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 Event Requiring Report: May 8, 1996
BRIA COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its Certificate of Incorporation)
NEW JERSEY
(State or other jurisdiction of incorporation or organization)
Q-2549 22-1644111
(Commission File Number) (I.R.S. Employer I.D. Number)
268 West 400 South, Suite 300
Salt Lake City, Utah 84101
(Address of principal executive offices)
(801) 575-8073
(Registrant's telephone number, including area code)
Total Pages: 20
Exhibit Index on Page: 4
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1. Changes in Control of Registrant
Hereinafter, the term "Company" shall refer to BRIA Communications
Corporation, a New Jersey corporation with principal offices located in Salt
Lake City, Utah. On December 8, 1996, the Company entered into a Stock Exchange
Agreement with AltaChem Group, Inc. Ireland, a corporation formed under the laws
of Ireland ("AltaChem"), Aster De Schrijver, an individual, and James Tilton, an
individual (these four entities are hereinafter collectively referred to as the
"Parties"). Pursuant to the Stock Exchange Agreement, AltaChem became a wholly
owned subsidiary of the Company. As consideration for this acquisition the
Company issued 18,740,796 shares of its common stock, par value $0.001 ("Common
Stock"), to Aster De Schrijver, who prior to the Stock Exchange Agreement
directly or indirectly owned 100% of the outstanding stock of AltaChem. The
Company also issued 2,883,200 shares of Common Stock to James Tilton as
consideration for his services rendered in negotiating the Stock Exchange
Agreement.
The shares issued to Mr. De Schrijver and Mr. Tilton constituted 75% of
the then-outstanding Common Stock. All shares issued under the Stock Exchange
Agreement were issued with the understanding that the Company would retire such
shares if the acquisition of AltaChem did not transpire or was later unwound. To
help facilitate the Stock Exchange Agreement, the Company appointed Mr. De
Schrijver as chairman of the board of directors and Mr. Tilton as chief
executive officer and a director. The Company further appointed Jane Zheng, the
wife of Mr. Tilton, as the Company's secretary, treasurer and a director. Both
the Stock Exchange Agreement and the related change of control in the Company
were disclosed in the Company's Form 10-QSB for period ended September 30, 1995.
As more fully discussed in "Item 2 - Acquisition or Disposition of
Assets," the Company rescinded the Stock Exchange Agreement pursuant to
Rescission of Stock Exchange Agreement and Release of All Claims entered by and
between the parties on May 8, 1996 (the "Rescission Agreement"). Pursuant to the
Rescission Agreement, all shares issued to De Schrijver and Tilton were returned
to the Company and canceled. On May 31, 1996, Aster De Schrijver resigned as the
Company's chairman of the board of directors. On the same day, Jane Zheng
resigned as the Company's secretary, treasurer, and director. Mr. De Schrijver
and Ms. Zheng resigned because the Stock Exchange Agreement had been rescinded
and because the shares issued to Mr. De Schrijver and Mr. Tilton had been
returned to the Company and canceled. At the time of their respective
resignations, neither Mr. De Schrijver nor Ms. Zheng had any disagreements with
the Company or its management, policies or practices.
On June 7, 1996, the board of directors appointed Harry Tilton, Matthew
Veal and Shirley Tarantino as directors of the Company. On June 19, 1996, Harry
Tilton, Matthew Veal, and Shirley Tarantino tendered their respective
resignations as directors of the Company. On June 24, 1996, James Tilton
resigned as chief executive officer and a director of the Company, leaving
Richard Lifschutz as the Company's only director. None of the resigning
directors had any disagreements with the Company at the time of their
resignations.
ITEM 2. Acquisition or Disposition of Assets
As described in "Item 1 - Changes in Control of Registrant," the
Company entered a December 8, 1995 Stock Exchange Agreement pursuant to which
the Company acquired all outstanding shares of AltaChem Group, Inc. Ireland, a
corporation formed under the laws of Ireland ("AltaChem"). As consideration, the
Company issued a total of 21,623,996 shares of Common Stock to Aster De
Schrijver and James Tilton. AltaChem is a chemical company based in Belgium
which manufactures a one-component polyurethane foam and related products used
to dispense that chemical. AltaChem markets these products through joint venture
agreements it has with chemical producers in China, Slovenia, and India.
On May 8, 1996, the Parties to the Stock Exchange Agreement mutually
agreed to rescind that Agreement ab initio. The primary reason for the
rescission was AltaChem's failure to deliver to the Company audited financial
statements and a schedule of assets within 180 days, as required by the Stock
Exchange Agreement. This delinquency constituted a material breach of the Stock
Exchange Agreement and made it impossible for the Company to stay current in its
SEC filings. Moreover, AltaChem had significantly underestimated the costs
associated with the filing requirements for publicly traded companies in the
United States. Accordingly, the Parties determined that it would be in their
mutual best interest to rescind the Stock Exchange Agreement.
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Pursuant to the Rescission Agreement, the Parties released each other
from all potential claims they may have had stemming from the Stock Exchange
Agreement. Hence, the Company has no relationship with or claims against
AltaChem, and AltaChem has no claims against the Company. Mr. De Schrijver and
Mr. Tilton returned their shares to the Company's transfer agent for
cancellation, and the Company returned all shares of AltaChem.
