 1991 to September 1998. From
1996 to July 1999, Ms. Beaver served as Chief Financial Officer of New
Capital AG. Since July 1999, Ms. Beaver has served as a Chief Financial
Officer of New Capital Horizons.
Each director holds office until his successor is elected and
qualified or until his earlier resignation in the manner provided in the
Bylaws of the Company.
8
<PAGE>
ITEM 6. EXECUTIVE COMPENSATION
CASH COMPENSATION OF EXECUTIVE OFFICERS. The following table sets
forth the cash compensation paid by the Company to its Chief Executive
Officer and to all other executive officers for services rendered during the
fiscal years ended December 31, 1998 and 1997.
<TABLE>
<CAPTION>
ANNUAL COMPENSATION LONG-TERM COMPENSATION
--------------------------------------- -----------------------------
NAME AND POSITION YEAR SALARY BONUS OTHER ANNUAL RESTRICTED COMMON SHARES ALL OTHER
COMPENSATION STOCK UNDERLYING COMPEN-
AWARDS ($) OPTIONS GRANTED SATION
(# SHARES)
- ------------------------- ----- ------- ----- ------------ ----------- --------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Kevin DeVito, CEO(1) 1998 $ -0- -0- -0- -0- -0- -0-
1997 $ -0- -0- -0- -0- -0- -0-
Candace Beaver, CFO(1) 1998 $ -0- -0- -0- -0- -0- -0-
1997 $ -0- -0- -0- -0- -0- -0-
</TABLE>
- --------------
(1) The Company has not paid its executive officers any remuneration since
inception to date nor does it intend to until such time as the Company acquires
an operating business.
<TABLE>
<CAPTION>
OPTION/SAR GRANTS IN LAST FISCAL YEAR
INDIVIDUAL GRANTS
- -------------------------------------------------------------------------------------------------------------------
NUMBER OF
SECURITIES
UNDERLYING % OF TOTAL OPTIONS/SARS EXERCISE OR
OPTIONS/SARS GRANTED TO EMPLOYEES IN BASE PRICE
NAME GRANTED (#) FISCAL YEAR ($/SH) EXPIRATION DATE
- ------------------------- ------------------- --------------------------- --------------- -------------------
<S> <C> <C> <C> <C>
None.
</TABLE>
<TABLE>
<CAPTION>
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FY-END OPTION/SAR VALUES
- -------------------------------------------------------------------------------------------------------------------
NUMBER OF
SECURITIES VALUE OF
UNDERLYING UNEXERCISED
UNEXERCISED IN-THE-MONEY
OPTIONS (SARS OPTIONS (SARS AT
AT FY-END (#) FY-END($)
SHARES ACQUIRED EXERCISABLE/ EXERCISABLE/
NAME ON EXERCISE VALUE RECEIVED UNEXERCISABLE UNEXERCISABLE
- ------------------------- ------------------- --------------------------- --------------- -------------------
<S> <C> <C> <C> <C>
None.
</TABLE>
COMPENSATION OF DIRECTORS. The Company provides no compensation to
its directors and does not intend to until such time, if ever, as the Company
acquires an operating business.
9
<PAGE>
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The Company will not enter into any transactions with any officer,
director or controlling shareholder of the Company until such time, if ever,
as the Company acquires an operating business. At such time, it is expected
that the Company will experience a change in control, including a complete
change in the Board of Directors and management of the Company.
ITEM 8. DESCRIPTION OF SECURITIES.
COMMON STOCK
The Company is authorized to issue 20,000,000 shares of Common
Stock, $.001 par value, of which, as of October 31, 1999, 1,000,000 shares
were issued and outstanding and held of record by 95 stockholders. Holders of
shares of Common Stock are entitled to one vote per share on all matters to
be voted upon by the stockholders generally. The approval of proposals
submitted to stockholders at a meeting other than for the election of
directors requires the favorable vote of a majority of the shares voting,
except in the case of certain fundamental matters (such as certain amendments
to the Certificate of Incorporation, and certain mergers and
reorganizations), in which cases Delaware law and the Company's Bylaws
require the favorable vote of at least a majority of all outstanding shares.
Stockholders are entitled to receive such dividends as may be declared from
time to time by the Board of Directors out of funds legally available
therefor, and in the event of liquidation, dissolution or winding up of the
Company to share ratably in all assets remaining after payment of
liabilities. The holders of shares of Common Stock have no preemptive,
conversion, subscription or cumulative voting rights.
PREFERRED STOCK
The Company is authorized to issue 10,000,000 shares of $.001 par
value preferred stock ("Preferred Stock"). The Preferred Stock may be issued
from time to time in one or more series, and the Board of Directors, without
action by the holders of the Common Stock, may fix or alter the voting
rights, redemption provisions, (including sinking fund provisions), dividend
rights, dividend rates, liquidation preferences, conversion rights and any
other rights preferences, privileges and restrictions of any wholly unissued
series of Preferred Stock. The Board of Directors, without stockholder
approval, can issue shares of Preferred Stock with rights that could
adversely affect the rights of the holders of Common Stock. No shares of
Preferred Stock presently are outstanding, and the Company has no present
plans to issue any such shares. The issuance of shares of Preferred Stock
could adversely affect the voting power of holders of Common Stock and could
have the effect of delaying, deferring or preventing a change in control of
the Company or other corporate action.
PART II
ITEM 1 MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
OTHER SHAREHOLDER MATTERS.
As of the date of this Registration Statement, there is no market
for the securities of the Company. Upon the effectiveness of this
Registration Statement, the Company intends to apply for a listing of its
Common Stock on the OTC Bulletin Board. There can be no assurance, however,
that the OTC Bulletin Board will approve the listing application or, if the
application is approved, that a market will develop for the Common Stock of
the Company. In the event that the Company's listing application is approved,
management believes that the Common Stock of the Company will be thinly
traded, if traded at all, until such time as the Company acquires an
operating business.
As of October 31, 1999, there were 95 record holders of the
Company's Common Stock.
The Company has not paid any cash dividends since its inception and
does not contemplate paying dividends in the foreseeable future. It is
anticipated that earnings, if any, will be retained for the operation of the
Company's business.
10
<PAGE>
ITEM 2. LEGAL PROCEEDINGS.
There are no pending legal proceedings to which the Company is a
party or to which the property interests of the Company are subject.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
Not applicable.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
In April 1997, the Company issued 1,000,000 shares of Common Stock,
for the total consideration of $2,000, to 95 parties, including 800,000
shares of Common Stock to Deleco Investment Company and 200,000 shares of
Common Stock to 94 individuals, each of whom are the acquaintances of Candace
Beaver or Kevin DeVito. There was no underwriter involved in this issuance.
The issuances were conducted pursuant to Regulation S and Section 4(2) of the
1933 Act. The Company has conducted no other issuances of securities.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
DELAWARE STATUTES
Section 145 of the Delaware General Corporation Law, as amended,
provides for the indemnification of the Company's officers, directors,
employees and agents under certain circumstances as follows:
(a) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, 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 (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding 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. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which 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 reasonable cause
to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, 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 (including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit 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 except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
11
<PAGE>
(c) 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
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made (1)
by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum, or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and 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 liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect
to the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to
in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
12
<PAGE>
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees).
CERTIFICATE OF INCORPORATION
The Company's Certificate of Incorporation provides that the
directors of the Company shall be protected from personal liability to the
fullest extent permitted by law. The Company's Bylaws also contain a
provision for the indemnification of the Company's directors (see
"Indemnification of Directors and Officers - Bylaws" below).
BYLAWS
The Company's Bylaws provide for the indemnification of the
Company's directors, officers, employees, or agents under certain
circumstances as follows:
"7.1 AUTHORIZATION FOR INDEMNIFICATION. The Corporation may
indemnify, in the manner and to the full extent permitted by law, any person
(or the estate, heirs, executors, or administrators of any person) who was or
is a party to, or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation), by reason of the fact that such person is or was a
director, 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 (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding 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. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in
a manner which 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, that he had reasonable cause to believe that his conduct was
unlawful.
7.2 ADVANCE OF EXPENSES. Costs and expenses (including attorneys'
fees) incurred by or on behalf of a director or officer in defending or
investigating any action, suit, proceeding or investigation may be paid by
the Corporation in advance of the final disposition of such matter, if such
director or officer shall undertake in writing to repay any such advances in
the event that it is ultimately determined that he is not entitled to
indemnification. Such expenses incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the Board deems
appropriate. Notwithstanding the foregoing, no advance shall be made by the
Corporation if a determination is reasonably and promptly made by the Board
by a majority vote of a quorum of disinterested directors, or (if such a
quorum is not obtainable or, even if obtainable, a quorum of disinterested
directors so directs) by independent legal counsel in a written opinion, or
by the stockholders, that, based upon the facts known to the Board or counsel
at the time such determination is made, (a) the director, officer, employee
or agent acted in bad faith or deliberately breached his duty to the
Corporation or its stockholders, and (b) as a result of such actions by the
director, officer, employee or agent, it is more likely than not that it will
ultimately be determined that such director, officer, employee or agent is
not entitled to indemnification.
