As filed with the Securities and Exchange Commission on May , 1997
Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IMN FINANCIAL CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 14-1702188
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(State or other jurisdiction (IRS employer identification
of incorporation or organization) number)
520 Broad Hollow Road, Melville, New York 11746
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(Address of principal executive offices) (Zip code)
NONSTATUTORY STOCK OPTION PLAN
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(Full title of plan)
Edward Capuano
c/o IMN Financial Corp.
520 Broad Hollow Road, Melville, New York 11746
516-844-9805
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(Name, address and telephone number,
including area code, of agent for service)
Copy to:
Joel Pensley
One Sherman Square
New York, New York 10023
(212) 595-4955
Approximate date of commencement of proposed reoffer or resale to the
public by affiliates of the registrant:
As soon as is practicable after filing of the Registration Statement
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of each class Amount maximum aggregate Amount of
of securities to be offering price offering registration
to be registered registered per item (3) price (1) fee
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Shares of Common Stock (2)
Underlying Non- 4,000,000 $3.00 $12,000,000 $3,434.34
Statutory Options Shares
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Total registration fee $3,434,34
(1) Estimated for purposes of calculating the registration fee pursuant to
Rule 457.
(2) Pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the
"Securities Act"), the number of Shares of Common Stock to be registered is the
maximum number of Shares of Common Stock issuable herein, except that any
additional Shares of Common Stock issuable pursuant to stock splits, stock
dividends or similar transactions will be deemed registered by this registration
statement.
(3) Pursuant to Rules 457(c) and (h) of the Securities Act, the proposed
maximum offering price per Shares of Common Stock subject to outstanding options
("Options") issued pursuant to the Company's Nonstatutory Option Plan (the
"Plan") has been calculated on the basis of the average exercise price of
outstanding Options, and the proposed maximum offering price per Share of Common
Stock available for grant under the Plan that are not subject to outstanding
Options has been calculated on the basis of the current price per Share of
Common Stock. Since no Options have been issued as of the date of the
Registration Statement, the maximum offering price per share of $3.00 per share
is the closing price for one Share of Common Stock as reported by the NASD
Electronic Bulletin Board on May 12, 1997 (the "Average Price").
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with Rule 428 under the Securities Act, and the instructional
Note to Part I of Form S-8, the information required by Part I to be contained
in the Section 10(a) prospectus has been omitted from this Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by IMN Financial Corp. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference in this Registration Statement:
(1) Form 8K current report dated May 12, 1997
(2) Quarterly Report on Form 10-QSB for the six months ended March 31,
1997;
(3) The description of the Registrant's Shares of Common Stock, $0.001 par
value each, contained in the Registrant's current report on Form 8-K dated May
12, 1997, including any further amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which registers all securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
The Registrant's certificate of incorporation authorizes the issuance of
45,000,000 shares of common stock, $.001 par value each. Shareholders (i) have
general ratable rights to dividends from funds legally available therefor, when,
as and if declared by the Board of Directors; (ii) are entitled to share ratably
in all assets of the Company available for distribution to shareholders upon
liquidation, dissolution or winding up of the affairs of the Company; (iii) do
not have preemptive, subscription or conversion rights, nor are there any
redemption or sinking fund provisions applicable thereto; and (iv) are entitled
to one vote per Share on all matters on which shareholders may vote at all
shareholder meetings. All Shares of Common Stock now outstanding are fully paid
and nonassessable and all Shares of Common Stock to be issued pursuant to option
exercise will be fully paid and nonassessable when issued. Shareholders do not
have cumulative voting rights. Thus, the holders of more than 50% of such
outstanding Shares of Common Stock, voting for the election of Directors, can
elect all of the Directors to be elected, if they so choose, and in such event,
the holders of the remaining Shares of Common Stock will not be able to elect
any of the Company's Directors.
Item 5. Interests of Named Experts and Counsel.
Joel Pensley, Esq., One Sherman Square, New York, New York 10023 has given
the Company his opinion upon the validity of the securities being registered and
has acted as counsel to the Company upon other legal matters in connection with
the registration or offering of such securities. Joel Pensley owns 150,000
Shares of Common Stock.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the
Corporation under certain circumstances from liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933, as
amended (the "Act"). Section 102(b)(7) of the DGCL permits a corporation to
provide in its Certificate of Incorporation that 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) in
respect of certain unlawful dividend payments or stock redemptions or
repurchases, or (iv) for any transaction from which the director derived an
improper personal benefit.
As permitted by the DGCL, the Corporation's Certificate of Incorporation
(the "Charter") provides that, to the fullest extent permitted by the DGCL or
decisional law, no director shall be personally liable to the Corporation or to
its stockholders for monetary damages for breach of his fiduciary duty as a
director. The effect of this provision in the Charter is to eliminate the rights
of the Corporation and its stockholders (through stockholders' derivative suits
on behalf of the Corporation) to recover monetary damages against a director for
breach of fiduciary duty as a director thereof (including breaches resulting
from negligent or grossly negligent behavior) except in the situations described
in clauses (i)-(iv), inclusive, above. These provisions will not alter the
liability of directors under federal securities laws.
The Corporation's Bylaws (the "Bylaws") provide that the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of any other corporation or enterprise (including an employee benefit
plan), against all expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes and penalties, and amounts paid or to be
paid in settlement, and any interest, assessments, or other charges imposed
thereof, and any taxes imposed on such person as a result of such payments)
reasonably incurred or suffered by such person in connection with investigating,
defending, being a witness in, or participating in (including on appeal), or
preparing for any of the foregoing in such action, suit or proceeding, to the
fullest extent authorized by the DGCL, provided that the Corporation shall
indemnify such person in connection with any such action, suit or proceeding
initiated by such person only if authorized by the Board of Directors of the
Corporation or brought to enforce certain indemnification rights.
The Bylaws also provide that expenses incurred by an officer or director of
the Corporation (acting in his capacity as such) in defending any such action,
suit or proceeding shall be paid by the Corporation, provided that if required
by the DGCL such expenses shall be advanced only upon delivery to the
Corporation of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation. Expenses incurred by other agents of the
Corporation may be advanced upon such terms and conditions as the Board of
Directors of the Corporation deems appropriate. Any obligation to reimburse the
Corporation for expenses advanced under such provisions shall be unsecured and
no interest shall be charged thereon.
