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As filed with the Securities and Exchange Commission on May 5, 1998
Registration No. 333-
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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
La-Man Corporation
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(Exact name of registrant as specified in its charter)
Nevada 38-2286268
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation organization)
La-Man Corporation
5029 Edgewater Drive
Orlando, FL 32810
407-521-7477
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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MR. J. WILLIAM BRANDNER
LA-MAN CORPORATION
5029 EDGEWATER DRIVE
ORLANDO, FLORIDA 32810
407-521-7477
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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With copies of communication to:
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MARSHALL S. HARRIS, ESQ. JOHN S. STOPPELMAN, ESQ.
BROAD AND CASSEL THE STOPPELMAN LAW FIRM
390 NORTH ORANGE AVENUE 1749 OLD MEADOW ROAD
SUITE 1100 SUITE 610
ORLANDO, FL 32801 MCLEAN, VA 22102
407-839-4200 703-827-7450
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Approximate date of the proposed sale to the public:
From time to time after this registration
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------------------------------
CALCULATION OF REGISTRATION FEE
(For calculation of the $199.00 registration fee, see table on following page)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED(1) PRICE PER SHARE(3) PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 210,000(2) $3.125 $656,250 $199.00
issuable upon exercise of Common
Stock Purchase Warrants
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Total 210,000 $3.125 $656.250 $199.00
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(1) In accordance with Rule 416 under the Securities Act of 1933, as amended,
this Registration Statement also covers such indeterminate number of
additional shares of Common Stock as may become issuable upon exercise of
the Common Stock Purchase Warrants to prevent dilution resulting from stock
splits, stock dividends or similar transactions or by reason of changes in
the exercise price of the Warrants in accordance with the respective terms
thereof.
(2) To be sold by Selling Securityholder.
(3) Estimated solely for the purpose of determining the Registration Fee.
Calculated pursuant to Rule 457(c), based upon the average of the high and
the low sales prices of the Registrant's Common Stock on April 30, 1998,
as reported on the Nasdaq SmallCap Market.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PRELIMINARY PROSPECTUS DATED MAY 5, 1998
SUBJECT TO COMPLETION
LA-MAN CORPORATION
210,000 SHARES OF COMMON STOCK
This Prospectus relates to the offer and sale by a certain Selling
Securityholder (the "Selling Securityholder") of up to 210,000 shares of Common
Stock underlying Common Stock Purchase Warrants (the "Common Stock") of La Man
Corporation (the "Company"). The Shares may be offered by the Selling
Securityholder in transactions on the Nasdaq SmallCap Market (the "SmallCap
Market"), in privately negotiated transactions, or by a combination of such
methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Company will not receive any of the proceeds
of the sale of such shares of Common Stock in this Offering. The Company will
receive proceeds of up to $365,400 from the exercise of the 210,000 Common Stock
purchase warrants by the Selling Securityholder.
SEE "RISK FACTORS" ON PAGE 4 FOR CERTAIN CONSIDERATIONS RELEVANT TO AN
INVESTMENT IN THESE SECURITIES.
The shares of Common Stock of the issuer are reported on the Nasdaq SmallCap
Market under the symbol "LAMN."
The Selling Securityholder has agreed to pay all of the expenses in
connection with the registration and sale of the Common Stock being offered by
the Selling Securityholder.
THE SECURITIES OFFERED HEREBY ARE SPECULATIVE AND INVOLVE A HIGH
DEGREE OF RISK AND SHOULD NOT BE PURCHASED BY INVESTORS WHO CANNOT AFFORD THE
LOSS OF THEIR ENTIRE INVESTMENT. SEE "RISK FACTORS" ON PAGE 4.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Common Stock was offered by the Company pursuant to an exemption from
registration provided by the Securities Act of 1933, as amended.
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED ON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY, BY ANY PERSON
IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO MAKE SUCH OFFER
OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY OFFER,
SOLICITATION OR SALE MADE HEREUNDER, SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE OF THE PROSPECTUS.
The date of this Prospectus is May __, 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
AVAILABLE INFORMATION
The small business issuer is a reporting company under Section 13 of the
Securities and Exchange Act of 1934 (the "Exchange Act"). The reports and other
information filed by the small business issuer may be inspected and copied at
the public reference facilities of the Commission at 450 Fifth Street, N.W. in
Washington, D.C. 20549. Copies may be obtained at the prescribed rates from the
Public Reference Section of the SEC at its principal office in Washington, D.C.
The Commission maintains a website that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. The address of the website is http://www.sec.gov.
Statements contained in this Prospectus as to the contents of any contract or
other document referred to are not necessarily complete, and, in each instance,
reference is made to the copy of such contract or other document filed as an
exhibit to the registration statement, each such statement being qualified in
all respects by such reference.
The Company has filed with the Commission a registration statement on
Form S-3 (together with any and all amendments, the "Registration Statement")
under the Securities Act of 1933, as amended, with respect to the registration
of the Common Stock. This Prospectus does not contain all of the information set
forth in the Registration Statement and the exhibits thereto, certain portions
of which have been omitted as permitted by the rules and regulations of the
Commission. In addition, certain documents filed by the Company with the
Commission have been incorporated herein by reference. See "Incorporation of
Certain Documents by Reference." For further information regarding the Company
and the Common Stock reference is made to the Registration Statement, including
the exhibits and schedules thereto and the documents incorporated herein by
reference.
The securities of the issuer are reported on the Nasdaq SmallCap Market
under the symbol "LAMN."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference.