7.3 INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise or as a member of any committee or
similar body against any liability asserted against him and 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 liability
under the provisions of this Article or applicable law.
7.4 NON-EXCLUSIVITY. The right of indemnity and advancement of
expenses provided herein shall not be deemed exclusive of any other rights to
which any person seeking indemnification or advancement of expenses
13
<PAGE>
from the Corporation may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office. Any agreement for indemnification of or advancement of expenses to
any director, officer, employee or other person may provide rights of
indemnification or advancement of expenses which are broader or otherwise
different from those set forth herein."
INDEMNITY AGREEMENTS
The Company's Bylaws provide that the Company may indemnify
directors, officers, employees or agents to the fullest extent permitted by
law and the Company has agreed to provide such indemnification to its
directors, Kevin DeVito and Candace Beaver, pursuant to written indemnity
agreements.
14
<PAGE>
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Independent Auditors' Report.................................................16
Consolidated Balance Sheets..................................................17
Consolidated Statements of Operations........................................18
Consolidated Statements of Stockholders' Equity..............................19
Consolidated Statements of Cash Flows........................................20
Notes to Consolidated Financial Statements...................................21
</TABLE>
15
<PAGE>
May 14, 1999
To the Board of Directors
Swiss Acquisition Corp.
El Segundo, California
We have audited the accompanying balance sheets of Swiss Acquisition Corp. (a
Delaware corporation) as of December 31, 1998 and 1997, and the related
statements of operations, changes in stockholders' equity (deficit), and cash
flows for the year ended December 31, 1998 and the period from April 28, 1997
(Inception) to December 31, 1997. These financial statements are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provides a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Swiss Acquisition Corp. as
of December 31, 1998 and 1997, and the results of its operations, changes in
stockholders' equity (deficit) and its cash flows for the year ended December
31, 1998 and the period from April 28, 1997 (Inception) to December 31, 1997
in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 6 to the
financial statements, there is substantial doubt about the ability of the
Company to continue as a going concern. The financial statements do not
include any adjustments that might result from the outcome of that
uncertainty.
LONDON & CO.
16
<PAGE>
SWISS ACQUISITION CORP.
BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
-------------------------
1998 1997
-------- --------
ASSETS
<S> <C> <C>
OTHER ASSETS
Organization expense, net of accumulated amortization
of $119 and $48 respectively $ 239 $310
-------- --------
TOTAL ASSETS $ 239 $310
------------ ======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
CURRENT LIABILITIES
Accounts Payable $ 540 $210
Franchise Tax Payable 30 30
-------- --------
TOTAL CURRENT LIABILITIES 570 240
------------------------- -------- --------
NON-CURRENT LIABILITIES
Due to Related Party (Note 2) 598 358
------- -------
TOTAL LIABILITIES 1,168 598
----------------- ------- -------
STOCKHOLDERS' EQUITY (DEFICIT)
Common Stock, $.001 par value, 20,000,000 Shares
Authorized, 1,000,000 Issued and Outstanding 1,000 0
Preferred Stock, $.001 par value, 10,000,000 Shares
Authorized, None Issued and Outstanding 0 0
Common Stock Subscribed 0 2,000
Subscriptions Receivable (Note 4) 0 (2,000)
Retained Earnings (Deficit) (1,929) (288)
-------- --------
TOTAL STOCKHOLDERS' EQUITY (DEFICIT) (929) (288)
------------------------------------ -------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) $ 239 $ 310
---------------------------------------------------- ======== ========
</TABLE>
(See Accompanying Auditor's Report and Notes to Financial Statements)
17
<PAGE>
SWISS ACQUISITION CORP.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Period From
April 28, 1997
(Inception) to
December 31, December 31,
1998 1997
------------------ ---------------
<S> <C> <C>
REVENUES $ 0 $ 0
EXPENSES
General and Administrative (1,611) 258
------- -------
LOSS BEFORE PROVISION FOR INCOME TAXES (1,611) (258)
PROVISION FOR INCOME TAXES 30 30
------- -------
NET LOSS $(1,641) $(288)
======= =======
EARNINGS PER COMMON SHARE (Nil) N/A
======= =======
</TABLE>
(See Accompanying Auditor's Report and Notes to Financial Statements)
18
<PAGE>
SWISS ACQUISITION CORP.
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
Common
Common Stock Preferred Stock Stock Subscriptions Net
Shares Amount Shares Amount Subscribed Receivable Loss Total
---------- ---------- ------- ------- ---------- ---------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE AT INCEPTION (APRIL 28, 1997) 0 $ 0 0 $ 0 $ 0 $ 0 $ 0 $ 0
COMMON STOCK SUBSCRIBED 2,000 2,000
SUBSCRIPTIONS RECEIVABLE (2,000) (2,000)
NET LOSS FROM INCEPTION TO
DECEMBER 31, 1997 (288) (288)
---------- ---------- ------- ------- -------- ---------- ------- -------
BALANCE AT DECEMBER 31, 1997 0 0 0 0 2,000 (2,000) (288) (288)
COMMON STOCK ISSUED AT PAR 1,000,000 1,000 (2,000) 2,000 1,000
NET LOSS (1,641) (1,641)
---------- ---------- ------- ------- -------- ---------- ------- -------
BALANCE AT DECEMBER 31, 1998 1,000,000 $ 1,000 $ 0 $ 0 $ 0 $ 0 $(1,929) $ (929)
========== ========== ======= ======= ======== ========== ======= =======
</TABLE>
(See Accompanying Auditor's Report and Notes to Financial Statements)
19
<PAGE>
SWISS ACQUISITION CORP.
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Period From
April 28, 1997
(Inception) to
December 31, December 31,
1998 1997
------------------ --------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Loss $(1,641) $(288)
Adjustments to Reconcile Net Loss to Net
Cash Provided by Operating Activities:
Amortization 71 48
Increase (Decrease) In:
Accounts Payable 1,540 210
Accrued Liabilities 30 30
----------- --------
NET CASH PROVIDED BY OPERATING ACTIVITIES 0 0
----------- --------
CASH FLOWS FROM INVESTING ACTIVITIES 0 0
----------- --------
NET CASH FLOWS FROM INVESTING ACTIVITIES 0 0
----------- --------
CASH FLOWS FROM FINANCING ACTIVITIES 0 0
----------- --------
NET CASH FLOWS FROM FINANCING ACTIVITIES 0 0
----------- --------
NET INCREASE IN CASH 0 0
----------- --------
CASH AT BEGINNING OF YEAR 0 0
----------- --------
CASH AT END OF YEAR $ 0 $ 0
=========== ========
</TABLE>
(See Accompanying Auditor's Report and Notes to Financial Statements)
20
<PAGE>
SWISS ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1998
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
ORGANIZATION
Swiss Acquisition Corp. (the Company) was incorporated in the state of
Delaware on April 28, 1997. The Company was formed to act as a financing
and acquisition entity for technology development. The Company has limited
capital and is not currently engaged in an operating business.
STATEMENT OF CASH FLOWS
The Company considers all highly liquid debt instruments purchased with a
maturity of three months or less to be cash equivalents. For the years
ended December 31, 1998 and 1997 cash paid for interest and income taxes
was $0. In addition, the Company entered into several non-monetary
transactions. In 1998 a related party paid current operating expenses on
behalf of the Company in the amount of $240. In addition the Company issued
$1,000 in stock in exchange for payment of a liability. In 1997 the Company
incurred organization expenses of $358 which were funded by a related
party. See Note 2.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reported period. Actual results could differ from those
estimates.
INCOME TAXES
The Company has adopted SFAS 109, Accounting for Income Taxes, to account
for deferred income taxes. Deferred taxes are computed based on the tax
liability or benefit in future years of the reversal of temporary
differences in the recognition of income or deduction of expenses between
financial and tax reporting purposes. As of December 31, 1998 and 1997
deferred income taxes were negligible; therefore no deferred tax has been
recognized as of that date.
21
<PAGE>
SWISS ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1998
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: (continued)
AMORTIZATION
Amortization of organization expense is calculated using the straight-line
method over five years. Amortization expense for December 31, 1998 and 1997
was $71 and $48 respectively.
EARNINGS PER COMMON SHARE
In 1998 earnings (loss) per share are computed by dividing net income
(loss) by the weighted-average number of shares issued and outstanding
during the reported period. In 1997, no shares were issued or outstanding.
NOTE 2 - RELATED PARTY TRANSACTIONS:
During the course of the year an entity owned 33% by an individual
participating in the common stock subscription advanced funds for the
organization expenses of the Company in the amount of $240. These funds are
not expected to be repaid within the current year. Also, see Notes 1 and 4.
