<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (date of earliest event reported): July 30, 1996
DIGITAL TECHNOLOGIES MEDIA GROUP, INC.
----------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-9311 87-0269260
----------------------------------------------------------------
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification
incorporation) Number)
955 South Virginia Street, Reno, Nevada 89502
----------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Issuer's telephone number, including area code: (702) 786-2144
Miller & Benson International, Ltd.
23548 Calabasas Road, Suite 203, Calabasas, California 91302
----------------------------------------------------------------
(Former name or former address, if changed since last report.)
Exhibit index page numbers: 9 - 10.
Total sequentially numbered pages in this document: ___.
1
<PAGE> 2
ITEM 1. CHANGES IN CONTROL OF REGISTRANT
On July 30, 1996, pursuant to a Stock Exchange Agreement dated as of June
28, 1996 (the "Agreement"), between Miller & Benson International, Ltd., a
Delaware corporation (now known as Digital Technologies Media Group, Inc.) (the
"Company"), and Digital Technologies Group, Inc., a Delaware corporation
("DTG"), and all of the shareholders of DTG, the Company acquired 100% of the
outstanding capital stock of DTG, thus causing DTG to become a wholly-owned
subsidiary of the Company. In consideration for the acquisition of the
outstanding capital stock of DTG, the Company issued 4,401,127 shares of its
common stock, and in conjunction therewith all of the directors and officers of
the Company resigned and new officers and directors were appointed. The new
officers and directors were previously officers and directors of DTG. The
4,401,127 shares represent approximately 81.5% of the issued and outstanding
shares of the Company's common stock, which is the only class of the Company's
equity securities issued and outstanding, thus resulting in a change in control
of the Company.
Except as noted, all common share amounts referred to herein are after
giving effect to a 1-for-100 reverse stock split effective July 26, 1996 (the
"Reverse Stock Split"), as provided for in the Agreement. On June 28, 1996,
prior to the Reverse Stock Split and the closing of the Agreement, the Company
had 42,000,000 shares of common stock issued and outstanding or to be issued.
The Reverse Stock Split was authorized by order of the U.S. Bankruptcy Court on
June 25, 1991, in conjunction with the confirmation of the Company's Plan of
Reorganization. The Company's predecessor entity, Oil Securities, Inc., a Nevada
corporation, had previously filed for protection under Chapter 11 of the U.S.
Bankruptcy Code on May 2, 1988. On May 12, 1993, the bankruptcy proceedings were
closed by the entry of an order of final decree by the U.S. Bankruptcy Court.
As a result of the acquisition of DTG by the Company and the issuance of
the 4,401,127 shares of common stock, the former shareholders of DTG acquired
control of the Company. Communications Services International, a foreign
corporation (now known as CSI Ventures S.A.) ("CSI"), owned approximately 80% of
the outstanding capital stock of DTG immediately prior to its acquisition by the
Company, and was thus the controlling shareholder of DTG. Subsequent to the
acquisition of DTG by the Company, CSI owns approximately 40% of the outstanding
capital stock of the Company, and could thus be deemed to have the ability to
direct the management and policies of the Company. Arthur Newberger is the U.S.
agent and 3% minority shareholder of CSI.
In conjunction with the Agreement, effective July 30, 1996, Norman Gross
resigned as President and Director and Robert N.
2
<PAGE> 3
Weingarten resigned as Chief Financial Officer, Secretary and Director; and
Arthur Newberger was appointed President and Director, David Kekich was
appointed Secretary and Director, and Ely J. Mandell was appointed Chief
Financial Officer and Director.
Additional information with respect to this transaction is
contained at "ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS."
Except as included in the Agreement, or as disclosed elsewhere in this
document, there are no other arrangements or understandings between members of
both former and new control groups and their associates concerning the election
of directors or other matters.
There are no contractual arrangements known to the Company which may later
result in a change in control of the Company.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On July 30, 1996, pursuant to the Agreement, the Company acquired 100% of
the capital stock of DTG from its shareholders in exchange for 4,401,127 shares
of the Company's common stock.
DTG was founded in April 1995 to capitalize on the growth in the
distribution of multimedia programming. On May 1, 1995, pursuant to a purchase
agreement with CSI, DTG issued a $3,000,000 secured convertible debenture with
interest at 10% in exchange for certain assets, including accounts receivable,
film rights to several television series, and a distribution network. In
November 1995, the secured convertible debenture was converted into 6%
convertible preferred stock of DTG, which was subsequently converted into
approximately 80% of the outstanding shares of common stock of DTG
contemporaneous with the execution of the Agreement on June 28, 1996. In
conjunction with the CSI transaction, Arthur Newberger, the U.S. agent and a 3%
minority shareholder of CSI, became the President and Chief Executive Officer of
DTG. DTG's current business is the acquisition and distribution of multimedia
programming worldwide, with DTG's customers consisting of domestic and foreign
television and cable channels, as well as sub-distributors.
The terms of the transaction, including the nature and amount of
consideration, were determined in arm's-length negotiations between the parties.
There was no material prior relationship between the Company (including any of
the Company's affiliates, any director or officer of the Company, or any
associates of the Company's officers or directors) and DTG (including any of
DTG's affiliates, any director or officer of DTG, or any associates of DTG's
officers or directors).
3
<PAGE> 4
In order to fund the costs of the Agreement and pay certain existing
obligations of the Company, the Company entered into a transaction with Madera
International, Inc. ("Madera"), formerly known as Weaver Arms Corporation, a
public company incorporated in the State of California. The Company agreed to
issue 500,000 shares of its restricted common stock to Madera at the closing of
the Agreement in exchange for 166,667 shares of common stock of Madera. The
Company sold the shares of Madera common stock for net proceeds of approximately
$23,000.
At the closing of the Agreement, B.D. Brooke & Company was issued 600,000
shares of the Company's common stock (allocated from the shares issuable to CSI)
as payment for services rendered in conjunction with the acquisition of DTG by
the Company. The shares of B.D. Brooke & Company are held by Mr. Mandell as
custodian for his three minor children. Mr. Mandell is an officer and director
of B.D. Brooke & Company, but disclaims any beneficial ownership of B.D. Brooke
& Company. In November 1991, Mr. Mandell entered into a Consent Decree with the
U.S. Securities and Exchange Commission, pursuant to which Mr. Mandell agreed to
refrain from violating Section 5(c) of the Securities Act of 1933, as amended.
Mr. Mandell neither admitted nor denied guilt under that Consent Decree. During
March 1992, Mr. Mandell declared personal bankruptcy pursuant to Chapter 7 of
the U.S. Bankruptcy Code.
At the Closing of the Agreement, as compensation for services rendered
through June 28, 1996, Mr. Gross and Mr. Weingarten were each issued an
additional 40,000 shares of common stock, which the Company has agreed to
register in any Registration Statement on Form S-8 that the Company may
subsequently file. In addition, Mr. Gross and Mr. Weingarten were also
reimbursed for their prior advances to the Company aggregating $1,550 through
June 28, 1996.
Additional information with respect to this transaction is contained at
"ITEM 1. CHANGES IN CONTROL OF REGISTRANT."
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
The Company's most recently filed Annual Report on Form 10-K was for the
fiscal year ended December 31, 1986, and included consolidated financial
statements with a qualified independent certified public accountants report
issued by Peat Marwick Main & Co., Los Angeles, California. The Company's
predecessor entity, Oil Securities, Inc., subsequently filed for protection
under Chapter 11 of the U.S. Bankruptcy Code on May 2, 1988, and liquidated all
of its assets and settled or restructured all of its liabilities pursuant to a
Plan of Reorganization confirmed on June 25, 1991. For several years prior to
the transaction with DTG, the Company had been inactive, with its activities
limited
4
<PAGE> 5
to maintaining the corporate entity and evaluating potential
business opportunities.
Effective July 30, 1996, in conjunction with the closing of the DTG
Agreement, and with the approval of its board of directors, the Company engaged
the accounting firm of Jay J. Shapiro, C.P.A., a Professional Corporation,
Encino, California, as the Company's new independent certified public
accountant. Jay J. Shapiro was the independent certified public accountant of
DTG, having audited the financial statements of DTG for the period April 1, 1995
(inception) through December 31, 1995.
Prior to the engagement of Jay J. Shapiro, the Company did not consult with
such firm regarding the application of accounting principles to a specified
transaction, either completed or proposed, or the type of audit opinion that
might be rendered on the Company's financial statements, or any matter that was
either the subject of a disagreement or a reportable event.
5
<PAGE> 6
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
(a) Financial statements of businesses acquired -
It is impracticable at this time to provide the required financial
statements. Such financial statements will be provided by amendment within 75
days subsequent to July 30, 1996.
(b) Pro forma financial information -
As the Company had no assets or operations prior to the acquisition of
DTG, pro forma financial information is not presented.
(c) Exhibits -
Exhibit
Number Description
------- -----------
2.1 Plan of Reorganization and Agreement of Merger between Oil
Securities, Inc., a Nevada corporation, and Miller &
Benson International, Ltd., a Delaware corporation, dated
as of January 27, 1992
2.2 Articles of Merger of Oil Securities, Inc. (a Nevada
corporation) into Miller & Benson International, Ltd. (a
Delaware corporation) dated January 27, 1992, filed in the
Office of the Secretary of State of the State of Nevada on
January 27, 1992
2.3 Certificate of Ownership and Merger of Oil Securities,
Inc. (a Nevada corporation) into Miller & Benson
International, Ltd. (a Delaware corporation) dated January
27, 1992, filed in the Office of the Secretary of State of
the State of Delaware on January 27, 1992
2.4 Stock Exchange Agreement among Miller & Benson
International, Ltd. and Digital Technologies Group, Inc.
and Shareholders of Digital Technologies Group, Inc.,
dated as of June 28, 1996
6
<PAGE> 7
(c) Exhibits (continued) -
Exhibit
Number Description
------- -----------
3(i).1 Certificate of Incorporation of Miller & Benson
International, Ltd. dated January 22, 1992, filed in the
Office of the Secretary of State of the State of Delaware
on January 23, 1992
3(i).2 Certificate of Amendment of Certificate of Incorporation
of Miller & Benson International, Ltd., a Delaware
corporation, dated July 31, 1994, filed in the Office of
the Secretary of State of the State of Delaware on August
9, 1994 (to effect a 200-for-1 forward split of the
outstanding shares of common stock)
3(i).3 Certificate of Amendment of Certificate of Incorporation
dated July 26, 1996, filed in the Office of the Secretary
of State of the State of Delaware on July 26, 1996 (to
effect a 1-for-100 reverse split of the outstanding shares
of common stock)
3(i).4 Certificate of Amendment of Certificate of Incorporation
dated August 1, 1996, filed in the Office of the Secretary
of State of the State of Delaware on August 1, 1996 (to
change the name of the corporation to Digital Technologies
Media Group, Inc.)
3(ii).1 By-Laws of Miller & Benson International, Ltd. (a Delaware
Corporation)
7
<PAGE> 8
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DIGITAL TECHNOLOGIES MEDIA GROUP, INC.
--------------------------------------
(Registrant)
/s/ ELY J. MANDELL
Date: August 14, 1996 By: _________________________
Ely J. Mandell
Chief Financial Officer
8
<PAGE> 9
INDEX TO EXHIBITS
-----------------
Exhibit Page
Number Description Numbers
- ------ ----------- -------
2.1 Plan of Reorganization and Agreement of
Merger between Oil Securities, Inc., a
Nevada corporation, and Miller & Benson
International, Ltd., a Delaware corporation,
dated as of January 27, 1992
2.2 Articles of Merger of Oil Securities, Inc.
(a Nevada corporation) into Miller & Benson
International, Ltd. (a Delaware
corporation) dated January 27, 1992, filed
in the Office of the Secretary of State of
the State of Nevada on January 27, 1992
2.3 Certificate of Ownership and Merger of Oil
Securities, Inc. (a Nevada corporation)
into Miller & Benson International, Ltd. (a
Delaware corporation) dated January 27,
1992, filed in the Office of the Secretary
of State of the State of Delaware on
January 27, 1992
2.4 Stock Exchange Agreement among Miller &
Benson International, Ltd. and Digital
Technologies Group, Inc. and Shareholders
of Digital Technologies Group, Inc., dated
as of June 28, 1996
3(i).1 Certificate of Incorporation of Miller &
Benson International, Ltd. dated January
22, 1992, filed in the Office of the
Secretary of State of the State of Delaware
on January 23, 1992
3(i).2 Certificate of Amendment of Certificate of
Incorporation of Miller & Benson
International, Ltd., a Delaware
corporation, dated July 31, 1994, filed
in the Office of the Secretary of State of
the State of Delaware on August 9, 1994
(to effect a 200-for-1 forward split of the
outstanding shares of common stock)
9
<PAGE> 10
INDEX TO EXHIBITS (CONTINUED)
-----------------------------
Exhibit Page
Number Description Numbers
- ------ ----------- -------
3(i).3 Certificate of Amendment of Certificate of
Incorporation dated July 26, 1996, filed in
the Office of the Secretary of State of the
State of Delaware on July 26, 1996 (to effect
a 1-for-100 reverse split of the outstanding
shares of common stock)
3(i).4 Certificate of Amendment of Certificate of
Incorporation dated August 1, 1996, filed in
the Office of the Secretary of State of the
State of Delaware on August 1, 1996 (to change
the name of the corporation to Digital
Technologies Media Group, Inc.)