Since the Stock Exchange Agreement was rescinded, the Company no longer
has any active operations. Its business is now directed toward finding a
suitable merger or acquisition candidate who can provide the Company with the
basis for successful operations. At the time of this filing, the Company has
identified potential merger and acquisition candidates, however all negotiations
are in the preliminary stages and no definitive agreements have been reached.
Item 7. Financial Statements and Exhibits
Because the Rescission Agreement canceled the acquisition of AltaChem
ab initio, no financial statements have been filed herewith. Exhibits required
to be attached by Item 601 of Regulation S-K are listed in the Index to Exhibits
beginning on page 4 of this Form 8-K. The Index to Exhibits is hereby
incorporated by this reference.
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.
Dated: June 26, 1996
BRIA Communications Corporation
By: /s/ Richard Lifschutz
Richard Lifschutz, President
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INDEX TO EXHIBITS
EXHIBIT NO. PAGE NO. DESCRIPTION
3(a) 6 The Company's Certificate of Incorporation,
originally filed with the State of New
Jersey on January 29, 1959, as amended.(1)
3(b) 12 The Company's Bylaws, as amended.(2)
10(i)(a) * Stock Exchange Agreement between the
Company and AltaChem Group Ireland, Aster
De Schrijver and James Tilton dated
December 8, 1995, incorporated by reference
from Exhibit 10(i)(i) of Company's
Quarterly Report on Form 10-QSB for the
period ended September 30, 1995.
10(i)(b) 20 Rescission of Stock Exchange Agreement and
Release of All Claims entered by and
between the Company, AltaChem Group
Ireland, Aster De Schrijver and James
Tilton, dated May 8, 1996.
-----------------
(1) The most recent Certificate of Amendment to the Certificate of
Incorporation was filed with the State of New Jersey on April 9, 1996.
The Complete text of the Certificate of Incorporation has been filed
pursuant to Section 232.101 of Regulation S-T promulagated pursuant to
the Securities Act of 1933.
(2) The Company's Bylaws were most recently amended pursuant to a
unanimous resolution of the Board of Directors effective June 11, 1996.
The complete text of the Bylaws has been filed pursuant to Section
232.101 of Regulation S-T promulagated pursuant to the Securities Act of
1933.
4
CERTIFICATE OF INCORPORATION
of
BRIA Communications Corporation
This is to certify that we, Herman Willner, Samuel E. Barison and
Jeanette Krol, do hereby associate ourselves into a corporation under and by
virtue of Title 14 of the Revised Statutes, and the amendments and supplements
thereto, an do severally agree to take the number of shares of capital stock
opposite our respective names:
FIRST: The name of the Corporation is BRIA Communications
Corporation.
SECOND: The location of the principal office in this State is 591
Summit Avenue, Jersey City, Hudson County.
THIRD: The name of the intial agent therein and in charge thereof,
upon whom process against this Corporation may be served is
Herman Willner.
FOURTH: The objects for which this corporation is formed are:
(a) To manufacture, separate, reduce, smelt, refine, concentrate,
treat, convert, analyze, synthesize, work and produce metals and
chemicals of all kinds; to manufacture, produce, acquire, import,
export, own, prepare for market, store, handle, transport, process,
distribute, sell, dispose of and deals in metals, chemicals,
alloys, metal products, chemical products, ores, metals, stone,
coal, sand, gravel, lime, cement, wood, petroleum, gases and the
products and by-products thereof, their compounds and derivatives,
substances and combinations produced or manufactured therefrom
including solids, liquids and gases of all kinds; and to establish,
build, acquire, own, equip, maintain, improve, repair and operate
mills, factories, furnaces, converters, smelters, shops,
laboratories, transportation, storage and handling facilities,
offices, buildings, structures, and works of all kinds suitable,
necessary or convenient to any of the purposes of the corporation
or useful in connection with any of the foregoing.
FIFTH: The total authorized capital stock of the Corporation shall
consist of the following classes of common stock:
(a) Two hundred million (200,000,000) shares of Class A Common Stock
with a par value of one-tenth of a cent ($0.001) per share; and
(b) Two hundred twenty thousand (220,000) shares of Class B Common
Stock with a par value of one-tenth of a cent ($0.001) per share.
The designations, preferences, privileges, voting powers and the
restrictions, limitations, and qualifications of the various classes of
stock which the Corporation is authorized to issue are as follows:
1. ISSUANCE. All or any part of the shares of Class A
Common Stock and Class B Common Stock may be issued and sold
by the Corporation from time to time, without further action
by stockholders, or such consideration (not less than the par
value thereof) and on such terms and to such person or persons
as may, from time to time, be determined upon and fixed by the
Board of Directors, as provided by law.