NOTE 3 - INCOME TAXES:
The provision for income taxes is comprised of the following:
<TABLE>
<CAPTION>
1998 1997
---- ----
<S> <C> <C>
Current:
Federal $ 0 $ 0
State 30 30
---- ----
30 30
Deferred 0 0
---- ----
Provision for Income Taxes $30 $30
==== ====
</TABLE>
In addition, the Company has a federal net operating loss carryforward of
$1,929 which will expire in the year 2012 and 2013 if not utilized.
<PAGE>
SWISS ACQUISITION CORP.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1998
NOTE 4 - STOCKHOLDERS' EQUITY:
The Company is authorized to issue 20 million shares of common stock with a
par value of $.001 per share. In addition, the Company is authorized to
issue 10 million shares of preferred stock with a par value of $.001 per
share. As of December 31, 1998 one million common shares were issued and
outstanding, of which 800,000 shares are held by Deleco Investment Company
which in turn is owned in the majority by two individual stockholders, one
of which is an officer of the Company. The remaining shares are held by
various individuals of which two are officers of the Company. As of
December 31, 1997 no common or preferred shares were issued or outstanding.
NOTE 5 - YEAR 2000:
Currently, the Company is assessing its computer systems and business
processes and intends to initiate actions to address the "Year 2000 issues"
identified. Management is also assessing the actions being taken by
significant third parties that interface with the Company. At this time
management is not able to determine the impact, including the costs of
remediation, of the "Year 2000 issue" on the Company. However, it is
believed that any impact of Y2K issues on the Company will have an
immaterial effect on company operations.
NOTE 6 - UNCERTAINTY OF ABILITY TO CONTINUE AS A GOING CONCERN:
The financial statements of Swiss Acquisition Corp. have been prepared on
the basis of accounting principles applicable to a going concern. It is the
Company's belief that it will continue to incur losses during the coming
year and require additional funds. As discussed in Note 1, the Company is
not currently pursuing a business activity. Therefore, in order for the
Company to continue as a going concern, it is dependent upon its ability to
raise capital from various sources, including the collection of funds from
issuance of common or preferred stock as well as possible additional loans
from related entities or individuals. The Company's ability to achieve
these objectives cannot be determined at this time. The financial
statements do not include any adjustments that might result from the
outcome of this uncertainty.
23
<PAGE>
PART III
ITEM 1. INDEX TO EXHIBITS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
3.1 Certificate of Incorporation of the Company 26
3.2 Bylaws of the Company 30
4.1 Specimen of Common Stock Certificate 47
10.1 [Form of] Indemnity Agreement. 48
27.1 Financial Data Schedule 52
</TABLE>
24
<PAGE>
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934,
the registrant caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized.
SWISS ACQUISITION CORP.,
a Delaware corporation
Date: January 6, 2000 By: /s/ KEVIN DEVITO
-------------------------------------
Kevin DeVito, Chief Executive Officer
25
<PAGE>
STATE OF DELAWARE PAGE 1
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "SWISS ACQUISITION CORP.", FILED IN THIS OFFICE ON THE
TWENTY-EIGHTH DAY OF APRIL, A.D. 1997, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
--------------------------------------
[SEAL] EDWARD J. FREEL, SECRETARY OF STATE
AUTHENTICATION: 8440037
DATE: 04-28-97
<PAGE>
CERTIFICATE OF INCORPORATION
OF
SWISS ACQUISITION CORPORATION
ARTICLE I
Name of Corporation
The name of this corporation is Swiss Acquisition Corp.
ARTICLE II
Registered Office and Agent
The address of the registered office of the corporation in the State
of Delaware is 1013 Centre Road in the City of Wilmington, County of New
Castle, and the name of its registered agent at that address is Corporation
Service Company.
ARTICLE III
Purpose
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE IV
Authorized Capital Stock
This corporation is authorized to issue two classes of shares
designated respectfully "Common Stock" and "Preferred Stock" and referred to
herein as Common Stock or Common Shares and Preferred Stock or Preferred
Shares, respectively. The total number of shares of Common Stock this
Corporation is authorized to issue is 20,000,000 and each such share shall
have a par value of $.001, and the total number of shares of Preferred Stock
this corporation is authorized to issue is 10,000,000 and each such share
shall have a par value of $.001. The Preferred Shares may be issued from time
to time in one or more series. The Board of Directors is authorized to fix
the number of shares of any series of Preferred Shares and to determine the
designation of any such series. The Board of Directors is also authorized to
determine or alter the rights, preferences, privileges and restrictions
granted to or imposed upon any privileges and restrictions granted to or
imposed upon any wholly unissued series of Preferred Shares and, within the
limits and restrictions stated in any resolution or resolutions of the Board
of Directors originally fixing the number of shares constituting any series,
to increase or decrease (but not below the number of shares of any such
series then outstanding) the number of shares of any series subsequent to the
issue of shares of that series.
<PAGE>
ARTICLE V
Incorporator
The incorporator is Kevin DeVito, 2200 Pacific Coast Highway,
Suite 301, Hermosa Beach, California 90254.
ARTICLE VI
Limitation of Director Liability
To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, 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.
ARTICLE VII
Perpetual Existence
The corporation is to have perpetual existence.
ARTICLE VIII
Stockholder Meetings
Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by
the board of directors or in the bylaws of the corporation.
ARTICLE IX
Bylaws
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, repeal,
alter, amend and rescind the bylaws of this corporation, subject to any
limitations expressed in such bylaws.
ARTICLE X
Amendment of Certificate of Incorporation
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner
now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation.
<PAGE>
I, the undersigned, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do make, file and record this Certificate, hereby
declaring and certifying under penalty of perjury that this is my act and deed
and the facts herein stated are true, and accordingly have hereunto set my hand.
Dated: April 17, 1997
/s/ KEVIN DEVITO
-----------------------------------
Kevin DeVito, Incorporator
<PAGE>
BYLAWS
OF
SWISS ACQUISITION CORP.
A Delaware Corporation
ARTICLE I
OFFICE
1.1 REGISTERED OFFICE. The registered office of Swiss Acquisition
Corp., a Delaware corporation (hereinafter called the "Corporation"), in the
State of Delaware shall be at 1013 Centre Road, City of Wilmington, County of
New Castle, and the name of the registered agent in charge thereof shall be
Corporation Service Company.
1.2 PRINCIPAL OFFICE. The principal office for the transaction of
the business of the Corporation shall be 2200 Pacific Coast Highway, Suite
301, Hermosa Beach, California 90254. The Board of Directors (hereinafter
called the "Board") is hereby granted full power and authority to change the
principal office from one location to another.
1.3 OTHER OFFICES. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board may from time to time determine or as the business of
the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 ANNUAL MEETINGS. Annual meetings of the stockholders of the
Corporation for the purpose of electing directors and for the transaction of
such other business as may properly come before such meetings in accordance
with Section 2.11 of these Bylaws may be held at such time, date and place as
the Board shall determine by resolution.
2.2 SPECIAL MEETINGS. A special meeting of the stockholders for the
transaction of any proper business may be called at any time by the Board,
the Chief Executive Officer (Chairman of the Board), the President or one or
more stockholders holding shares in the aggregate entitled to cast not less
than ten percent (10%) of the votes at that meeting.
2.3 PLACE OF MEETINGS. All meetings of the stockholders shall be
held at such places within or without the State of Delaware, as may from time
to time be designated by the person or persons calling the respective meeting
and specified in the respective notices or waivers of notice thereof.
2.4 NOTICE OF MEETINGS.
(a) Except as otherwise required by law, written notice of
each meeting of the stockholders, whether annual or special, shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder of record entitled to vote at such meeting. If
mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation. Except as otherwise expressly
30
<PAGE>
required by law, no publication of any notice of a meeting of the
stockholders shall be required. Every notice of a meeting of the stockholders
shall state the place, date and hour of the meeting, and in the case of a
special meeting, shall also state the purpose or purposes for which the
meeting is called. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall have waived such notice and
such notice shall be deemed waived by any stockholder who shall attend such
meeting in person or by proxy, except as a stockholder who shall attend such
meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Except as otherwise expressly required by law,
notice of any adjourned meeting of the stockholders need not be given if the
time and place thereof are announced at the meeting at which the adjournment
is taken.
(b) Whenever notice is required to be given to any
stockholder to whom (i) notice of two consecutive annual meetings, and all
notices of meetings or of the taking of action by written consent without a
meeting to such person during the period between such two consecutive annual
meetings, or (ii) all, and at least two, payments (if sent by first class
mail) of dividends or interest on securities during a twelve-month period,
have been mailed addressed to such person at his address as shown on the
records of the Corporation and have been returned undeliverable, the giving
of such notice to such person shall not be required. Any action or meeting
which shall be taken or held without notice to such person shall have the
same force and effect as if such notice had been duly given. If any person
shall deliver to the Corporation a written notice setting forth his then
current address, the requirement that notice be given to such person shall be
reinstated. In the event that the action taken by the Corporation is such as
to require the filing of a certificate under any of the other sections, the
certificate need not state that notice was not given to persons to whom
notice was not required to be given pursuant to this section.