3(ii).1 By-Laws of Miller & Benson International,
Ltd. (a Delaware Corporation)
10
<PAGE> 1
PLAN OF REORGANIZATION AND AGREEMENT OF MERGER
THIS PLAN OF REORGANIZATION AND AGREEMENT OF MERGER, dated as of
January 27, 1992 (this "Agreement"), is entered into between Oil Securities,
Inc., a Nevada corporation ("OSI") and Miller & Benson International, Ltd., a
Delaware corporation ("M&B Delaware").
WHEREAS, OSI has authorized 25,000,000 shares of common stock, par
value $.05 ("OSI Common Stock"), of which there are 5,317,000 shares issued and
outstanding on the date hereof;
WHEREAS, M&B Delaware has authorized 250,000,000 shares of common
stock, par value $.01 ("M&B Delaware Common Stock"), of which there are 100
shares issued and outstanding on the date hereof;
WHEREAS, M&B Delaware has authorized 100,000,000 shares of preferred
stock, par value $.01 ("M&B Delaware Preferred Stock"), none of which are
issued and outstanding, and the terms of which have not been defined;
WHEREAS, OSI owns 100 shares of M&B Delaware Common Stock,
representing 100% of the issued and outstanding M&B Delaware Common Stock;
WHEREAS, pursuant to OSI's Plan of Reorganization (the "Plan") approved
by the United States Bankruptcy Court for the Central District of California
(the "Court") on June 25, 1991, the Court has granted OSI the authority to
change its state of incorporation;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, OSI and M&B Delaware hereby agree as follows:
1. Merger. Subject to the terms and conditions hereinafter set
forth, OSI shall be merged with and into M&B Delaware with M&B Delaware being
the surviving corporation. The Merger shall be effective if and when a properly
executed certificate or agreement of merger consistent with the terms of this
Agreement, the Nevada Revised Statutes of the State of Nevada (the "NRS") and
the General Corporation Law of the State of Delaware (the "GCL") (together with
any other documents required by law to be filed to effectuate the Merger) shall
be filed with the Secretary of State of the State of Nevada and the Secretary
of State of the State of Delaware, as appropriate (the "Effective Date" of the
Merger).
<PAGE> 2
2. Governing Document. M&B Delaware shall be the surviving corporation
in the Merger (sometimes referred to herein as the "Surviving Corporation"),
and the Surviving Corporation shall continue its existence under the laws of
the State of Delaware. The Articles of Incorporation of M&B Delaware, as in
effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation, [without change or amendment until
thereafter amended] and the Bylaws of M&B Delaware as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Surviving Corporation,
without change or amendment until thereafter amended.
3. Succession. At the Effective Time the separate corporate existence
of OSI shall cease and M&B Delaware shall succeed to OSI in the manner set
forth in Section 253 of the GCL. OSI is sometimes referred to herein as the
"Disappearing Corporation."
4. Conversion of Shares. At the Effective time, by virtue of the
Merger and without any action on the part of the holder thereof:
4.1 Each share of the OSI Common Stock which is issued and
outstanding immediately prior to the Effective Time shall be changed and
converted into one fully paid share of M&B Delaware Common Stock;
4.2 The 100 shares of M&B Delaware Common Stock issued and
outstanding on the date hereof and owned by OSI shall be cancelled and retired
and shall resume the status of authorized and unissued shares of M&B Delaware
Common Stock.
5. Conditions to the Merger. The consummation of the Merger is subject
to the condition that the Stock Exchange Agreement between OSI and the GIMA
Parties (as defined therein), dated as of December 13, 1991, shall have been
consummated.
6. Stock Certificates. At and after the Effective Time of the Merger,
all of the outstanding certificates which immediately prior to the Effective
Time of the Merger evidence shares of OSI Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent, shares of M&B Delaware
Common Stock into which the shares of OSI Common Stock have been converted as
herein provided.
7. Further Assurances. From time to time, as and when required by the
Surviving Corporation, or by its successors or assigns, there shall be executed
and delivered on behalf of the Disappearing Corporation such deeds and other
instruments, and there shall be taken or caused to be taken by it all such
further
2
<PAGE> 3
and other action as shall be appropriate or necessary to vest, perfect, or
confirm, of record or otherwise, in the Surviving Corporation the title to and
possession of all property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of the Disappearing Corporation and otherwise
to carry out the purposes of this Agreement; and the officers and directors of
the Surviving Corporation are fully authorized in the name and on behalf of the
Disappearing Corporation or otherwise, to taken any and all such action and to
execute and deliver any and all such deeds and instruments.
8. Amendments; Abandonment. Subject to applicable law, this Agreement
may be amended, modified or supplemented by written agreement of the parties
hereto at any time prior to the Effective Time with respect to any of the terms
contained herein. At any time prior to the Effective Time, this Agreement may
be terminated and the Merger may be abandoned by the Board of Directors of
either OSI or M&B Delaware, or both, in their sole discretion and
notwithstanding the authority granted by the Court pursuant to the Plan.
9. Counterparts. In order to facilitate the filing and recording of
this Agreement, this Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and such counterparts shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, OSI and M&B Delaware have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
OIL SECURITIES, INC., a Nevada
Corporation
By: /s/
-------------------------------
Its: Director
MILLER & BENSON INTERNATIONAL
LTD., a Delaware corporation
By: /s/
-------------------------------
Its: Director
3
<PAGE> 1
ARTICLES OF MERGER
OF
OIL SECURITIES, INC.
(a Nevada corporation)
INTO
MILLER & BENSON INTERNATIONAL, LTD.
(a Delaware corporation)
The undersigned, ROBERT N. WEINGARTEN, certifies that:
1. He is the President and Secretary of OIL SECURITIES, INC., a Nevada
corporation (the "Corporation") and he is also the President and Secretary of
MILLER & BENSON INTERNATIONAL, LTD., a Delaware corporation ("M&B Delaware").
2. The Corporation is subject, pursuant to Chapter 11 of the United
States Bankruptcy Code, to the jurisdiction of the United States Bankruptcy
Court for the Central District of California (the "Court"), in a proceeding
entitled "In re OIL SECURITIES, INC., a Nevada corporation, Debtor," Chapter 11
Case No. LA88-09257-AA.
3. The Corporation owns 100 shares of the common stock of M & B
Delaware, representing 100% of the issued and outstanding common stock of M & B
Delaware.
4. Pursuant to an Order of the Court entered on June 25, 1991,
confirming the Corporation's Plan of Reorganization (the "Order"), the Court
has granted the Corporation the authority to change its state of incorporation
as the Corporation's Board of Directors may select.
5. Attached hereto is a copy of the Action by the Unanimous Written
Consent of the Directors of Oil Securities, Inc., duly adopted by the unanimous
written consent of the Corporation's Directors on January 22, 1992, authorizing
a merger (the "Merger") with M & B Delaware, with M & B Delaware as the
surviving corporation (the "Resolutions").
6. Also attached hereto is that certain Plan of Reorganization and
Agreement of Merger, dated as of January 27, 1992, between the Corporation and
M & B Delaware (the "Agreement"), setting forth the terms and conditions of the
Merger.
<PAGE> 2
7. The Resolutions and the Agreement have not been amended, rescinded
or revoked.
IN WITNESS WHEREOF, the undersigned being duly authorized as aforesaid,
has executed this Certificate this 27th day of January, 1992.
/s/ Robert N. Weingarten
------------------------------
ROBERT N. WEINGARTEN,
President and Secretary
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On January 24, 1992 before me, Susan MacInnis, a Notary Public,
personally appeared Robert N. Weingarten, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature /s/ Susan MacInnis [OFFICIAL SEAL]
---------------------------
2
<PAGE> 1
PAGE 1
STATE OF DELAWARE
[SEAL]
OFFICE OF SECRETARY OF STATE
----------
I, JEFFREY D. LEWIS, ACTING SECRETARY OF STATE OF THE STATE OF DELAWARE
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
OWNERSHIP OF MILLER & BENSON INTERNATIONAL, LTD., A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, MERGING OIL SECURITIES, INC.
A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEVADA,
PURSUANT TO SECTION 253 OF THE GENERAL CORPORATION LAW OF THE STATE OF
DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-SEVENTH DAY OF
JANUARY, A.D. 1992, AT 3 O'CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
* * * * * * * * * *
[SEAL] /s/ Jeffrey D. Lewis
----------------------------------
ACTING SECRETARY OF STATE
AUTHENTICATION: *3324583
752027059 DATE: 01/28/1992
<PAGE> 2
CERTIFICATE OF OWNERSHIP AND MERGER
OF
OIL SECURITIES, INC.
(a Nevada corporation)
INTO
MILLER & BENSON INTERNATIONAL, LTD.
(a Delaware corporation)
The undersigned, ROBERT N. WEINGARTEN, certifies that:
1. He is the President and Secretary of OIL SECURITIES, INC., a Nevada
corporation (the "Corporation") and he is also the President and Secretary of
MILLER & BENSON, INTERNATIONAL, LTD., a Delaware corporation ("M&B Delaware").
2. The Corporation is subject, pursuant to Chapter 11 of the United
States Bankruptcy Code, to the jurisdiction of the United States Bankruptcy
Court for the Central District of California (the "Court"), in a proceeding
entitled "In re OIL SECURITIES, INC., a Nevada corporation, Debtor," Chapter 11
Case No. LA88-09257-AA.
3. The Corporation owns 100 shares of the common stock of M & B
Delaware, representing 100% of the issued and outstanding common stock of M & B
Delaware.
4. Pursuant to an Order of the Court entered on June 25, 1991,
confirming the Corporation's Plan of Reorganization (the "Order"), the Court
has granted the Corporation the authority to change its state of incorporation
as the Corporation's Board of Directors may select.
5. Attached hereto is a copy of the Action by the Unanimous Written
Consent of the Directors of Oil Securities, Inc., duly adopted by the unanimous
written consent of the Corporation's Directors on January 22, 1992, authorizing
a merger (the "Merger") with M & B Delaware, with M & B Delaware as the
surviving corporation (the "Resolutions").
6. Also attached hereto is that certain Plan of Reorganization and
Agreement of Merger, dated as of January 27, 1992, between the Corporation and
M & B Delaware (the "Agreement"), setting forth the terms and conditions of the
Merger.
<PAGE> 3
7. The Resolutions and the Agreement have not been amended, rescinded
or revoked.
IT WITNESS WHEREOF, the undersigned being duly authorized as aforesaid,
has executed this Certificate this 27th day of January, 1992.
/s/ Robert N. Weingarten
----------------------------------
ROBERT N. WEINGARTEN
President and Secretary
/s/ Robert N. Weingarten
----------------------------------
ROBERT N. WEINGARTEN
President and Secretary
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On January 27, 1992, before me, Susan MacInnis, a Notary Public,
personally appeared Robert N. Weingarten, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal,
Signature /s/ Susan MacInnis [SEAL]
----------------------
2
<PAGE> 4
ACTION BY THE SOLE DIRECTOR OF
OIL SECURITIES, INC.
Pursuant to Section 11 of Article III of the Corporation's Bylaws, the
following resolutions are hereby adopted by the sole director of the
Corporation's Board of Directors, this 27th day of January, 1992.
APPROVAL OF MERGER WITH MILLER & BENSON INTERNATIONAL, LTD.