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2. VOTING RIGHTS. The holders of the Class A Common
Stock and the holders of the Class B Common Stock shall be
entitled to one vote per share for the election of directors
and for all other purposes, such voting rights to be exercised
as a single class and not as separate classes, except as
hereinafter provided. In the event that, and solely during
such period as, there are not less than twenty-five thousand
shares of Class B Common Stock issued and outstanding, the
holders of the Class B Common Stock, voting as a separate
class, shall be entitled to elect at least, but not more than,
the remaining directors of the Corporation and their
respective successors, and the holders of Class A Common
Stock, voting as a separate class, shall be entitled to elect
at least, but not more than, the remaining directors of the
Corporation and their respective successors. Any vacancy in
the office of a director elected by the holders of the Class A
Common Stock shall be filed by the remainder of the directors
elected by the holders of the Class A Common Stock. Any
vacancy in the office of a director elected by the holders of
the Class B Common Stock shall be filled by the remainder of
the directors elected by the holders of the Class B Common
Stock. In any event, on and after the date that there are less
than twenty-five thousand (25,000) shares of Class B Common
Stock issued and outstanding, the voting rights of the Class A
Common Stock and Class B Common Stock for the election of
directors and for all other purposes shall be alike in all
respects and shall both be exercised as separate classes,
provided, however, that the then incumbent directors shall
continue in office until the next succeeding annual meeting of
stockholders and until their successors shall be elected and
qualify.
3. DIVIDENDS. The holders of Class A Common Stock
shall be entitled to receive, as and when declared and made
payable by the Board of Directors, non-cumulative cash
dividends of one cent ($0.01) per share per fiscal year of the
Corporation before any kind or description may be declared to
the Class B Common Stock in any such fiscal year. When cash
dividends of one cent ($0.01) have been declared and become
payable upon the Class A Common Stock in any fiscal year, as
above provided, the holders of the Class B Common Stock next
shall be entitled to receive, as and when declared and made
payable by the Board of Directors, non-cumulative cash
dividends of one cent ($0.01) per share per fiscal year.
During any fiscal year in which dividends of one cent ($0.01)
per share shall have been declared and become payable on the
Class A Common Stock, then the Class B Common Stock shall be
entitled to receive all additional dividends, as and when
declared by the Board of Directors, and the holders of the
Class B Common Stock shall not be entitled to receive any
additional dividends during such fiscal year.
4. CONVERSION. The two hundred twenty thousand
(220,000) of Class B Common Stock shall be divided into four
(4) series, numbered and designated B-1 through B-4
consecutively, each of which series shall be composed of
fifty-five thousand (55,000) shares.
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Subject to and upon compliance with the
provisions hereof, the Class B Common Stock shall be
convertible, at the option of holders thereof, into shares of
Class A Common Stock of the Corporation at the rate of one
fully paid and non-assessable share of Class A Common Stock
for each share of Class B Common Stock tendered for conversion
within the periods hereinafter mentioned:
Series B-1 shall be and become convertible at any time
commencing December 1, 1962.
Series B-2 shall be and become convertible at any time
commencing December 1, 1963.
Series B-3 shall be and become convertible at any time
commencing December 1, 1964.
Series B-4 shall be and become convertible at any time
commencing December 1, 1965.
In order to effect the conversion of shares
of Class B Common Stock, any holder of a certificate or
certificates therefor shall surrender such certificate or
certificates to the transfer agent of the Corporation with a
written request for conversion. If the Class A Common Stock
issuable on such conversion is to be issued in a name other
than that in which the shares of Class B Common Stock to be
converted are registered, such certificate or certificates
shall be duly endorsed for transfer power and shall be
accompanied by all necessary stock transfer stamps or funds
sufficient for the purchase of such stamps. Upon such
surrender of such certificate or certificates, the Corporation
shall issue and deliver, at the office of the transfer agent,
to the person entitled thereto, a certificate or certificates
for the number of full shares of Class A Common Stock issuable
upon such conversion, together with, if the shares of Class B
Common Stock represented by the certificate of certificates
therefore surrendered for conversion are not evenly
convertible, cash in lieu of any fraction of a Board of
Directors or the Corporation, together with a certificate or
certificates for such number of shares, if any, of Class B
Common Stock as are not then convertible, or for which
conversion is not requested. The Corporation shall pay all
taxes payable upon the issue of such Class A Common Stock.
Such conversion shall be deemed to have been
effected on the date of the surrender of such certificate or
certificates for shares of Class B Common Stock, and the
person in whose name the certificate for the Class A Common
Stock issuable upon such conversion is to be issued shall be
deemed to be the holder of record of such Class A Common Stock
as of such date.
All shares of Class B Common Stock converted
into Class A Common Stock shall be retired and canceled and
shall not be reissued.
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If at any time prior to the conversion of
any share of Class B Common Stock into Class A Common Stock,
the corporation splits, consolidates or otherwise reclassifies
the share of Class A Common Stock or if the corporation issues
any shares of Class A Common Stock as a stock dividend, or for
no consideration or for a consideration per share less than
$3.00 per share (excepting 30,000 shares of Class A Common
Stock which shall not be issued for less than ten cents
($0.10) per share) or if the Corporation takes any other
action with respect to the Class A Common Stock, other than
the declaration or payment of any cash dividend or dividends
thereon, which, in the opinion of the Board of Directors of
the Corporation, would affect materially and adversely the
conversion rights of stockholders of Class B Common Stock,
proper adjustment shall be made so that the stockholders
thereof shall receive upon conversion into Class A Common
Stock the same proportionate amount of Class A Common Stock
(calculated to the nearest full share) as would have been
received had no such diminution or dilution of the conversion
right taken place.
