<PAGE>
FEDORA INDUSTRIES INC.
NOTICE OF EXTRAORDINARY GENERAL MEETING OF MEMBERS
TAKE NOTICE that an Extraordinary General Meeting (the "Meeting") of the
members of FEDORA INDUSTRIES INC. (the "Company") will be held at
Suite 1600 - 777 Dunsmuir Street, Vancouver, British Columbia, on Wednesday,
the 16th day of February, 2000 at 10:00 a.m. for the following purposes:
1. To consider and, if thought fit, to approve a special resolution
changing the name of the Company to "Airbomb.com Marketing Ltd."
2. To consider and, if thought fit, to approve a special resolution to
authorize the directors to substitute a name other than "Airbomb.com
Marketing Ltd." as the new name of the Company.
3. To consider and, if thought fit, to approve an ordinary resolution for
the approval of certain stock options granted to insiders.
4. To consider and, if thought fit, to approve a special resolution for the
approval of an increase in the Company's authorized share capital.
5. To consider and, if thought fit, to approve a special resolution for the
approval of the Company's continuance from British Columbia to the state of
Delaware.
TAKE NOTICE THAT pursuant to the COMPANY ACT you may until February 14, 2000
give the Company notice of dissent by registered mail addressed to the
registered office of the Company at Suite 1600, 777 Dunsmuir Street,
PO Box 10425, Pacific Centre, Vancouver, BC, V7Y 1K4 with respect to the special
resolution to continue the company from the province of British Columbia to
the state of Delaware. As a result of giving notice of dissent you may, on
receiving a notice of intention to act under section 207 of the Act, require
the Company to purchase all your shares in respect of which the notice of
dissent was given. See "Shareholder's Right to Dissent" on page 22 of the
enclosed Information Circular for further particulars of this dissent right.
A MEMBER ENTITLED TO ATTEND AND VOTE AT THE MEETING IS ENTITLED TO APPOINT A
PROXYHOLDER TO ATTEND AND VOTE IN HIS STEAD. IF YOU ARE UNABLE TO ATTEND THE
MEETING IN PERSON, PLEASE READ THE NOTES ACCOMPANYING THE INSTRUMENT OF PROXY
ENCLOSED AND THEN COMPLETE AND RETURN THE PROXY WITHIN THE TIME SET OUT IN
THE NOTES. AS SET OUT IN THE NOTES, THE ENCLOSED INSTRUMENT OF PROXY IS
SOLICITED BY MANAGEMENT, BUT YOU MAY AMEND IT, IF YOU SO DESIRE, BY STRIKING
OUT THE NAMES LISTED THEREIN AND INSERTING IN THE SPACE PROVIDED THE NAME OF
THE PERSON YOU WISH TO REPRESENT YOU AT THE MEETING.
<PAGE>
DATED at Vancouver, British Columbia, this 13th day of January, 2000.
BY ORDER OF THE BOARD
"DAVID HOUSTON"
PRESIDENT
<PAGE>
FEDORA INDUSTRIES INC.
INFORMATION CIRCULAR
FOR AN EXTRAORDINARY GENERAL MEETING OF MEMBERS
This information is given as of December 29, 1999
SOLICITATION OF PROXIES
This Information Circular is furnished in connection with the solicitation of
proxies by the management of FEDORA INDUSTRIES INC. (the "Company"), for use
at the Extraordinary General Meeting (the "Meeting"), of the members of the
Company, to be held at the time and place and for the purposes set forth in
the accompanying Notice of Meeting and at any adjournment thereof.
PERSONS OR COMPANIES MAKING THE SOLICITATION
THE ENCLOSED INSTRUMENT OF PROXY IS SOLICITED BY MANAGEMENT. Solicitations
will be made by mail and possibly supplemented by telephone or other personal
contact to be made without special compensation by regular officers and
employees of the Company. The Company may reimburse members' nominees or
agents (including brokers holding shares on behalf of clients) for the cost
incurred in obtaining authorization from their principals to execute the
instrument of proxy. No solicitation will be made by specifically engaged
employees or soliciting agents. The cost of solicitation will be borne by the
Company. None of the directors of the Company have advised management in
writing that they intend to oppose any action intended to be taken by
management as set forth in this Information Circular.
APPOINTMENT AND REVOCATION OF PROXIES
The persons named in the accompanying instrument of proxy are directors or
officers of the Company. A MEMBER HAS THE RIGHT TO APPOINT A PERSON TO ATTEND
AND ACT FOR HIM ON HIS BEHALF AT THE MEETING OTHER THAN THE PERSONS NAMED IN
THE ENCLOSED INSTRUMENT OF PROXY. TO EXERCISE THIS RIGHT, THE MEMBER MUST
STRIKE OUT THE NAMES OF THE PERSONS NAMED IN THE INSTRUMENT OF PROXY AND INSERT
THE NAME OF HIS NOMINEE IN THE BLANK SPACE PROVIDED, OR COMPLETE ANOTHER
INSTRUMENT OF PROXY.
THE COMPLETED INSTRUMENT OF PROXY MUST BE DATED AND SIGNED AND THE DULY
COMPLETED INSTRUMENT OF PROXY MUST BE DEPOSITED AT THE COMPANY'S TRANSFER
AGENT AT PACIFIC CORPORATE TRUST COMPANY, 830 - 625 HOWE STREET, VANCOUVER,
BRITISH COLUMBIA, V6C 3B8, AT LEAST 48 HOURS BEFORE THE TIME OF THE MEETING
OR ANY ADJOURNMENT THEREOF, EXCLUDING SATURDAYS, SUNDAYS AND HOLIDAYS.
The instrument of proxy must be signed by the member or by his duly
authorized attorney. If signed by a duly authorized attorney, the instrument
of proxy must be accompanied by the original power of attorney or a
notarially certified copy thereof. If the member is a
<PAGE>
2
corporation, the instrument of proxy must be signed by a duly authorized
attorney, officer, or corporate representative, and must be accompanied by
the original power of attorney or document whereby the duly authorized
officer or corporate representative derives his power, as the case may be, or
a notarially certified copy thereof.
IN ADDITION TO REVOCATION IN ANY OTHER MANNER PERMITTED BY LAW, A MEMBER MAY
REVOKE A PROXY EITHER BY (a) SIGNING A PROXY BEARING A LATER DATE AND
DEPOSITING IT AT THE PLACE AND WITHIN THE TIME AFORESAID, OR (b) SIGNING AND
DATING A WRITTEN NOTICE OF REVOCATION (IN THE SAME MANNER AS THE INSTRUMENT OF
PROXY IS REQUIRED TO BE EXECUTED AS SET OUT IN THE NOTES TO THE INSTRUMENT OF
PROXY) AND EITHER DEPOSITING IT AT THE PLACE AND WITHIN THE TIME AFORESAID OR
WITH THE CHAIRMAN OF THE MEETING ON THE DAY OF THE MEETING OR ON THE DAY OF
ANY ADJOURNMENT THEREOF, OR (c) REGISTERING WITH THE SCRUTINEER AT THE
MEETING AS A MEMBER PRESENT IN PERSON, WHEREUPON SUCH PROXY SHALL BE DEEMED
TO BE HAVE BEEN REVOKED.
VOTING OF SHARES AND EXERCISE OF DISCRETION OF PROXIES
On any poll, the persons named in the enclosed instrument of proxy will vote
the shares in respect of which they are appointed and, where directions are
given by the member in respect of voting for or against any resolution, will
do so in accordance with such direction.
IN THE ABSENCE OF ANY DIRECTION IN THE INSTRUMENT OF PROXY, IT IS INTENDED
THAT SUCH SHARES WILL BE VOTED IN FAVOUR OF THE MOTIONS PROPOSED TO BE MADE
AT THE MEETING AND FOR THE ELECTION OF THE MANAGEMENT NOMINEES FOR DIRECTORS
AND AUDITOR, AS STATED UNDER THE HEADINGS IN THIS INFORMATION CIRCULAR. The
instrument of proxy enclosed, when properly signed, confers discretionary
authority with respect to amendments or variations to any matters which may
properly be brought before the Meeting. At the time of printing of this
Information Circular, the management of the Company is not aware that any
such amendments, variations or other matters are to be presented for action
at the Meeting. However, if any other matters which are not now known to the
management should properly come before the Meeting, the proxies hereby
solicited will be exercised on such matters in accordance with the best
judgement of the nominee.
VOTING SHARES AND PRINCIPAL HOLDERS THEREOF
On December 29, 1999, 7,712,962 common shares without par value were issued
and outstanding, each share carrying the right to one vote. At a general
meeting of the Company, on a show of hands, every member present in person
shall have one vote and, on a poll, every member shall have one vote for each
share of which he is the holder.
Only members of record at the close of business on the 29th day of December,
1999, who either personally attend the Meeting or who complete and deliver an
instrument of proxy in the manner and subject to the provisions set out under
the heading "Appointment and Revocation
<PAGE>
3
of Proxies" will be entitled to have his or her shares voted at the Meeting
or any adjournment thereof.
To the knowledge of the directors and senior officers of the Company, as at
the record date the following persons beneficially own, directly or
indirectly, or exercise control or direction over, shares carrying more than
10% of the voting rights attached to all outstanding shares of the Company:
<TABLE>
<CAPTION>
=========================================================================
PERCENTAGE OF
ISSUED AND
NAME OF MEMBER NUMBER OF SHARES OUTSTANDING
-------------------------------------------------------------------------
<S> <C> <C>
DAVID HOUSTON 1,202,858 15.6%
=========================================================================
</TABLE>
INTEREST OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
Other than as disclosed elsewhere in this Information Circular, none of the
directors or senior officers of the Company, none of the persons who have
been directors or senior officers of the Company since the commencement of
the Company's last completed financial year and no associate or affiliate of
any of the foregoing persons has any material interest, direct or indirect,
by way of beneficial ownership of securities or otherwise, in any matter to
be acted upon at the Meeting.
INTEREST OF INSIDERS IN MATERIAL TRANSACTIONS
Other than as previously disclosed in an Information Circular or as set out
in the following, no insider and no associate or affiliate of an insider has
any material interest, direct or indirect, in any material transaction since
the commencement of the Company's last completed financial year or in any
proposed transaction, which, in either case, has materially affected or will
materially affect the Company.
ACQUISITION OF SPORTS LINK DIRECT MARKETING LTD.
Pursuant to an agreement dated September 3, 1999, the Company acquired 100%
of the issued shares of Sports Link Direct Marketing Ltd. ("Sportslink") from
David Houston, now the President of the Company, Andrew Doyle, the Secretary
of Sportslink, and one other person who is not an insider of the Company.
Based on an independent valuation which ascribed to Sportslink a fair market
value of $900,000, the Company paid the following consideration for the
Sportslink shares:
a) cash in the sum of $56,000;
<PAGE>
4
b) 2,300,000 fully paid shares of the Company issued at a deemed price of
$0.28 per share;
c) 500,000 share purchase warrants of the Company issued at a deemed price of
$0.28 per warrant, exercisable without additional consideration to acquire
500,000 shares of the Company; and
d) the issuance of stock options to the vendors and their qualified nominees
for the purchase of 400,000 shares of the Company exercisable for five
years at $0.28 per share.
The securities issued pursuant to clauses b) and c) above are subject to a
one-year hold period under applicable securities law.
Of the total consideration, David Houston received $16,000 in cash, 1,202,858
shares of the Company and a stock option for the purchase of 100,000 shares
of the Company exercisable at $0.28 per share on or before December 20, 2004,
and Andrew Doyle received 540,000 shares of the Company. Don Shaw is the
Vice-President of Sportslink and, immediately following the closing of the
transaction, Michael Edwards was appointed to the Board of the Company. Of
the 400,000 stock options forming part of the consideration for Sportslink,
Mr. Shaw and Mr. Edwards received options on 50,000 shares and 30,000 shares,
respectively, exercisable at $0.28 per share on or before December 20, 2004.
Sportslink is in the business of retailing sporting goods through the
internet, via its website located at www.airbomb.com and also distributes its
own line of private label products under the "Airbomb" brand name. Further
particulars of the Company's acquisition of Sportslink are contained in a
Filing Statement dated December 7, 1999 on file with the Canadian Venture
Exchange. A copy of the Filing Statement is available for inspection at the
registered office of the Company, 1600 - 777 Dunsmuir Street, Vancouver, BC,
V7Y 1K4, during normal business hours prior to the commencement of the
Meeting.