WHEREAS, the United States Bankruptcy Court for the Central District of
California (the "Court") approved the Corporation's Plan of Reorganization (the
"Plan") on June 25, 1991; and
WHEREAS, pursuant to the Plan, the Court has granted the Corporation the
authority to change its state of incorporation as the Corporation's Board of
Directors may select; and
WHEREAS, this Corporation owns 100 shares of the common stock of Miller &
Benson International, Ltd., a Delaware corporation ("M&B Delaware"),
representing 100% of the issued and outstanding shares of the common stock of
M&B Delaware; and
WHEREAS, this Corporation formed M&B Delaware for the express purpose of
changing the Corporation's state of incorporation; and
WHEREAS, pursuant to the authority granted by the Court under the Plan, the
Board of Directors of this Corporation has reviewed a form of Plan of
Reorganization and Agreement of Merger, dated January 27th, 1992 (the
"Agreement") between the Corporation and M&B Delaware, whereby the Corporation
will merge into M&B Delaware, its wholly-owned subsidiary, with M&B Delaware
being the surviving corporation, and with each share of the Corporation's
common stock being exchanged for one (1) share of the common stock of M&B
Delaware; and
WHEREAS, it is deemed that the execution and delivery of the Agreement and the
consummation of the transactions contemplated therein would be in the best
interests of this Corporation and its stockholders;
NOW, THEREFORE, BE IT RESOLVED, that the Agreement be, and hereby is, approved,
and that any officer of the Corporation be, and hereby is, authorized and
empowered to execute and deliver the Agreement on behalf of the Corporation,
with
<PAGE> 5
such changes thereto as such officer deems appropriate, and to consummate the
transactions contemplated thereby;
RESOLVED FURTHER, that each officer of the Corporation be, and hereby is,
authorized and empowered to take all acts and to do all things necessary,
desirable or appropriate to effect or to carry out the purpose and intent of
the foregoing resolution;
RESOLVED FURTHER, that any and all acts of any officer or representative of
this Corporation in furtherance of the transactions contemplated by the
foregoing resolutions taken prior to the adoption of these resolutions are
hereby confirmed, ratified, approved and adopted.
IN WITNESS WHEREOF, the undersigned has executed this consent as of the date
first set forth above. This consent shall be filed with the records of
corporate proceedings.
/s/ Robert N. Weingarten
------------------------------------
Robert N. Weingarten, Director
2
<PAGE> 6
PLAN OF REORGANIZATION AND AGREEMENT OF MERGER
THIS PLAN OF REORGANIZATION AND AGREEMENT OF MERGER, dated as of
January 27, 1992 (this "Agreement"), is entered into between Oil Securities,
Inc., a Nevada corporation ("OSI") and Miller & Benson International, Ltd., a
Delaware corporation ("M&B Delaware").
WHEREAS, OSI has authorized 25,000,000 shares of common stock, par
value $.05 ("OSI Common Stock"), of which there are 5,317,000 shares issued and
outstanding on the date hereof;
WHEREAS, M&B Delaware has authorized 250,000,000 shares of common
stock, par value $.01 ("M&B Delaware Common Stock"), of which there are 100
shares issued and outstanding on the date hereof;
WHEREAS, M&B Delaware has authorized 100,000,000 shares of preferred
stock, par value $.01 ("M&B Delaware Preferred Stock"), none of which are
issued and outstanding, and the terms of which have not been defined;
WHEREAS, OSI owns 100 shares of M&B Delaware Common Stock,
representing 100% of the issued and outstanding M&B Delaware Common Stock;
WHEREAS, pursuant to OSI's Plan of Reorganization (the "Plan") approved
by the United States Bankruptcy Court for the Central District of California
(the "Court") on June 25, 1991, the Court has granted OSI the authority to
change its state of incorporation;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, OSI and M&B Delaware hereby agree as follows:
1. Merger. Subject to the terms and conditions hereinafter set
forth, OSI shall be merged with and into M&B Delaware with M&B Delaware being
the surviving corporation. The Merger shall be effective if and when a properly
executed certificate or agreement of merger consistent with the terms of this
Agreement, the Nevada Revised Statutes of the State of Nevada (the "NRS") and
the General Corporation Law of the State of Delaware (the "GCL") (together with
any other documents required by law to be filed to effectuate the Merger) shall
be filed with the Secretary of State of the State of Nevada and the Secretary
of State of the State of Delaware, as appropriate (the "Effective Date" of the
Merger).
<PAGE> 7
2. Governing Document. M&B Delaware shall be the surviving corporation
in the Merger (sometimes referred to herein as the "Surviving Corporation"),
and the Surviving Corporation shall continue its existence under the laws of
the State of Delaware. The Articles of Incorporation of M&B Delaware, as in
effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation, [without change or amendment until
thereafter amended] and the Bylaws of M&B Delaware as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Surviving Corporation,
without change or amendment until thereafter amended.
3. Succession. At the Effective Time the separate corporate existence
of OSI shall cease and M&B Delaware shall succeed to OSI in the manner set
forth in Section 253 of the GCL. OSI is sometimes referred to herein as the
"Disappearing Corporation."
4. Conversion of Shares. At the Effective time, by virtue of the Merger
and without any action on the part of the holder thereof;
4.1 Each share of the OSI Common Stock which is issued and
outstanding immediately prior to the Effective Time shall be changed and
converted into one fully paid share of M&B Delaware Common Stock;
4.2 The 100 shares of M&B Delaware Common Stock issued and
outstanding on the date hereof and owned by OSI shall be cancelled and retired
and shall resume the status of authorized and unissued shares of M&B Delaware
Common Stock.
5. Conditions to the Merger. The consummation of the Merger is subject
to the condition that the Stock Exchange Agreement between OSI and the GIMA
Parties (as defined therein), dated as of December 13, 1991, shall have been
consummated.
6. Stock Certificates. At and after the Effective Time of the Merger,
all of the outstanding certificates which immediately prior to the Effective
Time of the Merger evidence shares of OSI Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent, shares of M&B Delaware
Common Stock into which the shares of OSI Common Stock have been converted as
herein provided.
7. Further Assurances. From time to time, as and when required by the
Surviving Corporation, or by its successors or assigns, there shall be executed
and delivered on behalf of the Disappearing Corporation such deeds and other
instruments, and there shall be taken or caused to be taken by it all such
further
2
<PAGE> 8
and other action as shall be appropriate or necessary to vest, perfect, or
confirm, of record or otherwise, in the Surviving Corporation the title to and
possession of all property, interests, assets, rights, privileges, immunities,
powers, franchises, and authority of the Disappearing Corporation and other
wise to carry out the purposes of this Agreement; and the officers and
directors of the Surviving Corporation are fully authorized in the name and on
behalf of the Disappearing Corporation or otherwise, to taken any and all such
action and to execute and deliver any and all such deeds and instruments.
8. Amendments: Abandonment. Subject to applicable law, this Agreement
may be amended, modified or supplemented by written agreement of the parties
hereto at any time prior to the Effective Time with respect to any of the terms
contained herein. At any time prior to the Effective Time, this Agreement may
be terminated and the Merger may be abandoned by the Board of Directors of
either OSI or M&B Delaware, or both, in their sole discretion and
notwithstanding the authority granted by the Court pursuant to the Plan.
9. Counterparts. In order to facilitation the filing and recording of
this Agreement, this Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and such counterparts shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, OSI and M&B Delaware have cause this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
OIL SECURITIES, INC., a Nevada
Corporation
By: /s/
------------------------------------
Its: Director
MILLER & BENSON INTERNATIONAL,
LTD., a Delaware Corporation
By: /s/
------------------------------------
Its: Director
3
<PAGE> 1
STOCK EXCHANGE AGREEMENT
AMONG
MILLER & BENSON INTERNATIONAL, LTD.
AND
DIGITAL TECHNOLOGIES GROUP, INC.
AND
SHAREHOLDERS
OF
DIGITAL TECHNOLOGIES GROUP, INC.
<PAGE> 2
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement ("Agreement") dated as of June 28, 1996,
by and between MILLER & BENSON INTERNATIONAL, LTD., a Delaware corporation,
and/or its successor ("M&B") and DIGITAL TECHNOLOGIES GROUP, INC., a Delaware
corporation, and/or its successor ("DTGI") and COMMUNICATION SERVICES
INTERNATIONAL, INC. and LIONS HOLDING COMPANY, being all of the shareholders of
DTGI who own at least ten percent (10%) of the outstanding common stock of DTGI
as of the date of this Agreement (collectively, the "Shareholders").
WHEREAS, the Shareholders own approximately 90% of the issued and
outstanding capital stock of DTGI (the "DTGI Common Stock"); and
WHEREAS, the Shareholders desire to transfer to M&B, and M&B desires to
acquire from the Shareholders, and all other DTGI shareholders, as set forth in
Schedule A attached hereto and made a part hereof by this reference
(collectively, the "DTGI Securityholders"), all of the DTGI Securityholders'
DTGI Common Stock in exchange for capital stock of M&B ("M&B Common Stock"); and
WHEREAS, the parties hereto intend that the issuance of the shares of
M&B Common Stock in exchange for the DTGI Common Stock, shall qualify as a "tax
free" exchange as contemplated by the provisions of Sections 351 and 368(a)
(1)(B) of the Internal Revenue Code of 1988.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
SECTION 1
ISSUANCE AND TRANSFER OF SHARES
1.1 Issuance and Transfer. Upon the terms and subject to the
conditions set forth in this Agreement, at the "Closing" on the "Closing Date"
(as hereinafter defined), the DTGI Securityholders shall sell, assign, convey,
transfer, and deliver to M&B, and M&B shall purchase and receive from the DTGI
Securityholders all of their shares of DTGI Common Stock, constituting all of
the issued and outstanding DTGI Common Stock as set forth opposite each such
DTGI Securityholder's name on Schedule A. In consideration for the transfer of
such shares of DTGI Common Stock to M&B, M&B shall issue to the DTGI
Securityholders, and their assigns, in exchange for all of the DTGI Common
Stock, 4,401,127 shares of authorized and newly issued M&B Common Stock to such
DTGI Securityholders, and their assigns, as set forth on Schedule B. The
aggregate of 4,401,127 shares of Common Stock of M&B to be issued is after a
one for one hundred reverse stock split (the "Reverse Stock Split"). No
fractional shares shall be issued.
1
<PAGE> 3
1.2 Total Shares to be Issued and Outstanding. Upon the Closing Date,
the total number of shares to be issued and outstanding of M&B, including
shares issued to DTGI shareholders shall be 5,401,127 shares.
SECTION 2
CLOSING; TERMINATION
2.1 Closing. Subject to the fulfillment or waiver of the conditions
precedent set forth in Sections 7 and 8 hereof, the Closing shall take place on
the Closing Date at the offices of William B. Barnett, Esq., 15233 Ventura
Blvd., Suite 1110, Sherman Oaks, California 91403, at 10:00 A.M., local time,
or at such other time on the Closing Date as the parties hereto may mutually
agree in writing.
2.2 Closing Date. The Closing Date shall be July 30, 1996, or such
later date upon which DTGI and the Shareholders and M&B may mutually agree in
writing. If the Closing shall not have taken place on or prior to August 30,
1996, this Agreement shall terminate upon written notice of such termination
given by either party not then in material default. Upon such termination, the
parties shall be released from all obligations or liabilities arising hereunder
except for (a) liabilities arising out of pre-termination breaches hereof and
(b) obligations arising under Section 9.4 hereof.
2.3 Filings; Cooperation.
(a) Prior to the Closing the parties shall proceed with due diligence
and in good faith to make such filings and take such other actions as may be
necessary to satisfy the conditions precedent set forth in Sections 7 and 8
below.
(b) On and after the Closing Date, M&B and DTGI and the Shareholders
shall, on request with and without further consideration, cooperate with one
another by furnishing or using their best efforts to cause others to furnish
any additional information and/or executing and delivering or using their best
efforts to cause others to execute and deliver any additional documents and/or
instruments, and doing or using their best efforts to cause others to do any and
all such other things as may be reasonably required by the parties or their
counsel to consummate or otherwise implement the transactions contemplated by
this Agreement.
2
<PAGE> 4
SECTION 3
DTGI'S AND SHAREHOLDERS' REPRESENTATIONS AND WARRANTIES
3.1 DTGI's Representations and Warranties. Set forth in this
Section 3.1 are certain representations and warranties by DTGI to M&B which
together with the representations and warranties made by all Shareholders as
set forth in Section 3.2, shall constitute all of the representations and
warranties by DTGI and Shareholders or any of them, with respect to DTGI and
the transactions covered by this Agreement.