5. DISTRIBUTION OF ASSETS. In the event of any
liquidation, dissolution or winding up of the Corporation, or
any reduction of its capital, resulting in a distribution of
its assets to its stockholders, whether voluntary or
involuntary, the holders of the Class A Common Stock shall be
entitled to receive, as a single class and not as separate
classes, pro rata, the remaining assets of the Corporation
available for distribution to its stockholders.
6. PREEMPTIVE RIGHTS. No Holder of any share of
capital stock of any class of the Corporation shall be
entitled as a matter of right to subscribe for, purchase or
receive any shares of the capital stock of any class or any
rights or options of the Corporation which it may issue or
sell, whether out of the number of shares authorized by the
Certificate of Incorporation or by amendment thereof, or other
proceedings, or out of the shares of the capital stock of any
class of the Corporation acquired by it after the issuance
thereof, nor shall any stockholder be entitled as a matter or
right to purchase or subscribe for or receive any bonds,
debentures or other obligations which the Corporation may
issue or sell that shall be convertible into or exchangeable
for capital stock of any class or to which shall be attached
or appertain any warrant or warrants or other instrument or
instruments that shall confer upon the holder or owner of such
obligation the right to subscribe for or purchase from the
Corporation any shares of its capital stock of any class. All
such additional issues of capital stock of class, rights,
options, or of bonds, debentures or other obligations
convertible into or exchangeable for capital stock of any
class or to which warrants shall be attached or appertain or
which shall confer upon the holder the right to subscribe for
or purchase any shares of capital stock of any class, may be
issued and disposed of by the Board of Directors to such
persons, firms, associations and corporations and upon such
terms, subject to any provisions of law in regard thereto as
the Board of Directors, in their absolute discretion, may deem
advisable.
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SIXTH: The name and post office addresses of the incorporators and
the number of shares subscribed for by each, the aggregate of
which is the amount of capital stock with which the company
will commence business, are as follows:
NAME POST OFFICE ADDRESS NO. OF SHARES
HERMAN WILLNER 591 Summit Avenue 50
Jersey City, New Jersey
SAMUEL E. BARISON 591 Summit Avenue 50
Jersey City, New Jersey
JEANETTE KROL 591 Summit avenue 50
Jersey City, New Jersey
SEVENTH: The period of existence of this corporation is unlimited.
EIGHTH: The number of directors of the corporation shall be
determined by the bylaws of the corporation but shall not be
less than three nor more than seven.
In furtherance and not in limitation of the powers conferred by the
laws of the State of New Jersey, the Board of Directors is expressly authorized
and empowered, without the assent or vote of the stockholders, to make, alter or
repeal the bylaws of the corporation.
Any present or future director or officer of the Corporation and any
present or future director or officer of any other corporation, serving as such
at the request of the Corporation because of the Corporation's interest in such
other corporation, or the legal representative of any such director or officer
shall be indemnified by the Corporation against reasonable costs, expenses
(exclusive of any amount paid to the Corporation in settlement) and counsel fees
paid or incurred in connection with any action, suit or proceeding, to which any
such director or officer or his legal representative may be made a party by
reason of his being or having been such director or officer; provided, (1) said
action, suit or proceeding shall be prosecuted against such director or officer
or against his legal representative to final determination, and it shall not be
finally adjudged in said action, suit or proceeding that he had been derelict in
the performance of his duties as such director or officer; or (2) said action,
suit or proceeding shall be settled or otherwise terminated as against such
director or officer or his legal representative without a final determination on
the merits, and it shall be determined by the Board of Directors that said
director or officer had not in any substantial way been derelict in the
performance of his duties as charged in such action, suit or proceeding.
The Board of Directors is expressly authorized and empowered, without
the assent or vote or the stockholders, to establish, alter, modify, amend,
revise or repeal profit sharing, pension, stock option or stock purchase plans
and to issue rights and options entitling the holders to purchase shares of the
capital stock of the Corporation, such rights and options to be evidenced by or
in such instrument or instruments as shall be approved by the Board of Directors
and in addition and without any further action of the stockholders of the
Corporation to exercise any or all privileges and powers provided for in Title
14, Chapter 9 of the General Corporation Act of the State of New Jersey, or any
amendment thereto. The terms upon which, the duration and the price or prices at
which the rights and options may be issued and such shares may be purchased, may
be fixed in resolutions adopted by the Board of Directors or by a committee
appointed by the Board of Directors and shall be set forth or incorporated by
reference in the instrument or instruments evidencing such rights or options.
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No contract, transaction or act of the Corporation shall, in the
absence of fraud, be affected or invalidated by the fact that any one or more of
the directors or officers of the Corporation is or are in any way interested in
or connected with any other party to such contract, transaction or act or are
themselves parties to such contract, transaction or act, provided such interest
shall be fully disclosed at a meeting of the Board of Directors at which such
contract, transaction or act is authorized, ratified or confirmed, and any such
director may be counted in determining the existence of a quorum at any such
meeting and may vote thereat in connection with such authorization, ratification
or confirmation with like force and effect as if he were not so interested, or
connected, or was not a party to such contract, transaction or act.
