<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
LOMBARDIA ACQUISITION CORP.
(Name of Small Business Issuer in its charter)
Delaware 33-0889197
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
2600 Michelson Drive, Suite 490
Irvine, California 92612
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
ISSUER'S TELEPHONE NUMBER, INCLUDING AREA CODE
(949) 475-9600
(950) 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
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(TITLE OF CLASS)
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PART 1
ITEM 1. DESCRIPTION OF BUSINESS
Lombardia Acquisition Corp., a Delaware corporation (the "Company"),
was incorporated on April 21, 1997. The Company's administrative offices are
located at 2600 Michelson Drive, Suite 490, Irvine, California 92612; telephone
(949) 475-9600. 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 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.
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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 REORGANIZATION, 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 one employee at the present time, Danilo
Cacciamatta, the Company's Chief Executive Officer, and does not contemplate
hiring anyone until a business is acquired. Mr. Cacciamatta intends to devote no
more than 10% of his 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.
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.
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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 $500 in April 1997 and
since then management of the Company (who also are the controlling shareholders
of the Company) have contributed an additional $229 to the capital of the
Company. 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 1999 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. The Company is dependent on its officers and
directors' personal abilities to evaluate business opportunities that may be
presented in the future. 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
owns approximately 83.6% 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."
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.
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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 accounting firm employing 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 500,000 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 500,000 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
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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, 1999, the Company had no assets or liabilities. The
Company was originally capitalized with $500 in April 1997 and since then
management of the Company (who also are the controlling shareholders of the
Company) have contributed an additional $229 to the capital of the Company.
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 Danilo Cacciamatta, Chief Executive
Officer of the Company, the Company's operations are located at 2600 Michelson
Drive, Suite 490, Irvine, California 92612. The Company's office is located
within a suite of offices leased by the accounting firm owned by Mr.
Cacciamatta. 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.
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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 the date of this
Registration Statement 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.
NAME AND ADDRESS NUMBER OF SHARES PERCENTAGE OWNED
- ---------------------------- -------------------- --------------------
Danilo Cacciamatta (1) 139,000 27.8%
Templemore Partners (1)(2) 139,000 27.8%
Suzanne Kerr (1) 139,000 27.8%
All officers and directors
as a group(3) 278,000 55.6%
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(1) Address is 2600 Michelson Drive, Suite 490, Irvine, California 92612.
(2) Templemore Partners is a California general partnership of which
Desmond P. Allen, the Secretary of the Company, is a general partner.
The other general partners of Templemore Partners are Mr. Allen's
parents, Patrick and Gabrielle Allen.
(3) Includes 139,000 shares of Common Stock held by Templemore Partners, of
which Desmond P. Allen, the Secretary of the Company, is a general
partner.
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ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
Set forth below are the directors and officers of the Company.
NAME AGE POSITION
---- --- --------
Danilo Cacciamatta 54 Chairman of the Board, Chief Executive
Officer and Chief Financial Officer
Desmond P. Allen 44 Secretary
Mr. Cacciamatta co-founded the Company in April 1997 and has served as
Chairman of the Board, Chief Executive Officer and Chief Financial Officer since
inception. Mr. Cacciamatta has been Chief Executive Officer of Cacciamatta
Accountancy Corp., certified public accountants, since June 1996 and served as
co-managing partner of its predecessor, Saddington-Cacciamatta, certified public
accountants, from 1992 to June 1996. From 1972 to 1988, Mr. Cacciamatta was
employed by KPMG Peat Marwick, in a variety of positions, including audit
partner from 1980 to 1988. Mr. Cacciamatta is licensed as a certified public
accountant by the State of California. Mr. Cacciamatta also serves as co-founder
and Chairman of the Board, Chief Executive Officer and Chief Financial Officer
of the following public shell corporations: Sorisole Acquisition Corp., Cork
Acquisition Corp., Kilkenny Acquisition Corp., Meelick Acquisition Corp.,
Clusone Acquisition Corp., Bergamo Acquisition Corp. and Templemore Acquisition
Corp.
Mr. Allen co-founded the Company in April 1997 and has served as
Secretary since inception. From November 1999 to the present, Mr. Allen has
served as a financial management consultant. From 1995 to November 1999, Mr.