PRIVATE PLACEMENT
In September, 1999, the Company conducted a private placement of 1,500,000
special warrants at $0.25 per special warrant. Each special warrant is
convertible, without further consideration, into one unit, each unit
comprising one common share and one non-transferable share purchase warrant
entitling the holder thereof to purchase an additional share of the Company
at a price of $0.50 per share if exercised in the first year and at a price
of $0.75 if exercised in the second year. The following persons purchased
special warrants under the private placement:
<PAGE>
5
<TABLE>
<CAPTION>
=============================================================
NAME & ADDRESS NUMBER OF SPECIAL WARRANTS
-------------------------------------------------------------
<S> <C>
Dennis Higgs RRSP(1) 240,000 special warrants
4520 West 5th Avenue
Vancouver, BC
V6R 1S7
-------------------------------------------------------------
Ubex Capital Inc.(2) 208,000 special warrants
505 - 1155 Robson Street
Vancouver, BC
V6E 1B5
-------------------------------------------------------------
Darcy Higgs RRSP(3) 60,000 special warrants
4554 West 2nd Avenue
Vancouver, BC
V6R 1K8
-------------------------------------------------------------
Monaco Investment Corp(3) 388,000 special warrants
400 - 1100 Burrard Street
Vancouver, BC
V6C 3A6
-------------------------------------------------------------
Nancy Coles RRSP(4) 40,000 special warrants
1343 Duncan Drive
Delta, BC
V4L 1R3
=============================================================
</TABLE>
(1) Director of the Company
(2) Wholly owned company of a director of the Company and his
two sisters each as to 33 1/3%.
(3) The combined shareholdings of Darcy Higgs and Monaco
Investment Corp. at the time of the private placement
exceeded 10% of the issued shares of the Company. Monaco
Investment Corp. is wholly owned by Darcy Higgs.
(4) Spouse of a director and officer of the Company.
LOAN TRANSACTIONS
Pursuant to loan agreements dated June 29, 1999, Ubex Capital Inc. ("Ubex") and
Monaco Investment Corp. ("Monaco") each loaned to the Company the sum of
$25,000, such loans bearing interest at the rate of 18% per annum. Pursuant to
loan agreements dated September 17, 1999, Ubex and Monaco each loaned the
Company a further $25,000, such loans bearing interest at the rate of 12% per
annum. In connection with the September 17, 1999 loans, the Company issued, as a
bonus, 20,000 fully paid shares of the Company to each of Ubex and Monaco. All
of the loans have now been repaid.
Ubex is wholly owned by Dennis Higgs, a director and the Secretary of the
Company, and his two sisters, each as to 33 1/3%. Monaco is wholly owned by
Darcy Higgs, who was an insider of the Company at the time of the loans by
virtue of owning greater than 10% of the issued shares of the Company.
<PAGE>
6
STATEMENT OF EXECUTIVE COMPENSATION
A. EXECUTIVE OFFICERS OF THE COMPANY
For the purposes of this Information Circular:
"CEO" of the Company means an individual who served as Chief Executive Officer
of the Company or acted in a similar capacity during the most recently completed
financial year;
"executive officer" of the Company means an individual who at any time during
the most recently completed financial year was the Chairman or Vice-Chairman of
the Board, where that person performed the function of such office on a
full-time basis, the President, a Vice-President in charge of a principal
business unit such as sales, finance or production, and any officer of the
Company or any of its subsidiaries who performed a policy-making function in
respect of the Company; and
"Named Executive Officers" means:
(a) each CEO regardless of the amount of his compensation;
(b) each of the Company's four most highly compensated executive officers,
other than the CEO, who were serving as executive officers at the end
of the most recently completed financial year and had total salary and
bonuses of at least $100,000; and
(c) any person who would be included under paragraph (b) but for the fact
that he was not serving as an executive officer at the end of the most
recently completed financial year.
B. SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
=================================================================================================
Annual Compensation Long Term Compensation
------------------------------------------------------
Awards Payouts
-----------------------------
Restricted
Securities Shares
Other Under or
Annual Options/ Restricted All
Name and Compen- SARs Share LTTP Other
Principal Year Ending Salary Bonus sation Granted Units Payouts Compen-
Position ($) ($) ($) (#) ($) ($) sation
($)
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Bradford 12/31/98 Nil Nil Nil Nil Nil Nil Nil
Fowler(1) 12/31/97 Nil Nil Nil Nil Nil Nil Nil
President 12/31/96 N/A N/A N/A 9,000(4) N/A N/A N/A
=================================================================================================
<PAGE>
7
=================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Dennis Higgs(2) 12/31/98 N/A N/A N/A N/A N/A N/A N/A
President 12/31/97 Nil(3) Nil Nil Nil Nil Nil Nil
12/31/96 Nil(3) Nil Nil 18,500 Nil Nil Nil
=================================================================================================
</TABLE>
(1) President of the Company from January 1997 to May 1999.
(2) President of the Company from July 1990 to January 1997 and from
May 1999 to December 1999.
(3) Ubex Capital Inc., a private company in which Dennis Higgs holds
an interest, received or accrued $30,000 in each of the 1996,
1997 and 1998 fiscal years for providing management services to
the Company. See "Compensation of Directors".
(4) Stock options were cancelled on October 2, 1998.
C. LONG-TERM INCENTIVE PLAN ("LTIP") AWARDS
No LTIP awards were made to a Named Executive Officer during the most recently
completed financial year.
D. OPTIONS AND STOCK APPRECIATION RIGHTS ("SARS")
OPTION/SAR GRANTS DURING THE MOST RECENTLY COMPLETED FINANCIAL YEAR
<TABLE>
<CAPTION>
=================================================================================================================================
Market Value of
% of Total Securities
Securities Under Options/SARs Underlying
Options/SARs Granted to Exercise or Base Options/SARs
Granted Employees in Price on
(#) Financial Year ($/Security) the Date of Expiration Date
Name Grant
($/Security)
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Bradford Fowler Nil Nil Nil Nil Nil
=================================================================================================================================
</TABLE>
AGGREGATED OPTION/SAR EXERCISES DURING THE MOST RECENTLY COMPLETED
FINANCIAL YEAR AND FINANCIAL YEAR-END OPTION/SAR VALUES
<TABLE>
<CAPTION>
================================================================================================================
Unexercised Value of
Options/SARs at Unexercised
FY-End in-the-Money
(#) Options/SARs at
Securities Acquired Aggregate Value FY-End
Name on Exercise Realized Exercisable/ ($)
(#) ($) Unexercisable
Exercisable/
Unexercisable
----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Bradford Fowler Nil Nil Nil Nil
================================================================================================================
</TABLE>
<PAGE>
8
E. TERMINATION OF EMPLOYMENT, CHANGE IN RESPONSIBILITIES AND EMPLOYMENT
CONTRACTS
During the most recently completed financial year, there were no compensatory
plans or arrangements between the Company and a Named Executive Officer with
respect to the resignation, retirement or other termination of employment of
the Named Executive Officer, a change in control of the Company or a change
in the Named Executive Officer's responsibilities following a change in
control of the Company involving an amount, including all periodic payments
or installments, exceeding $100,000.
F. COMPENSATION OF DIRECTORS
The Company retains Ubex Capital Inc. ("Ubex") to provided management
services under a Management Services Agreement dated October 1, 1991. Under
the agreement, Ubex has received the sum of $2,500 per month since October 1,
1991, which amount may be increased by agreement between the parties, subject
to the approval of the Canadian Venture Exchange. The term of the agreement
is month-to-month and may be terminated by either party on 30 days written
notice.
Ubex is wholly owned by Dennis L. Higgs, a director of the Company, and his
two sisters, each as to 33 1/3%.
Other than as set forth in the foregoing, no director of the Company who is
not a Named Executive Officer has received, during the most recently
completed financial year, compensation pursuant to:
(a) any standard arrangement for the compensation of directors for their
services in their capacity as directors, including any additional
amounts payable for committee participation or special assignments;
(b) any other arrangement, in addition to, or in lieu of, any standard
arrangement, for the compensation of directors in their capacity as
directors; or
(c) any arrangement for the compensation of directors for services as
consultants or experts.
INDEBTEDNESS OF DIRECTORS, EXECUTIVE OFFICERS
AND SENIOR OFFICERS
No person who is or at any time during the most recently completed financial
year was a director, executive officer or senior officer of the Company, and
no associate of any of the foregoing persons, has been indebted to the
Company at any time since the commencement of the Company's last completed
financial year. No guarantee, support agreement, letter of credit
<PAGE>
9
or other similar arrangement or understanding has been provided by the
Company at any time since the beginning of the most recently completed
financial year with respect to any indebtedness of any such person.
PARTICULARS OF MATTERS TO BE ACTED UPON
A. NAME CHANGE
The Company has recently concluded a change of business in accordance with
the policy of the Canadian Venture Exchange. Under this transaction, the
Company acquired 100% of the issued shares of Sports Link Direct Marketing
Ltd. ("Sportslink"). Sportslink is in the business of retailing sporting
goods through the internet, via its website located at www.airbomb.com and
also distributes its own line of private labelled products under the
"Airbomb" brand name. The Company considers it appropriate to change its name
to "Airbomb.com Marketing Ltd." to more accurately reflect the business in
which it is now engaged. Accordingly, management proposes the following
special resolution:
RESOLVED, by special resolution, that the name of the Company be
changed to "Airbomb.com Marketing Ltd." and that paragraph 1 of the
Company's memorandum be altered to read as follows:
"1. The name of the Company is Airbomb.com Marketing Ltd."
It may occur that management hereafter determines, for valid reason, that
some name other than "Airbomb.com Marketing Ltd." should be substituted as
the new name of the Company. To avoid the time and expense of convening
another meeting of the members, management seeks the approval of the members
to a resolution authorizing the directors to approve some other name as the
new name of the Company. Accordingly, the members will be asked to approve
the following special resolution:
RESOLVED, by special resolution, that in the event that the directors
consider, for valid reason, that the name of the Company should be
changed to some name other than "Airbomb.com Marketing Ltd.", the
directors be authorized to approve a name other than "Airbomb.com
Marketing Ltd." as the new name of the Company and to substitute such
name for "Airbomb.com Marketing Ltd." in the special resolution
changing the name of the Company, and such resolution as so amended
shall for all purposes be deemed a special resolution of the members.
In the event that management determines prior to the Meeting that some name
other than "Airbomb.com Marketing Ltd." should be substituted as the new name
of the Company, the new name will be inserted in the special resolution
presented to the members for their
<PAGE>
10
consideration.
B. STOCK OPTIONS
Since the record date for the Company's last general meeting, the Company has
granted stock options to insiders as set forth in the following proposed
resolution.
The policy of the Canadian Venture Exchange requires that options granted to
insiders of listed companies receive member approval prior to being
exercised. Accordingly, management will place the following resolution before
the members for consideration.
RESOLVED that the granting of stock options to the following:
<TABLE>
<CAPTION>
==============================================================================
Name of Optionee No. of Shares Exercise Price Expiry Date
------------------------------------------------------------------------------
<S> <C> <C> <C>
David Houston 40,000 $0.45 11/11/04
------------------------------------------------------------------------------
Katy Player 5,000 $0.45 11/11/04
------------------------------------------------------------------------------
Mike Edwards 30,000 $0.28 12/20/04
------------------------------------------------------------------------------
Don Shaw 50,000 $0.28 12/20/04
------------------------------------------------------------------------------
David Houston 100,000 $0.28 12/20/04
==============================================================================
</TABLE>
and the actions of the directors of the Company in granting such
options and executing, on behalf of the Company, the appropriate stock
option agreements be ratified, approved and confirmed.
C. INCREASE IN AUTHORIZED CAPITAL
Due to a recent cancellation of 5,625 escrow shares, the authorized share
capital of the Company presently consists of 99,994,375 common shares without
par value. Management considers it desirable to increase the authorized
capital of the Company to 100,000,000 common shares, being it's former
authorized share capital prior to the escrow cancellation.
Accordingly, the members will be asked to approve a special resolution to
increase the authorized capital of the Company as follows:
RESOLVED, by special resolution, that the authorized capital of the
Company, which presently consists of 99,994,375 common shares without
par value, be increased to 100,000,000 common shares without par
value, all shares issued and unissued ranking PARI PASSU, and that
paragraph 2 of the Company's Memorandum be altered to read as follows:
2. The authorized capital of the Company consists of 100,000,000
common shares
<PAGE>
11
without par value.