NINTH: No director of the Corporation shall be personally liable to
the Corporation or any of its shareholders for damages for
breach of duty owed to the Corporation or its shareholders,
provided, however, that this Article shall not eliminate or
limit the liability of a director for any breach of the
director's duty based upon an act or omission: (i) in breach
of the such person's duty of loyalty to the Corporation or
its shareholders, (ii) not in good faith or which involves a
knowing violation of law, or (iii) resulting in receipt by
such person of an improper personal benefit. If the General
Corporation Law of the State of New Jersey is amended after
the filing of this Amendment of the Certificate of
Incorporation so as to authorize corporate action further
eliminating or limiting the personal liability of directors,
then the liability of each director of the Corporation shall
be eliminated or limited to the fullest extent permitted by
the law of the State of New Jersey as the same exists from
time to time. This Article shall not eliminate or limit the
liability of a director for any act or omission occurring
prior to the time this Article became effective. Any repeal
or modification of this paragraph by the shareholders of the
Corporation shall not adversely affect any elimination of or
limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or
modification.
TENTH: This Certificate of Incorporation may be amended by the
affirmative vote, in person or by proxy, of a majority of the
votes cast by the holders of shares entitled to vote thereon.
6
BYLAWS
of
BRIA Communications Corporation
ARTICLE I
Offices
In addition to the registered office of the Corporation located within
the State of New Jersey, the Corporation may also have offices at such other
places within or without the State of New Jersey as the Board of Directors may
from time to time designate, or the business of the Corporation may require.
ARTICLE II
Seal
The Corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization, and the words "Corporate Seal, New Jersey." Said seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced, or otherwise used.
ARTICLE III
Stockholders' Meetings
Section 1. Annual Meeting. All meetings of the stockholders shall be
held at the principal office of the Corporation as designated from time to time
by the Board of Directors or at such other location, within or without the State
of New Jersey, as designated by the Board of Directors and as stated in the
notice of the meeting.
Section 2. Date and Time. An annual meeting of stockholders shall be
held on the third Tuesday of May in each year if not a legal holiday, and if a
legal holiday, then on the next secular day following, at ten o'clock A.M., when
they shall elect a Board of Directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Quorum. The holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall be requisite for and shall constitute a quorum at
all meetings of the stockholders for the transaction of business, except as
otherwise provided by law or by the Certificate of Incorporation or by these
Bylaws. If, however, such majority shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or by proxy, shall have power to adjourn the meeting from time to time
with notice, until the requisite amount of voting stock shall be present or
represented. At such adjourned meeting at which the requisite amount of voting
stock shall be present or represented, any business may be transacted which
might have been transacted at the original meeting.
When a quorum is present at any meeting, the vote of the holders of a
majority or the majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the Certificate of Incorporation or by these Bylaws a different vote is
required, in which case such express provision shall govern and control the
decision of such question. When calculating vote totals the amount of shares
abstaining from voting upon the question before the shareholders at such meeting
shall not be counted in the calculation of the total votes.
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Section 4. Voting. At each meeting of the stockholders, every
stockholder having the right to vote shall be entitled to vote in person, or by
proxy appointed by an instrument in writing subscribed by such stockholder or by
his duly authorized attorney. No proxy shall be voted on after three years from
its date unless said proxy provides for a longer period. Each stockholder shall
be entitled at every meeting of the Corporation to one vote for every share of
stock, having voting power, standing in his name on the books of the Corporation
and, except where the transfer books of the Corporation shall have been closed
or a date shall have been fixed as a record date for the determination of its
stockholders entitled to vote, no share of stock shall be voted on at any
election for directors which has been transferred on the books of the
Corporation within twenty days next preceding such election. The vote for
directors, and, upon the demand of any stockholder, the vote upon any question
before the meeting, shall be by ballot. All elections shall be had and all
questions decided by a plurality of the votes cast.
Section 5. Notice of Meetings. The notice of each meeting of the
stockholders shall be in writing and shall be given by the President, a
Vice-President, the Secretary or an Assistant Secretary. Such notice shall state
the purpose or purposes for which the meeting is called and the time when and
the place where it is to be held, and a copy thereof shall be served, either
personally or by mail, upon each stockholder of record entitled to vote at such
meeting, and upon each stockholder who, by reason of any action proposed at such
meeting, would be entitled to have his stock appraised if such action were
taken, not less than ten (10) nor more than fifty (50) days before the meeting.
If mailed, such notice shall be directed to a stockholder at his address as it
appears on the stock register unless he shall have filed with the Secretary of
the Corporation a written request that notices intended for him be mailed to
some other address, in which case it shall be mailed to the address designated
in such request.
Section 6. Stockholder List. A full, true and complete list, in
alphabetical order, of all stockholders entitled to vote at the ensuing election
of directors, and the post office address and the number of shares held by each,
shall be prepared by the Secretary and filed in the principal office of the
Corporation, at least ten days before every election, and shall at all times,
during the usual hours for business, and during the whole time of said election,
be open to the examination of any stockholder.
Section 7. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute, may be held at
the same place or places as is hereinabove prescribed for annual meetings, upon
call by the President, and such meetings shall be called by the President or
Secretary at the request in writing of a majority of the Board of Directors, or
at the request in writing of stockholders owning twenty percent (20%) of the
outstanding capital stock. Such request shall state the purpose or purposes of
the proposed meeting and business transacted thereat shall be confined to the
objects so stated and matters germane thereto.
ARTICLE IV
Directors
Section 1. Board of Directors. Subject to the provisions of the
Certificate of Incorporation, the properties, business and affairs of the
Corporation shall be managed by a Board of Directors composed of such number of
directors, not less than one nor more than seven members, as may be determined
from time to time by resolution of the Board of Directors.