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The Bylaws also provide that indemnification provided for in the Bylaws
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; that any right of indemnification or protection provided under
the Bylaws shall not be adversely affected by any amendment, repeal, or
modification of the Bylaws; and that the Corporation may purchase and maintain
insurance to protect itself and any such person against any such expenses,
liability and loss, whether or not the Corporation would have the power to
indemnify such person against such expenses, liability or loss under the DGCL or
the Bylaws.
In addition to the above, the Corporation has entered into indemnification
agreements with each of its directors and certain of its officers. The
indemnification agreements provide directors and officers with the same
indemnification by the Corporation as described above and assure directors and
officers that indemnification will continue to be provided despite future
changes in the Bylaws of the Corporation. The Corporation also provides
indemnity insurance pursuant to which officers and directors are indemnified or
insured against liability or loss under certain circumstances, which may include
liability or related loss under the Securities Act and the Exchange Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 IMN 1997 Nonstatutory Stock Option Plan
4.2 Certificate of Incorporation and amendments thereto
5.1 Opinion of Joel Pensley, Esq.
23.1 Consent of Thomas P. Monahan, CPA
23.2 Consent of Joel Pensley (included in his opinion filed as Exhibit 5.1)
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Item 9. UNDERTAKINGS
IMN Financial Corp. hereby undertakes:
The undersigned hereby undertakes:
(a) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement (the "Registration
Statement"):
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(i) and (a(ii) do not apply if the
information required by those paragraphs to be included in a post-effective
amendment is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(b) that, for the purposes of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(c) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the Plan;
(d) that, for purpose of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) that, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Melville, and State of New York on the 14th day of
May, 1997.
IMN FINANCIAL CORP.
(Registrant)
Date: May 14, 1996 By: /s/Edward Capuano
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Edward Capuano,
President and Principal
Executive Officer and
Principal Financial Officer
Dated: May 14, 1997
Pursuant to the requirements of the Securities Act of 1933, this report has
been signed by the following persons on behalf of the registrant and in the
capacities on the date(s).
/s/Edward Capuano Director May 14, 1997
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Edward Capuano
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INDEX TO EXHIBITS
Exhibit Description
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4.1 IMN Nonstatutory Stock Option Plan
4.2 Certificate of Incorporation and amendments thereto
5.1 Opinion of Joel Pensley, Esq.
23.1 Consent of Thomas P. Monahan, CPA
23.2 Consent of Joel Pensley, Esq. (included in his opinion filed as
Exhibit 5)
Exhibit 4.1
IMN FINANCIAL CORP.
1997 NONSTATUTORY STOCK OPTION PLAN
May 13, 1997
1. Purpose
The purpose of this Nonstatutory Stock Option Plan (hereinafter referred
to as the "Plan"), is to provide a special incentive to selected individuals who
have made significant contributions to the business and success of IMN Financial
Corp. (hereinafter referred to as the "Company"). The Plan is designed to
accomplish this purpose by offering such individuals options ("Options") to
purchase shares of the common stock of the Company so that they will share in
the Company's success and continue their services to the Company or any
subsidiary of the Company.
2. Administration
The 1997 Incentive Plan shall be administered by the Board of Directors
of the Company (the "Board") or an options committee established by the Board
(the "Options Committee"). If an Option Committee administers the 1997 Incentive
Plan, it shall consist of two or more members, at least a majority of whom shall
be neither an officer nor an employee of the Company.
The Board or the Options Committee, as the case may be, shall have
authority, consistent with the Plan,
(a) to determine which individuals shall be granted Options;
(b) to determine the time or times when Options shall be granted and the
number of Shares to be subject to each Option;
(c) to determine the exercise price of the Shares subject to each Option
and the method of payment of such price;
(d) to determine the time or times when each Option becomes exercisable
and the duration of the exercise period, subject to the limitations
contained in Paragraph 6(b);
(e) to prescribe the form or forms of the instruments evidencing any
Options granted under the Plan and of any other instruments required
under the Plan and to change such forms from time to time;
(f) to adopt, amend and rescind rules and regulations for the
administration of the Plan and the Options and for its own acts and
proceedings: and
(g) to decide all questions and settle all controversies and disputes
which may arise in connection with the Plan. All decisions,
determinations and interpretations of the Board shall be binding on
all parties concerned.
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3. Participants
The Participants in the Plan shall be employees, officers, directors,
consultants of the Company or any other parties who have made a significant
contribution to the business and success of the Company, as may be selected from
time to time by the Board in its discretion. In any grant of Options after the
initial grant, Participants who were previously granted Options or sold Shares
under the Plan may be included or excluded.
4. Limitations
No Option shall be granted under the Plan after December 31, 1999, but
Options theretofore granted may extend beyond that date. Subject to adjustment
as provided in Section 8 of the Plan, the number of Shares which may be issued
under the Plan shall not exceed two million in the aggregate. To the extent that
any Option granted under the Plan shall expire or terminate unexercised or for
any reason become unexercisable as to any Shares subject thereto, such Shares
shall thereafter be available for further grants under the Plan, within the
limit specified above.
5. Shares to be Issued
Shares to be issued under the Plan may constitute an original issue of
authorized Shares or may consist of previously issued Shares acquired by the
Company, as shall be determined by the Board. The Board and the proper officers
of the Company shall take any appropriate action required for such issuance. The
maximum number of Shares which may be issued under the Plan is four million
(4,000,000) Shares.
6. Terms and Conditions of Options
All Options granted under the Plan shall be subject to the following
terms and conditions (except as provided in Section 7) and to such other terms
and conditions as the Board shall determine to be appropriate to accomplish the
purposes of the Plan:
(a) Exercise price. The exercise price under each Option shall be
determined by the Board and may be more, equal to or less than the
then current market price of the Shares as the Board may deem to be
appropriate: provided, however, that in the event the Board shall
determine to grant an Option at less than 85% of the then current
market price of the Shares, such Option shall not be granted by the
option committee without the prior approval of the board of
directors.
(b) Period of Options. The period of an Option shall not exceed ten
years from the date of grant.
(c) Exercise of Options.