2.5 QUORUM. Except as provided by law, the holders of record of a
majority in voting interest of the shares of stock of the Corporation
entitled to be voted thereat, present in person or by proxy, shall constitute
a quorum for the transaction of business at any meeting of the stockholders
of the Corporation or any adjournment thereof. The stockholders present at a
duly called or held meeting at which a quorum is present may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum, and by any greater number of shares otherwise required
to take such action by applicable law or the Certificate of Incorporation. In
the absence of a quorum at any meeting or any adjournment thereof, a majority
in voting interest of the stockholders present in person or by proxy and
entitled to vote thereat or, in the absence therefrom of all the
stockholders, any officer entitled to preside at, or to act as secretary of,
such meeting may adjourn such meeting from time to time. At any such
adjourned meeting at which a quorum is present any business may be transacted
which might have been transacted at the meeting as originally called.
2.6 VOTING.
(a) Each stockholder shall, at each meeting of the
stockholders, be entitled to vote in person or by proxy each share or
fractional share of the stock of the Corporation having voting rights on the
matter in question and which shall have been held by him and registered in
his name on the books of the Corporation:
(i) on the date fixed pursuant to Section 2.10 of
these Bylaws as the record date for the determination of stockholders
entitled to notice of and to vote at such meeting, or
31
<PAGE>
(ii) if no such record date shall have been so fixed,
then (A) at the close of business on the day next preceding the day on which
notice of the meeting shall be given or (B) if notice of the meeting shall be
waived, at the close of business on the day next preceding the day on which
the meeting shall be held.
(b) Voting shall in all cases be subject to the provisions of
the Delaware General Corporation Law and to the following provisions:
(i) Subject to Section 2.6(b)(vii), shares held by
an administrator, executor, guardian, conservator, custodian or other
fiduciary may be voted by such holder either in person or by proxy, without a
transfer of such shares into the holder's name; and shares standing in the
name of a trustee may be voted by the trustee, either in person or by proxy,
but no trustee shall be entitled to vote shares held by such trustee without
a transfer of such shares into the trustee's name.
(ii) 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 the
receiver's name if authority to do so is contained in the order of the court
by which such receiver was appointed.
(iii) Subject to the provisions of the Delaware General
Corporation Law, and except where otherwise agreed in writing between the
parties, a stockholder 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 shall be entitled to vote the shares so
transferred.
(iv) Shares standing in the name of a minor may be voted
and the Corporation may treat all rights incident thereto as exercisable by
the minor, in person or by proxy, whether or not the Corporation has notice,
actual or constructive, of the non-age, unless a guardian of the minor's
property has been appointed and written notice of such appointment given to
the Corporation.
(v) Shares standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent or proxyholder as
the bylaws of such other corporation may prescribe or, in the absence of such
provision, as the Board of Directors of such other corporation may determine
or, in the absence of such determination, by the chairman of the board,
president or any vice president of such other corporation, or by any other
person authorized to do so by the board, president or any vice president of
such other corporation. Shares which are purported to be executed in the name
of a corporation (whether or not any title of the person signing is
indicated) shall be presumed to be voted or the proxy executed in accordance
with the provisions of this subdivision, unless the contrary is shown.
(vi) Shares of its own stock belonging to the
Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors in such other corporation is held,
directly or indirectly, by the Corporation, shall neither be entitled to vote
nor be counted for quorum purposes.
(vii) Shares held by the Corporation in a fiduciary
capacity, and shares of the Corporation held in a fiduciary capacity by any
subsidiary, shall not be entitled to vote on any matter, except to the extent
that the settlor or beneficial owner possesses and exercises a right to vote
or to give the Corporation binding instructions as to how to vote such shares.
(viii) If shares stand of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, husband and wife as community property, tenants by the
entirety, voting trustees, persons entitled to vote under a stockholder voting
agreement or otherwise, or if two or more persons (including proxyholders) have
the same fiduciary
32
<PAGE>
relationship respecting the same shares, unless the Secretary of the
Corporation is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
(A) If only one votes, such act binds all;
(B) If more than one vote, the act of
the majority so voting binds all;
(C) If more than one vote, but the vote is
evenly split on any particular matter, each fraction may vote the securities
in question proportionately. If the instrument so filed or the registration
of the shares shows that any such tenancy is held in unequal interests, a
majority or even split for the purpose of this section shall be a majority or
even split in interest.
(c) Any such voting rights may be exercised by the
stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized and delivered to the secretary of the meeting. A validly
executed proxy which does not state that it is irrevocable shall continue in
full force and effect unless revoked by the person executing it, prior to the
vote pursuant thereto, by a writing delivered to the Corporation stating that
the proxy is revoked or by a subsequent proxy executed by, or attendance at
the meeting and voting in person by the person executing the proxy; provided,
however, that no such proxy shall be valid after the expiration of three (3)
years from the date of such proxy, unless otherwise provided in the proxy.
The revocability of a proxy that states on its face that it is irrevocable
shall be governed by the provisions of the Delaware General Corporation Law.
(d) At any meeting of the stockholders all matters, except as
otherwise provided in the Certificate of Incorporation, in these Bylaws or by
law, shall be decided by the vote of a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat and
thereon, a quorum being present.
(e) The vote at any meeting of the stockholders on any
question need not be written ballot, unless so directed by the chairman of
the meeting; provided, however, that any election of directors at any meeting
must be conducted by written ballot upon demand made by any stockholder or
stockholders present at the meeting before the voting begins. On a vote by
ballot each ballot shall be signed by the stockholder voting, or by his
proxy, if there be such proxy, and it shall state the number of shares voted.
2.7 ACTION WITHOUT A MEETING. Any action which is required to be
taken or which may be taken at any annual or special meeting of stockholders
may be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, is signed
by the holders of outstanding shares having not less than the minimum number
of votes that would be necessary to authorize or take that action at a
meeting at which all shares entitled to vote on that action were present and
voted and shall be delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. In the case of election of
directors, such a consent shall be effective only if signed by the holders of
all outstanding shares entitled to vote for the election of directors;
provided, however, that a director may be elected at any time to fill a
vacancy on the Board that has not been filled by the directors, by the
written consent of the holders of a majority of the outstanding shares
entitled to vote for the
33
<PAGE>
election of directors. All such consents shall be filed with the Secretary of
the Corporation and shall be maintained in the corporate records.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty (60)
days of the earliest dated consent delivered in the manner required by this
section to the Corporation, written consents signed by a sufficient number of
holders or members to take action are delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to a Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. In the event that the action
which is consented to is such as would have required the filing of a
certificate under any other section of this title, if such action had been
voted on by stockholders at a meeting thereof, the certificate filed under
such other section shall state, in lieu of any statement required by such
section concerning any vote of stockholders, that written consent has been
given in accordance with this section, and that written notice has been given
as provided in this section.
2.8 LIST OF STOCKHOLDERS. The Secretary of the Corporation shall
prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
2.9 JUDGES. If at any meeting of the stockholders a vote by written
ballot shall be taken on any question, the chairman of such meeting may
appoint a judge or judges to act with respect to such vote. Each judge so
appointed shall first subscribe an oath faithfully to execute the duties of a
judge at such meeting with strict impartiality and according to the best of
his ability. Such judges shall: (i) decide upon the qualification of the
voters; (ii) report the number of shares represented at the meeting and
entitled to vote on such question; (iii) conduct the voting and accept the
votes; and (iv) when the voting is completed, ascertain and report the number
of shares voted respectively for and against the question. Reports of judges
shall be in writing and subscribed and delivered by them to the Secretary of
the Corporation. The judges need not be stockholders of the Corporation, and
any officer of the Corporation may be a judge on any question other than a
vote for or against a proposal in which he shall have a material interest.
2.10 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted
by the Board, and which record date shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting.
34
<PAGE>
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board. If no
record date has been fixed by the Board, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board is required, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business,
or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed
by the Board and prior action by the Board is required, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be
not more than sixty days prior to such action. If no record date is fixed,
the record date for determining stockholders for any such purpose shall be at
the close of business on the day on which the Board adopts the resolution
relating thereto.