(a) Annual Report on Form 10-KSB for the fiscal year ended June 30, 1997;
(b) Proxy Statement on Schedule 14A as filed on October 3, 1997;
(c) Quarterly Report on Form 10-QSB for the quarter ended December 31, 1997;
(d) Quarterly Report on Form 10-QSB for the quarter ended September 30,
1997;
(e) Quarterly Report on Form 10-QSB for the quarter ended March 30, 1997;
(f) Current Report on Form 8-K as filed on March 2, 1998.
(g) Current Report on Form 8-K as filed on March 12, 1998.
(h) The description of the Company's Common Stock as contained in the
Company's Registration Statement on Form S-3 dated November 14, 1995 and
amended on December 18, 1995.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Securities Act"), subsequent to the date of this Prospectus and prior to
the termination of the offering made by the Prospectus shall be deemed to be
incorporated by reference herein. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company undertakes to provide without charge to each person to whom a
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the information incorporated by reference in this Prospectus,
other than exhibits to such information. Requests for such copies should be
directed to Marshall S. Harris, Broad and
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Cassel, 390 North Orange Avenue, Suite 1100, Orlando, FL 32801.
This Prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, which are subject to the
"safe harbor" created by those sections. The Company's actual results could
differ materially from those anticipated in these forward-looking statements as
a result of certain factors, including those set forth under "Risk Factors" and
elsewhere in this Prospectus.
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS, INCLUDING NOTES THERETO, APPEARING
ELSEWHERE IN THIS PROSPECTUS OR INCORPORATED BY REFERENCE HEREIN. EACH
PROSPECTIVE INVESTOR IS URGED TO READ THIS PROSPECTUS IN ITS ENTIRETY. UNLESS
OTHERWISE INDICATED ALL PER SHARE DATA AND INFORMATION IN THIS PROSPECTUS
RELATING TO THE NUMBER OF SHARES OF COMMON STOCK OUTSTANDING ASSUMES NO EXERCISE
OF THE OUTSTANDING WARRANTS AND OPTIONS TO PURCHASE AN AGGREGATE OF 2,847,455
SHARES OF COMMON STOCK AND NOTES CONVERTIBLE INTO AN AGGREGATE OF 902,186 SHARES
OF COMMON STOCK.
THE COMPANY
La-Man Corporation, a Nevada corporation, was originally incorporated in
Michigan on November 2, 1979 and remained substantially inactive until the
autumn of 1980. On February 4, 1983, La-Man Corporation, a Nevada corporation
("the Company"), was formed and, pursuant to a Certificate of Merger filed on
May 16, 1983, the Michigan corporation was merged into the Nevada corporation.
The Company's executive office is located at 5029 Edgewater Drive, Orlando,
Florida 32810. Its telephone number is (407) 521-7477. The Company operates in
two business segments: Signage and Filtration.
The Company's direct wholly-owned subsidiaries include Ad Art Electronic
Sign Corporation, a Florida corporation ("Ad Art"), Nevada SEMCO, Inc., a Nevada
corporation ("SEMCO"), Don Bell Industries, Inc., a Florida corporation ("Don
Bell"), Vision Trust Marketing, Inc., a Florida corporation ("Vision") and
Certified Maintenance Service, Inc., a Florida corporation ("Certified"). The
Company's indirect wholly-owned subsidiaries include J.M. Stewart Industries,
Inc., a Florida corporation ("Stewart Industries") and J.M. Stewart Corporation,
a Florida corporation ("Stewart Corporation"), each of which is directly owned
by SEMCO, ESC of Nevada, Inc., a Nevada corporation ("ESC Nevada"), which is
directly owned by Ad Art and Don Bell Industries of Nevada, Inc., a Nevada
corporation ("Don Bell Nevada") which is directly owned by Don Bell.
Since the commencement of its operations, the Company has been engaged in
the manufacture and sale of a line of products which, when installed in
compressed air lines, substantially reduce or totally eliminate water and
condensate problems and most foreign contaminants, such as moisture, oil, dust,
rust, and the like, in the air line. The Company assembles and ships all of its
products from its owned facility in Port Orange, Florida. However, in order to
minimize production costs, the actual components are manufactured by others
using tooling owned by the Company.
On February 18, 1998, the Company acquired Electronic Sign Corporation d/b/a
Ad Art, a California corporation ("ESC"), through the merger of ESC into Ad Art
Electronic Sign Corporation, a wholly owned Florida subsidiary of the Company
formed on February 9, 1998. Ad Art, as the successor by merger of ESC (which was
incorporated on April 26, 1995), produces electronic signs for installation
throughout the world and also manufactures high-quality wedge-based color lens
systems.
SEMCO was incorporated on August 12, 1993. SEMCO is the holding company for
Stewart Corporation which designs and markets outdoor signs for institutional
businesses such as churches, schools, funeral homes and governmental/military
installations and Stewart Industries, which produces graphic arts and screen
print products.
On November 14, 1994, the Company acquired Vision and operated the
corporation in Orlando, Florida as a wholly-owned subsidiary offering long
distance telephone services as an authorized agent of MCI Telecommunications,
Inc. ("MCI"). The original contract between Vision and MCI for commercial long-
distance
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customers was originally executed in 1994 and was restated and extended for a
new five year term in May 1996. This contract revision had been proposed by MCI
in September 1995 and discussed with Vision over a period of eight months. In
reliance on the new contract, Vision invested heavily in staff, facilities and
equipment in anticipation of significant commission revenue as a result of the
enhancements in the revised contract. In November 1996, the contracts between
Vision and MCI were abruptly terminated by MCI. A lawsuit was filed by Vision
on April 16, 1997 seeking the recovery of damages from MCI. Because the
cancellation of the contract by MCI resulted in Vision no longer being
contracted to market MCI long-distance services, its sole line of business, the
Company discontinued the operations of Vision in December 1996.