Allen was been employed by Toshiba America Information Systems, Inc., a
wholly-owned subsidiary of Toshiba America, Inc., in various financial
management positions, including Vice President, Group Controller, Computer
Systems Group of Toshiba America Information Systems, Inc. from 1997 to November
1999. From 1990 to 1995, Mr. Allen served as Corporate Controller of Marshall
Industries, Inc., a NYSE listed distributor of industrial electronic components
and production supplies. Mr. Allen is licensed as a certified public accountant
by the State of California and from 1982 to 1989 was employed by Deloitte
Haskins & Sells (now known as Deloitte Touche). Mr. Allen also serves as
co-founder and Secretary of the following public shell corporations: Sorisole
Acquisition Corp., Cork Acquisition Corp., Kilkenny Acquisition Corp., Clusone
Acquisition Corp., Meelick Acquisition Corp., Bergamo Acquisition Corp. and
Templemore Acquisition Corp.
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.
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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, 1999, 1998 and 1997.
<TABLE>
<CAPTION>
ANNUAL COMPENSATION LONG-TERM COMPENSATION
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NAME AND POSITION YEAR SALARY BONUS OTHER RESTRICTED COMMON SHARES ALL
ANNUAL STOCK UNDERLYING OTHER
COMPENSATION AWARDS ($) OPTIONS GRANTED COMPEN-
(# SHARES) SATION
- --------------------------- ------ --------- --------- ------------- ----------- --------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Danilo Cacciamatta, CEO(1) 1999 $ -0- -0- -0- -0- -0- -0-
1998 -0- -0- -0- -0- -0- -0-
1997 -0- -0- -0- -0- -0- -0-
Desmond P. Allen, Sec'ty(1) 1999 $ -0- -0- -0- -0- -0- -0-
1998 $ -0- -0- -0- -0- -0- -0-
1997 -0- -0- -0- -0- -0- -0-
</TABLE>
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(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
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NUMBER OF SECURITIES
UNDERLYING % OF TOTAL OPTIONS/SARS EXERCISE OR
OPTIONS/SARS GRANTED TO EMPLOYEES IN BASE PRICE
NAME GRANTED (#) FISCAL YEAR ($/SH) EXPIRATION DATE
- ------------------------- --------------------- ------------------------- --------------- -----------------
<S> <C> <C> <C> <C>
None.
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FY-END OPTION/SAR VALUES
- --------------------------------------------------------------------------------------------------------------------
NUMBER OF
SECURITIES VALUE OF
UNDERLYING UNEXERCISED
UNEXERCISED IN-THE-MONEY
OPTIONS (SARS OPTIONS (SARS
AT FY-END (#) AT FY-END($)
SHARES ACQUIRED EXERCISABLE/ EXERCISABLE/
NAME ON EXERCISE VALUE RECEIVED UNEXERCISABLE UNEXERCISABLE
- ------------------------- --------------------- ------------------------- --------------- ------------------
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.
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.
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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 the date of this Registration Statement,
500,000 shares were issued and outstanding and held of record by 41
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 the date of this Registration Statement, there were 41 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.
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.
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ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
In April 1997, the Company issued 500,000 shares of Common Stock, for
the total consideration of $500, to 41 parties, including 420,000 shares of
Common Stock to Danilo Cacciamatta (139,000 shares), two fellow employees of Mr.
Cacciamatta at Cacciamatta Accountancy Corp. (3,000 shares) and Templemore
Partners (139,000 shares), Suzanne Kerr (139,000) and 80,000 shares of Common
Stock to 36 residents of Europe, each of whom are the direct relatives or long
standing friends of Desmond, Patrick and Gabrielle Allen, the general partners
of Templemore Partners, or Danilo Cacciamatta. There was no underwriter involved
in this issuance. The issuances were conducted pursuant to Section 4(2) under
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.
(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.
11
<PAGE>
(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.
(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:
12
<PAGE>
"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 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, Danilo
Cacciamatta and Desmond P. Allen, pursuant to written indemnity agreements.
13
<PAGE>
INDEX TO FINANCIAL STATEMENTS
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
14
<PAGE>
LOMBARDIA ACQUISITION CORP.