Directors need not be stockholders of the Corporation.
Section 2. Election and Term of Office. The directors shall be elected
at the annual meeting of the stockholders, and, subject expressly to the right
of removal provided for in Section 7 or this Article IV, each director shall be
elected to serve until his successor shall be elected and shall qualify, or
until his resignation in writing has been filed with the Secretary of the
Corporation.
Section 3. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this bylaw immediately after,
and at the same place as, the annual meeting of stockholders. The Board of
Directors may provide the time and place, either within or without the State of
New Jersey, for the holding of additional regular meetings.
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Section 4. Special Meetings. Special meetings of the Board of Directors
may be called by the President on two days' notice to each director, personally,
or by mail, telephone, facsimile, to the address of each director as recorded on
the books of the Corporation; special meetings shall be called by the President
or Secretary in like manner and on like notice on the written request of two
directors. Unless otherwise provided by the Board of Directors, special meetings
shall be held at the place designated in the notice of the meeting.
Section 5. Quorum and Vote. At all meetings of the Board of Directors a
majority of the Board present at the meeting duly assembled shall be necessary
and sufficient to constitute a quorum for the transaction of business, and the
act of a majority of the directors present at any such meeting shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute or law or by the Certificate of Incorporation or by these Bylaws.
Section 6. Vacancies and Increase or Decrease in Number of Directors.
If the office of any director or directors becomes vacant for any reason, a
majority of the remaining directors elected by that class of stock, though less
than a quorum, may choose a successor or successors who shall hold office until
the next election of directors and until their successors shall be duly elected
and qualified. In case of any increase in the number of directors, a majority of
the directors then in office elected by that class of stock entitled to such
vacancy shall have power to fill the vacancies in the Board of Directors arising
from such increase (unless such vacancies shall have been previously filled by
the stockholders) by the election of additional directors, and any directors so
elected shall hold office until the next annual election and until their
successors shall be duly elected and qualified. No decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director.
Section 7. Removal. Any director may at any time be removed, either
with or without cause, by resolution duly adopted by the affirmative vote of the
holders of a majority of the issued and outstanding shares having voting power
for such director, given at a special meeting of said shareholders, duly called
and held for that purpose; and the vacancy in the Board thereby created may be
filled in the same manner by the stockholders at said meeting; provided,
however, that in case the stockholders do not fill such vacancy at such meeting,
the remaining directors elected by such class, though less than a quorum, may
fill such vacancy.
Section 8. Resignation. Any director of the Corporation may resign at
any time by giving written notice to the President or Secretary of the
Corporation. Such resignation shall take effect on the date of the receipt of
such notice or at any later date specified therein, and, unless otherwise
specified therein, the acceptance of said resignation shall not be necessary to
make it effective.
Section 9. Compensation. Directors as such shall not receive any salary
for their services, but by resolution of the Board of Directors a fixed sum and
expenses of attendance, if any, may be allowed for attendance at any meeting.
Nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE V
Standing Committees
The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board, designate an Executive Committee and other
committees, each such committee to consist of two or more of the directors of
the Corporation, which, to the extent provided in said resolution or
resolutions, shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the Corporation, and may have
power to authorize the seal of the Corporation to be affixed to all papers which
may require it; provided, however, that no committee shall have power to fill
vacancies in the Board of Directors or to change the membership of or fill
vacancies in any committee, or to make or amend the Bylaws. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors.
The chairman of any such committee may call a meeting thereof at any
time on notice to members of the committee and he, or the Secretary, shall call
such meeting when requested by any member of the committee.
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ARTICLE VI
Officers
Section 1. Officers, Terms of Office. The officers of the Corporation
shall be a President, one or more Vice-Presidents, a Secretary, a Treasurer, an
Assistant Secretary and an Assistant Treasurer, all of whom shall hold office
until the first meeting of the Board of Directors following the next annual
meeting of stockholders and until their respective successors are elected and
shall qualify in their stead. The required officers may be changed from time to
time as determined by the Board of Directors. Any two or more offices may be
held by the same person, except the offices of President and Secretary.
Section 2. Other Officers. The Board of Directors may appoint such
other officers and agents as it may deem necessary, who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the Board.
Section 3. Compensation. Officers shall be entitled to such
compensation as the Board of Directors shall from time to time determine.
Section 4. Removal and Vacancy. Any officer elected or appointed by the
Board of Directors may be removed at any time, with or without cause, by the
majority vote of the whole board of directors but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. If the
office of any officer shall become vacant for any reason, including the creation
of a new office by the Board of Directors, the vacancy shall be filled by the
Board of Directors for the unexpired term or terms.
Section 5. Powers and Duties of Officers.
(a) The President. The President, subject to the control of the Board
of Directors, shall have active executive management of the operations of the
Corporation. He shall preside at all meetings of the stockholders and the Board
of Directors at which he shall be present, and shall be ex-officio a member and
chairman of all standing committees, and in general shall perform all duties
incident to the office of President and such other duties as from time to time
may be assigned to him by the Board of Directors.