On September 7, 1995, the Company acquired Don Bell, located in Port Orange,
Florida and Don Bell Nevada, an inactive company. Don Bell, which is a
commercial sign manufacturer, was incorporated on January 1, 1982 as a successor
to a family-owned business. Don Bell specializes in the design, manufacture,
installation and service of custom designed electronic signs. All manufacturing
is done at its owned plant in Port Orange, Florida. Don Bell Nevada has remained
inactive since the acquisition.
Only July 1, 1997, the Company acquired Certified, which was incorporated on
September 27, 1991. Certified is a service company specializing in the servicing
of electronic signs and indoor and outdoor commercial lighting.
Unless the context otherwise requires, the term "Company" hereinafter refers
to La-Man Corporation, Ad Art, ESC Nevada, Certified, SEMCO and its subsidiaries
Stewart Corporation and Stewart Industries, Don Bell, Don Bell Nevada, and
Vision. The Company's Consolidated Financial Statements include the accounts of
all subsidiaries except Ad Art and ESC Nevada. See the footnotes to the
Company's Consolidated Financial Statements included in the documents filed by
the Company with the Commission which are incorporated herein by reference for
information relating to the Company's industry segments.
PRINCIPAL EXECUTIVE OFFICES
The principal executive offices of the Company are located at 5029 Edgewater
Drive, Orlando, FL 32810; its telephone number is (407)-521-7477
Certain considerations are relevant to an investment in these securities.
See "Risk Factors" for a description of the significant risks associated with
the purchase of these securities.
RISK FACTORS
THE SECURITIES OFFERED HEREBY ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF
RISK AND SHOULD BE CONSIDERED ONLY BY PERSONS WHO CAN AFFORD THE LOSS OF THEIR
ENTIRE INVESTMENT. EACH PROSPECTIVE INVESTOR SHOULD CAREFULLY CONSIDER THE
FOLLOWING RISK FACTORS INHERENT IN AND AFFECTING THE BUSINESS OF THE COMPANY AND
THIS OFFERING BEFORE MAKING AN INVESTMENT DECISION.
MARKET OVERHANG; EFFECT OF ISSUANCE OF ADDITIONAL COMMON STOCK
The Company presently has outstanding the following Common Stock purchase
warrants: (a) 620,000 Redeemable Warrants, each of which entitles the registered
holder to purchase one share of Common Stock at an exercise price, subject to
adjustment, of $4.536 per share through December 31, 1998; (b) warrants to
purchase up to a total of 275,000 shares of Common Stock at an exercise price,
subject to adjustment, of $4.32 per share through March 2, 2003; (c) warrants
held by the Selling Securityholder to purchase up to 210,000 shares of Common
Stock that are the subject of this Prospectus; (d) warrants granted to the
Company's investment relations advisor to purchase up to 52,500 shares at the
exercise price of $1.47 through March 17, 2001 and to purchase up to 52,500
shares of Common Stock at the exercise price of $2.62 through August 28, 2001.
Substantially all of the foregoing warrants are presently exercisable and the
Redeemable Warrants (and the shares of Common Stock underlying such warrants)
are freely tradeable as of the date of this Prospectus.
The Company also has outstanding options ("Plan Options") for the purchase
of up to an aggregate of
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1,513,455 shares of Common Stock granted to various present and former employees
and non-employee directors. All of such Plan Options are presently exercisable,
at prices ranging between $.50 per share and $2.91 per share.
The Company also has outstanding the following convertible debt instruments
("Convertible Debt Instruments"): (a) Convertible Promissory Note dated
September 7, 1995 in the principal amount of $750,000, presently convertible
into up to 165,343 shares of Common Stock at the conversion price of $4.536 per
share (the "Convertible Note"); and (b) $3,500,000 of the Company's 8.75%
convertible Debentures due March 2, 2005, presently convertible into up to
736,842 shares of Common Stock at the conversion price of $4.75 per share
("Debentures").
The holders of the Convertible Debt Instruments and the warrants issued to
finance the ESC acquisition have demand and piggy-back registration rights with
respect to the shares of Common Stock underlying such instruments and warrants.
As additional consideration for services performed by Mathews, Holmquist &
Associates, Inc. (the "Underwriter"), which acted as underwriter of a January
1994 offering of the Company's securities (the "1994 Offering"), for its
services in connection with the 1994 Offering, the Company granted to the
Underwriter options to purchase 31,000 Units ("Unit Purchase Option"). The Unit
Purchase Option is exercisable at a price equal to 120 percent of the public
offering price of the Units. The Units to be issued upon exercise of the Unit
Purchase Option are identical to the Units offered in the 1994 Offering except
that the warrants issuable upon exercise of the Unit Purchase Option are
exercisable at $4.68 per share of Common Stock, and are not redeemable. The
Unit Purchase Option is exercisable at any time prior to January 6, 1999. The
exercise price of the Unit Purchase Option was arbitrarily determined by the
Company and the Underwriter and should not be deemed to reflect any estimate of
the intrinsic value of either the Unit Purchase Option, the Units, or the
underlying Common Stock and warrants. The Unit Purchase Option contains anti-
dilution and adjustment provisions in the event of any merger, acquisition,
recapitalization, split-up of shares, stock dividend, sales, or issuance by the
Company of stock or securities convertible into stock by the Company at a price
or conversion price less than the exercise price of the Unit Purchase Option or
less than the market price of the Common Stock at the time of such sale or
indebtedness or similar event, except for dilution which would result from the
effect of the Company's stock option plans, reasonably acceptable to the
Underwriter.