(A Development Stage Company)
Financial Statements
December 31, 1999
15
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
--------------------------------------------------
The Board of Directors
Lombardia Acquisition Corp.
We have audited the accompanying balance sheet of Lombardia Acquisition Corp. (a
development stage company) (the "Company") as of December 31, 1999, and the
related statements of operations, shareholders' equity and cash flows for each
of the two years ended December 31, 1999 and for the period from inception
(April 21, 1997) to December 31, 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
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, on a test basis, examination of 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 provide 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 Lombardia Acquisition Corp. as
of December 31, 1999, and the results of its operations and cash flows for each
of the two years ended December 31, 1999 and the period from inception (April
21, 1997) to December 31, 1999 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 4 to the
financial statements, the Company needs additional capital infusion in order to
fund current expenditures, acquire business opportunities and achieve profitable
operations. This factor raises substantial doubt about the Company's ability to
continue as a going concern. Management's plans in regard to these matters are
also discussed in Note 4. The financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
/s/ Baron Accountancy Corp.
Irvine, California
February 9, 2000
16
<PAGE>
LOMBARDIA ACQUISITION CORP.
(A DEVELOPMENT STAGE COMPANY)
Balance Sheet
DECEMBER 31, 1999
-----------------
ASSETS
CURRENT ASSETS:
Cash $ -
-----------------
$ -
=================
LIABILITIES AND SHAREHOLDERS' EQUITY
TOTAL LIABILITIES $ -
-----------------
SHAREHOLDERS' EQUITY:
Preferred stock, 10,000,000 shares authorized, $.001 par
value, none issued and outstanding -
Common stock, 20,000,000 shares authorized, $.001 par
value, 500,000 shares issued and outstanding 500
Additional paid in capital 229
Deficit accumulated during the development stage (729)
-----------------
NET SHAREHOLDERS' EQUITY -
-----------------
$ -
=================
The accompanying notes are an integral part of these financial statements.
17
<PAGE>
LOMBARDIA ACQUISITION CORP.
(A DEVELOPMENT STAGE COMPANY)
Statement of Operations
<TABLE>
<CAPTION>
Cumulative
from inception
(April 21,
Year ended 1997) to
December 31, December 31,
1999 1998 1999
------------- ------------- -------------
<S> <C> <C> <C>
COSTS AND EXPENSES:
General and administrative expenses $ 209 $ 190 $ 729
------------- ------------- -------------
NET LOSS $ 209 $ 190 $ 729
============= ============= =============
BASIC AND DILUTED NET LOSS PER COMMON SHARE $ 0.000 $ 0.000
============= =============
BASIC AND DILUTED WEIGHTED AVERAGE NUMBER OF
COMMON SHARES OUTSTANDING 500,000 500,000
============= =============
</TABLE>
The accompanying notes are an integral part of these financial statements.
18
<PAGE>
LOMBARDIA ACQUISITION CORP.
(A DEVELOPMENT STAGE COMPANY)
Statements of Shareholders' Equity
From Inception (April 21, 1997)
to December 31, 1999
<TABLE>
<CAPTION>
Deficit
Accumulated
Preferred Stock Common Stock Additional During the Net
------------------ ----------------------- Paid In Development Shareholders'
Shares Amount Shares Amount Capital Stage Equity
-------- --------- ------------ ---------- -------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
INCEPTION, APRIL 21, 1997 - $ - - $ - $ - $ - $ -
Issuance of common stock - - 500,000 500 - - 500
Net loss - - - - (330) (330)
-------- --------- ------------ ---------- -------------- --------------- ---------------
BALANCE, DECEMBER 31, 1997 - - 500,000 500 - (330) 170
Capital contribution - - - - 20 - 20
Net loss - - - - - (190) (190)
-------- --------- ------------ ---------- -------------- --------------- ---------------
BALANCE, DECEMBER 31, 1998 - - 500,000 500 20 (520) -
Capital contribution - - - - 209 - 209
Net loss - - - - - (209) (209)
-------- --------- ------------ ---------- -------------- --------------- ---------------
BALANCE, DECEMBER 31, 1999 - $ - - $ 500 $ 229 $ (729) $ -
======== ========= ============ ========== ============== =============== ===============
</TABLE>
The accompanying notes are an integral part of these financial statements.