D. CONTINUANCE FROM BRITISH COLUMBIA TO DELAWARE
i) GENERAL DESCRIPTION
As stated above, the Company has recently acquired 100% of the issued shares
of Sports Link Direct Marketing Ltd. ("Sportslink"), a company engaged in the
sale of sporting goods through the internet. The majority of Sportslink's
sales are made in the United States and management is of the opinion that the
United States capital markets are more favourably disposed to investing in
internet-based companies. Management therefore believes that it would be
advantageous for the Company to become domiciled in the United States.
Accordingly, the Company proposes to "continue" from the Province of British
Columbia to the State of Delaware (the "Continuance").
Members of the Company will be asked at the Meeting to consider and, if
thought fit, to approve a special resolution relating to the Continuance of
the Company from British Columbia to the State of Delaware in accordance with
the provisions of the DELAWARE GENERAL CORPORATION LAW. The special
resolution, if approved by the members, authorizes the Company to file a
certificate of domestication and a certificate of incorporation (the
"Continuance Documents") with the Delaware Secretary of State.
If accepted for filing, the Continuance Documents, in combination with new
bylaws (the "Delaware Bylaws") of the Company to be adopted in conjunction
with the Continuance, will replace the existing memorandum and Articles of
the Company and will constitute the governing instruments of the Company
under Delaware law. The Continuance Documents are attached hereto as
Schedule A. The proposed Delaware Bylaws are attached hereto as Schedule B,
and will be presented at the Meeting for consideration and approval by the
members in accordance with the form of special resolution set forth
hereafter. These documents should be reviewed carefully by the members before
voting on the proposed special resolution.
ii) COMPARISON OF SHAREHOLDER RIGHTS UNDER THE BRITISH COLUMBIA COMPANY
ACT AND THE DELAWARE GENERAL CORPORATION LAW
(1) Differences in Shareholder Rights
The Company was originally incorporated on January 22, 1987, under the
British Columbia COMPANY ACT (the "BCCA"). The Company proposes to "continue"
to the State of Delaware. Members of the Company will be asked at the Meeting
to consider, and if thought fit, to approve a special resolution approving
the Continuance, in accordance with the provisions of the DELAWARE GENERAL
CORPORATION LAW (the "DGCL").
<PAGE>
12
The BCCA, which currently governs the corporate affairs of the Company,
permits the continuance of a British Columbia corporation only to a
jurisdiction that has reciprocal legislation allowing a corporation
incorporated in that jurisdiction to continue in British Columbia. Delaware
is one of the few jurisdictions in the United States that has such reciprocal
legislation and, therefore, Delaware was chosen as the jurisdiction in the
United States to which the Company proposes to continue.
There are a substantial number of differences between the BCCA and the DGCL
that may materially affect the rights of shareholders. The following is a
summary of some of the changes that will occur as a result of the Continuance
of the Company's jurisdiction of incorporation from British Columbia to the
State of Delaware. This summary is not intended to be exhaustive and members
should consult with their legal advisors regarding all of the implications of
the Continuance. A copy of the BCCA and DGCL will be available for reference
by members of the Company or their legal advisors at the Registered Office of
the Company.
(2) Required Approvals of Shareholders
A number of specific differences between the BCCA and the DGCL are due to the
fact that the BCCA generally requires that a greater number and diversity of
types of corporate matters be approved by a vote of shareholders than is
required by the DGCL. Furthermore, most of the matters for which the BCCA
requires shareholder approval must be approved by three-fourths (3/4)
majority of votes cast. The only material matters with respect to which a
simple majority vote is required are election of the directors and the
appointment and removal of auditors. Under the DGCL, there are fewer matters
requiring shareholder approval and such matters may, unless a
"super-majority" vote requirement (discussed below) is applicable, be
approved by simple majority of the votes cast (assuming a quorum is present)
or, where required by the DGCL for the approval of certain extraordinary
corporate transactions (such as mergers, sales of substantially all assets or
removal of directors), by a simple majority of the total votes entitled to be
cast on the matter.
(3) Effect of No Bylaws Under BCCA
A number of corporate governance matters that may be addressed in the bylaws
of a Delaware corporation must be addressed in the articles of a British
Columbia corporation. The articles of a British Columbia corporation can only
be amended upon the aforesaid requisite vote of shareholders, whereas the
DGCL confers upon the board of directors the power to adopt, amend or repeal
its bylaws (which may also be adopted, amended or repealed by simple majority
vote of the shareholders). Thus the board of directors of a Delaware
corporation has the power to make decisions on a number of matters with
respect to which shareholder approval would be required if undertaken by a
British Columbia corporation, such as matters related to: shareholder
meetings and voting; powers, number of members, committees, compensation and
removal of members of the board of directors; requisite notices to directors
<PAGE>
13
or shareholders; titles, elections, salaries and terms of office of
officers; certificates, transfers, record dates and registered ownership of
stock and indemnification of officers, directors, employees and agents.
(4) Specific Differences
Although the DGCL and BCCA are structured and worded quite differently, each
contains a number of provisions generally having substantially similar effect
upon the rights of shareholders. For example, the provisions of the two acts
relative to indemnification by a corporation of its directors, officers,
employees and agents are similar but not identical (e.g. the BCCA requires
court approval of any indemnification). General similarities exist with respect
to corporate reorganization provisions, dissenters' rights provisions and
numerous other provisions of the acts.
There are also a substantial number of material differences between specific
provisions of the DGCL and the BCAA insofar as their respective effects upon
the rights of shareholders is concerned. The following is a summary
comparison of the more significant differences between them.
(a) Rights of Dissent and Appraisal:
The BCCA provides that members who dissent to certain actions being taken by
a company may exercise their right of dissent and require the company to
purchase the shares held by such member at the fair value of such shares. The
dissent right is applicable where a company proposes to:
(i) continue out of the jurisdiction;
(ii) provide financial assistance to a person for the purchase of
the company's shares;
(iii) sell the whole, or substantially the whole, of the company's
undertaking;
(iv) enter into a statutory amalgamation; or
(v) sell the whole or part of its business or property upon
liquidation.
The DGCL is much more restrictive in providing a right of dissent and
appraisal to shareholders in that it is limited to mergers or consolidations.
(b) Oppression Remedies:
Under the BCCA, a member of a company has the right to apply to Court on the
grounds that
<PAGE>
14
the company is acting or proposes to act in a way that is prejudicial to the
member. On such an application, the Court may make such order as it sees fit,
including an order to prohibit any act proposed by the company. The DGCL does
not contain a statutory provision that grants a remedy similar to that
contained in the BCCA, although shareholders have similar rights under the
common law of the State of Delaware.
(c) PRO RATA Redemption of Shares:
The BCCA requires a company which proposes to purchase its own shares other
than through a stock exchange or from an employee or former employee to make
its offer to purchase PRO RATA to every member who holds shares of the class
or series to be purchased. The DGCL contains no similar provisions.
(d) Cumulative Voting:
Cumulative voting permits each share of stock entitled to vote on the
election of directors to have such number of votes as is equal to the number
of directors to be elected. A shareholder may then cast all of his votes for
a single candidate or may allocate them among as many candidates as he may
choose. As a result, shareholders holding a significant minority percentage
of the outstanding shares entitled to vote in the election of directors may
be able to assure the election of one or more directors.
The BCCA does not provide for cumulative voting. While the DGCL does provide
for cumulative voting it does not require that cumulative voting be made
available to shareholders, and the proposed Continuance Documents and
Delaware Bylaws do not provide for cumulative voting.
(e) Classified Board:
The DGCL permits, but does not require, the adoption of a classified Board of
Directors with staggered terms, with each class serving staggered two or
three year terms after the initial term. The proposed Continuance Documents
and Delaware Bylaws do not provide for a classified board.
(f) Financial Assistance to Purchase Shares:
The BCCA limits the circumstances under and the extent to which a company may
give financial assistance to any person. Financial assistance cannot be given
at a time when the company is, or as a result of the assistance would be,
insolvent and is otherwise restricted to affiliated companies, employees in
some circumstances, owners of more than 90% of the issued shares and
situations where there are reasonable grounds for believing that, or the
directors are of the opinion that, to render such assistance is in the best
interests of the company. The DGCL requires only that the giving of financial
assistance to a director, officer
<PAGE>
15
or employee may be, in the judgment of the directors, reasonably expected to
benefit the company.
(g) Supermajority Voting Provisions:
The BCCA requires that essentially all votes of shareholders be by a
three-fourths (3/4) majority of the votes cast, other than with respect to
the election of directors and the appointment and removal of auditors which
are accomplished by a simple majority of the votes cast. In contrast, the
DGCL generally requires only a simple majority of the votes cast, except in
the case of extraordinary corporate transactions, such as mergers, sales of
substantially all assets or removal of one or more directors, where a simple
majority of all votes ENTITLED to be cast is required. One provision of the
DGCL does require a 2/3 vote of the outstanding shares of disinterested
shareholders to approve a business combination involving an interested
shareholder.
Delaware corporations may, unlike a B.C. corporation, set forth in their
articles of incorporation any greater majority ("supermajority") vote
requirements than required by law, thereby helping to assure that the status
quo of the matter voted upon is maintained. The proposed Continuance
Documents and Delaware Bylaws do not contain supermajority vote requirements.
(h) Personal Liability of Directors:
The BCCA provides that every director of a company, in exercising his powers
and performing his functions, shall act honestly and in good faith and in the
best interests of the company and shall exercise the care, diligence and
skill of a reasonably prudent person. The BCCA also specifically imposes
personal liability to a company upon its directors who vote for, or consent
to, a resolution that is in violation of applicable provisions of the BCCA
relating to the acquisition of a company's own shares, the payment of a
commission or the allowance of a discount in connection with subscriptions
for the company's shares, the giving of certain loans, guarantees of
financial assistance, authorizing a dividend payment if the company is
insolvent or thereby rendered insolvent or the carrying on of business or the
exercise of a power that a corporation is restricted from carrying on or
exercising.
Delaware law provides for the imposition of monetary liability on directors
for decisions made on behalf of a corporation if those decisions were not
made with reasonable care. A corporation may protect directors by including
in the corporation's certificate of incorporation or bylaws a provision
eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision does not eliminate or limit
the liability of a director for:
(i) breach of the duty of loyalty to the corporation or
stockholders;
<PAGE>
16
(ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(iii) unlawful payment of dividends or unlawful stock purchase or
redemption; or
(iv) any transaction from which the director derived an improper
personal benefit.
The proposed Delaware Bylaws contain a provision indemnifying its directors
and officers to the full extent permitted by the DGCL. Corporations are
empowered to protect directors from breach of the duty of care, but not
breaches of the duty of loyalty or the duty of disclosure. Directors who are
so protected are free from personal financial liability whether monetary
damages arise from legal or equitable remedies. However, directors may still
be subject to equitable remedies such as injunction, rescission, and
corrective disclosure.
(i) Requisition of Meetings:
The BCCA provides that one or more members of the Company holding not less
than 5% of the issued voting shares of the Company may give notice to the
directors requiring them to call and hold a general meeting within four
months of such notice. The DGCL provides that a special meeting of the
shareholders, for any purpose, may be called by the Board of Directors or by
such person or persons as may be authorized by the Certificate of
Incorporation or bylaws. The Delaware Bylaws will provide that a special
meeting of shareholders may be called only by the Board of Directors, the
Chairman of the Board or the Chief Executive Officer.
(j) Form of Proxy and Information Circular:
The BCCA requires a reporting company, such as the Company, to provide with
every notice of a general meeting a form of proxy for use by every member
entitled to vote at such meeting, as well as an information circular
containing prescribed information regarding the matters to be dealt with at
and the conduct of the general meeting. The DGCL does not require a
corporation, such as the Company, to solicit proxies or provide information
regarding matters to be dealt with at meetings other than a special meeting
in which case notice of the special meeting must state the purpose(s) for
which the meeting was called. Matters concerning disclosure are generally
governed by the federal and state securities legislation in the United
States. Because the Company is presently a "reporting issuer" under the
SECURITIES ACT of British Columbia, (the "SECURITIES ACT"), and will continue
to be a reporting issuer under the SECURITIES ACT notwithstanding the
Continuance, it is bound by the equivalent (or more stringent) provisions
described above that are contained in the BCCA.