(b) The Vice-Presidents. The Vice-Presidents shall have such powers and
perform such duties as may from time to time be assigned to them by the Board of
Directors. At the request of the President, or, in his absence or his
disability, the Vice-Presidents in their order of seniority, shall perform all
of the duties of the President.
(c) The Secretary and Assistant Secretary. The Secretary shall attend
all sessions of the Board of Directors and all meetings of stockholders and
record all votes and the minutes of all proceedings in a book to be kept for
that purpose, and shall perform like duties for any committee of the Board when
required. He shall give or cause to be given notice of all meetings of the
stockholders and of the Board of Directors. He shall keep in safe custody the
seal of the Corporation and when authorized by the Board of Directors or any
committee, affix the same to any instrument requiring it and when so affixed it
shall be attested by the signature of the Secretary or such other officer or
agent as may be designated by the Board of Directors. He shall keep or cause to
be kept a stock book containing the names alphabetically arranged of all persons
who are stockholders of the Corporation, showing their places of residence, the
number of shares of stock held by them, respectively, the time when they,
respectively, became the owners thereof and the amount paid therefor. He shall
perform such other duties as may be prescribed by the Board of Directors or the
President.
The Assistant Secretary shall perform such of the duties of the
Secretary as may be assigned to him from time to time by the Board of Directors,
the President, any Vice-President, or the Secretary.
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(d) The Treasurer and Assistant Treasurers. The Treasurer shall have
the custody of all the Corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all monies and other valuable effects in the same
and to the credit of the Corporation in such depositaries as may be designated
by the Board of Directors. He shall disburse the funds of the Corporation only
as may be ordered by the Board, taking proper vouchers for such disbursements
and shall render to the President and directors, at the regular meetings of the
Board, or whenever they may require it, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
He shall give the Corporation a bond in a sum and with such sureties as
may be required from time to time by the Board of Directors.
The Assistant Treasurer shall perform such of the duties of the
Treasurer as may be assigned to him from time to time by the Board of Directors,
the President, any Vice-President, or the Treasurer.
Section 7. Additional Powers. In addition to the powers and duties
hereinabove specifically prescribed for the respective officers, the Board may
from time to time impose or confer upon any of the officers such additional
duties and powers as the Board may see fit, and the Board of Directors may from
time to time impose or confer any or all of the duties and powers hereinabove
specifically prescribed for any officer upon any other officer or officers.
ARTICLE VII
Capital Stock
Section 1. Certificates of Stock, Transfer Agents and Registrars. Every
stockholder shall be entitled to a certificate or certificates representing
shares of capital stock of the Corporation in such form as may be prescribed by
the Board of Directors, duly numbered and setting forth the number and kind of
shares. Each certificate shall be signed by the President or a Vice-President
and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and may have affixed thereto an impression of the corporate seal.
Before issue, a record of each certificate shall be entered on the books of the
Corporation. The Board of Directors may also appoint one or more transfer agents
and/or registrars for its stock of any class or classes and for transfer and
registration of certificates representing the same and may require stock
certificates to be countersigned by one or more of them. If certificates of
capital stock of the Corporation are signed by a transfer agent or by a transfer
agent and by a registrar, the signatures thereon of the President or a
Vice-President and of the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation and the corporate seal may be
facsimiles, engraved or printed. Any provisions of these Bylaws with reference
to the signing of stock certificates shall include, in cases above permitted,
such facsimile signatures. In case any officer or officers who shall have
signed, or whose facsimile signature or signatures shall have been used on, any
such certificate or certificates, shall cease to be such officer or officers of
the Corporation, whether because of death, resignation, or otherwise, before
such certificate or certificates may nevertheless be adopted by the Corporation
and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures shall
have been used thereon had not ceased to be such officer or officers of the
Corporation. The Board of Directors may, from time to time, make such additional
rules and regulations as it may deem expedient concerning the issue, transfer
and registration of certificates for shares of capital stock of the Corporation.
Section 2. Transfers of Stock and Addresses of Stockholders. Shares of
stock may be transferred by delivery of the certificate therefor accompanied
either by an assignment in writing on the back of the certificate or by a
written power of attorney to sell, assign and transfer the same on the books of
the Corporation, signed by the person appearing by the certificate to be the
owner of the shares represented thereby, and such shares of stock shall be
transferable on the books of the Corporation upon surrender thereof so assigned
or endorsed. The person registered on the books of the Corporation as the owner
of any shares of stock shall exclusively be entitled as the owner of such shares
to receive dividends, to vote and to exercise all other rights and privileges as
such owner in respect thereof. The latest address appearing on the books of the
Corporation shall be conclusively deemed to be the post office address of such
stockholder.
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Section 3. Transfer Books. The Board of Directors shall have power to
close the stock transfer books of the Corporation for a period not exceeding
fifty (50) days preceding the date of any meeting of the stockholders or the
date for payment of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock shall go into
effect, or for a period not exceeding fifty (50) days in connection with
obtaining the consent of the stockholders for any purpose; provided, however,
that in lieu of closing the stock transfer books as aforesaid, the Board of
Directors may fix in advance a date not exceeding fifty (50) days preceding the
date of any meeting of stockholders, or the date for the payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect, or a date in
connection with obtaining such consent, as a record date for the determination
of the stockholders entitled to notice of, and to vote at, any such meeting and
any adjournment thereof, or entitled to receive payment of any such dividend, or
to any such allotment of rights, or to exercise the rights in respect of any
such change conversion or exchange of capital stock or to give such consent, and
in such case such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of,
and to vote at, such meeting and any adjournment thereof, or to receive payment
of such dividend, or to receive such allotment of rights, or to exercise such
rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after such record date
fixed as aforesaid. Except where the transfer books of the Corporation shall
have been closed or a date shall have been fixed as the record date for
determination of the stockholders entitled to vote, as hereinbefore provided, no
share of stock shall be voted on at any election for directors which shall have
been transferred on the books of the Corporation within twenty (20) days next
preceding such election of directors.