(i) Each Option shall be made exercisable at such time or times,
whether or not in installments, as the Board shall prescribe
at the time the Option is granted.
(ii) A person electing to exercise an Option shall give written
notice to the Company, as specified by the Board, of his
election and of the number of Shares he has elected to
purchase, such notice to be accompanied by such instruments
or documents as may be required by the Board, and shall at
the time of such exercise tender the purchase price of the
Shares he has elected to purchase.
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(d) Payment for Issuance of Shares. Upon exercise of any Option
granted hereunder, payment in full shall be made at the time of
such exercise for all such Shares then being purchased.
The Company shall not be obligated to issue any Shares unless and until,
in the opinion of the Company's counsel, all applicable laws and regulations
have been complied with, nor, in the event the Shares at the time listed upon
any stock exchange, unless and until the Shares to be issued have been listed or
authorized to be added to the list upon official notice of issuance upon such
exchange, nor unless or until all other legal matters in connection with the
issuance and delivery of Shares have been approved by the Company's counsel.
Without limiting the generality of the foregoing, the Company may require from
the Participant such investment representation or such agreement, if any, as
counsel for the Company may consider necessary in order to comply with the
Securities Act of 1933 as then in effect, and may require that the Participant
agree that any sale of the Shares will be made only in such manner as is
permitted by the Board and that a Participant will notify the Company when
he/she intends to make any disposition of the Shares whether by sale, gift or
otherwise. The Participant shall take any action reasonably requested by the
Company in such connection. A Participant shall have the rights of a stockholder
only as to Shares actually acquired by him/her under the Plan.
(e) Transferability of Options. No Option may be transferred by the
Participant otherwise than by will or by the laws of descent and
distribution, and during the Participant's lifetime the Option
may be exercised only by the Participant.
(f) Termination of Employment. If the Participant is an employee and
his/her employment terminates for any reason other than his/her
death, the Participant may, unless discharged for cause,
thereafter exercise his/her Option as provided below, but only to
the extent the Participant was entitled to exercise the Option on
the date when his/her employment terminated. If such termination
of employment is voluntary on the part of the Participant, he/she
may exercise his/her Option only within ten days after the date
of termination of employment (unless a longer period not in
excess of three months is allowed by the Board). If such
termination of employment is involuntary on the part of the
Participant, he/she may exercise his/her Option only within three
months after the date of termination of employment. In no event,
however, may such Participant exercise his/her Option at a time
when the Option would not be exercisable had the Participant
remained an employee or when the termination was for cause. For
purposes of this section (f), a Participant's employment shall
not be considered terminated in the case of sick leave or other
bona fide leave of absence approved by the Company or a
subsidiary, or in the case of a transfer to the employment of a
subsidiary or to the employment of the Company. Anything herein
to the contrary notwithstanding, an Option may be exercised only
to the extent exercisable on the date of termination of
employment by death or otherwise.
(g) Retirement or Resignation. If prior to the expiration date of a
Participant's Option an optionee shall retire or resign with the
Company's consent such Option may be exercised in the same manner
as if the Optionee had continued in the Company's employ;
provided, however, the Board may terminate, at any time prior to
exercise, all unexercised Options if it shall determine that the
retired or resigning optionee has engaged in any activity
detrimental to the Company's interest.
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(h) Death. If a Participant dies at a time when he/she is entitled to
exercise an Option, then at any time or times within one (1) year
after his/her death (or such further period as the Board may allow)
such Option may be exercised, as to all or any of the Shares which
the Participant was entitled to purchase immediately prior to
his/her death, by his/her executor or administrator or the person
or persons to whom the Option is transferred by will or the
applicable laws of descent and distribution, and except as so
exercised such Option shall expire at the end of such period. In no
event, however, may an Option be exercised after the expiration of
the Option period.
7. Replacement Options
The Company may grant Options under the Plan on terms differing from
those provided for in Section 6 where such Options are granted in substitution
for Options held by employees of other corporations who concurrently become
employees of the Company or a subsidiary as the result of a merger,
consolidation or other reorganization of the employing corporation with the
Company or subsidiary, or the acquisition by the Company or a subsidiary of the
business, property or stock of the employing corporation. The Board may direct
that the substitute Options be granted on such terms and conditions as the Board
considers appropriate in the circumstances.
8. Changes in Stock
In the event of a stock dividend, stock split or recapitalization or
merger in which the Company is the surviving corporation, or other similar
capital change, the number and kind of shares of stock or securities of the
Company to be subject to the Plan and to Options then outstanding or to be
granted thereunder, the maximum number of Shares or securities which may be
issued or sold under the Plan, the exercise price and other relevant provisions
shall be appropriately adjusted by the Board of the Company, the determination
of which shall be binding on all persons.
9. Employment Rights
The adoption of the Plan or the granting of an Option does not confer
upon any individual any right to employment or continued employment with the
Company or a subsidiary, as the case may be, nor does it interfere in any way
with the right of the Company or a subsidiary to terminate the employment of any
of its employees at any time.
10. Amendment
The Board may at any time discontinue granting Options under the Plan.
The Board of the Company may at any time or times amend the Plan or amend any
outstanding Option or Options for the purpose of satisfying the requirements of
any changes in applicable laws or regulations or for any other purpose which may
at the time be permitted by law provided, however, that, except to the extent
required or permitted under Section 8, no such amendment shall void or diminish
Options previously granted without the consent of the Participant, nor shall any
amendment increase or accelerate the conditions and actions required for the
exercise of an Option unless the Participant shall have been discharged from the
company's employment for cause.
Adopted by the Board of Directors on May 13, 1997.
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CERTIFICATE OF INCORPORATION
OF
NUCLEAR & GENETICS TECHNOLOGY, INC.
I, THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
FIRST. The name of the corporation is NUCLEAR & GENETICS TECHNOLOGY, INC.