(k) Investigations:
The BCCA provides that on application of members holding not less than 20% of
the issued
<PAGE>
17
shares of any class of a company, or on application of a company, the Court
may appoint an inspector to investigate the affairs and management of the
company or its affiliates. The DGCL does not contain a comparable provision.
(l) Place of Meetings:
The BCCA requires all meetings of members to be held in British Columbia unless
consent of the British Columbia Registrar of Companies is otherwise obtained.
The proposed Delaware Bylaws provide that meetings of the shareholders shall be
held at any place designated by the Board of Directors and, if a meeting place
is not designated by the Board of Directors, then the meeting shall be held at
the Company's principal office. The DGCL provides that meetings of the
shareholders shall be held at any place in or out of Delaware as may be
designated by or in the manner provided in a corporation's bylaws.
(m) Advance Notice of Annual Meetings:
The BCCA requires that a reporting company, such as the Company, shall, not
less than 56 days before it holds a general meeting at which a director is to
be elected, publish in a daily newspaper in the prescribed manner an advance
notice of meeting that shall:
(i) give the date of the meeting;
(ii) invite written nominations for directors signed by members
holding in the aggregate not less than 10% of the shares having
the right to vote at the meeting;
(iii) state that, if any nomination referred to in paragraph (b) is
delivered to the registered office of the company not less than
35 days before the date of the meeting, accompanied by the
information as to the nominee required to be furnished in the
information circular, the company will include the name of the
nominee in the form of proxy and the information circular sent
by the management of the company pursuant to the BCCA;
(iv) give the address of the registered office of the company; and
(v) give the qualifications for directors provided by the BCCA and
by the articles of the company.
The DGCL does not contain any similar provisions.
(n) Disqualification of Directors
The BCCA prohibits certain persons from serving as a director. Such
prohibitions generally
<PAGE>
18
apply to persons under the age of 18, undischarged bankrupts, persons found
to be mentally infirm, corporations and persons convicted of certain offenses
relating to corporate activities or fraud or who have had certain
registrations cancelled under certain specified statutes. The DGCL contains
no comparable direct prohibitions.
III) CANADIAN FEDERAL TAX IMPLICATIONS OF THE TRANSACTIONS CONTEMPLATED BY
THE SHARE EXCHANGE AGREEMENT
Morgan & Company, Chartered Accountants, tax advisors to the Company, have
advised that the following general summary fairly describes the principal
Canadian federal income tax consequences of the Continuance.
This summary is based on the advisors' understanding of the provisions of the
INCOME TAX ACT, (the "Act") and the regulations thereunder as they currently
exist, and on the current published administrative practices of Revenue
Canada. Taxation as at December 15, 1999. All specific proposals to amend the
Act and regulations thereunder publicly announced by the Minister of Finance
have been considered and incorporated into this summary under the assumption
that such proposals will be enacted as proposed.
This summary is of a general nature only and does not constitute, nor should
it be construed to constitute a legal opinion or tax advice to any particular
person. Accordingly, the shareholders of the Company should consult their own
tax advisors with respect to their own circumstances. It should be noted that
no advance income tax ruling has been obtained and due to the time
constraints of this transaction, it is not contemplated that one will be
requested from Revenue Canada, Taxation.
The income tax consequences to a shareholder of the Company will depend upon a
number of factors including whether the holder is an individual, a corporation
or a trust, the residency of the shareholder and whether the shareholder holds
his shares as "capital property".
This summary is limited to those shareholders who are corporations, trusts
and individuals resident in Canada that hold their shares of the Company as
capital property and specifically excludes the tax consequences to such
entities as financial institutions, unit trusts, non-resident owned
corporations and tax deferred vehicles such as registered pension plans,
deferred profit sharing plans and registered retirement savings plans.
However, after the Company has continued into the U.S.A., the shares of the
Company may not be qualified investments and will be considered to be foreign
property for such tax deferred vehicles, which may result in adverse tax
consequences to such parties.
(1) Consequences - the Company
(a) Continuance of the Company into Delaware, U.S.A.
<PAGE>
19
(i) Deemed disposition of Assets
For Canadian income tax purposes the Continuance would
result in the Company being deemed to have disposed of
and reacquired all its assets at fair market value
immediately prior to the Company becoming domiciled in
Delaware. Consequently, Canadian income tax can arise on
the excess (if any) of the fair market value of the
Company's total assets over the cost base of those assets
for Canadian income tax purposes. Based upon a review of
the Company's financial position as at September 30, 1999,
it appears that the Company could offset any deemed
income from the disposition and reacquisition of the
Company's assets with its non-capital losses and allowable
capital losses. Accordingly, no Canadian income taxes
should result from the deemed disposition and reacquisition
of the Company's assets upon the Continuance.
(ii) Deemed Year-End
The Company would have a deemed year-end for Canadian
income tax purposes immediately before the time of the
Continuance and a new Canadian taxation year would be
deemed to commence immediately after the Continuance.
(iii) Departure Tax
The Company would be required to pay a Canadian income
tax equal to 25% of the amount (if any) by which the
aggregate of the fair market value of its assets, at the
time of the Continuance, exceeds the sum of:
A. the Company's paid-up capital as defined for Canadian
income tax purposes; and
B. the fair market value of the Company's outstanding
debt (other than dividends payable) at the time of the
Continuance.
This tax is in addition to the Company's regular
corporate income tax payable on its taxable income and
the tax, if any, on the deemed disposition of the
Company's assets as discussed above.
Based upon a review of the Company's September 30, 1999
financial statements it appears that the Company would
not have a departure tax liability as a result of the
Continuance as its paid up capital exceeds the fair
market value of its assets.
<PAGE>
20
(b) U.S. Residency
If the Company undertakes the Continuance, it would be able to
sever its Canadian income tax deemed residency status and the
taxation of its worldwide income. The Company will not be
considered "incorporated in Canada" and thereby resident in Canada
for Canadian income tax purposes.
(c) U.S. Taxes
The corporation, once a Delaware corporation, will be subject to
U.S. income tax law and taxed at prevailing U.S. income tax rates.
(2) Consequences - Shareholders of the Company
(a) Disposition of Shares:
(i) Continuance
The shareholders of the Company will not be considered to have
disposed of their shares upon the Continuance. A disposition of
capital property occurs as a result of a taxpayer either being
entitled to receive proceeds of disposition or pursuant to
specific deeming provisions of the Act. The Continuance of the
Company into the U.S.A. would not result in a deemed
disposition. In addition, the shareholders of the Company will
not be receiving any cash or non-cash consideration that would
be considered proceeds of disposition.
(ii) Dividends
The Continuance of the Company would result in the Company
ceasing to be a "Canadian corporation". A Canadian resident
individual shareholder would therefore cease to be entitled to
favourable "gross up" and "divided tax credit" treatment which
results in the dividend received by the Canadian resident
individual being subject to a maximum federal and provincial
(British Columbia) income tax rate of approximately 34%.
Dividends received from the Company by Canadian resident
individuals or corporations owning less than 10% of the
issued shares would be treated as foreign non-business income
for Canadian tax purposes. The total amount of dividends
received would be included in the recipient's net income for
tax purposes and any taxes withheld on the payment of the
dividend would be included in the shareholder's foreign
non-business tax credit calculation. The resulting tax credit
can be used to reduce taxes otherwise payable by the
<PAGE>
21
shareholder. The excess, if any, of the foreign taxes withheld
over the foreign tax credit can be deducted by the shareholder
in the computation of his net income for tax purposes.
(3) Consequences - Dissenting Shareholders
The receipt by a dissenting shareholder of a cash payment from the Company
equal to the fair value of his common shares will generally be treated as a
dividend to a holder of such shares to the extent that such payment exceeds
the paid-up capital of the subject share. The balance of the fair market
value paid (i.e., the amount equal to the paid-up capital of the share) will
be treated as proceeds of disposition of the common shares of the Company for
capital gains purposes. Consequently, such dissenting shareholders would
realize a capital gain (or capital loss) to the extent that the proceeds of
disposition he receives for the shares exceed (or are exceeded by) the
shareholders' adjusted cost base thereof. Notwithstanding the foregoing, if
the dissenting recipient shareholder is a corporation resident in Canada, the
full amount of the redemption proceeds received may be treated under the Act
as proceeds of disposition with the result that no dividend will be deemed to
have been paid to the shareholder and any gain or loss realized by it upon
the share's disposition will be determined by reference to the full amount of
the redemption proceeds.
Any capital loss arising on exercise of dissent rights by a corporate
shareholder of the Company will be reduced by dividends received or deemed to
be received, including any deemed dividend arising from the exercise of
dissent rights, on the subject shares where the period of ownership of such
shares was less than 365 days or where the corporate holder (together with
persons with whom it did not deal at arm's length) held more than 5% of the
issued shares of any class of the Company at the time the dividends were
received or deemed to have been received.
Any deemed dividend received by a Canadian resident taxpayer as a result of a
dissent proceeding after the Continuation will not attract the dividend tax
credit provided under the Act.
iv) VOTE REQUIRED FOR APPROVAL
The affirmative vote of the holders of at least 75% of the common shares
present in person or represented by proxy at the Meeting will be required to
approve the special resolution relating to the Continuance of the Company to
the State of Delaware. The Continuance will not be implemented without member
approval of the resolution relating thereto. The resolution will also
authorize the Company not to proceed with the Continuance even though
approved by the members, in the discretion of the Board of Directors. The
special resolution proposed by management in this regard is as follows:
<PAGE>
22
RESOLVED BY SPECIAL RESOLUTION THAT:
a) the Company be and is hereby authorized to apply to the Registrar of
Companies for the Province of British Columbia for authorization to
continue to the jurisdiction of Delaware under the DELAWARE GENERAL
CORPORATION LAW (the "DGCL") pursuant to section 37 of the COMPANY ACT
R.S.B.C. 1996, c.62, as amended;
b) the Certificate of Domestication and the Certificate of Incorporation
under the DGCL (collectively the "Application") in the form attached to
these resolutions as Schedule "A" are hereby approved;
c) subject to acceptance of the filing of the Application by the Delaware
Secretary of State, the Application and the form of bylaws which are
attached to these resolutions as Schedule "B" are adopted in
substitution for the existing Memorandum and Articles of the Company;
d) upon receipt of authorization to the continuance of the Company to the
jurisdiction of Delaware under the DGCL from the Registrar of Companies
for the Province of British Columbia, the Board of Directors authorize
the appropriate officer of the Company to execute and file the
Application with the Secretary of State of the State of Delaware under
the DGCL and that, upon acceptance of the filing by the Delaware
Secretary of State, the Company shall be continued as a Delaware
corporation; and
e) the directors of the Company are hereby authorized to abandon the
application for continuance to the jurisdiction of Delaware under the
DGCL at any time in their sole discretion without further approval of
the members of the Company.
v) SHAREHOLDER'S RIGHT TO DISSENT
TAKE NOTICE THAT pursuant to the COMPANY ACT of British Columbia (the
"BCCA"), you may until two days before the Meeting at which the special
resolution for the Continuance of the Company from the province of British
Columbia to the State of Delaware pursuant to section 37 of the BCCA is to be
passed (the "Dissent Deadline"), give a notice of dissent with respect to
said special resolution to the Company by leaving it at or mailing it by
registered mail to the registered office of the Company at Suite 1600, 777
Dunsmuir Street, PO Box 10425, Pacific Centre, Vancouver, British Columbia,
V7Y 1K4, in either case so as to be received not later than the Dissent
Deadline. As a result of giving notice of dissent you may, on receiving a
notice of intention to act under section 207 of the BCCA, require the Company
to purchase all of your shares in respect of which the notice of dissent was
given.
A member of the Company has the right to give a notice of dissent with
respect to the Continuance pursuant to section 37 (4) of the BCCA. If a
member gives such notice of dissent, then section 207 of the BCCA applies.
The essence of these provisions is that a
<PAGE>
23
dissenting member can require the Company to purchase all of his shares in
respect of which he gives notice of dissent. The price to be paid for his
shares is the fair value as of the day before the date on which the
resolution for Continuance is passed, i.e. the day before the Meeting which
is scheduled to be held February 16, 2000.
A member's right to give notice of dissent with respect to the Continuance
will lapse if not exercised two (2) days before the meeting at which the
special resolution for Continuance is to be passed. Further, a notice of
dissent ceases to be effective if the member giving it votes in favour of the
resolution for Continuance.