Section 4. Loss of Certificates. In case of the loss, mutilation or
destruction of a certificate of stock, a duplicate certificate may be issued
upon such terms consistent with the laws of the State of New Jersey as the Board
of Directors shall prescribe.
ARTICLE VIII
Inspection of Books
The directors shall determine from time to time whether, and, if
allowed, when and under what conditions and regulations the accounts and books
of the Corporation (except such as may by statute or law be specifically open to
inspection), or any of them, shall be open to the inspection of the
stockholders, and the stockholders rights in this respect are and shall be
restricted and limited accordingly.
ARTICLE IX
Checks and Notes
The monies of the Corporation shall be deposited in the name of the
Corporation in such bank or banks as the Board of Directors may from time to
time designate, and all checks, notes, drafts and bills of exchange of the
Corporation shall be signed by such officers or agents as the board of directors
may from time to time designate.
ARTICLE X
Dividends
Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock.
Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the directors
from time to time, in their absolute discretion, think proper as a reserve fund
to meet contingencies, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the directors shall think conducive to
the best interest of the Corporation, and the directors may abolish any such
reserve in the manner in which it was created.
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ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall commence on the first day of
January of each calendar year.
ARTICLE XII
Waivers
The giving of notice to any stockholder or directors, required to be
given under these By-Laws or the laws of the State of New Jersey, may be waived
by a waiver in writing, signed by the person or persons entitled to said notice,
whether before or after the time or event referred to in said notice, which
waiver shall be deemed equivalent to such notices.
ARTICLE XIII
Amendments
SECTION 1. By Stockholders. Theses Bylaws may be altered, amended or
repealed by the affirmative vote of the holders of a majority of the number of
shares of the stock of the Corporation issued and outstanding and entitled to
vote thereat, at any annual or special meeting of the stockholders, provided
notice thereof shall have been contained in the notice of the meeting.
SECTION 2. By Directors. These Bylaws may also be altered, amended or
repealed by the affirmative vote of at least a majority of the board of
directors at any regular or special meeting of the board, if notice thereof be
contained in the notice of the meeting.
Any Bylaws adopted, or amended or altered by the directors may be
amended, altered or repealed at any regular or special meeting of the
stockholders or at any special meeting of the stockholders at which a quorum is
present or represented, provided notice of the proposed amendment, alteration or
repeal be contained in the notice of such special meeting, by the affirmative
vote at such meeting and present or represented thereat.
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RESCISSION OF STOCK EXCHANGE AGREEMENT
AND
RELEASE OF ALL CLAIMS
A Stock Exchange Agreement dated December 8, 1995 (the "Agreement") was
entered by and between BRIA Communications Corporation, a New Jersey corporation
("BRIA"), AltaChem Group, Inc. Ireland, a corporation formed under the laws of
Ireland ("AltaChem"), James Tilton, an individual, and Aster De Schrijver, an
individual and the sole shareholder of AltaChem prior to the Agreement (BRIA,
AltaChem, Tilton and De Schrijver are hereinafter collectively referred to as
the "Parties"). Pursuant to the Agreement, BRIA acquired all issued and
outstanding shares of AltaChem, making AltaChem its wholly owned subsidiary. The
Company issued 18,740,976 shares of its common stock, par value $0.001, to De
Schrijver as consideration for his delivery of all of AltaChem's common shares
and 2,883,200 shares to James Tilton as consideration for his services rendered
pursuant to the agreement.
For valuable consideration, the receipt and sufficiency of which are
acknowledged, the Parties hereby agree to rescind and terminate ab initio the
December 8, 1995 Stock Exchange Agreement because material conditions in the
Agreement have not been fulfilled and the Parties have determined that the terms
set forth in the Agreement are no longer in the best interests of any of the
Parties. The Parties agree not to be bound by the terms of the Agreement, and
further agree to hold one another harmless, release any and all claims against
one another stemming from the Agreement, and indemnify one another with respect
to any obligations arising pursuant to or from the Agreement.
James Tilton and Aster De Schrijver hereby agree to immediately return
all 21,623,996 shares of BRIA's Class A common stock to BRIA's transfer agent,
American Stock Transfer at 40 Wall Street, 46TH Floor, New York, NY 10005. Upon
receipt by the transfer agent, such shares shall be destroyed. BRIA hereby
agrees to immediately deliver all shares of AltaChem's common stock to Aster De
Schrijver. The recission contemplated in this document is complete when all
shares have been delivered pursuant to this Paragraph.
/s/ Richard Lifschutz /s/ James Tilton
Richard Lifschutz, President AltaChem Group, Inc.Ireland
/s/ James Tilton /s/ Aster De Schrijver
James Tilton Aster De Schrijver