SECOND: The registered office of the corporation is to be located at 306
South State Street, in the City of Dover, in the County oF Kent, in the State of
Delaware. The name of its registered agent at that address is the United States
Corporation Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Genera1 Corporation
Law of Delaware. Without limiting in any manner the scope and generality of the
foregoing, it is hereby provided that the corporation shall have the following
purposes, objects and powers:
To purchase, manufacture, produce, assemble, receive, lease or in any
manner acquire, hold, own use, operate, install maintain service repair,
process, alter, improve, import, export, sell, lease, assign, transfer and
generally to trade and deal in and with raw materials, natural or manufactured
articles or products, machinery, equipment, devices, systems, parts, supplies,
apparatus, goods, wares, merchandise and personal properly of every kind, nature
or description, tangible or intangible, used or capable of being used for any
purpose whatsoever; and to engage and participate in any mercantile,
manufacturing or trading business of any kind of character.
To improve, manage, develop, sell, assign, transfer, lease, mortgage,
pledge or otherwise dispose of or turn to account or deal with all or any part
of the property of the corporation and from time to time to vary any investment
or employment of capital of the corporation,
To borrow money, and to make and issue notes, bonds, debentures,
obligations and evidences of indebtedness of all kinds, whether secured by
mortgage, pledge or otherwise, without limit as to amount, and to secure the
same by mortgage, pledge or otherwise; and generally to make and perform
agreements and contracts of every kind and description, including contracts of
guaranty and suretyship.
To lend money for its corporate purposes, invest and reinvest its funds,
and take, hold and dead with real and personal property as security for the
payment of funds so loaned or invested.
To the same extent as natural persons might or could do, to purchase or
otherwise acquire, and to hold, own, maintain, work, develop, sell, lease,
exchange, hire, convey, mortgage or otherwise dispose of and deal in lands and
leaseholds, and any interest, estate and rights in real property, and any
personal or mixed property, and any franchises, rights, licenses or privileges
necessary, convenient or appropriate for any of the purposes herein expressed.
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To apply for, obtain, register, purchase, lease or otherwise to acquire and
to hold, own, use, develop, operate and introduce and to sell, assign, grant
licenses or territorial rights in respect to or otherwise to turn to account or
dispose of, any copyrights, trade marks, trade names, brands, labels, patent
rights, letters patent of the United States or of any other country or
government, inventions, improvements and processes, whether used in connection
with or secured under letters patent or otherwise.
To participate with others in any corporation, partnership, limited
partnership, joint venture or other association of any kind, or in any
transaction, undertaking or arrangement which the participating corporation
would have power to conduct by itself, whether or not such participation
involves sharing or delegation of control with or to others; and to be an
incorporator, promoter or manager of other corporations of any type or kind.
To pay pensions and establish and carry out pension, profit sharing, stock
option, stock purchase, stock bonus, retirement, benefit, incentive and
commission plans, trusts and provisions for any or all of its directors,
officers and employees, and for any or all of the directors, officers and
employees of its subsidiaries; and to provide insurance for its benefit on the
life of any of its directors, officers or employees, or on the life of any
stockholder for the purpose of acquiring at his death shares of its stock owned
by such stockholders.
To acquire by purchase, subscription or otherwise, and to hold for
investment or otherwise and to use, sell, assign, transfer, mortgage, pledge or
otherwise deal with or dispose of stocks, bonds or any other obligations or
securities of any corporation or corporations; to merge or consolidate with any
corporation in such manner as may be permitted by law; to aid in any manner any
corporation whose stocks, bonds or other obligations are held or in any manner
guaranteed by this corporation, or in which, this corporation is in any way
interested; and to do any other acts or things for the preservation, protection,
improvement or enhancement of the value of any such stock, bonds or other
obligations; and while owner of any such stock, bonds or other obligations to
exercise all the rights, powers and privileges of ownership thereof, and to
exercise any such all voting powers thereon; and to guarantee the payment of
dividends upon any stock, the principal or interest or both, of any bonds or
other obligations, and the performance of any contracts.
To do all and everything necessary, suitable and proper for the
accomplishment of any of the purposes or the attainment of any of the object or
the furtherance of any of the powers herein before set forth, either alone or in
association with other corporations, firms or individuals, and to do every other
act or acts, thing or things incidental or appurtenant to or growing out of or
connected with the aforesaid business or powers or any part or parts thereof,
provided the same be not inconsistent with the laws under which this corporation
is organized.
The business or purpose of the corporation is from time to time to do any
one or more of the acts and things hereinabove set forth, and it shall have
power to conduct and carry on its said business, or any part thereof, and to
have one or more offices, and to exercise any or all of its corporate powers and
rights, in the State of Delaware, and in the various other states, territories,
colonies and dependencies of the United States, in the District of Columbia, and
in all or any foreign countries.
The enumeration herein of the objects and purposes of the corporation shall
be construed as powers as well as objects and purposes and shall not be deemed
to exclude by inference any powers, objects or purposes which the corporation is
empowered to exercise, whether expressly by force of the laws of the State of
Delaware now or hereafter in effect, or impliedly by the reasonable construction
of the said laws.
<PAGE>
FOURTH:: The total number of shares of stock which the corporation is
authorized to issue is one hundred million (100,000,000) shares and the par
value of each of such shares is one mill ($.001).
FIFTH: The name and address of the sole incorporator are as follows:
NAME ADDRESS
John S. Hoenigmann 70 Pine Street, New York, N.Y. 10270
SIXTH:: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation and for further
definition, limitation and regulation of the powers of the corporation and of
its directors and stockholders:
(1) The number of directors of the corporation shall be such as from time
to time shall be fixed by, or in the manner provided in the by-Iaws. Election of
directors need not be by ballot unless the by-laws so provide.
(2) The Board of Directors shall have power without the assent or vote of
the stockholders to make, alter. amend, change, add to or repeal the By-laws of
the corporation; to fix and vary the amount to be reserved for any proper
purpose; to authorize and cause to be executed mortgages and liens upon all or
any part of the property of the corporation; to determine the use and
disposition of any surplus or net profits; and to fix the times for the
declaration and payment of dividends.
(3) The directors in their discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
the vote of the holders of a majority of the stock of the corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid and as binding upon the corporation and upon all the
stockholders as though it had been approved or ratified by every stockholder of
the corporation, whether or not the contract or act would otherwise be open to
legal attack because of directors' interest, or for any other reason.
(4) In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the corporation: subject, nevertheless, to the provisions of the statutes of
Delaware of this certificate, and to any by-laws from time to time made by the
stockholders; provided, however, that no by-laws so made shall invalidate any
prior act of the directors which would have been valid if such by-law had not
been made.