If no record is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
2.11 STOCKHOLDER PROPOSALS AT ANNUAL MEETINGS.
(a) Business may be properly brought before an annual meeting
by a stockholder only upon the stockholder's timely notice thereof in writing
to the Secretary of the Corporation. To be timely, a stockholder's notice
must be delivered to or mailed and received at the principal executive
offices of the Corporation not less than thirty (30) days nor more than sixty
(60) days prior to the meeting as originally scheduled; provided, however,
that in the event that less than forty (40) days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth (10th) day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made. For purposes of this Section 2.11, any adjournment(s) or
postponement(s) of the original meeting shall be deemed for purposes of
notice to be a continuation of the original meeting and no business may be
brought before any reconvened meeting unless such timely notice of such
business was given to the Secretary of the Corporation for the meeting as
originally scheduled. A stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before the annual meeting
(i) a brief description of the business desired to be brought before the
annual meeting, (ii) the name and record address of the stockholder proposing
such business, (iii) the class and number of shares of the Corporation which
are beneficially owned by the stockholder, and (iv) any material interest of
the
35
<PAGE>
stockholder in such business. Notwithstanding the foregoing, nothing in this
Section 2.11 shall be interpreted or construed to require the inclusion of
information about any such proposal in any proxy statement distributed by, at
the direction of, or on behalf of the Board.
(b) The chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Section
2.11, and if the chairman should so determine, the chairman shall so declare
to the meeting and any such business not properly brought before the meeting
shall not be transacted.
2.12 NOTICE OF STOCKHOLDER NOMINEES.
(a) Nominations of persons for election to the Board of the
Corporation shall be made only at a meeting of stockholders and only (i) by
or at the direction of the Board or (ii) by any stockholder of the
Corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 2.12. Such
nominations, other than those made by or at the direction of the Board, shall
be made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than thirty (30) days nor more than sixty (60) days prior to the
meeting; provided, however, that in the event that less than forty (40) days'
notice or prior public disclosure of the date of the meeting is given or made
to stockholders, notice by the stockholder to be timely must be received not
later than the close of business on the tenth (10th) day following the day on
which such notice of the date of the meeting was mailed or such public
disclosure was made. For purposes of this Section 2.12, any adjournment(s) or
postponement(s) of the original meeting shall be deemed for purposes of
notice to be a continuation of the original meeting and no nominations by a
stockholder of persons to be elected directors of the Corporation may be made
at any such reconvened meeting unless pursuant to a notice which was timely
for the meeting on the date originally scheduled. Such stockholder's notice
shall set forth: (i) as to each person whom the stockholder proposes to
nominate for election or re-election as a director, all information relating
to such person that is required to be disclosed in solicitations of proxies
for election of directors, or is otherwise required, in each case pursuant to
the Securities Exchange Act of 1934, as amended, (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); and (ii) as to the stockholder giving the
notice (A) the name and address, as they appear on the Corporation's books,
of such stockholder, and (B) the class and number of shares of the
Corporation which are beneficially owned by such stockholder. Notwithstanding
the foregoing, nothing in this Section 2.12 shall be interpreted or construed
to require the inclusion of information about any such nominee in any proxy
statement distributed by, at the discretion of, or on behalf of the Board.
(b) The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this Section 2.12, and if the
chairman should so determine, the chairman shall so declare to the meeting
and the defective nomination shall be disregarded.
ARTICLE III
BOARD OF DIRECTORS
3.1 GENERAL POWERS. The property, business and affairs of the
Corporation shall be managed by or under the direction of the Board.
36
<PAGE>
3.2 NUMBER AND TERM OF OFFICE. The authorized number of directors
shall be no less than one (1) and no more than seven (7). The exact number of
authorized directors shall be set by resolution of the board of directors,
within the limits specified above. Directors need not be stockholders. Each
director shall hold office until the next annual meeting and until a
successor has been elected and qualified, or he resigns, or he is removed in
a manner consistent with these Bylaws.
3.3 ELECTION OF DIRECTORS. The directors shall be elected annually
by the stockholders of the Corporation and the persons receiving the greatest
number of votes in accordance with the system of voting established by these
Bylaws shall be the directors.
3.4 RESIGNATION AND REMOVAL OF DIRECTORS. Any director of the
Corporation may resign at any time by giving written notice to the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, it shall take effect immediately
upon its receipt; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective. Any or all of
the directors may be removed with or without cause if such removal is
approved by the affirmative vote of a majority of the outstanding shares
entitled to vote at an election of directors. No reduction of the authorized
number of directors shall have the effect of removing any director before his
term of office expires.
3.5 VACANCIES. Except as otherwise provided in the Certificate of
Incorporation, any vacancy in the Board, whether because of death,
resignation, disqualification, an increase in the number of directors or any
other cause, may be filled by a majority of the remaining directors, though
less than a quorum. Each director so chosen to fill a vacancy shall hold
office until his successor shall have been elected and qualified or until he
shall resign or shall have been removed in the manner hereinafter provided.
The stockholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors, but any such
election by written consent shall require the consent of a majority of the
outstanding shares entitled to vote.
3.6 PLACE OF MEETING, ETC. The Board may hold any of its meetings
at such place or places within or without the State of Delaware as the Board
may from time to time by resolution designate or as shall be designated by
the person or persons calling the meeting or in the notice or a waiver of
notice of any such meeting. Directors may participate in any regular or
special meeting of the Board by means of conference telephone or similar
communications equipment pursuant to which all persons participating in the
meeting of the Board can hear each other, and such participation shall
constitute presence in person at such meeting.
3.7 FIRST MEETING. The Board shall meet as soon as practicable
after each annual election of directors and notice of such first meeting
shall not be required.
3.8 REGULAR MEETINGS. Regular meetings of the Board may be held at
such times as the Board shall from time to time by resolution determine. If
any day fixed for a regular meeting shall be a legal holiday at the place
where the meeting is to be held, then the meeting shall be held at the same
hour and place on the next succeeding business day not a legal holiday.
Except as may be required by law or specified herein, notice of regular
meetings need not be given.
3.9 SPECIAL MEETINGS. Special meetings of the Board shall be held
whenever called by the Chairman of the Board, the President or any two or
more directors. Except as otherwise provided by law or by these Bylaws,
notice of the time and place of each such special meeting shall be mailed to
each
37
<PAGE>
director, addressed to him at his residence or usual place of business, at
least five (5) days before the day on which the meeting is to be held, or
shall be sent to him at such place by telegraph or cable or be delivered
personally not less than forty-eight (48) hours before the time at which the
meeting is to be held. Except where otherwise required by law or by these
Bylaws, notice of the purpose of a special meeting need not be given. Notice
of any meeting of the Board shall not be required to be given to any director
who is present at such meeting, except a director who shall attend such
meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
3.10 QUORUM AND MANNER OF ACTING. Except as otherwise provided in
these Bylaws, in the Certificate of Incorporation or by law, the presence of
a majority of the authorized number of directors shall be required to
constitute a quorum for the transaction of business, at any meeting of the
Board, and all matters shall be decided at any such meeting, a quorum being
present, by the affirmative votes of a majority of the directors present. A
meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, provided any action
taken is approved by at least a majority of the required quorum for such
meeting. In the absence of a quorum, a majority of directors present at any
meeting may adjourn the same from time to time until a quorum shall be
present. Notice of an adjourned meeting need not be given. The directors
shall act only as a Board, and the individual directors shall have no power
as such.
3.11 ACTION BY CONSENT. Any action required or permitted to be taken
at any meeting of the Board or of any committee thereof may be taken without
a meeting if a written consent thereto is signed by all members of the Board
or of such committee, as the case may be, and such written consent is filed
with the minutes of proceedings of the Board or committee.
3.12 COMPENSATION. The directors shall receive only such
compensation for their services as directors as may be allowed by resolution
of the Board. The Board may also provide that the Corporation shall reimburse
each such director for any expense incurred by him on account of his
attendance at any meetings of the Board or Committees of the Board. Neither
the payment of such compensation nor the reimbursement of such expenses shall
be construed to preclude any director from serving the Corporation or its
subsidiaries in any other capacity and receiving compensation therefor.
3.13 COMMITTEES OF DIRECTORS.
(a) The Board may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of
one or more of the directors of the Corporation. Any such committee, to the
extent provided in the resolution of the Board and except as otherwise
limited by law, shall have and may exercise all the powers and authority of
the Board in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers
which may require it; provided, however, that no such committee shall have
the power or authority to act on behalf of the Board with regard to:
(i) the approval of any action which, under the
Delaware General Corporation Law, also requires stockholders' approval or
approval of the outstanding shares;
(ii) the filling of vacancies on the Board of
Directors or in any committees;
(iii) the fixing of compensation of the directors
for serving on the Board or on any committee;
(iv) the amendment or repeal of Bylaws or the
adoption of new Bylaws;
38
<PAGE>
(v) the amendment or repeal of any resolution of the
Board of Directors which by its express terms is not so amendable or
repealable;
(vi) a distribution to the stockholders of the
Corporation, except at a rate or in a periodic amount or within a price range
determined by the Board of Directors; or
(vii) the appointment of any other committees of the
Board of Directors or the members thereof.