Any member who is uncertain of his rights under section 37(4) and 207 of the
BCCA and who wishes to exercise those rights should consult legal counsel in
British Columbia.
OTHER MATTERS TO BE ACTED UPON
It is not known that any other matters will come before the Meeting other
than as set forth above and in the Notice of Meeting, but if such should
occur the persons named in the accompanying form of proxy intend to vote
on them in accordance with their best judgment exercising discretionary
authority with respect to amendments or variations of matters identified in
the Notice of Meeting and other matters which may properly come before the
meeting or any adjournment thereof.
BOARD APPROVAL
The contents of this Information Circular have been approved and its mailing
has been authorized by the directors of the Company.
BY ORDER OF THE BOARD
"DAVID HOUSTON"
PRESIDENT
<PAGE>
SCHEDULE A
STATE OF DELAWARE
CERTIFICATE OF DOMESTICATION
- FIRST: The corporation was first formed on January 22, 1987 in the
jurisdiction of BRITISH COLUMBIA, CANADA.
- SECOND: The name of the corporation immediately prior to the filing of
this Certificate of Domestication was "AIRBOMB.COM MARKETING LTD.".
- THIRD: The name of the corporation as set forth in its certificate of
incorporation filed in accordance with subsection b of Section 388 is
"AIRBOMB.COM MARKETING LTD.".
- FOURTH: The jurisdiction that constituted the seat, siege social or
principal place of business or central administration of the corporation,
or any other equivalent thereto under applicable law, immediately prior
to the filing of the certificate of domestication, was BRITISH COLUMBIA,
CANADA.
- I, THE UNDERSIGNED, for the purpose of domesticating a foreign
corporation under the laws of the State of Delaware, do make, file and
record this Certificate, and do certify that the facts herein stated are
true, and I have accordingly hereunto set my hand this ____ day of
_________________ 2000.
BY:
---------------------------
NAME: Dennis Higgs
-------------------------
Secretary
<PAGE>
STATE OF DELAWARE
CERTIFICATE OF INCORPORATION
A STOCK CORPORATION
- FIRST: The name of this Corporation is "Airbomb.com Marketing Ltd."
- SECOND: The Address of its registered office in the State of Delaware and
the name of its registered agent is Agents and Corporations, Inc., Suite
600, One Commerce Center, Twelfth and Orange Streets, Wilmington,
Delaware 19899-0511.
- THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
- FOURTH: The amount of the total authorized capital stock of this
corporation is Zero Dollars ($0.00) divided into 100,000,000 shares of
Zero Dollars ($0.00) each.
- FIFTH: The name and mailing address of the incorporator are as follows:
Name Dennis Higgs
--------------------------------------------------------------
Mailing Address 505-1155 Robson Street
---------------------------------------------------
Vancouver, BC, Canada Zip Code V6E 1B5
------------------------- ----------------
- I, THE UNDERSIGNED, for the purpose of forming a corporation under the
laws of the State of Delaware, do make, file and record this
Certificate, and do certify that the facts herein stated are true, and I
have accordingly hereunto set my hand this ____ day of
___________________ 2000.
BY:
---------------------------
(Incorporator)
NAME: Dennis Higgs
-------------------------
<PAGE>
SCHEDULE B
BYLAWS
OF
AIRBOMB.COM MARKETING LTD.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the corporation
in the State of Delaware shall be Suite 600, One Commerce Center, Twelfth and
Orange Streets, Wilmington, Delaware, 19899-0511.
SECTION 2. OTHER OFFICES. The corporation shall also have and
maintain an office or principal place of business at such place as may be
fixed by the Board of Directors, and may also have offices at such other
places, both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation
may require.
ARTICLE II
CORPORATE SEAL
SECTION 3. CORPORATE SEAL. The corporate seal shall consist of a die
bearing the name of the corporation and the inscription, "Corporate
Seal-Delaware." Said seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
ARTICLE III
STOCKHOLDERS' MEETINGS
SECTION 4. PLACE OF MEETINGS. Meetings of the stockholders of the
corporation shall be held at such place, either within or without the State
of Delaware, as may be designated from time to time by the Board of
Directors, or, if not so designated, then at the office of the corporation
required to be maintained pursuant to Section 2 hereof.
SECTION 5. ANNUAL MEETING.
(a) The annual meeting of the stockholders of the corporation, for
the purpose of election of directors and for such other business as may
lawfully come before it, shall be held on such date and at such time as may
be designated from time to time by the Board of Directors.
(b) At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To
be properly brought before an annual meeting, business must be: (A) specified
in the notice of meeting (or any supplement thereto)
1
<PAGE>
given by or at the direction of the Board of Directors, (B) otherwise properly
brought before the meeting by or at the direction of the Board of Directors, or
(C) otherwise properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary
of the corporation. To be timely, a stockholder's notice must be delivered to
or mailed and received at the principal executive offices of the corporation
not later than the close of business on the sixtieth (60th) day nor earlier
than the close of business on the ninetieth (90th) day prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that no annual meeting was held in the previous year or the date of
the annual meeting has been changed by more than thirty (30) days from the date
contemplated at the time of the previous year's proxy statement, notice by the
stockholder to be timely must be so received not earlier than the close of
business on the ninetieth (90th) day prior to such annual meeting and not later
than the close of business on the later of the sixtieth (60th) day prior to
such annual meeting or, in the event public announcement of the date of such
annual meeting is first made by the corporation fewer than seventy (700) days
prior to the date of such annual meeting, the close of business on the tenth
(10th) day following the day on which public announcement of the date of such
meeting is first made by the corporation. 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 and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they appear on
the corporation's books, of the stockholder proposing such business, (iii) the
class and number of shares of the corporation which are beneficially owned by
the stockholder, (iv) any material interest of the stockholder in such business
and (v) any other information that is required to be provided by the
stockholder pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "1934 Act"), in his capacity as a proponent to a
stockholder proposal. Notwithstanding the foregoing, in order to include
information with respect to a stockholder proposal in the proxy statement and
form of proxy for a stockholder's meeting, stockholders must provide notice as
required by the regulations promulgated under the 1934 Act. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set forth in this
paragraph (b). The chairman of the annual meeting shall, if the facts warrant,
determine and declare at the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this paragraph (b),
and, if he should so determine, he shall so declare at the meeting that any
such business not properly brought before the meeting shall not be transacted.
(c) Only persons who are confirmed in accordance with the
procedures set forth in this paragraph (c) shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of
the corporation may be made at a meeting of stockholders by or at the
direction of the Board of Directors or by any stockholder of the corporation
entitled to vote in the election of directors at the meeting who complies
with the notice procedures set forth in this paragraph (c). Such nominations,
other than those made by or at the direction of the Board of Directors, shall
be made pursuant to timely notice in writing to the Secretary of the
corporation in accordance with the provisions of paragraph (b) of this
Section 5. Such stockholder's notice shall set forth (i) as to each person,
if any, whom the stockholder proposes to nominate for election or re-election
as a director: (A) the name, age, business address and residence address of
such person, (B) the principal occupation or employment of such person, (c)
the class and number of shares of the corporation which are beneficially
owned by such person, (D) a
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description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nominations are to be made by the stockholder, and (E)
any other information relating to such person that is required to be disclosed
in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the 1934 Act (including
without limitation such person's written consent to being named in the proxy
statement, if any, as a nominee and to serving as a director if elected); and
(ii) as to such stockholder giving notice, the information required to be
provided pursuant to paragraph (b) of this Section 5. At the request of the
Board of Directors, any person nominated by a stockholder for election as a
director shall furnish to the Secretary of the corporation that information
required to be set forth in the stockholder's notice of nomination which
pertains to the nominee. No person shall be eligible for election as a director
of the corporation unless nominated in accordance with the procedures set forth
in this paragraph (c). The chairman of the meeting shall, if the facts warrant,
determine and declare at the meeting that a nomination was not made in
accordance with the procedures prescribed by these Bylaws, and if he should so
determine, he shall so declare at the meeting, and the defective nomination
shall be disregarded.
(d) For purposes of this Section 5, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
SECTION 6. SPECIAL MEETINGS.
(a) Special meetings of the stockholders of the corporation may be
called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer, or (iii) the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board of Directors for adoption), and shall be held at such place, on such
date, and at such time as the Board of Directors, shall determine.
(b) If a special meeting is called by any person or persons other
than the Board of Directors, the request shall be in writing, specifying the
general nature of the business proposed to be transacted, and shall be
delivered personally or sent by registered mail or by telegraphic or other
facsimile transmission to the Chairman of the Board of Directors, the Chief
Executive Officer, or the Secretary of the corporation. No business may be
transacted at such special meeting otherwise than specified in such notice.
The Board of Directors shall determine the time and place of such special
meeting, which shall be held not less than thirty-five (35) nor more than one
hundred twenty (120) days after the date of the receipt of the request. Upon
determination of the time and place of the meeting, the officer receiving the
request shall cause notice to be given to the stockholders entitled to vote,
in accordance with the provisions of Section 7 of these Bylaws. If the notice
is not given within sixty (60) days after the receipt of the request, the
person or persons requesting the meeting may set the time and place of the
meeting and give the notice. Nothing contained in this paragraph (b) shall be
construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the Board of Directors may be held.
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SECTION 7. NOTICE OF MEETINGS. Except as otherwise provided by law
or the Certificate of Incorporation, written notice of each meeting of
stockholders shall be given not less than ten (10) nor more than sixty (60)
days before the date of the meeting to each stockholder entitled to vote at
such meeting, such notice to specify the place, date and hour and purpose or
purposes of the meeting. Notice of the time, place and purpose of any meeting
of stockholders may be waived in writing, signed by the person entitled to
notice thereof, either before or after such meeting, and will be waived by
any stockholder by his attendance thereat in person or by proxy, except when
the stockholder 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. Any stockholder so waiving notice
of such meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
SECTION 8. QUORUM. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person or by proxy duly authorized, of the
holder or holders of not less than one percent (1%) of the outstanding shares
of stock entitled to vote shall constitute a quorum for the transaction of
business. In the absence of a quorum, any meeting of stockholders may be
adjourned, from time to time, either by the chairman of the meeting or by
vote of the holders of a majority of the shares represented thereat, but no
other business shall be transacted at such meeting. The stockholders present
at a duly called or convened 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. Except as
otherwise provided by law, the Certificate of Incorporation or these Bylaws,
all action taken by the holders of a majority of the votes cast, excluding
abstentions, at any meeting at which a quorum is present shall be valid and
binding upon the corporation; provided, however, that directors shall be
elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors. Where a separate vote by a class or classes or series is required,
except where otherwise provided by the statute or by the Certificate of
Incorporation or these Bylaws, a majority of the outstanding shares of such
class or classes or series, present in person or represented by proxy, shall
constitute a quorum entitled to take action with respect to that vote on that
matter and except where otherwise provided by the statute or by the
Certificate of Incorporation or these Bylaws, the affirmative vote of the
majority (plurality, in the case of the election of directors) of the votes
cast, including abstentions, by the holders of shares of such class or
classes or series shall be the act of such class or classes or series.
SECTION 9. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting
of stockholders, whether annual or special, may be adjourned from time to
time either by the chairman of the meeting or by the vote of a majority of
the shares casting votes, excluding abstentions. When a meeting is adjourned
to another time or place, notice need not be given of the adjourned meeting
if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the corporation may transact
any business which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
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SECTION 10. VOTING RIGHTS. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the
stock records of the corporation on the record date, as provided in
Section 12 of these Bylaws, shall be entitled to vote at any meeting of
stockholders. Every person entitled to vote shall have the right to do so
either in person or by an agent or agents authorized by a proxy granted in
accordance with Delaware law. An agent so appointed need not be a
stockholder. No proxy shall be voted after three (3) years from its date of
creation unless the proxy provides for a longer period.
SECTION 11. JOINT OWNERS OF STOCK. If shares or other securities
having voting power stand of record in the names of two (2) or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in
common, tenants by the entirety, or otherwise, or if two (2) or more persons
have the same fiduciary relationship respecting the same shares, unless the
Secretary 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 (1) votes, his act binds all; (b) if more
than one (1) votes, the act of the majority so voting binds all; (c) if more
than one (1) votes, but the vote is evenly split on any particular matter,
each faction may vote the securities in question proportionally. If the
instrument filed with the Secretary shows that any such tenancy is held in
unequal interests, a majority or even-split for the purpose of subsection (c)
shall be a majority or even-split in interest.