The Company has agreed to register, at its expense, under the Securities
Act, the Unit Purchase Option and/or the underlying securities included in the
Unit Purchase Option at the request of the holders of 50% of the Unit Purchase
Option. Such request may be made at any time during a period of four years
beginning January 5, 1995. The Company also granted the Underwriter "piggyback"
registration rights concerning the Unit Purchase Option and the underlying
securities which may be exercised at any time during a period of four years
beginning January 6, 1995.
In connection with the Company's acquisition of Stewart Eleemosynary
Marketing Company in January 1994, the Company granted to J. Melvin Stewart,
presently the Chairman of the Board of Directors of the Company and the
president and chief executive officer of certain operating subsidiaries of the
Company, certain one-time demand registration rights with respect to the 316,
923 shares of unregistered Common Stock issued to Mr. Stewart in connection with
such acquisition, which demand rights are exercisable until February 13, 1999.
Also, the terms of employment agreements between the Company and certain
director-employees provide for certain demand and piggyback registration rights
with respect to shares of Common Stock owned by the director-employees in the
event their employment is terminated other than for cause following a "Change of
Control" as defined in such employment agreements. See "Effect of Change of
Control" below.
There are presently 4,657,110 shares of Common Stock outstanding. At times
in the past, due to the relatively small size of the "public float" in the
Common Stock and the absence of active market makers in the Common Stock, public
trading in the Common Stock has been thin and sporadic. Accordingly, the
exercise of outstanding demand registration rights and/or the issuance of
additional shares of Common Stock upon the exercise of the Company's outstanding
warrants and options, the exercise of the Unit Purchase Option and the
underlying warrants, or the exercise of the conversion rights under the
Convertible Debt Instruments, could adversely affect trading prices of the
Common Stock and trading prices, if any, of the remaining unexercised warrants
and options. Also, such issuances of additional shares of Common Stock and
warrants could adversely affect the ability of the
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Company to obtain financing for future growth and acquisitions.
EFFECT OF CHANGE IN CONTROL
The Convertible Note, provides, among other default events, that in the
event there shall occur a "Change in Control" with respect to the Company, the
holder of the Convertible Note may, by written notice to the Company, declare
all principal and accrued but unpaid interest evidenced by the Convertible Note
immediately due and payable, which obligations shall accrue interest at a rate
equal to 10% per annum from the date of acceleration until paid. "Change of
Control" is defined in the Convertible Note as occurring when, within a period
of 12 consecutive months other than as the result of proxies solicited by, or
votes cast by, management of the Company, (I) there is a change in 35% of the
persons who, as of September 7, 1995, constitute the Board of Directors other
than as the result of resignations or (ii) there is an increase of 25% or more
in the number of members of the Board of Directors.
Also, the employment agreements between the Company and three of its
director-employees, i.e., Messrs. J. Melvin Stewart, J. William Brandner and
Philip Howe Hoard, ("Management Employment Agreements"), provide for substantial
increases in the amount of severance payable by the Company to such persons, and
grant certain other rights to such persons, in the event their employment with
the Company or its subsidiaries is terminated other than for cause following a
Change of Control, which is defined as having occurred when: (a) any one person,
or any persons acting together which would constitute a "group" for purposes of
Section 13(d) of the Exchange Act, consummates a tender offer, a plan of open-
market purchases or an exchange offer for shares of Common Stock, or consummates
a proxy solicitation, which, in the judgment of a majority of the members of the
Board of Directors of the Company, is reasonably likely to permit such person or
Group to obtain control of a sufficient number of voting securities of the
Company to elect a majority of the members of the Board of Directors of the
Company; or (b) there occurs, within any period of 12 consecutive months other
than as the result of proxies solicited by, or votes cast by, management of the
Company, (i) a change in 35% of the persons who, as of August 31, 1995,
constitute the Board of Directors of the Company other than as the result of
resignations or (ii) an increase of 25% or more in the number of members of the
Board of Directors.
In addition, certain of the Company's debt instruments include as an event
of default the failure, for whatever reason, of J. William Brandner to continue
to serve as Chief Executive Officer of the Company.
As the result of the acceleration provisions in the above debt instruments,
and the contingent severance benefits and other rights provided to executive
officers of the Company under the Management Employment Agreements, the
occurrence of a Change of Control as defined in or contemplated by such
documents could have a material adverse effect on the financial condition and
operations of the Company, and the trading price of the Common Stock.
OPERATING HISTORY
The Company reported fully diluted earnings per share of $0.21 and $0.13 and
$.07 for the fiscal years ended June 30, 1997, 1996 and 1995. However, in its
prior 14-year operating history, the Company produced an operating profit only
four times and never in excess of $100,000.
The Company's management believes that the significant improvements in the
Company's performance, resulting from acquisitions, such as the Don Bell
acquisition, together with improvement in operating performance of the Company's
filtration division, and expected future benefits from the and Ad Art
acquisition will enable the Company to continue to operate profitably and to
produce improvements in operating results. However, there can be no assurances
that economic and other events beyond the control of the Company and its
management will not adversely affect the ability of the Company to improve on or
continue the growth and operating results reflected by the Company's performance
in the 1997 fiscal year.
DEPENDENCE ON MANAGEMENT
The Company is dependent upon the services of J. William Brandner, President
and Chief Executive Officer and a director, and Todd D. Thrasher, Vice
President, Treasurer and Chief Financial Officer, of the
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Company. The Company is also dependent upon the services of J. Melvin Stewart,
Chairman of the Board of Director and President of Nevada SEMCO, Inc., Stewart
Corporation, and Stewart Industries, as well as Gary D. Bell, president of Don
Bell, and Terry J. Long, President of Ad Art, who are directors of the Company.