19
<PAGE>
LOMBARDIA ACQUISITION CORP.
(A DEVELOPMENT STAGE COMPANY)
Statements of Cash Flows
<TABLE>
<CAPTION>
Cumulative
from inception
(April 21,
Year ended 1997) to
December 31, December 31,
1999 1998 1999
------------- ------------- -------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (209) $ (190) $ (729)
Adjustments to reconcile net loss to net cash
used by operating activities: - - -
------------- ------------- -------------
Net cash used by operating activities (209) (190) (729)
------------- ------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES - - -
------------- ------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of common stock - - 500
Capital contribution 209 20 229
------------- ------------- -------------
Net cash provided by financing activities 209 20 729
------------- ------------- -------------
Net increase (decrease) in cash - (170) (170)
CASH, BEGINNING OF PERIOD - 170 -
------------- ------------- -------------
CASH, END OF PERIOD $ - $ - $ -
============= ============= =============
</TABLE>
The accompanying notes are an integral part of these financial statements.
20
<PAGE>
LOMBARDIA ACQUISITION CORP.
(A DEVELOPMENT STAGE COMPANY)
Notes to Financial Statements
December 31, 1999
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
- -----------------------------------------------------------------
Organization
------------
Lombardia Acquisition Corp., a Delaware corporation (the "Company") was
formed on April 21, 1997. The Company has been inactive and has had no
significant operations. The Company is authorized to do any legal business
activity as controlled by Delaware law. The Company is classified as a
development stage company because its principal activities involve seeking
to acquire business opportunities.
Cash and cash equivalents
-------------------------
The Company considers all liquid investments with a maturity of three
months or less from the date of purchase that are readily convertible into
cash to be cash equivalents.
Use of estimates
----------------
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect certain reported amounts and disclosures.
Accordingly, actual results could differ from those estimates.
Income taxes
------------
The Company reports certain expenses differently for financial and tax
reporting purposes and, accordingly, provides for the related deferred
taxes. Income taxes are accounted for under the liability method in
accordance with Statement of Financial Accounting Standards 109,
Accounting for Income Taxes.
Basic and diluted net loss per share
------------------------------------
Net loss per share is calculated in accordance with Statement of Financial
Accounting Standards 128, Earnings Per Share ("SFAS 128"), which
superseded Accounting Principles Board Opinion 15 ("APB 15"). Basic net
loss per share is based upon the weighted average number of common shares
outstanding. Diluted net loss per share is based on the assumption that
all dilutive convertible shares, stock options and warrants were converted
or exercised. Dilution is computed by applying the treasury stock method.
Under this method, options and warrants are assumed to be exercised at the
beginning of the period (or at the time of issuance, if later), and as if
funds obtained thereby were used to purchase common stock at the average
market price during the period. At December 31, 1999 there were no
dilutive convertible shares, stock options or warrants.
(continued)
21
<PAGE>
LOMBARDIA ACQUISITION CORP.
(A DEVELOPMENT STAGE COMPANY)
Notes to Financial Statements
2. SHAREHOLDERS' EQUITY
- --------------------------
In April 1997, the Company issued 450,000 shares of common stock at a
price of $.001 per share to its founders. The Company also issued 50,000
shares of common stock at a price of $.001 per share in a limited private
placement to approximately 36 investors.
3. INCOME TAXES
- ------------------
The Company records its income tax provision in accordance with SFAS 109,
which requires the use of the liability method of accounting for deferred
income taxes.
As the Company has not generated taxable income since its inception, no
provision for income taxes has been made. At December 31, 1999, the
Company did not have any significant net operating loss carryforwards.
At December 31, 1999, the Company did not have any significant deferred
tax liabilities or deferred tax assets.
4. GOING CONCERN
- -------------------
The accompanying financial statements have been prepared in conformity
with generally accepted accounting principles, which contemplate
continuation of the Company as a going concern. Additional capital
infusion is necessary in order to fund current expenditures, acquire
business opportunities and achieve profitable operations. This factor
raises substantial doubt about the Company's ability to continue as a
going concern.