SECTION 12. LIST OF STOCKHOLDERS. The Secretary shall prepare and
make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order, showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least 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
specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of meeting during the whole time
thereof and may be inspected by any stockholder who is present.
SECTION 13. ACTION WITHOUT MEETING. No action shall be taken by the
stockholders except at an annual or special meeting of stockholders called in
accordance with these Bylaws, or by the written consent of all stockholders.
SECTION 14. ORGANIZATION.
(a) At every meeting of stockholders, the Chairman of the Board of
Directors, or, if a Chairman has not been appointed or is absent, the
President, or, if the President is absent, a chairman of the meeting chosen
by a majority in interest of the stockholders entitled to vote, present in
person or by proxy, shall act as chairman. The Secretary, or, in his absence,
an Assistant Secretary directed to do so by the President, shall act as
secretary of the meeting.
(b) The Board of Directors of the corporation shall be entitled to
make such rules or regulations for the conduct of meetings of stockholders as
it shall deem necessary, appropriate or
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convenient. Subject to such rules and regulations of the Board of Directors, if
any, the chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are necessary, appropriate or convenient for the
proper conduct of the meeting, including, without limitation, establishing an
agenda or order of business for the meeting, rules and procedures for
maintaining order at the meeting and the safety of those present, limitations
on participation in such meeting to stockholders of record of the corporation
and their duly authorized and constituted proxies and such other persons as the
chairman shall permit, restrictions on entry to the meeting after the time
fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulation of the opening and closing
of the polls for balloting on matters which are to be voted on by ballot.
Unless and to the extent determined by the Board of Directors or the chairman
of the meeting, meetings of stockholders shall not be required to be held in
accordance with rules of parliamentary procedure.
ARTICLE IV
DIRECTORS
SECTION 15. NUMBER AND QUALIFICATION. The authorized number of directors
of the corporation shall be not less than one (1) nor more than twelve (12) as
fixed from time to time by resolution of the Board of Directors; PROVIDED that
no decrease in the number of directors shall shorten the term of any incumbent
directors. Directors need not be stockholders unless so required by the
Certificate of Incorporation. If for any cause, the directors shall not have
been elected at an annual meeting, they may be elected as soon thereafter as
convenient at a special meeting of the stockholders called for that purpose in
the manner provided in these Bylaws.
SECTION 16. POWERS. The powers of the corporation shall be exercised, its
business conducted and its property controlled by the Board of Directors,
except as may be otherwise provided by statute or by the Certificate of
Incorporation.
SECTION 17. ELECTION AND TERM OF OFFICE OF DIRECTORS. Members of the Board
of Directors shall hold office until their successors have been elected.
SECTION 18. VACANCIES. Unless otherwise provided in the Certificate of
Incorporation, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall
unless the Board of Directors determines by resolution that any such
vacancies or newly created directorships shall be filled by stockholder vote,
be filled only by the affirmative vote of a majority of the directors then in
office, even though less than a quorum of the Board of Directors. Any
director elected in accordance with the preceding sentence shall hold office
for the remainder of the full term of the director for which the vacancy was
created or occurred and until such director's successor shall have been
elected and qualified. A vacancy in the Board of Directors shall be deemed to
exist under this Bylaw in the case of the death, removal or resignation of
any director.
SECTION 19. RESIGNATION. Any director may resign at any time by delivering
his written resignation to the Secretary, such resignation to specify whether
it will be effective at a
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particular time, upon receipt by the Secretary or at the pleasure of the
Board of Directors. If no such specification is made, it shall be deemed
effective at the pleasure of the Board of Directors. When one or more
directors shall resign from the Board of Directors, effective at a future
date, a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office for the unexpired
portion of the term of the director whose place shall be vacated and until
his successor shall have been duly elected and qualified.
SECTION 20. REMOVAL. Subject to the Certificate of Incorporation, any
director may be removed by:
(a) the affirmative vote of the holders of a majority of the outstanding
shares of the Corporation then entitled to vote, with or without cause; or
(b) the affirmative and unanimous vote of the directors of the
Corporation, with the exception of the vote of the director to be removed,
with or without cause.
SECTION 21. MEETINGS.
(a) ANNUAL MEETINGS. The annual meeting of the Board of Directors shall
be held immediately after the annual meeting of stockholders and at the place
where such meeting is held. No notice of an annual meeting of the Board of
Directors shall be necessary and such meeting shall be held for the purpose
of electing officers and transacting such other business as may lawfully come
before it.
(b) REGULAR MEETINGS. Except as hereinafter otherwise provided, regular
meetings of the Board of Directors shall be held in the office of the
corporation required to be maintained pursuant to Section 2 hereof. Unless
otherwise restricted by the Certificate of Incorporation, regular meetings of
the Board of Directors may also be held at any place within or without the
state of Delaware which has been designated by resolution of the Board of
Directors or the written consent of all directors.
(c) SPECIAL MEETINGS. Unless otherwise restricted by the Certificate of
Incorporation, special meetings of the Board of Directors may be held at any
time and place within or without the State of Delaware whenever called by the
Chairman of the Board, the President or any two of the directors.
(d) TELEPHONE MEETINGS. Any member of the Board of Directors, or of any
committee thereof, may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
(e) NOTICE OF MEETINGS. Notice of the time and place of all special
meetings of the Board of Directors shall be orally or in writing, by
telephone, facsimile, telegraph or telex, during normal business hours, at
least twenty-four (24) hours before the date and time of the
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meeting, or sent in writing to each director by first class mail, charges
prepaid, at least three (3) days before the date of the meeting. Notice of
any meeting may be waived in writing at any time before or after the meeting
and will be waived by any director by attendance thereat, except when the
director attends the 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.
(f) WAIVER OF NOTICE. The transaction of all business at any meeting of
the Board of Directors, or any committee thereof, however called or noticed,
or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum be present and if, either before
or after the meeting, each of the directors not present shall sign a written
waiver of notice. All such waivers shall be filed with the corporate records
or made a part of the minutes of the meeting.
SECTION 22. QUORUM AND VOTING.
(a) Unless the Certificate of Incorporation requires a greater number
and except with respect to indemnification questions arising under Section 43
hereof, for which a quorum shall be one-third of the exact number of
directors fixed from time to time in accordance with the Certificate of
Incorporation, a quorum of the Board of Directors shall consist of a majority
of the exact number of directors fixed from time to time by the Board of
Directors in accordance with the Certificate of Incorporation provided,
however, at any meeting whether a quorum be present or otherwise, a majority
of the directors present may adjourn from time to time until the time fixed
for the next regular meeting of the Board of Directors, without notice other
than by announcement at the meeting.
(b) At each meeting of the Board of Directors at which a quorum is
present, all questions and business shall be determined by the affirmative
vote of a majority of the directors present, unless a different vote be
required by law, the Certificate of Incorporation or these Bylaws.
SECTION 23. ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board
of Directors or committee, as the case may be, consent thereto in writing,
and such writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
SECTION 24. FEES AND COMPENSATION. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved, by resolution of the Board of Directors, a fixed
sum and expenses of attendance, if any, for attendance at each regular or
special meeting of the Board of Directors and at any meeting of a committee
of the Board of Directors. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as
an officer, agent, employee, or otherwise and receiving compensation therefor.
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SECTION 25. COMMITTEES.
(a) EXECUTIVE COMMITTEE. The Board of Directors may by resolution passed
by a majority of the whole Board of Directors appoint an Executive Committee
to consist of one (1) or more members of the Board of Directors. The
Executive Committee, to the extent permitted by law and provided in the
resolution of the Board of Directors shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the corporation, including without limitation the
power or authority to declare a dividend, to authorize the issuance of stock
and to adopt a certificate of ownership and merger, and may authorize the
seal of the corporation to be affixed to all papers which may require it; but
no such committee shall have the power or authority in reference to amending
the Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the Board of Directors fix the designations and
any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the corporation or the
conversion into, or the exchange of such shares for, shares of any other
class or classes or any other series of the same or any other class or
classes of stock of the corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any series),
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the bylaws of the corporation.
(b) OTHER COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the whole Board of Directors, from time to time appoint such
other committees as may be permitted by law. Such other committees appointed
by the Board of Directors shall consist of one (1) or more members of the
Board of Directors and shall have such powers and perform such duties as may
be prescribed by the resolution or resolutions creating such committees, but
in no event shall such committee have the powers denied to the Executive
Committee in these Bylaws.
(c) TERM. Each member of a committee of the Board of Directors shall
serve a term on the committee coexistent with such member's term on the Board
of Directors. The Board of Directors, subject to the provisions of
subsections (a) or (b) of this Bylaw may at any time increase or decrease the
number of members of a committee or terminate the existence of a committee.
The membership of a committee member shall terminate on the date of his death
or voluntary resignation from the committee or from the Board of Directors.
The Board of Directors may at any time for any reason remove any individual
committee member and the Board of Directors may fill any committee vacancy
created by death, resignation, removal or increase in the number of members
of the committee. The Board of Directors may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee, and, in addition, in the
absence or disqualification of any 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 of Directors to act at the meeting in the place
of any such absent or disqualified member.
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(d) MEETINGS. Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive Committee or any other committee appointed
pursuant to this Section 25 shall be held at such times and places as are
determined by the Board of Directors, or by any such committee, and when notice
thereof has been given to each member of such committee, no further notice of
such regular meetings need by given thereafter. Special meetings of any such
committee may be held at any place which has been determined from time to time
by such committee, and may be called by any director who is a member of such
committee, upon written notice to the members of such committee of the time and
place of such special meeting given in the manner provided for the giving of
written notice to members of the Board of Directors of the time and place of
special meetings of the Board of Directors. Notice of any special meeting of
any committee may be waived in writing at any time before or after the meeting
and will be waived by any director by attendance thereat, except when the
director attends such special 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. A majority of the authorized number
of members of any such committee shall constitute a quorum for the transaction
of business, and the act of a majority of those present at any meeting at which
a quorum is present shall be the act of such committee.
SECTION 26. ORGANIZATION. At every meeting of the directors, the
Chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the President, or if the President is absent, the most senior Vice
President, or, in the absence of any such officer, a chairman of the meeting
chosen by a majority of the directors present, shall preside over the meeting.
The Secretary, or in his absence, an Assistant Secretary directed to do so by
the President, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
SECTION 27. OFFICERS DESIGNATED. The officers of the corporation shall
include, if and when designated by the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, one or more
Vice Presidents, the Secretary, the Chief Financial Officer, the Treasurer, the
Controller, all of whom shall be elected at the annual organizational meeting
of the Board of Directors. The Board of Directors may also appoint one or more
Assistant Secretaries, Assistant Treasurers, Assistant Controllers and such
other officers and agents with such powers and duties as it shall deem
necessary. The Board of Directors may assign such additional titles to one or
more of the officers as it shall deem appropriate. Any one person may hold any
number of offices of the corporation at any one time unless specifically
prohibited therefrom by law. The salaries and other compensation of the
officers of the corporation shall be fixed by or in the manner designated by
the Board of Directors.
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SECTION 28. TENURE AND DUTIES OF OFFICERS.
(a) GENERAL. All officers shall hold office at the pleasure of the Board
of Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. Any officer elected or appointed by the Board
of Directors may be removed at any time by the Board of Directors. If the
office of any officer becomes vacant for any reason, the vacancy may be filled
by the Board of Directors.
(b) DUTIES OF CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of Directors
shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time. If there is no President, then the Chairman
of the Board of Directors shall also serve as the Chief Executive Officer of
the corporation and shall have the powers and duties prescribed in paragraph
(c) of this Section 28.
(c) DUTIES OF PRESIDENT. The President shall preside at all meetings of
the stockholders and at all meetings of the Board of Directors, unless the
Chairman of the Board of Directors has been appointed and is present. Unless
some other officer has been elected Chief Executive Officer of the corporation,
the President shall be the chief executive officer of the corporation and
shall, subject to the control of the Board of Directors, have general
supervision, direction and control of the business and officers of the
corporation. The President shall perform other duties commonly incident to his
office and shall also perform such other duties and have such other powers as
the Board of Directors shall designate from time to time.