The officers of the Company have principal responsibility for the management of
the company and for recommendations to the Board of Directors, which exercises
final authority over business decisions. Consequently, the loss of the services
of such officers and directors could be detrimental to the Company. Mr.
Brandner has an employment agreement with the Company, Mr. Stewart has an
employment agreement with Stewart Corporation, Mr. Bell has an employment
agreement with Don Bell and Mr. Long has an employment agreement with Ad Art.
There can be no assurance that the Company will be successful in attracting
and retaining the personnel it requires to develop and market new and enhanced
products and to conduct its operations successfully. Any inability to attract
and retain such personnel could have a material adverse effect on the Company's
business, operating results and financial condition.
BUSINESS AND ECONOMIC FACTORS
The future of the Company, and of the Company's operations, will be subject
to a number of business and other factors beyond management's control, such as
economic slowdowns and increased competition. Unfavorable general economic
conditions could adversely affect the operating results of the Company. There
can be no assurance that the Company would be able to sustain its operations in
the event of an economic slowdown for an extended period of time or if general
economic conditions in the U.S. and in foreign countries were to deteriorate.
LIMITED CURRENT SOURCES OF ADDITIONAL CAPITAL
The Company's management believes that net cash flow from operations and the
availability of funds under the Company's present $1,300,000 revolving line of
credit and Ad Art's $5,000,000 line of credit will be sufficient to enable the
Company to satisfy its operating capital needs. However, the Company has no
additional financing commitments. In the event the Company needs additional
financing to pursue future acquisitions and other expansion of its business,
there can be no assurance that such additional financing on acceptable terms
will be available to the Company when and if needed.
COMPETITION
Each of the Company's current and proposed business segments is
characterized by intense competition. Many companies offer or are engaged in the
development of products or the provision of services which may be or are
competitive with the Company's present or proposed products or services. Some of
these entities have substantially greater financial, technical, manufacturing,
marketing, distribution, and/or other resources than the Company. There can be
no assurance that the Company will be able to compete successfully with such
companies.
ABSENCE OF DIVIDENDS
Although the Company has paid 5% dividends in Common Stock the last two
fiscal years, the Company has not paid and does not anticipate paying any cash
dividends on its Common Stock in the foreseeable future, but instead intends to
retain all working capital and earnings, if any, for use in the Company's
business operations and in the expansion of its business.
SHARES AVAILABLE FOR SALE
The 1,513,455 shares of Common Stock issuable upon exercise of the Plan
Options have been registered under the Securities Act on registration statements
filed by the Company with the Commission on Form S-8 (Registration No. 33-77924
and Registration No. 33-81348). Because certain grantees of the options to which
such registered shares relate are directors and/or executive officers of the
Company, the resale of any such shares following exercise of such options
(together with all other shares of Common Stock owned by directors and executive
officers of the Company) are subject to certain resale restrictions and
limitations set forth in Rule 144 promulgated by the Commission under the
Securities Act. Likewise, because the 316,923 shares of Common Stock issued to
J. Melvin Stewart in January 1994 in partial consideration of the Company's
acquisition of SEMCO and the shares of Common Stock issuable upon exercise of
conversion rights under the Convertible Debt Instruments
7
<PAGE>
have not been registered under the Securities Act, resales of such shares are
also subject to the limitations and restrictions of, and are deemed "restricted
securities" under, Rule 144. In general, a person who holds "restricted
securities" (as that term is defined in Rule 144) may not publicly resell such
securities until such person has been the beneficial owner of such securities
for a period of one year (unless such securities are registered under the
Securities Act prior to the expiration of such one-year holding period) and
after such holding period may not sell within any three-month period a number of
restricted securities which exceeds the greater of one percent of the shares
outstanding or the average weekly trading volume during the four calendar weeks
preceding the notice of sale required to be filed by such person under Rule 144.
Sales of shares of Common Stock pursuant to Rule 144 could have an adverse
effect on the market for or trading price of the Company's securities.
FUTURE ISSUANCES OF STOCK BY THE COMPANY
The Company has 50,000,000 shares of Common Stock authorized, of which
4,657,110 shares are issued and outstanding. In addition, the Company has
reserved a total of 3,749,641 shares of Common Stock for issuance as follows:
(a) 1,270,000 shares for issuance upon exercise of outstanding warrants; (b)
1,513,455 shares for issuance upon exercise of outstanding Plan Options; (c)
124,000 shares for issuance upon exercise of the Unit Purchase Option and the
warrants underlying the Unit Purchase Option; and (d) 902,186 shares for
issuance upon exercise of conversion rights under the Convertible Debt
Instruments. The remaining 41,593,249 authorized but unissued and unreserved
shares of Common Stock may be issued without any action or approval by the
Company's stockholders. Although there are no present plans, agreements, or
undertakings with respect to the Company's issuance of any shares of such Common
Stock, or related convertible securities, except as disclosed in this Prospectus
Supplement, any such issuances could be used as a method of discouraging,
delaying, or preventing a change in control of the Company or could dilute the
public ownership of the Company, and there can be no assurance that the Company
will not issue any such additional shares of Common Stock. A shareholder's pro
rata ownership interest in the Company will be reduced to the extent of the
exercise of the outstanding warrants, the Employee Options, the exercise of the
Unit Purchase Option and the warrants underlying such option, or the exercise or
conversion rights under the Convertible Debt Instruments.
FLUCTUATIONS IN QUARTERLY OPERATING RESULTS.