SEVENTH: The corporation shall, to the full extent permitted by Section 145
of the Delaware General Corporation Law, as amended from time to time, indemnify
all persons whom it may indemnify pursuant thereto.
EIGHTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of a receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs if a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
NINTH: The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation in the manner now
or hereafter prescribed by law, and all rights and powers conferred herein on
stockholders, directors and officers are subject to this reserved power.
IN WITNESS WHEREOF, I have hereunto set my hand and seal, the 13th day of
November, 1980.
/s/ John S. Hoenigmann
- ----------------------
John S. Hoenigmann
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NUCLEAR & GENETICS TECHNOLOGY, INC.
BEFORE PAYMENT OF CAPITAL
Pursuant to Section 241 of the General
Corporation Law of the State of Delaware
----------------------------------------
I , THE UNDERSIGNED, being the sole incorporator of NUCLEAR & GENETICS
TECHNOLOGY, INC., do hereby certify:
FIRST: that the Certificate of Incorporation was filed in the office of the
Secretary of State of Delaware on the 14th day of November, A.D. 1980, and a
certified copy thereof was recorded in the office of the Recorder of Kent
County, Delaware, on the 14th day of November, 1980, and that the corporation
has not received any payment for any of its stock.
SECOND: The Article FIRST of the Certificate of Incorporation is amended to
read as follows:
"FIRST: The name of the corporation is NUCLEAR & GENETIC TECHNOLOGY, INC. "
THIRD: That such amendment has been duly adopted in accordance with the
provisions of Section 241 of the General CorPoration law of the State of
Delaware.
IN WITNESS WHEREOF, I have hereunto set my hand and sea1 thE 19th day of
November, 1980.
/s/John S. Hoenigmann (SEAL)
- ---------------------------
John S. Hoenigman
<PAGE>
CERTIFICATE 0F AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NUCLEAR & GENETIC TECHNOLOGY, INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
WE, THE UNDERSIGNED, Executive Vice President and secretary of NUCLEAR &
GENETIC TECHNOLOGY, INC., do hereby certify:
FIRST: That the Certificate of Incorporation was filed in the office of the
Secretary of State of Delaware on the 14th day of November, A.D. 1980, and a
certified copy thereof was recorded in the office of the Recorder of Kent
County, Delaware, on the 14th day of November, A.D. 1980.
SECOND: That Article Fourth of the Certificate of Incorporation is amended
to read as follows:
"FOURTH: The total number of shares of stock which the corporation is
authorized to issue is one hundred million (100,000,000) shares and the par
value of the each shares is one-tenth of one mil ($.0001)."
THIRD: That such amendment has been duly adopted in accordance with the
provisions of Sections 228 & 242 of the General Corporation Law of the State of
Delaware by the unanimous written consent of all shareho1ders.
IN WITNESS WHEREOF, we have hereunto set our hands and seals the 14th day
of May, 1981.
NUCLEAR & GENETIC TECHNOLOGY, INC.
/s/Virginia E. Frazier
- ------------------------
Executive Vice President
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NUCLEAR & GENETIC TECHNOLOGY, INC.
It is hereby certified by the undersigned that:
FIRST: The name of the corporation (hereinafter called the "corporation")
is Nuclear & Genetic Technology, Inc.
SECOND: The certificate of incorporation of the corporation is hereby
amended by striking out Articles First and Fourth thereof and by substituting in
lieu of said Articles the following new Articles First and Fourth:
"FIRST: The name of the Corporation is NGT Enterprises, Inc."
"FOURTH: The total number of shares of stock which the corporation is
authorized to issue is 800,000,000 and the par value of each of such shares is
$.0001."
THIRD: The amendment of the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Section 303 of the
General Corporation Law of the State of Delaware. This amendment is made
pursuant to an Order of the United States Bankruptcy Court (Eastern District of
New York), Case to. 085-50439-21.
IN WITNESS WHEREOF, we have hereunto signed our names and affirm, under
penalties of perjury, that the statements made herein are true, this 30th day of
November 1989.
//John J. Scarpino
- ------------------
President
ATTEST:
/s/ Virginia C. Frazier
- -----------------------
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NGT ENTERPRISES, INC.
The undersigned corporation, in order to amend its Certificate of
Incorporation, hereby certifies as follows:
FIRST: The name of the Corporation is: NGT ENTERPRISES, INC.
SECOND: The corporation hereby amends its Certificate of Incorporation as
follows:
Article Fourth of the Certificate of Incorporation, as amended, relating to
the shares of the corporation, is hereby amended to read as follows by adding
the following new Article Fourth.
"FOURTH: The total number of shares of stock, which the Corporation is
authorized to issue is 12,000,000 and the par value of each of such shares is
$.0001."
THIRD: The amendment of the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware and written consent was
obtained and written notice of such action was given in accordance with Section
228.
Signed and attested to on
April 4th, 1991
/s/James Ficarra
- -------------------
President
Attest:
/s/ Rosalie Rocchio
- -------------------
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NGT ENTERPRISES, INC.
The undersigned corporation, in order to amend its Certificate of
Incorporation, hereby certifies as follows:
FIRST: The name of the Corporation is:
NGT ENTERPRISES, INC.
SECOND: The corporation hereby amends its Certificate of Incorporation as
follows:
Article fourth of the Certificate of Incorporation, as amended, relating to
the shares of the corporation, is hereby amended to read as follows by adding
the following new Article Fourth.
FOURTH: The total number of shares of stock which the Corporation is
authorized to issue is 8,000,OOO and the par value of each of such shares is
$.00O1. The corporation hereby reclassifies its Common Shares pursuant to
Section 242 of the General Corporation Law of the State of Delaware in order to
effect a one (1) for two hundred (200) reverse split of its Common Shares,
$.0001 par value, so that two hundred (200) of the outstanding Common Shares are
equal to one (1) of the new Common Shares of $.0001 par value.
THIRD: The amendment effected herein was authorized in accordance with
provisions of Section 303 of the General Corporation Law of the State of
Delaware. This amendment is made pursuant to an Order of the United States
Bankruptcy Court (Eastern District of New York), Case No. 085-50439-21.