(d) DUTIES OF VICE PRESIDENTS. The Vice Presidents may assume and
perform the duties of the President in the absence or disability of the
President or whenever the office of President is vacant. The Vice Presidents
shall perform other duties commonly incident to their office and shall also
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
(e) DUTIES OF SECRETARY. The Secretary shall attend all meetings of the
stockholders and of the Board of Directors and shall record all acts and
proceedings thereof in the minute book of the corporation. The Secretary shall
give notice in conformity with these Bylaws of all meetings of the stockholders
and of all meetings of the Board of Directors and any committee thereof
requiring notice. The Secretary shall perform all other duties given him in
these Bylaws and other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time. The President may direct any Assistant
Secretary to assume and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall perform other
duties commonly incident to his office and shall also perform such other duties
and have such other powers as the Board of Directors or the President shall
designate from time to time.
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(f) DUTIES OF CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall keep or cause to be kept the books of account of the corporation in a
thorough and proper manner and shall render statements of the financial
affairs of the corporation in such form and as often as required by the Board
of Directors or the President. The Chief Financial Officer, subject to the
order of the Board of Directors, shall have the custody of all funds and
securities of the corporation. The Chief Financial Officer shall perform
other duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors or the
President shall designate from time to time. The President may direct the
Treasurer or any Assistant Treasurer, or the Controller or any Assistant
Controller to assume and perform the duties of the Chief Financial Officer in
the absence or disability of the Chief Financial Officer, and each Treasurer
and Assistant Treasurer and each Controller and Assistant Controller shall
perform other duties commonly incident to his office and shall also perform
such other duties and have such other powers as the Board of Directors or the
President shall designate from time to time.
SECTION 29. DELEGATION OF AUTHORITY. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other
officer or agent, notwithstanding any provision hereof.
SECTION 30. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall be effective when received by the
person or persons to whom such notice is given, unless a later time is
specified therein, in which event the resignation shall become effective at
such later time. Unless otherwise specified in such notice, the acceptance of
any such resignation shall not be necessary to make it effective. Any
resignation shall be without prejudice to the rights, if any, of the
corporation under any contract with the resigning officer.
SECTION 31. REMOVAL. Any officer may be removed from office at any
time, either with or without cause, by the affirmative vote of a majority of
the directors in office at the time, or by the unanimous written consent of
the directors in office at the time, or by any committee or superior officers
upon whom such power of removal may have been conferred by the Board of
Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
SECTION 32. EXECUTION OF CORPORATE INSTRUMENT. The Board of Directors
may, in its discretion, determine the method and designate the signatory
officer or officers, or other person or persons, to execute on behalf of the
corporation any corporate instrument or document, or to sign on behalf of the
corporation the corporate name without limitation, or to enter into contracts
on behalf of the corporation, except where otherwise provided by law or these
Bylaws, and such execution or signature shall be binding upon the corporation.
Unless otherwise specifically determined by the Board of Directors or
otherwise required by law, promissory notes, deeds of trust, mortgages and
other evidences of indebtedness of the
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corporation, and other corporate instruments or documents requiring the
corporate seal, and certificates of shares of stock owned by the corporation,
shall be executed, signed or endorsed by the Chairman of the Board of
Directors, or the President or any Vice President, and by the Secretary or
Treasurer or any Assistant Secretary or Assistant Treasurer. All other
instruments and documents requiring the corporate signature, but not
requiring the corporate seal, may be executed as aforesaid or in such other
manner as may be directed by the Board of Directors.
All checks and drafts drawn on banks or other depositaries on funds to
the credit of the corporation or in special accounts of the corporation shall
be signed by such person or persons as the Board of Directors shall authorize
so to do.
Unless authorized or ratified by the Board of Directors or within the
agency power of an officer, 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 for any amount.
SECTION 33. VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock
and other securities of other corporations owned or held by the corporation
for itself, or for other parties in any capacity, shall be voted, and all
proxies with respect thereto shall be executed, by the person authorized so
to do by resolution of the Board of Directors, or, in the absence of such
authorization, by the Chairman of the Board of Directors, the Chief Executive
Officer, the President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
SECTION 34. FORM AND EXECUTION OF CERTIFICATES. Certificates for the
shares of stock of the corporation shall be in such form as is consistent
with the Certificate of Incorporation and applicable law. Every holder of
stock in the corporation shall be entitled to have a certificate signed by or
in the name of the corporation by the Chairman of the Board of Directors, or
the President or any Vice President and by the Treasurer or Assistant
Treasurer or the Secretary or Assistant Secretary, or anyone designated by
the Board of Directors certifying the number of shares owned by him in the
corporation. Any or all of the signatures on the certificate may be
facsimiles. In case any officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue. Each
certificate shall state upon the face or back thereof, in full or in summary,
all of the powers, designations, preferences, and rights, and the limitations
or restrictions of the shares authorized to be issued or shall, except as
otherwise required by law, set forth on the face or back a statement that the
corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative, participating, optional,
or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights. Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner
thereof a written notice containing the information required to be set forth
or stated on certificates pursuant to this section or otherwise required by
law or with respect to
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this section a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights. Except as otherwise expressly provided by
law, the rights and obligations of the holders of certificates representing
stock of the same class and series shall be identical.
SECTION 35. LOST CERTIFICATES. A new certificate or certificates shall
be issued in place of any certificate or certificates theretofore issued by
the corporation alleged to have been lost, stolen, or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen, or destroyed. The corporation may require, as a
condition precedent to the issuance of a new certificate or certificates, the
owner of such lost, stolen, or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall
require or to give the corporation a surety bond in such form and amount as
it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost,
stolen, or destroyed.
SECTION 36. TRANSFERS. The corporation shall have power to enter into
and perform any agreement with any number of stockholders of any one or more
classes of stock of the corporation to restrict the transfer of shares of
stock of the corporation of any one or more classes owned by such
stockholders in any manner not prohibited by the General Corporation Law of
Delaware.
SECTION 37. FIXING RECORD DATES.
(a) In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting. If no record date is fixed by the Board of Directors,
the record date for determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or if notice is waived, at
the close of business on the day next preceding the day on which the meeting
is held. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
(b) In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, 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 (60) days prior to such action. If no record date is
filed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
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SECTION 38. REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
SECTION 39. EXECUTION OF OTHER SECURITIES. All bonds, debentures and
other corporate securities of the corporation, other than stock certificates
(covered in Section 34), may be signed by the Chairman of the Board of
Directors, the President or any Vice President, or such other person as may
be authorized by the Board of Directors, and the corporate seal impressed
thereon or a facsimile of such seal imprinted thereon and attested by the
signature of the Secretary or an Assistant Secretary, or the Chief Financial
Officer or Treasurer or an Assistant Treasurer, provided, however, that where
any such bond, debenture or other corporate security shall be authenticated
by the manual signature, or where permissible facsimile signature, of a
trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signatures of the persons signing and
attesting the corporate seal on such bond, debenture or other corporate
security may be the imprinted facsimile of the signatures of such persons.
Interest coupons appertaining to any such bond, debenture or other corporate
security, authenticated by a trustee as aforesaid, shall be signed by the
Treasurer or an Assistant Treasurer of the corporation or such other person
as may be authorized by the Board of Directors, or bear imprinted thereon the
facsimile signature of such person. In case any officer who shall have signed
or attested any bond, debenture or other corporate security, or whose
facsimile signature shall appear thereon or on any such interest coupon,
shall have ceased to be such officer before the bond, debenture or other
corporate security so signed or attested shall have been delivered, such
bond, debenture or other corporate security nevertheless may be adopted by
the corporation and issued and delivered as though the person who signed the
same or whose facsimile signature shall have been used thereon had not ceased
to be such officer of the corporation.
ARTICLE IX
DIVIDENDS
SECTION 40. DECLARATION OF DIVIDENDS. Dividends upon the capital stock
of the corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors pursuant to
law at any regular or special meeting. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation.
SECTION 41. DIVIDEND RESERVE. Before payment of any dividend, there may
be set aside out on any funds of the corporation available for dividends
such sum or sums as the Board of Directors from time to time in their
absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining
any property of
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<PAGE>
the corporation, or for such other purpose as the Board of Directors shall
think conducive to the interests of the corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in which it
was created.
ARTICLE X
FISCAL YEAR
SECTION 42. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
SECTION 43. INDEMNIFICATION OF DIRECTORS, EXECUTIVE OFFICERS, OTHER
OFFICERS, EMPLOYEES AND OTHER AGENTS.
(a) DIRECTORS OFFICERS. The corporation shall indemnify its directors
and officers to the fullest extent not prohibited by the Delaware General
Corporation Law; provided, however, that the corporation may modify the
extent of such indemnification by individual contracts with its directors and
officers; and, provided, further, that the corporation shall not be required
to indemnify any director or officer in connection with any proceeding (or
part thereof) initiated by such person unless (i) such indemnification is
expressly required to be made by law, (ii) the proceeding was authorized by
the Board of Directors of the corporation, (iii) such indemnification is
provided by the corporation, in its sole discretion, pursuant to the powers
vested in the corporation under the Delaware General Corporation Law or (iv)
such indemnification is required to be made under subsection (d).
(b) EMPLOYEES AND OTHER AGENTS. The corporation shall have power to
indemnify its employees and other agents as set forth in the Delaware General
Corporation Law.
(c) EXPENSE. The corporation shall advance to 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, by reason of the fact that he is or was a director or
officer, of the corporation, or is or was serving at the request of the
corporation as a director or executive officer of another corporation,
partnership, joint venture, trust or other enterprise, prior to the final
disposition of the proceeding, promptly following request therefor, all
expenses incurred by any director or officer in connection with such
proceeding upon receipt of an undertaking by or on behalf of such person to
repay said mounts if it should be determined ultimately that such person is
not entitled to be indemnified under this Bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to
paragraph (e) of this Bylaw, no advance shall be made by the corporation to
an officer of the corporation (except by reason of the fact that such officer
is or was a director of the corporation in which event this paragraph shall
not apply) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, if a determination is reasonably and
promptly made (i) by the
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Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to the proceeding, or (ii) if such quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, that the facts known to the
decision-making party at the time such determination is made demonstrate
clearly and convincingly that such person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to the best
interests of the corporation.
(d) ENFORCEMENT. Without the necessity of entering into an express
contract, all rights to indemnification and advances to directors and
officers under this Bylaw shall be deemed to be contractual rights and be
effective to the same extent and as if provided for in a contract between the
corporation and the director or officer. Any right to indemnification or
advances granted by this Bylaw to a director or officer shall be enforceable
by or on behalf of the person holding such right in any court of competent
jurisdiction if (i) the claim for indemnification or advances is denied, in
whole or in part, or (ii) no disposition of such claim is made within ninety
(90) days of request therefor. The claimant in such enforcement action, if
successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting his claim. In connection with any claim for indemnification,
the corporation shall be entitled to raise as a defense to any such action
that the claimant has not met the standard of conduct that make it
permissible under the Delaware General Corporation Law for the corporation to
indemnify the claimant for the amount claimed. In connection with any claim
by an officer of the corporation (except in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the
fact that such officer is or was a director of the corporation) for advances,
the corporation shall be entitled to raise a defense as to any such action
clear and convincing evidence that such person acted in bad faith or in a
manner that such person did not believe to be in or not opposed in the best
interests of the corporation, or with respect to any criminal action or
proceeding that such person acted without reasonable cause to believe that
his conduct was lawful. Neither the failure of the corporation (including its
Board of Directors, independent legal counsel or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he has
met the applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that claimant has not met the
applicable standard of conduct. In any suit brought by a director or officer
to enforce a right to indemnification or to an advancement of expenses
hereunder, the burden of proving that the director or officer is not entitled
to be indemnified, or to such advancement of expenses, under this Article XI
or otherwise shall be on the corporation.
(e) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by
this Bylaw shall not be exclusive of any other right which such person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, 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 office. The corporation is
specifically authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting indemnification and
advances, to the fullest extent not prohibited by the Delaware General
Corporation Law.
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(f) SURVIVAL OF RIGHTS. The rights conferred on any person by this
Bylaw shall continue as to a person who has ceased to be a director, officer,
employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(g) INSURANCE. To the fullest extent permitted by the Delaware General
Corporation Law, the corporation, upon approval by the Board of Directors,
may purchase insurance on behalf of any person required or permitted to be
indemnified pursuant to this Bylaw.