The Company's results of operations have historically varied from quarter to
quarter and the Company expects that further variability may continue to occur
and may be significant. In the past, operating results have varied as a result
of a number of factors, including the size and timing of customer orders,
seasonality, the timing of the introduction and customer acceptance of new
products or product enhancements by the Company's competitors, the introduction
of new products by the Company, changes in pricing policies by the Company or
its competitors, marketing and promotional expenditures, the timing of
acquisitions and changes in general economic conditions.
MARKET PRICE FLUCTUATIONS.
The Company has recently experienced significant variability in the market
price of its Common Stock and the volume of its trading. In addition, the
securities markets from time to time experience significant price and volume
fluctuations that may be unrelated to the operating performance of particular
companies. Announcements of major contracts by competitors and economic and
other external factors, as well as period-to-period fluctuations in the
Company's financial results, may have a significant impact on the market price
of the Common Stock.
ACQUISITIONS
Since September 1995, the Company has acquired three complementary companies
and businesses. Integration of these companies into the Company's business is
currently ongoing, and no assurances may be made that the Company will be able
to successfully complete this process. Risks commonly encountered in such
transactions include the difficulty of assimilating the operations and personnel
of the combined companies, the potential disruption of the Company's ongoing
business, the inability to retain key personnel, the inability of management to
maximize the financial and strategic position of the company through the
integration of acquired businesses,
8
<PAGE>
additional expenses associated with amortization of acquired intangible assets,
the maintenance of uniform standards, controls, procedures, and policies, the
impairment of relationships with employees and customers as a result of any
integration of new personnel, risks of entering markets in which the Company has
no or limited direct prior experience, and operating companies in different
geographical locations with different cultures. There can be no assurance that
the Company will be successful in overcoming these risks or any other problems
encountered in connection with such acquisitions, or that such transactions will
not materially adversely affect the Company's business, financial condition, or
results of operations.
SUBSTANTIAL LEVERAGE
As a result of the issuance of $2,500,000 aggregate principal amount of
Variable/Fixed Rate Credit Enhanced Notes ("Notes") in August 1997 and
$3,500,000 principal amount of Debentures in March 1998, the Company is highly
leveraged. As of December 31, 1997, after giving pro forma effect to the
application of the estimated net proceeds from the issuance of the Notes and
Debentures, and the $3,879,812 indebtedness of Ad Art, the Company's total
indebtedness and stockholders' equity would have been $11,090,812 and $9,744,110
respectively. The Company's ability to make scheduled payments of the principal
or, or interest on, its indebtedness will depend on its future performance,
which is subject to economic, financial, competitive and other factors beyond
its control.
SELLING SECURITYHOLDER AND PLAN OF DISTRIBUTION
All of the shares of Common Stock being offered hereby are being sold by the
Selling Securityholder, M.H. Meyerson & Co., Inc. An aggregate of up to 210,000
shares of Common Stock may be offered and sold pursuant to this Prospectus by
the Selling Securityholder. The Company has agreed to register such shares under
the Securities Act and M.H. Meyerson & Co., Inc. has agreed to pay all expenses
in connection therewith. Such shares have been included in the Registration
Statement of which this Prospectus forms a part.
The following table sets forth certain information regarding the beneficial
ownership of Common Stock as of February 15, 1998, assuming the exercise of all
options exercisable on, or within 60 days of, such date, and as adjusted to give
effect to the Offering by the Selling Securityholder. The Selling Securityholder
does not hold any position or office, and has not had any other material
relationship with the Company or any of its predecessors or affiliates within
the last three years other than performing services pursuant to an Investment
Banking Agreement.
<TABLE>
<CAPTION>
Name Shares of Common Stock Percentage
- ---- ---------------------- ----------
<S> <C> <C>
M.H. Meyerson & Co., Inc. 210,000/(1)/ *
TOTAL 210,000 *
======= ===
</TABLE>
(1) Represents Common Stock underlying Common Stock Purchase Warrants
exercisable as of the date of effectiveness of this Prospectus.
* Less than one percent (1%) of the outstanding Common Stock of the Company.
The 210,000 shares of Common Stock being offered by the Selling
Securityholder, pursuant to this Prospectus may be offered and sold from time to
time as market conditions permit on the Nasdaq SmallCap Market, or otherwise, at
prices and terms then prevailing or at prices related to the then current market
price, or in negotiated transactions. The Selling Securityholder's shares may be
sold by one or more of the following methods, without limitation: (a) a block
trade in which a broker or dealer so engaged will attempt to sell the shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction; (b) purchases by a broker or dealer as principal and
resale by such broker or dealer for its account pursuant to this Prospectus; (c)
ordinary brokerage transactions and transactions in which the broker solicits
purchasers; and (d) face-to-face transactions between sellers and purchasers
without a broker/dealer. In effecting sales, brokers or dealers engaged by the
Selling Securityholder may arrange for other brokers or dealers to participate.
Such brokers or dealers may receive commissions or discounts from the Selling
Securityholder in amounts to be
9
<PAGE>
negotiated. Such brokers and dealers and any other participating brokers and
dealers may be deemed to be "Underwriters" within the meaning of the Securities
Act in connection with such sales.
To comply with certain states' securities laws, if applicable, the shares of
Common Stock registered hereunder will be offered or sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain
states the shares many not be sold or offered unless they have been registered
or qualified for sale in such states or an exception for registration or
qualification is available and is complied with.
LEGAL MATTERS
The legality of the securities offered hereby will be passed upon for the
Company by Broad and Cassel.