IN WITNESS WHEREOF, we hereunto sign our names and affirm that the
statements made herein are true under penalties of perjury this 30th day of
November 1989.
//John J. Scarpino
- ------------------
President
ATTEST:
/s/ Virginia C. Frazier
- -----------------------
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NGT ENTERPRISES, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
NGT ENTERPRISES, INC.
2. The certificate of incorporation of the corporation is hereby amended by
striking out Article Fourth thereof and substituting in lieu of said Article the
following new Article:
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is 50,000,000. The par value of each such shares is
$.001. 45,000,000 of such shares shall be shares of common stock. 5,000,000 of
such shares shall be preferred stock. The board of directors of the corporation
is hereby granted the power to determine by resolution from time to time the
powers, preference, rights, qualification, restriction or limitation of the
preferred stock."
3. The amendment of the certificate of incorporation herein certified has
been duly adopted and written consent has been given in accordance with the
provisions of Section 228 end 242 of the General Corporation Law of the State of
Delaware.
Signed on May 1, 1997
/s/William J. Mueger
----------------------------
William J. Mueger, President
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NGT ENTERPRISES, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
NGT ENTERPRISES, INC.
2. The certificate of incorporation of the Corporation is hereby amended by
deleting Article FIRST thereof and substituting in lieu of said Article the
following:
"FIRST: The name of the Corporation is IMN FINANCIAL CORP."
3. The amendment of the certificate of incorporation herein certified has
been duly adopted and written consent has been given in accordance with the
provisions of Sections 228 and 242 of the General Corporation Law of the State
of Delaware.
Signed on May 5, 1997
/s/ William J. Mueger
----------------------------
William J. Mueger, President
Exhibit 5
JOEL PENSLEY
Counselor-at-Law
One Sherman Square
New York, New York 10023
212-595-4955
Fax: 212-595-4966
May 14, 1997
IMN Financial Corp.
520 Broad Hollow Road
Melville, New York 11746
Re: Registration Statement on Form S-8
Gentlemen:
I refer to the registration statement on Form S-8 (the "Registration
Statement") of IMN Financial Corp., a Delaware corporation (the "Company"), to
be delivered for filing to the Securities and Exchange Commission (the
"Commission") on diskette by overnight delivery service on or about May 14,
1997, relating to 4,000,000 shares of common stock, $.001 par value per share,
("Shares of Common Stock") issuable on exercise of options ("Options") under the
Company's Nonstatutory Stock Option Plan.
I have reviewed such documents and records as we have deemed necessary to
enable me to express an informed opinion on the matters covered thereby and I am
of the opinion that:
The 4,000,000 Common Shares issuable upon exercise of the Options will,
upon issuance, be legally issued, fully paid and non-assessable.
I hereby consent to the use of my name in the Registration Statement
under the caption "Interest of Named Experts and Legal Counsel."
Very truly yours,
/s/ Joel Pensley
Joel Pensley
Exhibit 23.1
ACCOUNTANT'S CONSENT
The Board of Directors
IMN Financial Corp.
As an independent public accountant, I hereby consent to the use of my
report to the Board of Directors of IMN Financial Corp. dated May 13, 1997
relating to the balance sheet dated March 31, 1997 and 1996 (under the former
name NGT Enterprises, Inc.) and the statement of operations, cash flows and
stockholders' equity for the years ended December 31, 1996 and 1995 in a
registration statement under Form S-8.
/s/Thomas P. Monahan
-------------------
Thomas P. Monahan
Paterson, New Jersey
May 14, 1997
BYLAWS
OF
IMN FINANCIAL CORP.
(a Delaware corporation)
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK.
Certificates representing stock in the corporation shall be signed by, or
in the name of, the corporation by the Chairman or Vice-Chairman of the Board of
Directors, if any, or by the President or a Vice-President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation. Any or all the signatures on any such certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than one class
of stock or more than one series of any class of stock, and whenever the
corporation shall issue any shares of its stock as partly paid stock, the
certificates representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock or uncertificated
shares in place of any certificate theretofore issued by it, alleged to have
been lost, stolen, or destroyed, and the Board of Directors may require the
owner of the lost, stolen, or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate or
the issuance of any such new certificate or uncertificated shares
2. UNCERTIFICATED SHARES.
Subject to any conditions imposed by the General Corporation Law, the Board
of Directors of the corporation may provide by resolution or resolutions that
some or all of any or all classes or series of the stock of the corporation
shall be uncertificated shares. Within a reasonable time after the issuance or
transfer of any uncertificated shares, the corporation shall send to the
registered owner thereof any written notice prescribed by the General
Corporation Law.
B-2
<PAGE>
3. FRACTIONAL SHARE INTERESTS.
The corporation may, but shall not be required to, issue fractions of a
share. If the corporation does not issue fractions of a share, it shall (1)
arrange for the disposition of fractional interests by those entitled thereto,
(2) pay in cash the fair value of fractions of a share as of the time when those
entitled to receive such fractions are determined, or (3) issue scrip or
warrants in registered form (either represented by a certificate or
uncertificated) or bearer form (represented by a certificate) which shall
entitle the holder to receive a full share upon the surrender of such scrip or
warrants aggregating a full share. A certificate for a fractional share or an
uncertificated fractional share shall, but scrip or warrants shall not unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, and to participate in any of the assets of the
corporation in the event of liquidation. The Board of Directors may cause scrip
or warrants to be issued subject to the conditions that they shall become void
if not exchanged for certificates representing the full shares or uncertificated
full shares before a specified date, or subject to the conditions that the
shares for which scrip or warrants are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of scrip or
warrants, or subject to any other conditions which the Board of Directors may
impose.
4. STOCK TRANSFERS.
Upon compliance with provisions restricting the transfer or registration of
transfer of shares of stock, if any, transfers or registration of transfers of
shares of stock of the corporation shall be made only on the stock ledger of the
corporation by the registered holder thereof, or by his attorney "hereunto
authorized by power of attorney duly executed and filed with the Secretary of
the corporation or with a transfer agent or a registrar, if any, and, in the
case of shares represented by certificates, on surrender of the certificate or
certificates for such shares of stock properly endorsed and the payment of all
taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS.