(h) AMENDMENTS. Any repeal or modification of this Bylaw shall only be
prospective and shall not affect the rights under this Bylaw in effect at the
time of the alleged occurrence of any action or omission to act that is the
cause of any proceeding against any agent of the corporation.
(i) SAVING CLAUSE. If this Bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and officer to the
full extent not prohibited by any applicable portion of this Bylaw that shall
not have been invalidated, or by any other applicable law.
(j) CERTAIN DEFINITIONS. For the purposes of this Bylaw, the following
definitions shall apply:
(i) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and the
giving of testimony in, any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative.
(ii) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees,
fines, amounts paid in settlement or judgement and any other costs and
expenses of any nature or kind incurred in connection with any
proceeding.
(iii) The term 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
or another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
this Bylaw with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(iv) References to a "director," "executive officer," "officer,"
"employee," or "agent" of the corporation shall include, without
limitation, situations where such person is serving at the request of
the corporation as, respectively, a director, executive officer,
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officer, employee, trustee or agent of another corporation, partnership,
joint venture, trust or other enterprise.
(v) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to an 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 Bylaw.
ARTICLE XII
NOTICES
SECTION 44. NOTICES.
(a) NOTICE TO STOCKHOLDERS. Whenever, under any provisions of these
Bylaws, notice is required to be given to any stockholder, it shall be given
in writing, timely and duly deposited in the United States mail, postage
prepaid, and addressed to his last known post office address as shown by the
stock record of the corporation or its transfer agent.
(b) NOTICE TO DIRECTORS. Any notice required to be given to any
director may be given by the method stated in subsection (a), or by
facsimile, telex or telegram, except that such notice other than one which is
delivered personally shall be sent to such address as such director shall
have filed in writing with the Secretary, or, in the absence of such filing,
to the last known post office address of such director.
(c) AFFIDAVIT OF MAILING. An affidavit of mailing, executed by a duly
authorized and competent employee of the corporation or its transfer agent
appointed with respect to the class of stock affected, specifying the name
and address or the names and addresses of the stockholder or stockholders, or
director or directors, to whom any such notice or notices was or were given,
and the time and method of giving the same, shall in the absence of fraud, be
prima facie evidence of the facts therein contained.
(d) TIME NOTICES DEEMED GIVEN. All notices given by mail, as above
provided, shall be deemed to have been given as at the time of mailing, and
all notices given by facsimile, telex or telegram shall be deemed to have
been given as of the sending time recorded at time of transmission.
(e) METHODS OF NOTICE. It shall not be necessary that the same method
of giving notice be employed in respect of all directors, but one permissible
method may be employed in respect to any one or more, and any other
permissible method or methods may be employed in respect of any other or
others.
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(f) FAILURE TO RECEIVE NOTICE. The period or limitation of time within
which any stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which any director may
exercise any power or right, or enjoy any privilege, pursuant to any notice
sent him in the manner above provided, shall not be affected or extended in
any manner by the failure of such stockholder or such director to receive
such notice.
(g) NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL. Whenever
notice is required to be given, under any provision of law or of the
Certificate of Incorporation or Bylaws of the corporation, to any person with
whom communication is unlawful, the giving of such notice to such person
shall not be required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice to such
person. Any action or meeting which shall be taken or held without notice to
any such person with whom communication is unlawful shall have the same force
and effect as if such notice had been duly given. In the event that the
action taken by the corporation is such as to require the filing of a
certificate under any provision of the Delaware General Corporation Law, the
certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such
persons with whom communication is unlawful.
(h) NOTICE TO PERSON WITH UNDELIVERABLE ADDRESS. Whenever notice is
required to be given, under any provision of law or the Certificate of
Incorporation or Bylaws of the corporation, 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 such 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 provision of the Delaware
General Corporation Law, the certificate need not state that notice was not
given to persons to whom notice was not required to be given pursuant to this
paragraph.
ARTICLE XII
AMENDMENTS
SECTION 45. AMENDMENTS.
The Board of Directors shall have the power to adopt, amend, or repeal
these Bylaws.
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ARTICLE XIV
LOANS TO OFFICERS
SECTION 46. LOANS TO OFFICERS. The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other
employee of the corporation or of its subsidiaries, including any officer or
employee who is a Director of the corporation or its subsidiaries, whenever,
in the judgment of the Board of Directors, such loan, guarantee or assistance
may reasonably be expected to benefit the corporation. The loan, guarantee
or other assistance may be with or without interest and may be unsecured, or
secured in such manner as the Board of Directors shall approve, including,
without limitation, a pledge of shares of stock of the corporation. Nothing
in these Bylaws shall be deemed to deny, limit or restrict the powers of
guaranty or warranty of the corporation at common law or under any statute.
DECLARED AS THE BYLAWS OF AIRBOMB.COM MARKETING LTD. AS OF THE ________ DAY
OF ______________, 2000.
Signature of Officer:
---------------------------------
Name of Officer: Dennis Higgs
Position of Officer:
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MINUTES OF THE 2000 EXTRAORDINARY GENERAL MEETING OF THE MEMBERS OF FEDORA
INDUSTRIES INC., HELD ON FEBRUARY 16, 2000, AT 10:00 A.M., AT SUITE 1600 -
777 DUNSMUIR STREET, VANCOUVER, BRITISH COLUMBIA.
CHAIRMAN, SECRETARY AND SCRUTINEER
David Houston, President of the Company, acted as Chairman and Dennis Higgs,
a director of the Company, acted as Secretary of the meeting.
With the consent of the meeting, the Chairman appointed Heather Davey to act
as Scrutineer.
NOTICE OF MEETING
The Chairman stated that Section 143 of the COMPANY ACT (British Columbia)
requires not less than 21 days notice be given of a general meeting and that
he had been advised by management that the Notice calling the meeting, form
of Proxy and Information Circular were duly mailed more than 21 days prior to
the date of the meeting.
Upon motion made by Dennis Higgs, seconded by Andy Doyle and unanimously
carried, IT WAS RESOLVED that the reading of the Notice calling the meeting
be dispensed with.
QUORUM
The report of the Scrutineer indicated that there were four members present
in person holding 2,392,858 shares and that 1,263,005 shares were represented
by proxy for a total representation at the meeting of 3,655,863 shares. The
Chairman declared a quorum present, and the meeting properly constituted for
the transaction of business.
MINUTES OF 1999 ANNUAL GENERAL MEETING
The Chairman stated that the last General Meeting was the Annual General
Meeting held on June 11, 1999. No shareholder desired that the minutes of the
meeting be read.
Upon motion made by Dennis Higgs, seconded by Aileen Fehr and unanimously
carried, IT WAS RESOLVED that the reading of the minutes of the last meeting
be dispensed with and that the minutes be approved as if read.
The Chairman stated that Clive Forth, solicitor for the Company, would
conduct the formal business of the meeting.
APPROVAL OF NAME CHANGE
Mr. Forth stated that the first item of business was to consider a special
resolution to change the name of the Company to "Airbomb.com Marketing Ltd."
<PAGE>
2
Upon motion made by Andy Doyle, seconded by Dennis Higgs and unanimously
carried:
IT WAS RESOLVED, by special resolution, that:
the name of the Company be changed to "Airbomb.com Marketing Ltd." and
that paragraph 1 of the Company's memorandum be altered to read as
follows:
"1. The name of the Company is Airbomb.com Marketing Ltd."
Mr. Forth stated that the next item of business was to consider a special
resolution to allow management, for valid reason, to substitute another name
for the name "Airbomb.com Marketing Ltd."
Upon motion made by Aileen Fehr, seconded by Andy Doyle and unanimously
carried:
IT WAS RESOLVED, by special resolution, that:
in the event that the directors consider, for valid reason, that the
name of the Company should be changed to some name other than
"Airbomb.com Marketing Ltd.", the directors be authorized to approve a
name other than "Airbomb.com Marketing Ltd." as the new name of the
Company and to substitute such name for "Airbomb.com Marketing Ltd." in
the special resolution changing the name of the Company, and such
resolution as so amended shall for all purposes be deemed a special
resolution of the members.
APPROVAL OF INSIDERS' STOCK OPTIONS
Mr. Forth stated that the next item of business was the consideration of a
resolution to approve stock options granted by the Company to certain of its
insiders, in accordance with the policy of the Canadian Venture Exchange.
Upon motion made by Andy Doyle, seconded by Dennis Higgs and unanimously
carried:
IT WAS RESOLVED that the granting of stock options to the following:
<TABLE>
<CAPTION>
Name of Optionee No. of Shares Exercise Price Expiry Date
<S> <C> <C> <C>
David Houston 40,000 $0.45 11/11/04
Katy Player 5,000 $0.45 11/11/04
Mike Edwards 30,000 $0.28 12/20/04
Don Shaw 50,000 $0.28 12/20/04
David Houston 100,000 $0.28 12/20/04
</TABLE>
<PAGE>
3
and the actions of the directors of the Company in granting such options and
executing, on behalf of the Company, the appropriate stock option agreements
be ratified, approved and confirmed.
INCREASE IN AUTHORIZED CAPITAL
Mr. Forth stated that the next item of business was the consideration of a
special resolution to approve the increase in the authorized share capital of
the Company to 100,000,000 common shares.
Upon motion made by Aileen Fehr, seconded by Dennis Higgs and unanimously
carried:
IT WAS RESOLVED, by special resolution, that:
the authorized capital of the Company, which presently consists
of 99,994,375 common shares without par value, be increased to
100,000,000 common shares without par value, all shares issued and
unissued ranking PARI PASSU, and that paragraph 2 of the Company's
Memorandum be altered to read as follows:
2. The authorized capital of the Company consists of 100,000,000 common
shares without par value.
REDESIGNATION OF AUTHORIZED SHARE CAPITAL & NAME CHANGE
Mr. Forth stated that the next proposed resolution was not contemplated in
the information circular sent to shareholders in connection with the meeting,
but that management of the Company and the Chairman of the meeting had
determined that the motion was properly before the meeting as containing
minor amendments to matters as to which notice had been properly given.
Upon motion made by Dennis Higgs, seconded by Andy Doyle and unanimously
carried:
IT WAS RESOLVED, by special resolution, that:
effective upon the continuance of the Company into the State of Delaware:
a) the 100,000,000 authorized common shares without par value of the
Company be redesignated as common shares with a par value of $0.001
per share; and
b) the name of the Company be changed to "airbomb.com Inc.".
provided however that the directors are hereby authorized not to proceed
with either or both of the foregoing changes, in their sole discretion.
<PAGE>
4
CONTINUANCE FROM BRITISH COLUMBIA TO DELAWARE
Mr. Forth stated that the next item of business was the consideration of the
continuance of the Company to the State of Delaware.
Upon motion made by Dennis Higgs, seconded by Aileen Fehr and unanimously
carried:
IT WAS RESOLVED, by special resolution, that:
a) the Company be and is hereby authorized to apply to the Registrar of
Companies for the Province of British Columbia for authorization to
continue to the jurisdiction of Delaware under the DELAWARE GENERAL
CORPORATION LAW (the "DGCL") pursuant to section 37 of the COMPANY ACT
R.S.B.C. 1996, c.62, as amended;
b) the Certificate of Domestication and the Certificate of Incorporation
under the DGCL (collectively the "Application") in the form attached to
these resolutions as Schedule "A" are hereby approved;
c) subject to acceptance of the filing of the Application by the Delaware
Secretary of State, the Application and the form of bylaws which are
attached to these resolutions as Schedule "B" are adopted in
substitution for the existing Memorandum and Articles of the Company;
d) upon receipt of authorization to the continuance of the Company to the
jurisdiction of Delaware under the DGCL from the Registrar of Companies
for the Province of British Columbia, the Board of Directors authorize
the appropriate officer of the Company to execute and file the
Application with the Secretary of State of the State of Delaware under
the DGCL and that, upon acceptance of the filing by the Delaware
Secretary of State, the Company shall be continued as a Delaware
corporation; and
e) the directors of the Company are hereby authorized to abandon the
application for continuance to the jurisdiction of Delaware under the
DGCL at any time in their sole discretion without further approval of
the members of the Company.
TERMINATION OF MEETING
There being no further business, upon motion made by Dennis Higgs, seconded
by Andy Doyle and unanimously carried, Mr. Forth declared the meeting
terminated.
/s/ Dennis Higgs
------------------------------
Dennis Higgs, Secretary