(b) Meetings and action of committees shall be governed by,
and held and taken in accordance with, the provisions of these Bylaws dealing
with the place of meetings, regular meetings, special meetings and notice,
quorum, waiver of notice, adjournment, notice of adjournment and action
without meeting, with such changes in the context of these Bylaws as are
necessary to substitute the committee and its members for the Board of
Directors and its members, except that the time or regular meetings of
committees may be determined by resolutions of the Board of Directors. Notice
of special meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the committee.
The Board of Directors or a committee may adopt rules for the government of
such committee not inconsistent with the provisions of these Bylaws.
Any such committee shall keep written minutes of its meetings and
report the same to the Board at the next regular meeting of the Board. In the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of any such absent or
disqualified member.
3.14 OTHER COMMITTEES. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee
to consist of one or more non-employee directors and one or more other
disinterested persons, who need not be directors, for the purpose of
providing advice to the Board regarding any matter, including but not limited
to the compensation of officers and other key employees. For the purposes of
this Section, a "disinterested person" means any person having no significant
interest in the actions of the committee, as determined by the Board. Any
such committee, to the extent provided in the resolution of the Board and
except as otherwise limited by law, shall assist the Board in exercising its
powers and authority in the management of the business and affairs of the
Corporation, but shall not itself exercise such powers and authority. Any
such committee shall keep written minutes of its meetings and report the same
to the Board at the next regular meeting of the Board. In the absence or
disqualification of a member of any such committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint any disinterested
person to act at the meeting in the place of any such absent or disqualified
member. The compensation and reimbursement of expenses of the members of any
such committee shall be determined by resolution passed by a majority of the
whole Board. Neither the payment of such compensation nor the reimbursement
of such expenses shall be construed to preclude any such member from serving
the Corporation or its subsidiaries in any other capacity and receiving
compensation therefor.
3.15 CERTAIN TRANSACTIONS. In the absence of fraud, no contract or
other transaction between the Corporation and any other corporation, and no
act of the Corporation, shall in any way be affected or invalidated by the
fact that any of the directors of the Corporation are financially or
otherwise interested in, or are directors or officers of, such other
corporations; and, in the absence of fraud, any director, individually, or
any firm of which any director may be a member, may be a party to, or may be
financially or otherwise interested in, any contract or transaction of the
Corporation; provided, in any
39
<PAGE>
case, that the fact that he or such firm is so interested shall be disclosed
or shall have been known to the Board of Directors or committee. Any director
of the Corporation who is also a director or officer of any such other
corporation or who is so interested may be counted in determining the
existence of a quorum at any meeting of the Board of Directors of the
Corporation that shall authorize any such contract, act or transaction, and
may vote thereat to authorize any such contract, act or transaction, with
full force and effect as if he were not such director or officer of such
other corporation or not so interested.
ARTICLE IV
OFFICERS
4.1 CORPORATE OFFICERS.
(a) The officers of the Corporation shall be a Chief
Executive Officer (Chairman of the Board), a President, one or more Vice
Presidents (the number thereof and their respective titles to be determined
by the Board), a Secretary, Chief Financial Officer (Treasurer) and such
other officers as may be appointed at the discretion of the Board in
accordance with the provisions of Section 4.1(b).
(b) In addition to the officers specified in Section 4.1(a),
the Board may appoint such other officers as the Board may deem necessary or
advisable, including one or more Assistant Secretaries and one or more
Assistant Treasurers, each of whom shall hold office for such period, have
such authority and perform such duties as the Board may from time to time
determine. The Board may delegate to any officer of the Corporation or any
committee of the Board the power to appoint, remove and prescribe the duties
of any officer provided for in this Section 4.1(b).
(c) Any number of offices may be held by the same person.
4.2 ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The officers of
the Corporation, except such officers as may be appointed in accordance with
Sections 4.1(b) or 4.5, shall be appointed annually by the Board at the first
meeting thereof held after the election of the Board. Each officer shall hold
office until such officer shall resign or shall be removed by the Board
(either with or without cause) or otherwise disqualified to serve, or the
officer's successor shall be appointed and qualified.
4.3 REMOVAL. Any officer of the Corporation may be removed, with or
without cause, at any time at any regular or special meeting of the Board by
a majority of the directors of the Board at the time in office or, except in
the case of an officer appointed by the Board, by any officer of the
Corporation or committee of the Board upon whom or which such power of
removal may be conferred by the Board.
4.4 RESIGNATIONS. Any officer may resign at any time by giving
written notice of his resignation to the Board, the President or the
Secretary of the Corporation. Any such resignation shall take effect at the
time specified therein, or, if the time is not specified, upon receipt
thereof by the Board, President or Secretary, as the case may be; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
4.5 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or other cause may be filled for the
unexpired portion of the term thereof in the manner prescribed in these
Bylaws for regular appointments or elections to such office.
4.6 CHIEF EXECUTIVE OFFICER (CHAIRMAN OF THE BOARD). The Chief
Executive Officer (Chairman of the Board) of the Corporation shall be the
chief executive officer of the Corporation, unless otherwise determined by
the Board, and shall have, subject to the control of the Board, general and
active
41
<PAGE>
supervision and management over the business of the Corporation and over its
several subordinate officers, assistants, agents and employees. The Chief
Executive Officer shall preside at all meetings of the stockholders and at
all meetings of the Board.
4.7 PRESIDENT. The President shall have, subject to the control of
the Board and/or the Chief Executive Officer (Chairman of the Board), general
and active supervision and management over the business of the Corporation
and over its several subordinate officers, assistants, agents and employees.
The President shall have such other powers and duties as may from time to
time be assigned to him by the Chief Executive Officer (Chairman of the
Board), the Board or as prescribed by the Bylaws. At the request of the Chief
Executive Officer (Chairman of the Board), or in the case of the absence or
inability to act of the Chief Executive Officer (Chairman of the Board) upon
the request of the Board, the President shall perform the duties of the Chief
Executive Officer (Chairman of the Board) and when so acting, shall have all
the powers of, and be subject to all the restrictions upon, the Chief
Executive Officer (Chairman of the Board).
4.8 VICE PRESIDENTS. Each Vice President shall have such power and
perform such duties as the Board may from time to time prescribe. At the
request of the President, or in the case of the President's absence or
inability to act upon the request of the Board, a Vice President shall
perform the duties of the President and when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the President.
4.9 CHIEF FINANCIAL OFFICER (TREASURER). The Chief Financial
Officer (Treasurer) shall supervise, have custody of, and be responsible for
all funds and securities of the Corporation. The Chief Financial Officer
(Treasurer) shall deposit all such funds in the name of the Corporation in
such banks, trust companies or other depositories as shall be selected by the
Board or in accordance with authority delegated by the Board. The Chief
Financial Officer (Treasurer) shall receive, and give receipts for, moneys
due and payable to the Corporation from any source whatsoever. The Chief
Financial Officer (Treasurer) shall exercise general supervision over
expenditures and disbursements made by officers, agents and employees of the
Corporation and the preparation of such records and reports in connection
therewith as may be necessary or desirable. The Chief Financial Officer
(Treasurer) shall, in general, perform all other duties incident to the
office of Chief Financial Officer (Treasurer) and such other duties as from
time to time may be assigned to the Chief Financial Officer (Treasurer) by
the Board.
4.10 SECRETARY. The Secretary shall have the duty to record the
proceedings of all meetings of the Board, of the stockholders, and of all
committees of which a secretary shall not have been appointed in one or more
books provided for that purpose. The Secretary shall see that all notices are
duly given in accordance with these Bylaws and as required by law; shall be
custodian of the seal of the Corporation and shall affix and attest the seal
to all documents to be executed on behalf of the Corporation under its seal;
and, in general, he shall perform all the duties incident to the office of
Secretary and such other duties as may from time to time be assigned to him
by the Board.
4.11 COMPENSATION. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board. None of such
officers shall be prevented from receiving such compensation by reason of the
fact that he is also a director of the Corporation. Nothing contained herein
shall preclude any officer from serving the Corporation, or any subsidiary
corporation, in any other capacity and receiving proper compensation therefor.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS,
41
<PAGE>
BANK ACCOUNTS, ETC.
5.1 EXECUTION OF CONTRACTS. The Board, except as in these Bylaws
otherwise provided, may authorize any officer or officers, agent or agents,
to enter into any contract or execute any instrument in the name of and on
behalf of the Corporation, and such authority may be general or confined to
specific instances; and unless so authorized by the Board or by these Bylaws,
no officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or in any account.
5.2 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
payment of money, notes or other evidence of indebtedness, issued in the name
of or payable to the Corporation, shall be signed or endorsed by such person
or persons and in such manner as, from time to time, shall be determined by
resolution of the Board. Each such person shall give such bond, if any, as
the Board may require.
5.3 DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may select, or as
may be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, the Chief Executive
Officer, President, any Vice President or the Chief Financial Officer, (or
any other officer or officers, assistant or assistants, agent or agents or
attorney or attorneys of the Corporation who shall from time to time be
determined by the Board), may endorse, assign and deliver checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation.