In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date shall not be more than sixty nor
less than ten days before the date of such meeting. If no record date is fixed
by the Board of Directors, the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting. In order that the corporation may
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the Board of Directors. If no record date has been fixed by the Board of
B-3
<PAGE>
Directors, the record date for determining the stockholders entitled to consent
to corporate action in writing witho a meeting, when no prior action by the
Board of Directors is required by the General Corporation Law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by the General
Corporation Law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action. In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion, or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
6. MEANING OF CERTAIN TERMS.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent
or dissent in writing in lieu of a meeting, as the case may be, the term "share"
or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the certificate of incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the
General Corporation Law confers such rights notwithstanding that the certificate
of incorporation may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the certificate
of incorporation, except as any provision of law may otherwise require.
7. STOCKHOLDER MEETINGS
- TIME. The annual meeting shall be held on the date and at the time fixed,
from time to time, by the directors, provided, that the first annual meeting
shall be held on a date within thirteen months after the organization of the
corporation, and each successive annual meeting shall be held on a date within
thirteen months after the date of the preceding annual meeting. A special
meeting shall be held on the date and at the time fixed by the directors.
- PLACE. Annual meetings and special meetings shall be held at such place,
within or without the State of Delaware, as the directors may, from time to
time, fix. Whenever the directors shall fail to fix such place, the meeting
shall be held at the registered office of the corporation in the State of
Delaware.
B-4
<PAGE>
- CALL. Annual meetings and special meetings may be called by the directors
or by any officer instructed by the directors to call the meeting.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be
given, stating the place, date, and hour of the meeting and stating the place
within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual meeting
shall state that the meeting is called for the election of directors and for the
transaction of other business which may properly come before the meeting, and
shall (if any other action which could be taken at a special meeting is to be
taken at such annual meeting) state the purpose or purposes. The notice of a
special meeting shall in all instances state the purpose or purposes for which
the meeting is called. The notice of any meeting shall also include, or be
accompanied by, any additional statements, information, or documents prescribed
by the General Corporation Law. Except as otherwise provided by the General
Corporation Law, a copy of the notice of any meeting shall be given, personally
or by mail, not less than ten days nor more than sixty days before the date of
the meeting, unless the lapse of the prescribed period of time shall have been
waived, and directed to each stockholder at his record address or at such other
address which he may have furnished by request in writing to the Secretary of
the corporation. Notice by mail shall be deemed to be given when deposited, with
postage thereon prepaid, in the United States Mail. If a meeting is adjourned to
another time, not more than thirty days hence, and/or to another place, and if
an announcement of the adjourned time and/or place is made at the meeting, it
shall not be necessary to give notice of the adjourned meeting unless the
directors, after adjournment, fix a new record date for the adjourned meeting.
Notice need not be given to any stockholder who submits a written waiver of
notice signed by him before or after the time stated therein. Attendance of a
stockholder at a meeting of stockholders shall constitute a waiver of notice of
such meeting, except when the stockholder attends the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders need be specified in any written waiver of notice.
- STOCKHOLDER LIST. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city or other municipality or community where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote at any meeting of
stockholders.
- CONDUCT OF MEETING. Meetings of the stockholders shall be presided over
by one of the following officers in the order of seniority and if present and
acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if
any, the President, a Vice President, or, if none of the foregoing is in office
and present and acting, by a chairman to be chosen by the stockholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall
act as secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the Chairman of the meeting shall appoint a secretary of
the meeting.
B-5
<PAGE>
- PROXY REPRESENTATION. Every stockholder may authorize another person or
persons to act for him by proxy in all matters in which a stockholder is
entitled to participate, whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the stockholder or by his attorney-in-fact. No
proxy shall be voted or acted upon after three years from its date unless such
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and, if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A proxy may
be made irrevocable regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the corporation generally.
- INSPECTORS. The directors, in advance of any meeting, may, but need not,
appoint one or more inspectors of election to act at the meeting or any
adjournment thereof. If an inspector or inspectors are not appointed, the person
presiding at the meeting may, but need not, appoint one or more inspectors. In
case any person who may be appointed as an inspector fails to appear or act, the
vacancy may be filled by appointment made by the directors in advance of the
meeting or at the meeting by the person presiding thereat. Each inspector, if
any, before entering upon the discharge of his duties, shall take and sign an
oath faithfully to execute the duties of inspectors at such meeting with strict
impartiality and according to the best of his ability. The inspectors, if any
shall determine the number of shares of stock outstanding and the voting power
of each, the shares of stock represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots, or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots, or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all stockholders. On request of the person presiding at
the meeting, the inspector or inspectors, if any, shall make a report in writing
of any challenge, question, or matter determined by him or them and execute a
certificate of any fact found by him or them.
- QUORUM. The holders of a majority of the outstanding shares of stock
shall constitute a quorum at a meeting of stockholders for the transaction of
any business. The stockholders present may adjourn the meeting despite the
absence of a quorum.
- VOTING. Each share of stock shall entitle the holders thereof to one
vote. Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors. Any other action shall be authorized by a majority of
the votes cast except where the General Corporation Law prescribes a different
percentage of votes and/or a different exercise of voting power, and except as
may be otherwise prescribed by the provisions of the certificate of
incorporation and these Bylaws. In the election of directors, and for any other
action, voting need not be by ballot.
8. STOCKHOLDER ACTION WITHOUT MEETINGS.
Any action required by the General Corporation Law to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
any annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Action taken pursuant to this
paragraph shall be subject to the provisions of Section 228 of the General
Corporation Law.
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ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFlNITION. The business and affairs of the corporation
shall be managed by or under the direction of the Board of Directors of the
corporation. The Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase "whole board" herein
refers to the total number of directors which the corporation would have if
there were no vacancies.
2. OUALIFICATIONS AND NUMBER.
A director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The initial Board of Directors shall consist
of persons. Thereafter the number of directors constituting the whole board
shall be at least one. Subject to the foregoing limitation and except for the
first Board of Directors, such number may be fixed from time to time by action
of the stockholders or of the directors, or, if the number is not fixed, the
number shall be . The number of directors may be increased or decreased by
action of the stockholders or of the directors.