The Company's management intends to continue funding current expenditures
by means of contributions to capital and to raise additional funds through
equity offerings. However, there can be no assurance that management will
be successful in this endeavor.
22
<PAGE>
PART III
ITEM 1. INDEX TO EXHIBITS PAGE
----
3.1 Certificate of Incorporation of the Company
3.2 Bylaws of the Company
4.1 Specimen of Common Stock Certificate
10.1 [Form of] Indemnity Agreement.
27.1 Financial Data Schedule
<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.
LOMBARDIA ACQUISITION CORP.,
a Delaware corporation
Date: February 15, 2000 By: /S/ DANILO CACCIAMATTA
-----------------------
Danilo Cacciamatta,
Chief Executive Officer
CERTIFICATE OF INCORPORATION
OF
LOMBARDIA ACQUISITION CORP.
ARTICLE I
Name of Corporation
The name of this corporation is Lombardia 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 respectively "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.
ARTICLE V
Incorporator
The incorporator is Danilo Cacciamatta 19100 Von Karman Avenue, Third
Floor, Irvine, California 92715.
<PAGE>
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.
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 21, 1997
/S/ Danilo Cacciamatta
----------------------------------
Danilo Cacciamatta, Incorporator
BYLAWS
OF
LOMBARDIA ACQUISITION CORP.
A Delaware Corporation
ARTICLE I
OFFICE
1.1 REGISTERED OFFICE. The registered office of Lombardia 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 19100 Von Karman Avenue, Third Floor,
Irvine, California 92715. 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.
-1-
<PAGE>
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 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.
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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
(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.
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(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 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.
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(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 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.
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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.
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(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
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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 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
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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.
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.
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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 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.
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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;
(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.
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(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
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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
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.
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<PAGE>
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
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.
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<PAGE>
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,
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.
-15-
<PAGE>
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 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.
-16-
<PAGE>
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 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.
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<PAGE>
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.
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<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.
-19-
<PAGE>
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.
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<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 Lombardia
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 21, 1997.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of said Corporation effective as of April 21, 1997.
Desmond Allen, Secretary
-21-
NUMBER SHARES
[ ] [ ]
PAR VALUE $.001
LOMBARDIA ACQUISITION CORP.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK CUSIP
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT
Is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF LOMBARDIA
ACQUISITION CORP. (hereinafter called the "Corporation"), transferable only
on the books of the Corporation by the holder hereof in person or by duly
authorized attorney upon surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and shall be
held subject to all of the provisions of the Certificate of Incorporation of
the Corporation to all of which the holder by acceptance hereof assents.
This Certificate is not valid unless countersigned and registered by the
Transfer Agent.
Witness the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Date
[SEAL OF LOMBARDIA ACQUISITION CORP.]
/s/ Danilo Cacciamatta /s/ Desmond P. Allen
- ---------------------- --------------------
Chief Executive Officer Secretary
Countersigned: [Illegible Signature]
Pacific Stock Transfer Company
P.O. Box 93385
Las Vegas, NV 89193
<PAGE>
The following abbreviation, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________Custodian_______
(Cust) (Minor)
under Uniform Gifts to Minors
TEN ENT - as tenants by the entireties Act _____________________
(State)
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
</TABLE>
Additional abbreviation may also be used though not in above list.
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE .
- ---------------------------------------
.
- ---------------------------------------
________________________________________________________________________________
Please print or typewrite name and address including postal zip code of assignee
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Shares of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
________________________________________________________________________________
Attorney to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated, __________________________
_____________________________________________.
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Certificate, in every particular, without
alteration or enlargement, or any change whatever.
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT ("Agreement") is entered into on the 21st day
of April 1997 between LOMBARDIA ACQUISITION CORP., a Delaware 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.
<PAGE>
(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 Delaware General Corporation Law.
(c) Unless otherwise allowed by a court of competent
jurisdiction, 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.
(d) Unless otherwise determined by a court of competent
jurisdiction, 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;
-2-
<PAGE>
(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 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.
-3-
<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"
LOMBARDIA ACQUISITION CORP.,
an Delaware corporation
-----------------------------
Danilo Cacciamatta,
President
"INDEMNITEE"
-----------------------------
-4-
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<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
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0
0
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