5.4 GENERAL AND SPECIAL BANK ACCOUNTS. The Board may from time to
time authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may
select or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to
whom such power shall have been delegated by the Board. The Board may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
6.1 CERTIFICATES FOR STOCK.
(a) The shares of the Corporation shall be represented by
certificates, provided that the Board may provide by resolution or
resolutions that some or all of any or all classes or series of its stock
shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board,
every holder of stock represented by certificates and upon request every
holder of uncertificated shares shall be entitled to have a certificate, in
such form as the Board shall prescribe, signed by, or in the name of, the
Corporation by the Chief Executive Officer (Chairman of the Board), or the
President or Vice President, and by the Chief Financial Officer (Treasurer)
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation representing the number of shares registered in certificate form.
Any of or all of the signatures on the certificates may be a facsimile. In
case any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed upon, any such certificates, shall have
ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may nevertheless be issued by the
Corporation with the same effect
42
<PAGE>
as though the person who signed such certificate, or whose facsimile
signature shall have been placed thereupon, were such officer, transfer agent
or registrar at the date of issue.
(b) A record shall be kept of the respective names of the
persons, firms or corporations owning the stock represented by such
certificates, the number and class of shares represented by such
certificates, respectively, and the respective dates thereof, and in case of
cancellation, the respective dates of cancellation. Every certificate
surrendered to the Corporation for exchange or transfer shall be cancelled,
and no new certificate or certificates shall be issued in exchange for any
existing certificate until such existing certificate shall have been so
cancelled, except in cases provided for in Section 6.4.
6.2 TRANSFERS OF STOCK. Transfers of shares of stock of the
Corporation shall be made only on the books of the Corporation by the
registered holder thereof, or by such holder's attorney thereunto authorized
by power of attorney duly executed and filed with the Secretary, or with a
transfer clerk or a transfer agent appointed as provided in Section 6.3, and
upon surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose name
shares of stock stand on the books of the Corporation shall be deemed the
owner thereof for all purposes as regards the Corporation. Whenever any
transfer of shares shall be made for collateral security, and not absolutely,
such fact shall be so expressed in the entry of transfer if, when the
certificate or certificates shall be presented to the Corporation for
transfer, both the transferor and the transferee request the Corporation to
do so.
6.3 REGULATIONS. The Board may make such rules and regulations as
it may deem expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates for shares of the stock of
the Corporation. It may appoint, or authorize any officer or officers to
appoint, one or more transfer clerks or one or more transfer agents and one
or more registrars, and may require all certificates for stock to bear the
signature or signatures of any of them.
6.4 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In any case
of loss, theft, destruction or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft,
destruction or mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond
when, in the judgment of the Board, it is proper to do so.
6.5 PAYMENT FOR SHARES. Certificates for shares may be issued prior
to full payment under such restrictions and for such purposes as the Board
may provide; provided, however, that on any certificate issued to represent
any partly paid shares, the total amount of the consideration to be paid
therefor and the amount paid thereon shall be stated.
ARTICLE VII
INDEMNIFICATION
7.1 AUTHORIZATION FOR INDEMNIFICATION. The Corporation may
indemnify, in the manner and to the full extent permitted by law, any person
(or the estate, heirs, executors, or administrators of any person) who was or
is a party to, or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation), by reason of the fact that such person is or was a
director, 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
43
<PAGE>
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding 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. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in
a manner which 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, that he had reasonable cause to believe that his conduct was
unlawful.
7.2 ADVANCE OF EXPENSES. Costs and expenses (including attorneys'
fees) incurred by or on behalf of a director or officer in defending or
investigating any action, suit, proceeding or investigation may be paid by
the Corporation in advance of the final disposition of such matter, if such
director or officer shall undertake in writing to repay any such advances in
the event that it is ultimately determined that he is not entitled to
indemnification. Such expenses incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the Board deems
appropriate. Notwithstanding the foregoing, no advance shall be made by the
Corporation if a determination is reasonably and promptly made by the Board
by a majority vote of a quorum of disinterested directors, or (if such a
quorum is not obtainable or, even if obtainable, a quorum of disinterested
directors so directs) by independent legal counsel in a written opinion, or
by the stockholders, that, based upon the facts known to the Board or counsel
at the time such determination is made, (a) the director, officer, employee
or agent acted in bad faith or deliberately breached his duty to the
Corporation or its stockholders, and (b) as a result of such actions by the
director, officer, employee or agent, it is more likely than not that it will
ultimately be determined that such director, officer, employee or agent is
not entitled to indemnification.
7.3 INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise or as a member of any committee or
similar body against any liability asserted against him and 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 liability
under the provisions of this Article or applicable law.
7.4 NON-EXCLUSIVITY. The right of indemnity and advancement of
expenses provided herein shall not be deemed exclusive of any other rights to
which any person seeking indemnification or advancement of expenses from the
Corporation may be entitled under any agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. Any
agreement for indemnification of or advancement of expenses to any director,
officer, employee or other person may provide rights of indemnification or
advancement of expenses which are broader or otherwise different from those
set forth herein.
ARTICLE VIII
MISCELLANEOUS
8.1 SEAL. The Board shall provide a corporate seal, which shall be
in the form of a circle and shall bear the name of the Corporation and words
and figures showing that the Corporation was incorporated in the State of
Delaware and the year of incorporation.
44
<PAGE>
8.2 WAIVER OF NOTICES. Whenever notice is required to be given by
these Bylaws or the Certificate of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or
after the time stated therein, and such waiver shall be deemed equivalent to
notice. Attendance of a person at a meeting (whether in person or by proxy in
the case of a meeting of stockholders) shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of any regular or special
meeting of the stockholders, directors or members of a committee of directors
need be specified in any written waiver of notice.
8.3 AMENDMENTS. The original or other Bylaws of the Corporation may
be adopted, amended or repealed by the incorporators, by the initial
directors if they were named in the Certificate of Incorporation, or, before
the Corporation has received any payment for any of its stock, by its Board.
After the Corporation has received any payment for any of its stock, the
power to adopt, amend or repeal Bylaws shall be in the stockholders entitled
to vote; provided, however, the Corporation may, in its Certificate of
Incorporation, confer the power to adopt, amend or repeal Bylaws upon the
directors. The fact that such power has been so conferred upon the directors
shall not divest the stockholders of the power, nor limit their power to
adopt, amend or repeal Bylaws.
8.4 REPRESENTATION OF OTHER CORPORATIONS. The Chief Executive
Officer (Chairman of the Board), President, any Vice President or the
Secretary of this Corporation is authorized to vote, represent and exercise
on behalf of this Corporation all rights incident to any and all shares of
any other corporation or corporations standing in the name of this
Corporation. The authority herein granted to said officers to vote or
represent on behalf of this Corporation any and all shares held by this
Corporation in any other corporation or corporations may be exercised either
by such officers in person or by any person authorized to do so by proxy or
power of attorney duly executed by said officers.
8.5 STOCK PURCHASE PLANS. The Corporation may adopt and carry out a
stock purchase plan or agreement or stock option plan or agreement providing
for the issue and sale for such consideration as may be fixed of its unissued
shares, or of issued shares acquired or to be acquired, to one or more of the
employees or directors of the Corporation or of a subsidiary or to a trustee
on their behalf and for the payment for such shares in installments or at one
time, and may provide for aiding any such persons in paying for such shares
by compensation for services rendered, promissory notes, or otherwise.
Any stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold
under the plan or agreement, the number of shares which may be subscribed
for, the method of payment therefor, the reservation of title until full
payment therefor, the effect of the termination of employment and option or
obligation on the part of the Corporation to repurchase the shares, the time
limits of and termination of the plan and any other matters, not in violation
of applicable law, as may be included in the plan as approved or authorized
by the Board or any committee of the Board.
8.6 CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction and definitions in
the Delaware General Corporation Law shall govern the construction of these
Bylaws. Without limiting the generality of this provision, the singular
number includes the plural, the plural number includes the singular, and the
term "person" includes both a corporation and a natural person.
45
<PAGE>
C E R T I F I C A T E O F S E C R E T A R Y
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of Swiss
Acquisition Corp., a Delaware corporation; and
2. That the foregoing Bylaws, comprising twenty (20) pages,
constitute the Bylaws of said Corporation as duly adopted by the incorporator
of said Corporation and as duly approved by the directors of said Corporation
by unanimous written consent effective as of April 28, 1997.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed the seal of said Corporation effective as of April 28, 1997.