(a) Organization and Good Standing. The Articles of Incorporation
of DTGI and all Amendments thereto as presently in effect, certified by the
Secretary of State of Delaware, and the Bylaws of DTGI as presently in effect,
certified by the President and Secretary of DTGI, have been delivered to M&B
and are complete and correct and since the date of such delivery, there has
been no amendment, modification or other change thereto.
(b) Capitalization. DTGI's authorized capital stock consists of
30,000,000 shares consisting of 25,000,000 shares of Common Stock, $0.01 par
value (defined as "DTGI Common Stock"), of which 4,230,001 shares are issued
and outstanding and 5,000,000 shares of Preferred stock, $0.01 par value, none
of which are issued or outstanding. No other equity securities, convertible
debt, options, warrants or other rights to purchase equity securities of DTGI
are authorized, issued or outstanding. In addition, other than $20,313.00,
including interest, in Secured Promissory Notes as set forth in Schedule C
attached hereto, no convertible debt obligations of DTGI are authorized, issued
or outstanding.
(c) Subsidiaries. DTGI has no subsidiaries and no other
investments, directly or indirectly, or other financial interest in any other
corporation or business organization, joint venture or partnership of any kind
whatsoever.
(d) Financial Statements. DTGI will furnish to M&B its audited
financial statements as of December 31, 1995, all reported on by Jay J.
Shapiro, certified public accountant, the unaudited balance sheet of DTGI as of
June 30, 1996, and the related statement of operations for the six months then
ended, prepared by DTGI management. All such interim financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis and present fairly the financial position of DTGI
at June 30, 1996. Other than changes in the usual and ordinary conduct of the
business since June 30, 1996, there have been, and at the Closing Date there
will be, no material changes in such financial statements.
3
<PAGE> 5
(e) Litigation. Except as disclosed in Schedule 3.1(e), there are
no outstanding orders, judgments, injunctions, awards or decrees of any court,
governmental or regulatory body or arbitration tribunal against DTGI or its
properties. Except as disclosed in Schedule 3.1(e), there are no actions, suits
or proceedings pending, or, to the knowledge of the Shareholders threatened,
against or affecting DTGI, or any of its properties, at law or in equity, or
before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, in
connection with the business, operations or affairs of DTGI which might result
in any material adverse change in the operations or financial condition of
DTGI, or which might prevent or materially impede the consummation of the
transactions under this Agreement.
(f) Compliance with Laws. The operations and affairs of DTGI do
not violate any law, ordinance, rule or regulation currently in effect, or any
order, writ, injunction or decree of any court or governmental agency, the
violation of which would substantially and adversely affect the business,
financial conditions or operations of DTGI.
(g) Absence of Certain Changes. Except as set froth on Schedule
3.1(g), or otherwise disclosed in writing to M&B, since June 30, 1996, (a) DTGI
has not entered into any material transaction; (b) there has been no change in
the condition (financial or otherwise), business, property, prospects, assets
or liabilities of DTGI as shown on DTGI's balance sheet at the date contained
in DTGI's financial statements, other than changes that both individually and
in the aggregate do not have a consequence that is materially adverse to such
condition, business, property, prospects, assets or liabilities; (c) there has
been no damage to, destruction or loss of any of the properties or assets of
DTGI (whether or not covered by insurance) materially and adversely affecting
the condition (financial or otherwise), business, property, prospects, assets
or liabilities of DTGI; (d) DTGI has not declared, or paid any dividend or
made any distribution on its capital stock, redeemed, purchased or otherwise
acquired any of its capital stock, granted any options to purchase shares of
its stock or issued any shares of its capital stock; (e) there has been no
material change, except in the ordinary course of business, in the contingent
obligations of DTGI by way of guaranty, endorsement, indemnity, warranty or
otherwise; (f) there have been no loans made by DTGI to its employees,
officers or employees, officers, or directors; (g) there has been no waiver or
compromise by DTGI of a valuable right or of a material debt owed to it; (h)
there has been no extraordinary increase in the compensation or any of DTGI's
employees, officers or directors and there has been no increase in the
compensation of any of DTGI's employees, officers or directors and there has
been no increase in the compensation of any such employee, officer or director
who earns compensation at an annual rate of more than $60,000; (i) there has
been no agreement or
4
<PAGE> 6
commitment by DTGI to do or perform any of the acts described in this Section
3(g); and (j) there has been no other event or condition of any character which
might reasonably be expected either to result in a material and adverse change
in the condition (financial or otherwise), business, property, prospects,
assets or liabilities of DTGI or to impair materially the ability of DTGI to
conduct the business now being conducted.
(h) Absence of Undisclosed Liabilities. Except as disclosed in
DTGI's financial statements, DTGI did not have, as of June 30, 1996, and DTGI
shall not have as of the Closing Date, any liabilities (secured or unsecured
and whether accrued, absolute, direct, indirect, or otherwise) of a kind
required by generally accepted accounting principles and consistent with past
practice to be set forth on a financial statement or the notes thereto as of
June 30, 1996, or will be as of the Closing Date, individually or in the
aggregate, material to the results of operation or financial condition of DTGI.
(i) Disclosure. Neither this Agreement, nor any certificate,
exhibit, schedule or other written document or statement, furnished to M&B by
DTGI and/or the Shareholders in connection with the transactions contemplated
by this Agreement will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary to be stated in order to make
the statements contained herein or therein not misleading.
(j) Title to Assets. DTGI owns outright and has good and
marketable title to all of such assets including, without limitation, all of
its assets reflected on DTGI's December 31, 1995 audited balance sheet and June
30, 1996 unaudited balance sheet.
(k) Tax Matters. All Federal, foreign, state and local tax
returns, reports and information statements required to be filed by or with
respect to the activities of DTGI have been filed for all the years and periods
for which such returns and statements were due, including extensions thereof.
Since June 30, 1996, DTGI has not incurred any liability with respect to any
federal, foreign, state or local taxes except in the ordinary and regular
course of business. Such returns, reports and information statements are true
and correct in all material respects insofar as they relate to the activities
of DTGI. On the date of this Agreement, DTGI is not delinquent in the payment
of any such tax or assessment, and no deficiencies for any amount of such tax
have been proposed in a revenue agent's report or assessed. Any tax sharing
agreement among or between DTGI and any affiliate thereof shall be terminated
as of the Closing Date.
(1) Contracts. DTGI had entered into various contracts and
agreements, including distribution agreements.
5
<PAGE> 7
All such material contracts, agreements and commitments are valid and binding
on DTGI in accordance with their terms.
(m) Books and Records. The books and records of DTGI are complete and
correct, are maintained in accordance with good business practice and
accurately present and reflect, in all material respects, all of the
transactions therein described, and there have been no transactions involving
DTGI which properly should have been set forth therein and which have not been
accurately so set forth.
(n) Operating Authorities. To the best knowledge of the Shareholders,
DTGI has all material operating authorities, governmental certificates and
licenses, permits, authorizations and approvals ("Permits") required to conduct
its business as presently conducted. Since June 30, 1996, there has not been
any notice or adverse development regarding such Permits; such Permits are in
full force and effect; no material violations are or have been recorded in
respect of any Permit; and no proceeding is pending or threatened to revoke or
limit any Permit.
3.2 Representations and Warranties of Shareholders. Set forth in this
Section 3.2 are representations and warranties made by each of the
Shareholders, with respect to the transactions covered by this agreement and
their respective shares of DTGI's Common Stock.
(a) Transactional Representations.
(i) Each Shareholder has full right, power, capacity and authority to
enter into and to deliver this Agreement and to carry out its obligations
hereunder. This Agreement constitutes the valid and legally binding
obligation of each of the Shareholders and is or will be, as the case may
be, enforceable against the respective Shareholders in accordance with its
terms subject to applicable bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally and the application of
equitable principles.
(ii) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby or thereby, nor
compliance by the Shareholders with any of the provisions hereof or thereof
will:
(A) violate or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, license, agreement or other
6
<PAGE> 8
instrument or obligation to which such Shareholder is a party, or by
which he, she or it or any of his her or its properties or assets may be
bound or affected; or
(B) violate any order, writ, injunction or decree, or any
statute, rule or regulation applicable to such Shareholder or any or
his, her or its properties or assets.
(b) Title to Stock. Each Shareholder owns, beneficially and of record,
his, her or its respective shares of DTGI's Common Stock set forth opposite
his, her or its respective name on Schedule A, free and clear of all liens,
charges, claims, pledges, restrictions and encumbrances whatsoever of any kind
or nature except as set forth on Schedule 3.2(b). Each Shareholder represents
and warrants as to his, her or its respective shares that except as set forth
on Schedule 3.2(b), there are no voting trust agreements or other contracts,
agreements or arrangements restricting voting or dividend rights or
transferability with respect to such shares.
(c) Brokers; Underwriters. The Shareholders have not used the
services of or entered into any agreement with, any broker, agent or finder in
connection with this Agreement or the transactions contemplated hereby, nor
have the Shareholders taken any action which could result in any other
broker's, finder's or other fees or commission being due and payable to any
party with respect to this Agreement or the transactions contemplated hereby.
The Shareholders, or any of them, have not entered into any agreements,
commitments, arrangements or understandings of any kind whatsoever with any
broker-dealer or underwriter in connection with the transactions contemplated
under this Agreement or the M&B Common Stock being acquired hereunder.
(d) Investment.
(i) Each Shareholder acknowledges that the M&B Common Stock to be
received in exchange for the DTGI Common Stock has not been registered under
the Securities Act of 1933, as amended (the "1933 Act") or qualified under the
California Securities Law of 1968, as amended (the "California Securities Law")
on the ground that no distribution or public offering of the M&B Common Stock
is to be effected, and that in this connection M&B is relying in part on the
representations of the Transferors set forth in this Section 3.2(d).
(ii) Each Shareholder is purchasing the Shares for his, her or its own
account for investment purposes and not as nominee or agent for any other
person.
(iii) By reason of their business or financial experience or the
business or financial experience of their personal
7
<PAGE> 9
advisor/purchaser representative, and/or by reason of their pre-existing
relationship with M&B each Shareholder has the capacity to protect his, her or
its own interests in connection with the transactions contemplated hereunder,
is able to bear the risks of an investment in M&B, and at the present time
could afford a complete loss of such investment.
(iv) Each Shareholder or his, her or its personal advisor/purchaser
representative has acquired sufficient information about M&B to reach an
informed decision to acquire the M&B Common Stock.
(v) Each DTGI Securityholder will be required at Closing to submit
an agreement confirming that all shares received will be acquired for his, her
or its own account for investment purposes and not with a view to, or for sale
in connection with, any distribution thereof in a manner contrary to Section 5
of the 1933 Act or of the California Securities Law and Rules and Regulations
of the California Commissioner of Corporations thereunder.
(e) Transfer of Securities. None of the M&B Common Stock acquired
pursuant to this Agreement shall be transferable except upon the conditions
specified in this Section 3.2(e), which conditions are intended to insure
compliance with the provisions of the 1933 Act in respect to the transfer of
such Shares.
(i) Legend. Unless and until otherwise permitted by this Section
3.2(e), each certificate or other document evidencing any of the M&B Common
Stock shall be endorsed with a legend substantially in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, (B) IN COMPLIANCE WITH RULE 144
UNDER SUCH ACT, OR (C) THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OR
COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO
REGISTRATION IS REQUIRED BY SUCH TRANSFER."
(ii) Restrictions on Transfer. None of the M&B Common Stock shall be
transferred, and M&B shall not be required to register any such transfer on the
books of M&B, unless and until one of the following events shall have occurred:
(A) M&B shall have received an opinion of counsel, in form and
substance reasonably acceptable to M&B and its counsel, stating that the
contemplated transfer is exempt from registration under the 1933 Act as then in
effect, and the Rules and Regulations of the Securities and Exchange Commission
(the "Commission") thereunder. Within five business days after delivery to M&B
and
8
<PAGE> 10
its counsel of such an opinion, M&B either shall deliver to the proposed
transferor a statement to the effect that such opinion is not satisfactory in
the reasonable opinion of its counsel (and shall specify in detail the legal
analysis supporting for any such conclusion) or shall authorize M&B's transfer
agent to make the requested transfer;
(B) M&B shall have been furnished with a letter from the
Commission in response to a written request in form and substance acceptable to
counsel for M&B setting forth all of the facts and circumstances surrounding the
contemplated transfer, stating that the Commission will take no action with
regard to the contemplated transfer;
(C) The shares of M&B's Common Stock are transferred pursuant
to a registration statement which has been filed with the Commission and has
become effective; or
(D) The shares of M&B Common Stock are transferred pursuant
to and in accordance with Rule 144 promulgated by the Commission under the 1933
Act.