EXPERTS
The consolidated financial statements incorporated by reference in this
Prospectus and Registration Statement have been audited by BDO Seidman, LLP,
independent certified public accountants, to the extent and for the periods set
forth in their report incorporated herein by reference, and are incorporated in
reliance upon such report given upon the authority of said firm as experts in
accounting and auditing.
10
<PAGE>
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED ON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY, BY ANY PERSON
IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO MAKE SUCH OFFER
OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY OFFER,
SOLICITATION OR SALE MADE HEREUNDER, SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE OF THE PROSPECTUS.
<TABLE>
<CAPTION>
Table of Contents Page
------
<S> <C>
Available Information............................................... 2
Incorporation of Certain Documents
by Reference....................................................... 2
Summary Prospectus.................................................. 3
The Company......................................................... 3
Risk Factors........................................................ 4
Selling Securityholder and Plan
of Distribution.................................................... 9
Legal Matters....................................................... 10
Experts............................................................. 10
</TABLE>
210,000
SHARES OF COMMON STOCK
(PAR VALUE $0.001 PER SHARE)
LA-MAN CORPORATION
------------
PROSPECTUS
------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with this offering are as follows:
<TABLE>
<CAPTION>
<S> <C>
SEC Registration....................................... $ 199
Legal Fees and Expenses*............................... 15,000
Accounting Fees and Expenses........................... 1,500
Miscellaneous*......................................... 1,000
-------
TOTAL $17,699
========
</TABLE>
- ----------------------
* Indicates expenses that have been estimated for the purpose of filing.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Company provide for the indemnification of officers,
directors, employees, and other corporate agents to the fullest extent permitted
by the General Corporation Law of Nevada, as amended from time to time, which
makes provision for indemnification of officers, directors, and other corporate
agents in terms sufficiently broad to permit indemnification of such persons,
under certain circumstances, for liabilities (including reimbursement of
expenses incurred) arising under the Securities Act of 1933, as amended.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable.
ITEM 16. LIST OF EXHIBITS
(a) Exhibits
Exhibits Description of Documents
---------------------------------
Exhibit
Number Title of Exhibit
- ------ ----------------
2.1 Agreement and Plan of Merger and Reorganization dated as of February
17, 1998 among La-Man Corporation, Displays Acquisitions, Inc., a
wholly owned Florida subsidiary of La-Man, Electronic Sign Corporation
d/b/a Ad Art, a California corporation, and Terry J. Long, Daniel G.
O'Leary, individually and in his capacity as Trustee of the Daniel
O'Leary Trust Dated April 18, 1993, Betty E. Papais, individually and
in her capacity as Trustee of the Papais Trust Dated January 29, 1991,
and Lou A. Papais/28/
--
3.1 Articles of Incorporation of Registrant/1/
-
II-1
<PAGE>
3.2 Certificate of Merger/1/
-
3.3 Bylaws of Registrant as amended/25/
--
3.4 Amendment to Articles of Incorporation/9/
-
3.9 Articles of Incorporation of Nevada SEMCO, Inc., a Nevada
corporation/19/
--
3.10 By-Laws of Nevada SEMCO, Inc./19/
--
3.13 Articles of Incorporation of Vision Trust Marketing, Inc., a Florida
corporation/25/
--
3.14 Bylaws of Vision Trust Marketing, Inc./25/
--
3.15 Articles of Incorporation of Don Bell Industries, Inc., a Florida
corporation/25/
--
3.16 Bylaws of Don Bell Industries, Inc./25/
--
3.17 Articles of Incorporation of Don Bell Industries of Nevada, Inc./25/
--
3.18 Bylaws of Don Bell Industries of Nevada, Inc./25/
--
3.19 Articles of Incorporation of Displays Acquisitions Corp. (n/k/a
Ad Art Electronic Sign Corporation)
3.20 Articles of Merger of Electronic Sign Corporation into Displays
Acquisition Corp. (with the surviving corporation, Displays
Acquisitions Corp. changing its name to Ad Art Displays, Inc.)
3.21 Articles of Amendment to Articles of Incorporation of Ad Art Displays,
Inc. (changing the corporate name to Ad Art Electronic Sign
Corporation)
3.22 Bylaws of Ad Art Electronic Sign Corporation f/k/a Ad Art Displays,
Inc.