Candace Beaver, Secretary
46
<PAGE>
NOT VALID UNLESS COUNTERSIGNED BY TRANSFER AGENT
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
NUMBER SWISS ACQUISITION SHARES
[SEAL] CORPORATION [SEAL]
AUTHORIZED COMMON STOCK: 20,000,000 SHARES - PAR VALUE: $.001
THIS CERTIFIES THAT
IS THE RECORD HOLDER OF
SHARES OF SWISS ACQUISITION CORPORATION COMMON STOCK
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed. This
Certificate is not valid until countersigned by the Transfer Agent and
registered by the Registrar.
WITNESS THE FACSIMILE SEAL OF THE CORPORATION AND THE FACSIMILE
SIGNATURES OF ITS DULY AUTHORIZED OFFICERS.
DATED:
/s/ Candace Beaver /s/ Kevin DeVito
- ---------------------- [SEAL] -----------------------
SECRETARY CHIEF EXECUTIVE OFFICER
<PAGE>
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT ("Agreement") is entered into on the __ day of
_____________ 1999 between _______________________________________, a _______
corporation (the "Company"), and ____________ (Indemnitee").
R E C I T A L
The Indemnitee currently is serving as a director or officer, or both,
of the Company and the Company wishes the Indemnitee to continue in such
capacities. In order to induce the Indemnitee to continue to serve in such
capacities for the Company and in consideration for his continued service, the
Company wishes to provide for indemnification of the Indemnitee upon the terms
and conditions set forth below.
A G R E E M E N T
It is agreed as follows:
1. The Company will pay on behalf of the Indemnitee, and his executors,
administrators or assigns, any amount which he is or becomes legally obligated
to pay because of any claim or claims made against him because of any act or
omission or neglect or breach of duty which he commits or suffers while acting
in his capacity as a director or officer of the Company. The payments which the
Company will be obligated to make hereunder shall include, INTER ALIA, damages,
judgments, settlements, costs of investigation and costs of defense of legal,
criminal or equitable actions, claims or proceedings and appeals therefrom,
including attorneys' fees of Indemnitee, costs of attachment or similar bonds,
costs of establishing a right to indemnification under this Agreement, and
fines, penalties or other obligations or fees imposed by law.
2. If a claim under this Agreement is not paid by the Company within 60
days after a written claim has been received by the Company, the claimant may at
any time thereafter bring suit against the Company to recover the unpaid amount
of the claim and if successful, in whole or in part, the claimant also shall be
entitled to receive from the Company claimant's reasonable attorneys' fees and
other expenses of prosecuting such claim.
3. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers reasonably required and shall do
everything that may be necessary or appropriate to secure such rights, including
the execution of such documents necessary or appropriate to enable the Company
effectively to bring suit to enforce such rights.
4. Notwithstanding anything contained herein to the contrary:
(a) The Company shall not be liable to Indemnitee for, nor
obligated to furnish advances in connection with, any loss, cost or expense of
Indemnitee resulting from his willful or negligent violation of Section 16(b) of
the Securities Exchange Act of 1934 or the Foreign Corrupt Practices Act of
1977.
(b) The Company shall not be liable to the Indemnitee for, and
shall not be obligated to furnish any advances except for repayable costs,
charges and expenses as stated below, in connection with, any loss, cost or
expense of Indemnitee as the direct result of a final judgment for money damages
payable to the Company or any affiliate for or on account of loss, cost or
expense directly or indirectly resulting form the Indemnitee's negligence or
misconduct within the meaning of Section 145(b) of the Delaware General
Corporation Law.
(c) Unless otherwise allowed by a court of competent
jurisdiction or in a separate action in the Chancery Court of Delaware, the
Company shall not be liable to Indemnitee for, and Indemnitee undertakes to
repay the Company for all advances which may have been made of, expenses of
investigation, defense or appeal of any matter the judgment of which is excluded
under subsection 4(b) next above.
48
<PAGE>
(d) Unless otherwise determined by a court of competent
jurisdiction or in a separate action in the Chancery Court of Delaware, a
settlement of any suit, action or proceeding shall be presumed to be an
"expense" in mitigation of the expenses of continued litigation and not the
compromise of a judgment on the merits of the action, suit or proceeding.
(e) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 (the "Securities Act") may be permitted to directors
of the Company pursuant to the foregoing provisions, or otherwise, the Board of
Directors has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director of the Company in the wholly or
partially successful defense of any action, suit or proceeding) is asserted by
the Indemnitee in connection with Company securities which have been registered,
the Company will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it hereunder is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue. In effect, therefore, absent a court decision in the
individual case or controlling precedent, the provisions of the Agreement will
not apply to liabilities of the Indemnitee arising under the Securities Act
unless and only to the extent that the Indemnitee is successful in the defense
of the action, suit or proceeding in question.
(f) The Company shall not be liable under this Agreement to
make any payment in connection with any claim made against the Indemnitee:
(i) based upon or attributable to the Indemnitee
or any member of his immediate family gaining in fact any personal profit or
advantage to which he was not legally entitled;
(ii) based upon or attributable to the dishonesty
of the Indemnitee seeking payment hereunder; provided that the Indemnitee shall
be protected under this Agreement as to any claims upon which suit may be
brought against him by reason of any alleged dishonesty on his part, unless a
judgment or other final adjudication thereof adverse to the Indemnitee shall
establish that he committed acts of active and deliberate dishonesty, with
actual dishonest purpose and intent, which acts were material to the cause of
action so adjudicated;
(iii) for bodily injury, sickness, disease or death
of any person, or damage to or destruction of any tangible property, including
loss of use thereof; or
(iv) for which indemnification under this Agreement
is determined by a final adjudication of a court of competent jurisdiction to be
unlawful and violative of public policy.
5. The Indemnitee, as a condition precedent to his right to be
indemnified under this Agreement, shall give to the Company notice in writing as
soon as practicable of any claim made against him for which indemnity will or
could be sought under this Agreement. Notice to the Company shall be directed to
the attention of the Corporate Secretary of the Company at the address of the
Company's executive offices (or such other address as the Company shall
designate in writing to the Indemnitee); notice shall be deemed received if sent
by prepaid mail properly addressed, the date of such notice being the date
postmarked. In addition, upon request made by the Corporation the Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within the Indemnitee's power.
6. Costs and expenses (including attorneys' fees) incurred by the
Indemnitee in defending or investigating any action, suit, proceeding or
investigation shall be paid by the Company in advance of the final disposition
of such matter. The Indemnitee agrees to repay any such advances in the event
that it is ultimately determined that the Indemnitee is not entitled to
indemnification under the terms of the Agreement. Notwithstanding the foregoing
or any other provision of this Agreement, no advance shall be made by the
Company if a determination is reasonably and promptly made by the board of
directors by a majority vote of a quorum of disinterested directors, or (if such
a quorum is not obtainable or, even if obtainable, a quorum of disinterested
directors so directs) by independent legal counsel, that, based upon the facts
known to the board or counsel at the time such determination is made, (a) the
Indemnitee knowingly and intentionally acted in bad faith, and (b) it is
49
<PAGE>
more likely than not that it will ultimately be determined that the
Indemnitee is not entitled to indemnification under the terms of this
Agreement.
7. Nothing contained herein shall be deemed to diminish or otherwise
restrict the Indemnitee's right to indemnification under any provision of the
articles of incorporation or bylaws of the Company or under Delaware law.
8. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
9. This Agreement shall be binding upon all successors and assigns of
the Company (including any transferee of all or substantially all of its assets
and any successor by merger or operation of law) and shall inure to the benefit
of the heirs, personal representatives and estate of Indemnitee.
50
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
"COMPANY"
______________________________,
a ___________ corporation
______________________________,
"INDEMNITEE"
______________________________,
51
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 7
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<DEBT-HELD-FOR-SALE> 0
<DEBT-CARRYING-VALUE> 0
<DEBT-MARKET-VALUE> 0
<EQUITIES> 0
<MORTGAGE> 0
<REAL-ESTATE> 0
<TOTAL-INVEST> 0
<CASH> 0
<RECOVER-REINSURE> 0
<DEFERRED-ACQUISITION> 0
<TOTAL-ASSETS> 239
<POLICY-LOSSES> 0
<UNEARNED-PREMIUMS> 0
<POLICY-OTHER> 0
<POLICY-HOLDER-FUNDS> 0
<NOTES-PAYABLE> 0
0
0
<COMMON> 1000
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 239
0
<INVESTMENT-INCOME> 0
<INVESTMENT-GAINS> 0
<OTHER-INCOME> 0
<BENEFITS> 0
<UNDERWRITING-AMORTIZATION> 0
<UNDERWRITING-OTHER> 0
<INCOME-PRETAX> (1641)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1641)
<EPS-BASIC> 0
<EPS-DILUTED> 0
<RESERVE-OPEN> 0
<PROVISION-CURRENT> 0
<PROVISION-PRIOR> 0
<PAYMENTS-CURRENT> 0
<PAYMENTS-PRIOR> 0
<RESERVE-CLOSE> 0
<CUMULATIVE-DEFICIENCY> 0
</TABLE>