3.3 Form 8-K. DTGI agrees to file, within fifteen (15) days after the
Closing, a Current Report on Form 8-K with the Securities and Exchange
Commission describing this transaction and the change in control.
SECTION 4
M&B'S REPRESENTATIONS AND WARRANTIES
M&B represents and warrants to DTGI and Shareholders as follows:
4.1 Organization and Good Standing. M&B is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to carry on its business as
now being conducted and as proposed to be conducted. M&B is qualified to
conduct business as a foreign corporation in no other jurisdiction, and the
failure to so qualify in any other jurisdiction does not materially, adversely
affect the ability of M&B to carry on its business as most recently conducted.
The Certificate of Incorporation of M&B and all amendments thereto as presently
in effect, certified by the Secretary of State of Delaware, and the Bylaws of
M&B as presently in effect, certified by the President and Secretary of M&B,
have been delivered to DTGI and are complete and correct and since the date of
such delivery, there has been no amendment, modification or other change
thereto.
9
<PAGE> 11
4.2 Authority.
(a) M&B has full corporate power to enter into this Agreement, to
execute all attendant documents and instruments necessary to consummate the
transactions contemplated hereunder, to issue and transfer M&B Common Stock to
the Shareholders and to carry out all of its obligations hereunder under
corporate authority and/or the authority granted to M&B by that certain order
of the United States Bankruptcy Court dated June 25, 1991. The execution and
delivery of this Agreement and all other agreements, documents and instruments
to be executed in connection herewith, have been duly authorized by the Board
of Directors of M&B.
(b) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby nor compliance by M&B with
any of the provisions hereof will:
(i) violate or conflict with, or result in a breach of any provisions
of, or constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, any of the terms,
conditions or provisions of the Certificate of Incorporation or Bylaws of
M&B or any note, bond, mortgage, indenture, deed of trust, license,
agreement or other instrument to which M&B is a party, or by which it or its
properties or assets may be bound or affected; or
(ii) violate any order, writ, injunction or decree, or any statute,
rule, Permit, or regulation applicable to M&B or any of its properties or
assets.
4.3 Title to Stock.
(a) The shares of M&B Common Stock are free and clear of all liens,
charges, claims, pledges, restrictions and encumbrances whatsoever of any kind
or nature that would inhibit, prevent or otherwise interfere with the
transactions contemplated hereby. All of the outstanding M&B Common Stock are
validly issued, fully paid and nonassessable and there are no voting trust
agreements or other contracts, agreements or arrangements restricting or
affecting voting or dividend rights or transferability with respect to the
outstanding shares of M&B Common Stock.
(b) All of the M&B Common Stock to be issued to or transferred to the
Shareholders or nominees or assigns pursuant to this Agreement, when issued,
transferred and delivered as provided herein, will be duly authorized, validly
issued, fully paid and nonassessable, and will be free and clear of all liens,
charges, claims, pledges, restrictions and encumbrances whatsoever of any kind
or nature.
10
<PAGE> 12
4.4 Subsidiaries. M&B has no subsidiaries and no material investments,
directly or indirectly, or other financial interest in any other corporation or
business organization, joint venture or partnership of any kind whatsoever.
4.5 Financial Statements. M&B is not providing any financial
statements. The officers and directors hereby represent that, other than a tax
liability owed to the State of California in the amount of approximately
$50,000, and a potential claim relating to a transaction by M&B with GIMA
S.p.A., an Italian Corporation ("GIMA"), in February 1992 and the subsequent
abandonment of such transaction by GIMA, there are no other known liabilities
or claims against M&B and there are no assets. If the tax liability to the
State of California can be resolved for $5,000.00 or less, DTGI agrees to have
M&B pay such amount promptly. In the event M&B does not pay such amount,
Messrs. Gross and Weingarten, the President and Secretary, respectively, of M&B
may pay the tax and M&B shall thereafter promptly reimburse Messrs. Gross and
Weingarten for such payment.
4.6 Absence of Undisclosed Liabilities. Except as disclosed in Section
4.6, M&B did not have, as of the Closing Date, any liabilities (secured and
whether accrued, absolute, direct, indirect or otherwise) of a kind material to
the results of operation or financial condition of M&B.
4.7 Litigation. Except as disclosed in Schedule 4.7, there are no
outstanding orders, judgments, injunctions, awards or decrees of any court,
governmental or regulatory body or arbitration tribunal against M&B or its
properties. Except as disclosed in Schedule 4.7, there are no actions, suits or
proceedings pending, or to the knowledge of M&B, threatened, against or
affecting M&B or any of its state, municipal or other governmental department,
commission board, bureau, agency or instrumentality, domestic or foreign, in
connection with the business, operations or affairs of M&B which might result in
any material adverse change in the operations or financial condition of M&B, or
which might prevent or materially impede the consummation of the transactions
contemplated under this Agreement.
4.8 Compliance with Laws. The operations and affairs of M&B do not
violate any law, ordinance, rule or regulation currently in effect, or any
order, writ, injunction or decree of any court or governmental agency, the
violation of which would substantially and adversely affect the business,
financial conditions or operations of M&B.
4.9 Brokers; Underwriters. M&B has not used the services of or entered
into any agreement with, any broker, agent or finder in connection with this
Agreement or the transactions contemplated hereby, nor has M&B taken any action
which could result in any other broker's, finders or other fees or commission
being due and payable to any party with respect to this Agreement
11
<PAGE> 13
or the transactions contemplated hereby. M&B has not entered into any
agreements, commitments, arrangements or understandings of any kind whatsoever
with any broker-dealer or underwriter in connection with the transactions
contemplated under this Agreement or the DTGI Common Stock being acquired
hereunder or M&B Common Stock being issued hereunder.
4.10 Disclosure. Neither this Agreement, nor any certificate,
exhibit, schedule or other written document or statement, furnished to the
Shareholders by M&B in connection with the transactions contemplated by this
Agreement contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to be stated in order to
make the statements contained herein or therein not misleading.
4.11 Title to Assets. Schedule 4.11 hereto lists all the assets
which will be owned by M&B on the Closing Date.
4.12 Tax Matters. No federal, foreign, state and local tax returns,
reports and information statements required to be filed by or with respect to
the activities of M&B have been filed for any of the past nine (9) years
through December 31, 1995. M&B has not done any business during those nine
years and hereby represents that it should have no liability owing relating to
the failure to file such tax returns except for annual minimum tax and related
penalties and interest, if applicable.
4.13 Contracts. Set forth on Schedule 4.13 hereto is a true and
complete list of all material contracts, agreements or commitments to which
commitments M&B is a party or is bound. All such material contract, agreements
and commitments are valid and binding on M&B in accordance with their terms.
4.14 Books and Records. The books and records of M&B are complete
and correct, are maintained in accordance with good business practice and
accurately present and reflect, in all material respects, all of the
transactions therein described, and there have been no transactions involving
M&B which properly should have been set forth therein and which have not been
accurately so set forth.
4.15 Registration Rights. M&B has not granted or agreed to grant any
rights relating to the registration of its securities under applicable federal
and state securities laws, including piggy-back rights.
SECTION 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, warranties and covenants of DTGI and the
Shareholders contained herein shall survive the execution and
12
<PAGE> 14
delivery of this Agreement, the Closing and the consummation of the
transactions called for by this Agreement. The representations, warranties and
covenants of M&B contained herein shall survive the execution and delivery of
this Agreement, the Closing and the consummation of the transactions called for
by this Agreement.
SECTION 6
CONDITIONS PRECEDENT TO OBLIGATIONS OF
M&B REGARDING THE M&B COMMON STOCK
The obligations of M&B under this Agreement in respect to the issuance
and transfer of M&B Common Stock shall, at the option of M&B, be subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions precedent.
6.1 Accuracy of Representations and Warranties; Performance. All
representations and warranties made by the Shareholders in this Agreement shall
be true and correct in all material respects on and as of the Closing Date with
the same effect as if such representations and warranties had been made on and
as of the Closing Date; the Shareholders shall have performed or complied with
all covenants, agreements and conditions contained in this Agreement on its
part required to be performed or complied with at or prior to the Closing. DTGI
shall have delivered to M&B an officers certificate, dated the Closing Date,
to the foregoing effect.
6.2 Consents. All material authorizations, consents or approvals of
any and all governmental regulatory authorities necessary in connection with
the consummation of the transactions contemplated by this Agreement shall have
been obtained and be in full force and effect.
6.3 No Contrary Judgment. The Closing shall not violate any Permit or
order, decree or judgment of any court or governmental body having competent
jurisdiction and there shall not have been instituted any legal or
administrative action or proceeding to enjoin the transaction contemplated
hereby or seeking damages from M&B with respect thereto.
6.4 Closing. DTGI and the Shareholders shall deliver, or cause to be
delivered, to M&B at or prior to the Closing the following documents:
(i) Certificate(s) representing all of the DTGI Securityholders'
shares of DTGI's Common Stock, which certificate(s) shall be
either (A) duly endorsed in blank, or (B) accompanied by stock
powers duly executed;
(ii) The certificate referred to in Section 6.1 hereof;
13
<PAGE> 15
(iii) DTGI's Articles of Incorporation, certified by the
Secretary of State of Delaware as of a date not more than thirty (30)
days prior to the Closing Date;
(iv) A certificate of the Secretary of State of Delaware dated
not more than thirty (30) days prior to the Closing Date, as to the good
standing of DTGI.
(v) Bylaws of DTGI certified as of the Closing Date by the
President and Secretary of DTGI;
(vi) Such other documents, instruments or certificates as shall
be reasonably requested by M&B or its counsel.
SECTION 7
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
THE SHAREHOLDERS REGARDING THE DTGI COMMON STOCK
The obligations of the Shareholders, and each of them, under this
Agreement to sell the DTGI Common Stock shall, at the option of the
Shareholder, be subject to the satisfaction, on or prior to the Closing Date,
of each of the following conditions precedent.
7.1 Accuracy of Representations and Warranties; Performance. All
representations and warranties made by M&B in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with the same
effect as if such representations and warranties had been made on and as of the
Closing Date; M&B shall have performed or complied with all covenants,
agreements and conditions contained in this Agreement on its parts required to
be performed or complied with at or prior to the Closing. M&B shall have
delivered to the Shareholders a certificate, dated the Closing Date, to the
foregoing effect.
7.2 Shareholder Notification. Shareholders of M&B must be notified in
accordance with Section 14(F) of the Securities Exchange Act of 1934 and Rule
14F-1 thereunder.
7.3 Reverse Stock Split. All corporate action shall have been approved
and a 100 for one reverse stock split effected so that the total issued and
outstanding Common Stock of M&B shall not exceed 1,000,000 shares prior to the
Closing.
7.4 Consents. All material authorizations, consents or approvals of any
and all governmental regulatory authorities necessary in connection with the
consummation of the transactions contemplated by this Agreement shall have been
obtained and be in full force and effect.
14
<PAGE> 16
7.5 No Contrary Judgment. The Closing shall not violate any Permit
or order, decree or judgment of any court or governmental body having competent
jurisdiction and there shall not have been instituted any legal or
administrative action or proceeding to enjoin the transaction contemplated
hereby or seeking damages from the Shareholders or DTGI with respect thereto.
7.6 Closing. M&B shall deliver, or cause to be delivered, to the
Shareholders at or prior to the Closing the following documents;
(i) Certificates representing the shares of M&B Common Stock to be
newly issued by M&B under this Agreement, which certificates shall be in the
names of the Shareholders and duly executed by M&B.
(ii) An officer's certificate signed by the President and Secretary
of M&B as to such matters as the Shareholders deem necessary, including,
without limitation, the matters referred to in Section 7.1 hereof;
(iii) Evidence satisfactory to the Shareholders as to the resignation
of each of the directors of M&B, effective as of the Closing Date, and the
appointment of Arthur Newberger, David Kekich and Ely J. Mandell as
directors of M&B immediately following the Closing;
(iv) M&B's Certificate of Incorporation, certified by the Secretary
of State of Delaware as of a date not more than thirty (30) days prior to
the Closing Date;
(v) Copy of the Form 14F-1 as filed with the Securities and Exchange
Commission.
(vi) Certified copies of resolutions adopted by the Board of
Directors of M&B authorizing the execution and delivery of this Agreement
and the transactions contemplated hereby;
(vii) Bylaws of M&B, certified as of the Closing Date by the President
and Secretary of M&B;
(viii) Such other documents, instruments or certificates as shall be
reasonably requested by the Shareholders, or any of them, or their counsel.