3. ELECTION AND TERM.
The first Board of Directors, unless the members thereof shall have been
named in the certificate of incorporation, shall be elected by the incorporator
or incorporators and shall hold office until the first annual meeting of
stockholders and until their successors are elected and qualified or until their
earlier resignation or removal
Any director may resign at any time upon written notice to the corporation.
Thereafter, directors who are elected at an annual meeting of stockholders, and
directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of stockholders
and until their successors are elected and qualified or until their earlier
resignation or removal. Except as the General Corporation Law may otherwise
require, in the interim between annual meetings of stockholders or of special
meetings of stockholders called for the election of directors and/or for the
removal of one or more directors and for the filling of any vacancy in that
connection, newly created directorships and any vacancies in the Board of
Directors, including unfilled vacancies resulting from the removal of directors
for cause or without cause, may be filled by the vote of a majority of the
remaining directors then in office, although less than a quorum, or by the sole
remaining director.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall fix, except
that the first meeting of a newly elected Board shall be held as soon after its
election as the directors may conveniently assemble.
- PLACE. Meetings shall be held at such place within or without the State
of Delaware as shall be fixed by the Board.
- CALL. No call shall be required for regular meetings for which the time
and place have been fixed. Special meetings may be called by or at the direction
of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, of
the President, or of a majority of the directors in office.
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- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for
regular meetings for which the time and place have been fixed. Written, oral, or
any other mode of notice of the time and place shall be given for special
meetings in sufficient time for the convenient assembly of the directors
thereat. Notice need not be given to any director or to any member of a
committee of directors who submits a written waiver of notice signed by him
before or after the time stated therein. Attendance of any such person at a
meeting shall constitute a waiver of notice of such meeting, except when he
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the directors need be specified in any
written waiver of notice.
- QUORUM AND ACTION. A majority of the whole Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the directors in office shall constitute a quorum, provided, that
such majority shall constitute at least one-third of the whole Board. A majority
of the directors present, whether or not a quorum is present, may adjourn a
meeting to another time and place. Except as herein otherwise provided, and
except as otherwise provided by the General Corporation Law, the vote of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board. The quorum and voting provisions herein stated
shall not be construed as conflicting with any provisions of the General
Corporation Law and these Bylaws which govern a meeting of directors held to
fill vacancies and newly created directorships in the Board or action of
disinterested directors.
Any member or members of the Board of Directors or of any committee
designated by the Board, may participate in a meeting of the Board, or any such
committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present
and acting, shall preside at all meetings. Otherwise, the Vice-Chairman of the
Board, if any and if present and acting, or the President, if present and
acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS.
Except as may otherwise be provided by the General Corporation Law, any
director or the entire Board of Directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote at an election
of directors.
6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to consist of one or
more of the directors of the corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of any member of any such committee or committees, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise the powers and authority of
the Board of Directors in the management of the business and affairs of the
corporation with the exception of any authority the delegation of which is
prohibited by Section 141 of the General Corporation Law, and may authorize the
seal of the corporation to be affixed to all papers which may require it
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7. WRITTEN ACTION.
Any action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
or committee.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a President, a Secretary,
a Treasurer, and, if deemed necessary, expedient, or desirable by the Board of
Directors, a Chairman of the Board, a Vice-Chairman of the Board, an Executive
Vice-President, one or more other Vice-Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, and such other officers with such
titles as the resolution of the Board of Directors choosing them shall
designate. Except as may otherwise be provided in the resolution of the Board of
Directors choosing him, no officer other than the Chairman or Vice-Chairman of
the Board, if any, need be a director. Any number of offices may be held by the
same person, as the directors may determine.
Unless otherwise provided in the resolution choosing him, each officer
shall be chosen for a term which shall continue until the meeting of the Board
of Directors following the next annual meeting of stockholders and until his
successor shall have been chosen and qualified.
All officers of the corporation shall have such authority and perform such
duties in the management and operation of the corporation as shall be prescribed
in the resolutions of the Board of Directors designating and choosing such
officers and prescribing their authority and duties, and shall have such
additional authority and duties as are incident to their office except to the
extent that such resolutions may be inconsistent therewith. The Secretary or an
Assistant Secretary of the corporation will record all of the proceedings of all
meetings and actions in writing of stockholders, directors, and committees of
directors, and shall exercise such additional authority and perform such
additional duties as the Board shall assign to him. Any officer may be removed,
with or without cause, by the Board of Directors. Any vacancy in any office may
be filled by the Board of Directors.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of Directors shall
prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
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ARTICLE VI
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of incorporation and the
provisions of the General Corporation Law, the power to amend, alter, or repeal
these Bylaws and to adopt new Bylaws may be exercised by the Board of Directors
or by the stockholders.
ARTICLE VII
INDEMNIFICATION
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of any other corporation or enterprise
(including an employee benefit plan), against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes and penalties,
and amounts paid or to be paid in settlement, and any interest, assessments, or
other charges imposed thereof, and any taxes imposed on such person as a result
of such payments) reasonably incurred or suffered by such person in connection
with investigating, defending, being a witness in, or participating in
(including on appeal), or preparing for any of the foregoing in such action,
suit or proceeding, to the fullest extent authorized by the General Corporate
Law, provided that the Corporation shall indemnify such person in connection
with any such action, suit or proceeding initiated by such person only if
authorized by the Board of Directors of the Corporation or brought to enforce
certain indemnification rights.
Expenses incurred by an officer or director of the Corporation (acting in
his capacity as such) in defending any such action, suit or proceeding shall be
paid by the Corporation, provided that if required by the General Corporation
Law such expenses shall be advanced only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation. Expenses incurred by other agents of the Corporation may be
advanced upon such terms and conditions as the Board of Directors of the
Corporation deems appropriate. Any obligation to reimburse the Corporation for
expenses advanced under such provisions shall be unsecured and no interest shall
be charged thereon.
Indemnification provided for herein shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; any right of
indemnification or protection provided hereunder shall not be adversely affected
by any amendment, repeal, or modification of these Bylaws. The Corporation may
purchase and maintain insurance to protect itself and any such person against
any such expenses, liability and loss, whether or not the Corporation would have
the power to indemnify such person against such expenses, liability or loss
hereunder or under ghe General Corporation Law.
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