SECTION 8
ADDITIONAL COVENANTS OF THE PARTIES
8.1 Expenses. M&B shall pay all of the costs and expenses
(including attorneys' and accountants' fees, costs and
15
<PAGE> 17
expenses) incurred in connection with this Agreement and the consummation of
the transactions contemplated herein up to $23,000.00.
8.2 Access to Properties and Records. M&B and DTGI shall, at all
reasonable times prior to Closing, make the properties, premises, books and
records of M&B and DTGI available to each other and each other's authorized
representatives, during reasonable business hours, in such a manner as not
unduly to disrupt normal business activities.
8.3 Corporate Existence, Rights and Franchises. DTGI and its
authorized representatives shall cause DTGI to conduct its business in the
ordinary course and, to the extent not inconsistent with prudent business
practice, in such a manner as to maintain its business organization intact and
to retain its present employees, and to maintain its relationships with
customers, suppliers and others having business relationships with it, and
without the prior written consent of M&B, shall not permit DTGI's assets to
become bound by or subject to any contracts or other agreements. DTGI shall
respond promptly to any reasonable requests for reports or additional
information by M&B.
8.4 Confidentiality. Except for such documents, reports, information
and data (including financial statements) which are of a public nature, pending
the Closing (and, if this Agreement is terminated, at all times after the date
hereof), M&B shall treat as confidential and, except as may be required by law
or necessary or, in the opinion of counsel to DTGI or M&B, desirable, to obtain
required regulatory approval of the transactions contemplated hereby or
otherwise, will not use, submit or disclose to, or file with others, or permit
any person, firm, corporation or entity under it control to use, submit or
disclose to, or file with others, any documents, reports, information or date
(including financial statements) concerning DTGI which M&B may obtain from the
Shareholders or DTGI; and, except for such documents, reports and other written
materials (including financial statement) which are of a public nature, if this
Agreement is terminated, M&B shall return to DTGI and the Shareholders any and
all documents, reports and other written materials (including financial
statements) concerning DTGI as DTGI and the Shareholders may reasonably request.
8.5 Dispute Resolution. In the event of a dispute between the parties
hereto involving a claim of breach of representation or warranty hereunder, or
to enforce a covenant herein (either or both of which are referred to hereafter
as a "Claim"), if it is the desire of both parties for quick resolution, then
the rights and obligations of the parties hereto arising under the terms of
this Agreement with respect to such Claims and/or resolution of such disputes
may be by the means of the judgment of
16
<PAGE> 18
an independent third party ("Rent-A-Judge") who has been selected and hired
through the mutual agreement of the parties.
(a) In the event of a Claim by either party, either party may make a
written request upon the other party for a "Rent-A-Judge" to resolve the Claim
shall be binding on the other party in accordance with the terms hereof upon
written agreement to such employment by the other party.
The parties may agree upon one "Rent-A-Judge," but in the event that
they cannot agree, there shall be three, one named in writing by each of the
parties within twenty (20) days after the initial demand for employment of a
"Rent-A-Judge," and a third chosen by the two appointed. Should either party
refuse or neglect to join in the appointment of the "Rent-A-Judge(s)" or to
furnish the "Rent-A-Judge(s)" with any papers or information demanded, the
"Rent-A-Judge(s)" are empowered by both parties to proceed ex parte.
(b) Claim resolution proceedings shall take place in the City or
County of Los Angeles, State of California, and the hearing before the
"Rent-A-Judge(s)" of the matter to be arbitrated shall be at the time and place
within said city or county as is selected by the "Rent-A-Judge(s)." The
"Rent-A-Judge(s)" shall select such time and place promptly after appointment
and shall give written notice thereof to each party at least thirty (30) days
prior to the date so fixed. At the hearing any relevant evidence may be
presented by either party, and the formal rules or evidence applicable to
judicial proceedings shall not govern. Evidence may be admitted or excluded in
the sole discretion of the "Rent-A-Judge(s)." Said "Rent-A-Judge(s)" shall
hear and determine the matter and shall execute and acknowledge their award in
writing and cause a copy thereof to be delivered to each of the parties.
(c) If there is only one (1) "Rent-A-Judge," his or her decision
shall be binding and conclusive on the parties, and if there are three (3)
"Rent-A-Judges" the decision of any two (2) shall be binding and conclusive.
(d) If three (3) "Rent-A-Judges" are selected under the foregoing
procedure but two (2) of the three (3) fail to reach an agreement in the
determination of the matter in question, the matter shall be decided by three
(3) new "Rent-A-Judges" who shall be appointed and shall proceed in the same
manner, and the process shall be repeated until a decision is finally reached
by two (2) of the three (3) "Rent-A-Judges" selected.
(e) The costs of such Claim resolution shall be borne by the parties
equally and each party shall pay its own attorneys' fees, provided, however,
that in the event either party challenges or in any way seeks to have the
Rent-A-Judge's decision or award vacated or corrected or modified, if the
challenge is denied or the
17
<PAGE> 19
original decision or award is affirmed, the challenging party shall pay the
costs and fees, including reasonable attorneys' fees, of the non-challenging
party, both for the challenge and for the original Claim resolution process.
SECTION 9
MISCELLANEOUS
9.1 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) contains the entire agreement between the parties with
respect to the transactions contemplated hereby, and supersedes all
negotiations, representations, warranties, commitments, offers, contracts, and
writings prior to the date hereof. No waiver and no modification or amendment
of any provision of this Agreement shall be effective unless specifically made
in writing and duly signed by the party to be bound thereby.
9.2 Counterparts. This Agreement may be executed in one or more
counterparts, each of which may be deemed an original, but all of which
together, shall constitute one and the same instrument.
9.3 Severability. If any provisions hereof shall be held invalid or
unenforceable by an court of competent jurisdiction or as a result of future
legislative action, such holding or action shall be strictly construed and
shall not affect the validity or effect or any other provision hereof.
9.4 Assignability. This Agreement shall be binding upon and inure to
the benefit of the successors and assign of the parties hereto; provided, that
neither this Agreement nor any right hereunder shall be assignable by the
Shareholders, or any of them, or M&B without prior written consent of the other
party.
9.5 Captions. The captions of the various Sections of this Agreement
have been inserted only for convenience of reference and shall not be deemed to
modify, explain, enlarge or restrict any of the provisions of this Agreement.
9.6 Governing Law. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the State of Delaware.
9.7 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and delivered in person or sent by
certified mail, postage prepaid and properly addressed as follows:
18
<PAGE> 20
To the Shareholders and DTGI:
Arthur Newberger, President
Digital Technologies Group, Inc.
15260 Ventura Boulevard, Suite 2250
Sherman Oaks, CA 91403
To the Purchaser:
Norman Gross, President
Miller & Benson International, Ltd.
P.O. Box 1741
Studio City, CA 91614
Any party may from time to time change its address for the purpose of
notices to that party by a similar notice specifying a new address, but no such
change shall be deemed to have been given until it is actually received by the
respective party hereto.
All notices and other communications required or permitted under this
Agreement which are addressed as provided in this Section 9.7 if delivered
personally, shall be effective upon delivery; and, if delivered by mail, shall
be effective three (3) days following deposit in the United States mail,
postage prepaid.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
ATTEST: MILLER & BENSON INTERNATIONAL, LTD.
a Delaware corporation
/s/ Robert N. Weingarten By: /s/ Norman Gross
- ----------------------------------- ---------------------------------
Robert N. Weingarten Norman Gross
Secretary President
ATTEST: DIGITAL TECHNOLOGIES GROUP, INC.
a Delaware corporation
By: /s/ Arthur Newberger
- ----------------------------------- ---------------------------------
David Kekich Arthur Newberger
Secretary President
SHAREHOLDERS:
/s/ Arthur Newberger
-------------------------------------
Communication Services International,
Inc., by Arthur Newberger, its Agent
-------------------------------------
Lions Holding Company, by
David Kekich, its President
19
<PAGE> 21
TO THE SHAREHOLDERS AND DTGI:
Arthur Newberger, President
Digital Technologies Group, Inc.
15260 Ventura Boulevard, Suite 2250
Sherman Oaks, CA 91403
TO THE PURCHASER:
Norman Gross, President
Miller & Benson International, Ltd.
P.O. Box 1741
Studio City, CA 91614
Any party may from time to time change its address for the purpose of
notices to that party by a similar notice specifying a new address, but no such
change shall be deemed to have been given until it is actually received by the
respective party hereto.
All notices and other communications required or permitted under this
Agreement which are addressed as provided in this Section 9.7 if delivered
personally, shall be effective upon delivery; and, if delivered by mail, shall
be effective three (3) days following deposit in the United States mail,
postage prepaid.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
ATTEST: MILLER & BENSON INTERNATIONAL, LTD.
a Delaware Corporation
By:
- ---------------------------------- ----------------------------------
Robert N. Weingarten Norman Gross
Secretary President
ATTEST: DIGITAL TECHNOLOGIES GROUP, INC.
a Delaware Corporation
/s/ David Kokich By: Arthur Newberger
- ---------------------------------- ----------------------------------
David Kokich Arthur Newberger
Secretary President
SHAREHOLDERS:
/s/ Arthur Newberger
-------------------------------------
Communications Services International,
Inc., by Arthur Newberger, its Agent
/s/
-------------------------------------
Lions Holding Company, by
19
<PAGE> 22
SCHEDULE A
NAME/ADDRESS SHARES
- ------------ ------
Communications Services 3,159,950
International, Inc.
I.D.#98-0140151
P.O. Box 17298
Encino, CA 91416
Lions Holding Company 400,000
247 Shekomeko
Johnstown, PA 15905
Donna J. Ellison 2,500
S.S.####-##-####
640 N. Whitnall Hwy #A
Burbank, CA 91505
Blaine H. Newberger 2,500
S.S.####-##-####
39921 Tesoro Lane
Palmdale, CA 93551
Ellen Yee 2,500
S.S.####-##-####
23745 Del Monte Drive #149
Valencia, CA 91355
Joseph V. Ambrozy 1,250
S.S.####-##-####
30 Country Walk
Cherry Hill, NJ 08003
Thomas H. Ford 29,583
S.S.####-##-####
P.O. Box 345
Brodheadsville, PA 18322
Paul King Profit Sharing Trust 55,417
I.D.#77-6077515
2055 Woodside Road - Suite 145
Redwood City, CA 94061
<PAGE> 23
Stephen S. Linen 29,167
S.S.####-##-####
345 W. Fullerton Avenue #1002
Chicago, IL 60614-2844
Charlene Oswald 7,292
S.S.####-##-####
46 Old Tappan Road
Glen Cove, NY 11542-1211
Carl Steinfield 88,835
S.S.####-##-####
39 Monadnock Drive
Westford, MA 01886
Thomas M. Ward 188,958
S.S.####-##-####
8 Chimney Sweep Lane
Little Rock, AR 72212
Richard A. Yakatan 625
S.S.####-##-####
1408 Autumn Lane
Cherry Hill, NJ 08003-3015
TOTAL SHARES: 3,968,577
<PAGE> 24
SCHEDULE B
NAME/ADDRESS SHARES
- ------------ ------
Communication Services 2,160,000
International, Inc.
I.D.#98-0140151
P.O. Box 17298
Encino, CA 91416
The Arkad Group, LLC 1,080,000
I.D.#86-0754345
247 Shekomeko
Johnstown, PA 15905
B.D. Brooke & Company 600,000
I.D.#95-4371922
955 South Virginia -- Suite 116
Reno, NV 89502
Donna J. Ellison 50,000
S.S.####-##-####
640 N. Whitnall Hwy #A
Burbank, CA 91505
Joan Murphy 10,000
S.S.####-##-####
390 S. Hauser Boulevard #10L
Los Angeles, CA 90036
Blaine H. Newberger 50,000
S.S.####-##-####
39921 Tesoro Lane
Palmdale, CA 93551
Ellen Yee 50,000
S.S.####-##-####
23745 Del Monte Drive #149
Valencia, CA 91355
Joseph V. Ambrozy 1,250
S.S.####-##-####
30 Country Walk
Cherry Hill, NJ 08003
<PAGE> 25
Thomas H. Ford 29,583
S.S.####-##-####
P.O. Box 345
Brodheadsville, PA 18322
Paul King Profit Sharing Trust 55,417
I.D.#77-6077515
2055 Woodside Road - Suite 145
Redwood City, CA 94061
Stephen S. Linen 29,167
S.S.####-##-####
345 W. Fullerton Avenue #1002
Chicago, IL 60614-2844
Charlene Oswald 7,292
S.S.####-##-####
46 Old Tappan Road
Glen Cove, NY 11542-1211
Carl Steinfield 88,835
S.S.####-##-####
39 Monadnock Drive
Westford, MA 01886
Thomas M. Ward 188,958
S.S.####-##-####
8 Chimney Sweep Lane
Little Rock, AR 72212
Richard A. Yakatan 625
S.S.####-##-####
1408 Autumn Lane
Cherry Hill, NJ 08003-3015
TOTAL SHARES: 4,401,127
<PAGE> 26
SCHEDULE 3.1(e)
Litigation
None.
<PAGE> 27
SCHEDULE 3.1(g)
Absence of Certain Changes
None.
<PAGE> 28
SCHEDULE 3.2(b)
Title to Stock
None.
<PAGE> 29
SCHEDULE 4.6
Absence of Undisclosed Liabilities
None.
<PAGE> 30
SCHEDULE 4.7
Litigation
None.
<PAGE> 31
SCHEDULE 4.11
Title to Assets
None.
<PAGE> 32
SCHEDULE 4.13
Contracts
None.
<PAGE> 1
State of Delaware
[SEAL]
Office of Secretary of State
---------------
I, JEFFREY D. LEWIS, ACTING SECRETARY OF STATE OF THE STATE OF DELAWARE
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "MILLER & BENSON INTERNATIONAL, LTD." FILED IN THIS OFFICE ON
THE TWENTY-THIRD DAY OF JANUARY, A.D. 1992, AT 9 O'CLOCK A.M.
* * * * * * * * *
[SEAL]
/s/ Jeffrey D. Lewis
-------------------------------
ACTING SECRETARY OF STATE
752023009 AUTHENTICATION: *3320719
DATE: 01/23/1992
<PAGE> 2
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 01/23/1992
752023008 -- 2285960
CERTIFICATE OF INCORPORATION
OF
MILLER & BENSON INTERNATIONAL, LTD.
First: The name of the corporation is Miller & Benson International,
Ltd.
Second: The address of the registered office of the corporation in the
State of Delaware is at 32 Loockerman Square, Suite L-100, in the City of
Dover, County of Kent. The name of the registered agent of the corporation at
such address is The Prentice-Hall Corporation System, Inc.
Third: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
Fourth: The corporation shall have the authority to issue TWO HUNDRED
AND FIFTY MILLION SHARES (250,000,000) of Common Stock, par value ONE CENT
($.01) per share.
Each share of Common Stock of the Corporation shall have one vote for all
corporate purposes, with no cumulative voting rights and shall have equal
rights on dissolution, corporate distribution and for all other corporate
purposes. The holders of shares of Common Stock of the Corporation shall not be
entitled to pre-emptive or preferential rights to subscribe to any unissued
stock or any other securities which the Corporation may now or hereafter be
authorized to issue.
The Corporation shall also have the authority to issue ONE HUNDRED MILLION
SHARES (100,000,000) of preferred stock, par value ONE CENT ($.01) per share in
one or more series. The board of directors is hereby authorized to fix the
voting rights, designations, powers, preferences, and the relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, of any such series of preferred stock; and
to fix the number of shares constituting each such series, and to increase or
decrease the number of shares of each such series.
Fifth: The powers of the incorporator are to terminate upon the filing
of this certificate of incorporation. The name and mailing address of the
person who is to serve as the director of the corporation until the first
annual meeting of stockholders or until his successor is elected and qualified
is:
<PAGE> 3
Name
Address Address
Robert N. Weingarten 23801 Calabasas Road
Suite 2050
Calabasas, California 91302
Sixth: The corporation hereby expressly elects not to be governed by
Section 203 of the Delaware General Corporation Law.
Seventh: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the board of directors is expressly
authorized to adopt, amend or repeal the by-laws.
Eighth: The corporation reserves the right to amend and repeal any
provision contained in this certificate of incorporation in the manner
prescribed by the laws of the State of Delaware. All rights herein conferred
are granted subject to this reservation.
Ninth: The incorporator is Robert E. Strauss, Esq., Loeb and Loeb,
1000 Wilshire Boulevard, Suite 1800, Los Angeles, California 90017.
Tenth: A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
any improper personal benefit. If the Delaware General Corporation Law is
hereafter amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
I, the undersigned, being the incorporator, for the purpose of forming
a corporation under the laws of the
2
<PAGE> 4
State of Delaware, do make, file and record this certificate of incorporation,
do certify that the facts herein stated are true, and, accordingly, have hereto
set my hand and seal this 22nd day of January, 1992.
/s/ Robert Strauss
-----------------------------
Robert E. Strauss,
Incorporator
3
<PAGE> 5
STATE OF DELAWARE )
KENT COUNTY )
RECORDED in the Office for the Recording of Deeds, Etc.
at Dover, in and for the said County of Kent, In Corp.
Record G Vol. 139 Page 70 Etc.
the 24th day of January A.D. 1992
WITNESS my Hand and the Seal of said office.
/s/ ________________________________________, Recorder
<PAGE> 1
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "MILLER & BENSON INTERNATIONAL, LTD.", FILED IN THIS OFFICE ON THE
NINTH DAY OF AUGUST, A.D. 1994, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[SEAL] ---------------------------------------
Edward J. Freel, Secretary of State
2285960 8100 AUTHENTICATION: 7206796
944148129 DATE: 8-10-94
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
MILLER & BENSON INTERNATIONAL, LTD.,
a Delaware corporation
Miller & Benson International, Ltd., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted a resolution proposing and declaring advisable the following
amendment to the Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of Miller &
Benson International, Ltd. be amended by changing the FOURTH ARTICLE
thereof so that, as amended, said Article shall be and read as follows:
"FOURTH ARTICLE
"The total number of shares of stock which the corporation shall
have authority to issue is 251,000,000 consisting of 250,000,000 shares
of common stock, par value of $.01 per share (the "Common Stock") and
1,000,000 shares of preferred stock, par value of $.10 per share (the
"Preferred Stock").
"Each one (1) issued and outstanding share of Common Stock, on
the effective date of this amendment, shall be and hereby is changed and
converted into two hundred (200) shares of Common Stock. Any fractional
shares resulting from this procedure shall be rounded up to the nearest
whole share. There shall be no increase or decrease in the corporation's
authorized capital stock, or its par value per share or in the
corporation's capital.
"The Board of Directors is hereby empowered to authorize by
resolution or resolutions from time to time the issuance of one or more
classes or series of Preferred Stock and to fix the designations,
powers, preferences and relative, participating, optional or other
rights, if any, and the qualifications, limitations or restrictions
thereof, if any, with respect to each such class or series of Preferred
Stock and the number of shares constituting each such class or series,
and to increase or decrease the number of shares of any such class or
series to the extent permitted by the General Corporation Law of the
State of Delaware, as amended from time to time."
<PAGE> 3
SECOND: That the aforesaid amendment was duly adopted by the Board of
Directors only and in accordance with the applicable provisions of Section 242
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Miller & Benson International, Ltd. has caused
this Certificate to be signed by Norman Gross, its President, and Robert N.
Weingarten, its Secretary, this 31st day of July, 1994.
MILLER & BENSON INTERNATIONAL, LTD.
By: /s/ Norman Gross
----------------------------------
Norman Gross
President
ATTEST:
By: /s/ Robert N. Weingarten
------------------------------
Robert N. Weingarten
Secretary
<PAGE> 1
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "MILLER & BENSON INTERNATIONAL, LTD.", FILED IN THIS OFFICE ON THE
TWENTY-SIXTH DAY OF JULY, A.D. 1996, AT 12:15 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ Edward J. Freel
------------------------------------
Edward J. Freel, Secretary of State
2285960 8100 AUTHENTICATION: 8044055
960218242 DATE: 07-26-96
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
MILLER & BENSON INTERNATIONAL, LTD., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That, at a meeting of the Board of Directors of Miller & Benson
International, Ltd., a resolution was duly adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the Fourth Article thereof so that, as amended,
said Article shall be and read as follows:
"FOURTH. The total number of shares of stock which the corporation shall
have authority to issue is 251,000,000 consisting of 250,000,000 shares
of Common Stock, $.01 par value per share (the "Common Stock"), and
1,000,000 shares of Preferred Stock, $.10 par value per share (the
"Preferred Stock").
"Each one hundred (100) issued and outstanding shares of Common Stock,
on the effective date of this amendment, will be combined and converted
into one (1) share each of Common Stock, provided that no fractional
shares shall be issued but shall be rounded up to the nearest whole
number. There shall be no increase or decrease in the corporation's
authorized capital stock, or its par value per share or in the
corporation's capital.
"The Board of Directors is hereby empowered to authorize by resolution
or resolutions from time to time the issuance of one or more classes or
series of Preferred Stock and to fix the designations, powers,
preferences and relative, participating, optional or other rights, if
any, and the qualifications, limitations or restrictions thereof, if
any, with respect to each such class or series of Preferred Stock and
the number of shares constituting each such class or series, and to
increase or decrease the number of shares of any such class or series to
the extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time."
<PAGE> 3
SECOND: On May 2, 1988, this corporation filed for bankruptcy under
Chapter 11 of the Bankruptcy Code of 1978, as codified in Title 10 of the
United States Bankruptcy Code by Public Law 95-598, including all amendments
thereof and thereto. Therefore, in lieu of a meeting and vote of stockholders,
the amendment is being adopted pursuant to an "Order Approving Nonmaterial
Modifications To Debtor's Plan And Confirming Debtor's Plan of Reorganization"
dated June 19, 1991 and entered by the United States Bankruptcy Court for the
Central District of California on June 25, 1991, a copy of which is attached to
and made a part of this Certificate of Amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 303 and 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Miller & Benson International, Ltd. has caused
this certificate to be signed by Robert N. Weingarten, its Secretary, this 26th
day of July, 1996.
MILLER & BENSON INTERNATIONAL, LTD.
/s/ Robert N. Weingarten
---------------------------------------
Robert N. Weingarten, Secretary
<PAGE> 1
State of Delaware
PAGE 1
Office of the Secretary of State
---------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "MILLER & BENSON INTERNATIONAL, LTD., CHANGING ITS NAME FROM
"MILLER & BENSON INTERNATIONAL, LTD." TO "DIGITAL TECHNOLOGIES MEDIA GROUP,
INC.", FILED IN THIS OFFICE ON THE FIRST DAY OF AUGUST, A.D. 1996, AT 12:15
O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
[SEAL] ------------------------------------
Edward J. Freel, Secretary of State
2285960 8100 AUTHENTICATION: 8051392
960224458 DATE: 08-01-96
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
*****
MILLER & BENSON INTERNATIONAL, LTD., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the
unanimous written consent of its members, filed with the minutes of the Board,
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation of said corporation:
RESOLVED, that, as contemplated in the Stock Exchange
transaction with Digital Technologies Group, Inc. and in accordance with
Sections 242 and 228 of the General Corporation Law of the State of
Delaware, the Certificate of Incorporation of Miller & Benson
International, Ltd. be amended by changing the First Article thereof so
that, as amended, said Article shall be and read as follows:
"FIRST: The name of the corporation is Digital Technologies Media
Group, Inc."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given written consent and written notice of the adoption of
the amendment has been given as provided in Section 228 of the General
Corporation Law of the State of Delaware to every stockholder entitled to each
notice.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said MILLER & BENSON INTERNATIONAL, LTD. has caused
this certificate to be signed by Arthur Newberger, its President and Chief
Executive Officer, this 1st day of August, 1996.
MILLER & BENSON INTERNATIONAL, LTD.
By: /s/ Arthur Newberger
------------------------------------
Arthur Newberger
President and Chief Executive Officer
<PAGE> 1
BY-LAWS
OF
MILLER & BENSON INTERNATIONAL, LTD.
(A DELAWARE CORPORATION)
ARTICLE I - STOCKHOLDERS
Section 1. Annual Meeting.
An annual meeting of the stockholders, for the election of directors to
succeed those whose terms expire and for the transaction of such other business
as may properly come before the meeting, shall be held at such place, on such
date, and at such time as the Board of Directors shall each year fix, which
date shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders.
Section 2. Special Meetings.
Special meetings of the stockholders, for any purpose or purposes
prescribed in the notice of the meeting, may be called by the Board of
Directors or the President and shall be held at such place, on such date, and
at such time as they or he or she shall fix.
Section 3. Notice of Meetings.
Written notice of the place, date, and time of all meetings of the
stockholders shall be given, not less than ten nor more than sixty days before
the date on which the meeting is to be held, to each stockholder entitled to
vote at such meeting, except as otherwise provided herein or required by law
(meaning, here and hereinafter, as required from time to time by the Delaware
General Corporation Law or the Certificate of Incorporation of the
Corporation).
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than
thirty days after the date for which the meeting was originally noticed, or if
a new record date is fixed for the adjourned meeting, written notice of the
place, date, and time of the adjourned meeting shall be given in conformity
herewith. At any adjourned meeting, any business may be transacted which might
have been transacted at the original meeting.
<PAGE> 2
Section 4. Quorum.
At any meeting of the stockholders, the holders of a majority of all of
the shares of the stock entitled to vote at the meeting, present in person or
by proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote
who are present, in person or by proxy, may adjourn the meeting to another
place, date, or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
Section 5. Organization.
Such person as the Board of Directors may have designated or, in the
absence of such person, the President of the Corporation or, in his or her
absence, such person as may be chosen by the holders of a majority of the
shares entitled to vote who are present, in person or by proxy, shall call to
order any meeting of the stockholders and act as chairman of the meeting. In
the absence of the Secretary of the Corporation, the secretary of the meeting
shall be such person as the chairman appoints.
Section 6. Conduct of Business.
The chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him or her in order.
Section 7. Proxies and Voting.
At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy authorized by an instrument in writing filed in
accordance with the procedure established for the meeting.
Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his
2
<PAGE> 3
or her name on the record date for the meeting, except as otherwise provided
herein or required by law.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast.
Section 8. Stock List.
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and
showing the address of each such stockholder and the number of shares
registered in his or her name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
Section 9. Consent of Stockholders in Lieu of Meeting.
Any action required to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of the stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
3
<PAGE> 4
take such action at a meeting at which all shares entitled to vote thereon were
present and voted.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office.
The number of directors who shall constitute the whole board shall be
such number as the Board of Directors shall at the time have designated, except
that in the absence of any such designation, such number shall be one (1). Each
director shall be elected for a term of one year and until his or her successor
is elected and qualified, except as otherwise provided herein or required by
law.
Whenever the authorized number of directors is increased between annual
meetings of the stockholders, a majority of the directors then in office shall
have the power to elect such new directors for the balance of a term and until
their successors are elected and qualified. Any decrease in the authorized
number of directors shall not become effective until the expiration of the term
of the directors then in office unless, at the time of such decrease, there
shall be vacancies on the board which are being eliminated by the decrease.
Section 2. Vacancies
If the office of any director becomes vacant by reason of death,
resignation, disqualification, removal or other cause, a majority of the
directors remaining in office, although less than a quorum, may elect a
successor for the unexpired term and until his or her successor is elected and
qualified.
Section 3. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place
or places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required.
Section 4. Special Meetings.
Special meetings of the Board of Directors may be called by one-third
of the directors then in office (rounded up to the nearest whole number) or by
the President and shall be held at such place, on such date, and at such time
as they or he shall fix. Notice of the place, date, and time of each such
special meeting shall be given each director by whom it is not waived by
mailing written notice
4
<PAGE> 5
not less than five days before the meeting or by telegraphing or telecopying
the same not less than twenty-four hours before the meeting. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at a
special meeting.
Section 5. Quorum.
At any meeting of the Board of Directors, a majority of the total
number of the whole Board shall constitute a quorum for all purposes. If a
quorum shall fail to attend any meeting, a majority of those present may
adjourn the meeting to another place, date, or time, without further notice or
waiver thereof.
Section 6. Participation in Meetings By Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
Section 7. Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted
in such order and manner as the Board may from time to time determine, and all
matters shall be determined by the vote of a majority of the directors present,
except as otherwise provided herein or required by law. Action may be taken by
the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors.
Section 8. Powers.
The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things that may be exercised
or done by the Corporation, including, without limiting the generality of the
foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or privileges
on such terms as it shall determine;
5
<PAGE> 6
(3) To authorize the creation, making and issuance, in such form as it
may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or without cause,
and from time to time to devolve the powers and duties of any officer upon any
other person for the time being;
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for directors, officers, employees and agents
of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the Corporation
and its subsidiaries as it may determine; and
(8) To adopt from time to time regulations, not inconsistent with
these by-laws, for the management of the Corporation's business and affairs.
Section 9. Compensation of Directors.
Directors, as such, may receive, pursuant to resolution of the Board of
Directors, fixed fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the
Board of Directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors.
The Board of Directors, by a vote of a majority of the whole Board, may
from time to time designate committees of the Board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of
the Board and shall, for those committees and any others provided for herein,
elect a director or directors to serve as the member or members, designating,
if it desires, other directors as alternate members who may replace any absent
or disqualified member at any meeting of the committee. Any committee so
designated may exercise the power and authority of the Board of Directors to
declare a dividend or to authorize the
6
<PAGE> 7
issuance of stock if the resolution which designates the committee or a
supplemental resolution of the Board of Directors shall so provide. In the
absence or disqualification of any member of any committee and any alternate
member in his place, the member or members of the committee present at the
meeting and not disqualified from voting, whether or not he or she or they
constitute a quorum, may by unanimous vote appoint another member of the Board
of Directors to act at the meeting in the place of the absent or disqualified
member.
Section 2. Conduct of Business.
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; one-third of the members shall
constitute a quorum unless the committee shall consist of one or two members,
in which event one member shall constitute a quorum; and all matters shall be
determined by a majority vote of the members present. Action may be taken by
any committee without a meeting if all members thereof consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of such committee.
ARTICLE IV - OFFICERS
Section 1. Generally.
The officers of the Corporation shall consist of a President, a Secretary,
a Chief Financial Officer and such other officers, including one or more Vice
Presidents, as may from time to time be appointed by the Board of Directors.
Officers shall be elected by the Board of Directors, which shall consider that
subject at its first meeting after every annual meeting of stockholders. Each
officer shall hold office until his or her successor is elected and qualified
or until his or her earlier resignation or removal. The President shall be a
member of the Board of Directors. Any number of offices may be held by the same
person.
Section 2. President.
The President shall be the chief executive officer of the Corporation.
Subject to the provisions of these bylaws and to the direction of the Board of
Directors, he or she shall have the responsibility for the general management
and control of the business and affairs of the Corporation and shall perform all
duties and have all powers which are commonly incident to the office of chief
executive or which
7
<PAGE> 8
are delegated to him or her by the Board of Directors. He or she shall have the
power to sign all stock certificates, contracts and other instruments of the
Corporation which are authorized and shall have general supervision and
direction of all of the other officers, employees and agents of the Corporation.
Section 3. Vice President.
If the Board of Directors appoints one or more Vice Presidents, each
Vice President shall have such powers and duties as may be delegated to him or
her by the Board of Directors. If the Board of Directors appoints one or more
Vice Presidents, one Vice President shall be designated by the Board to perform
the duties and exercise the powers of the President in the event of the
President's absence or disability.
Section 4. Chief Financial Officer.
The Chief Financial Officer shall have the responsibility for
maintaining the financial records of the Corporation and shall have custody of
all monies and securities of the Corporation. He or she shall make such
disbursements of the funds of the Corporation as are authorized and shall
render from time to time an account of all such transactions and of the
financial condition of the Corporation. The Chief Financial Officer shall also
perform such other duties as the Board of Directors may from time to time
prescribe.
Section 5. Secretary.
The Secretary shall issue all authorized notices for, and shall keep
minutes of, all meetings of the stockholders and the Board of Directors. He or
she shall have charge of the corporate books and shall perform such other
duties as the Board of Directors may from time to time prescribe.
Section 6. Delegation of Authority.
The Board of Directors may from time to time delegate the powers or
duties of any officer to any other officers or agents, notwithstanding any
provision hereof.
Section 7. Removal.
Any officer of the Corporation may be removed at any time, with or
without cause, by the Board of Directors.
8
<PAGE> 9
Section 8. Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the President or
any officer of the Corporation authorized by the President shall have the power
to vote and otherwise act on behalf of the Corporation, in person or by proxy,
at any meeting of stockholders of or with respect to any action of the
stockholders of any other corporation in which this Corporation may hold
securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE V -- STOCK
Section 1. Certificates of Stock.
Each stockholder shall be entitled to a certificate signed by, or in
the name of the Corporation by, the President or a Vice President, and by the
Secretary or an Assistant Secretary, or the Chief Financial Officer or an
Assistant Chief Financial Officer, certifying the number of shares owned by him
or her. Any of or all the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of Article V of these
by-laws, an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
Section 3. Record Date.
The Board of Directors may fix a record date, which shall not be more
than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for the other action
hereinafter described, as of which there shall be determined the stockholders
who are entitled: to notice or to vote at any meeting of stockholders or any
adjournment thereof; to express consent to corporate action in writing without a
meeting; to receive payment of any dividend or other distribution or allotment
of any rights; or to exercise any rights with respect to any change, conversion
or exchange of stock or with respect to any other lawful action.
9
<PAGE> 10
Section 4. Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft or destruction of any certificate of
stock, another may be issued in its place pursuant to such regulations as the
Board of Directors may establish concerning proof of such loss, theft or
destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
Section 5. Regulations.
The issue, transfer, conversion and registration of certificates of stock
shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE VI - NOTICES
Section 1. Notices.
Except as otherwise specifically provided herein or required by law, all
notices required to be given to any stockholder, director, officer, employee or
agent shall be in writing and may in every instance be effectively given by
hand delivery to the recipient thereof, by depositing such notice in the mails,
postage paid, or by sending such notice by prepaid telegram or mailgram. Any
such notice shall be addressed to such stockholder, director, officer, employee
or agent at his or her last known address as the same appears on the books of
the Corporation. The time when such notice is received, if hand delivered, or
dispatched, if delivered through the mails or by telegram or mailgram, shall be
the time of the giving of the notice.
Section 2. Waivers.
A written waiver of any notice, signed by a stockholder, director,
officer, employee or agent, whether before or after the time of the event for
which notice is to be given, shall be deemed equivalent to the notice required
to be given to such stockholder, director, officer, employee or agent. Neither
the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE VII - MISCELLANEOUS
Section 1. Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these by-laws, facsimile signatures of any officer
or officers of the
10
<PAGE> 11
Corporation may be used whenever and as authorized by the Board of Directors or
a committee thereof.
Section 2. Corporate Seal.
The Board of Directors may provide a suitable seal, containing the name
of the Corporation, which seal shall be in the charge of the Secretary. If and
when so directed by the Board of Directors or a committee thereof, duplicates
of the seal may be kept and used by the Chief Financial Officer or by an
Assistant Secretary or Assistant Chief Financial Officer.
Section 3. Reliance upon Books, Reports and Records.
Each Director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance of his
duties, be fully protected in relying in good faith upon the books of account
or other records of the Corporation, including reports made to the Corporation
by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
Section 4. Fiscal Year.
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
Section 5. Time Periods.
In applying any provision of these by-laws which require that an act be
done or not done a specified number of days prior to any event or that an act
be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
ARTICLE VIII - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right to Indemnification.
Each person who was or is made a party or is threatened to be a party to
or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigate (hereinafter a "proceeding"), by reason
of the fact that he or she 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 officer
of another corporation or of a partnership, joint venture,
11
<PAGE> 12
trust or other enterprise, including service with respect to an employee
benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director or officer,
or in any other capacity while serving as a director or officer, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a director or officer and shall inure to the
benefit of the indemnitee's heirs, executors and administrators; provided,
however, that except as provided in Section 2 hereof with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the board of directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan), such an advancement
of expenses shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified
for such expenses under this Section or otherwise.
Section 2. Right of Indemnitee to Bring Suit.
If a claim under Section 1 of this Article is not paid in full by the
Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the
12
<PAGE> 13
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not
met the applicable standard of conduct set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its stockholders) that the
indemnitee has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard of conduct
or, in the case of such a suit brought by the indemnitee, be a defense to such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article or
otherwise shall be on the Corporation.
Section 3. Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Corporation's
certificate of incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 4. Insurance.
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
13
<PAGE> 14
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
Section 5. Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the
board of directors, grant rights to indemnification, and to the advancement of
expenses to any employee or agent of the Corporation (or to any person who is
or was serving at the request of the Corporation as an employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan) to the
fullest extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
ARTICLE IX -- AMENDMENTS
These by-laws may be amended or repealed by the Board of Directors at
any meeting or by the stockholders at any meeting or by written consent.