3.23 Articles of Incorporation of ESC of Nevada, Inc.
3.24 Bylaws of ESC of Nevada, Inc.
4.1 Specimen of Common Stock Certificate/17/
--
4.2 Specimen of Warrant Certificate (as revised)/17/
--
4.3 Form of Representative's Unit Purchase Option (as revised)/19/
--
4.7 Form of Warrant Agreement among Registrant, Mathews, Holmquist &
Associates, Inc., and Continental Stock Transfer & Trust Company
(revised)/19/
--
4.8 Specimen Certificate of Common Stock to be included in Units/17/
--
II-2
<PAGE>
4.13 Amendment No. 1 to Warrant Agreement, dated as of December 8, 1995,
between La-Man Corporation and Continental Stock Transfer & Trust
Company, as Warrant Agent/26/
--
4.14 Amendment No. 2 to Warrant Agreement, dated as of January 10, 1997,
between La-Man Corporation and Continental Stock Transfer & Trust
Company, as Warrant Agent
4.15 Amendment No. 3 to Warrant Agreement, dated as of March 20, 1998,
between La-Man Corporation and Continental Stock Transfer & Trust
Company, as Warrant Agent
5.3 Opinion of Broad and Cassel as to the legality of the securities
10.1 Royalty Agreement Re: U.S. Patent No. 4,116,650/1/
-
10.2 License Agreement Re: U.S. Patent No. 4,116,650/1/
-
10.3 Assignment of U.S. Patent No. 4,116,650/1/
-
10.9 License Agreement between Registrant and J & M/1/
-
10.14 License Agreement dated November 9, 1987 between Registrant and J & M
Company, Ltd./16/
--
10.15 Agreement to Purchase Patents and Applications for Patents, Trademarks
and Applications for Trademarks and International Marketing and Sales
Rights between Registrant and J & M Company Ltd. dated November 9,
1987/16/
--
10.16 Assignment of Patents and Applications for Patents, Trademarks and
Applications for Trademarks and International Marketing and Sales
Rights to J & M Company, Ltd. dated November 9, 1987/16/
--
10.21 Noncompetition Agreement/12/
--
10.22 License Agreement/12/
--
10.23 Assignment of Trademark/12/
--
10.24 Assignment of Patents and Patent Applications/12/
--
10.26 Security Agreement Relating to Intellectual Property/12/
--
10.27 Security Agreement Relating to Personal Property/12/
--
10.28 Agreement Regarding Inventory/12/
--
10.36 Merger Agreement between Nevada SEMCO, Inc. and Stewart Eleemosynary
Marketing Corporation, dated August 19, 1993/18/
--
10.37 Amendment to J & M Agreement dated May, 1992/16/
--
10.46 1988 Incentive Stock Option Plan/17/
--
10.47 1992 Stock Option and Appreciation Rights Plan/17/
--
10.49 Employment Agreement dated November 4, 1992 between Registrant and
Philip Howe Hoard/17/
--
10.58 Employment Agreement dated July 26, 1993 between Registrant and Philip
Howe Hoard/19/
--
II-3
<PAGE>
10.60 Employment Agreement dated August 19, 1993, between J.M. Stewart
Corporation and J. Melvin Stewart/19/
--
10.61 Employment Agreement dated as of April 28, 1994 between Registrant and
J. William Brandner/20/
--
10.62 Stock Option Agreement dated as of September 6, 1994 between
Registrant and J. William Brandner/22/
--
10.63 Stock Option Agreement dated as of September 6, 1994 between
Registrant and Richard W. Coffman/22/
--
10.64 Stock Option Agreement dated as of September 6, 1994 between
Registrant and Michael J. Derrick/22/
--
10.65 Stock Option Agreement dated as of September 6, 1994 between
Registrant and Philip Howe Hoard/22/
--
10.66 Stock Option Agreement dated as of September 6, 1994 between
Registrant and Otto J. Nicols/22/
--
10.67 Stock Option Agreement dated as of September 6, 1994 between
Registrant and J. Melvin Stewart/22/
--
10.68 Stock Option Agreement dated as of September 6, 1994 between
Registrant and Max D. Tavernier/22/
--
10.74 Stock Purchase and Sale Agreement dated as of November 14, 1994
between and among La-Man Corporation, TracTel Communications, Inc.,
Vision Trust Marketing, Inc., Pamela J. Wilkinson and Stuart M.
Cohen/23/
--
10.94 Amendment No. 1, dated as of August 31, 1995 to Employment Agreement
between Registrant and J. William Brandner/25/
--
10.95 Amendment No. 1, dated as of August 31, 1995 to Employment Agreement
between Registrant and Philip Howe Hoard/25/
--
10.96 Amendment No. 1, dated as of August 31, 1995 to Employment Agreement
between Registrant and J. Melvin Stewart/25/
--
10.97 Stock Option Agreement dated as of September 1, 1995 between
Registrant and J. William Brandner/25/
--
10.98 Stock Option Agreement dated as of September 1, 1995 between
Registrant and Philip Howe Hoard/25/
--
10.99 Stock Option Agreement dated as of September 1, 1995 between
Registrant and Otto J. Nicols/25/
--
10.100 Stock Option Agreement dated as of September 1, 1995 between
Registrant and J. Melvin Stewart/25/
--
10.101 Stock Option Agreement dated as of September 1, 1995 between
Registrant and Max D. Tavernier/25/
--
10.102 Stock Purchase and Sale Agreement dated as of September 7, 1995 among
Registrant, Don Bell Industries, Inc., Worrell Enterprises, Inc. and
Gary D. Bell/24/
--
10.103 8% Convertible Note of Registrant, dated September 7, 1995, in
principal amount of $750,000 to Worrell Enterprises, Inc./24/
--
II-4
<PAGE>
10.104 Employment Agreement dated as of September 7, 1995 among Registrant,
Don Bell Industries, Inc. and Gary D. Bell/24/
--
10.105 Employee Stock Option Agreement dated as of September 7, 1995 between
Registrant and Gary D. Bell/24/
--
10.106 La-Man Corporation 1994 Amended and Restated Employee and Consultant
Stock Compensation Plan, as amended by Amendment No. 1 thereto dated
as of August 31, 1995/24/
--
10.108 Agreement for Purchase of Assets dated as of August 27, 1996 between
Heritage Packaging Services, Inc. and Midwest Packaging Products,
Inc./27/
--
10.109 Convertible Loan Agreement Dated March 2, 1998 by and between La-Man
Corporation and Renaissance Capital Growth & Income Fund III, Inc.,
Renaissance US Growth & Income Trust PLC and Renaissance Capital
Group, Inc./29/
--
10.110 8.75% Convertible Debenture Due March 2, 2005 issued to Renaissance
Capital Growth & Income Fund III, Inc./29/
--
10.111 8.75% Convertible Debenture Due March 2, 2005 issued to Renaissance US
Growth & Income Trust PLC/29/
--
10.112 Stock Purchase Warrant issued to Renaissance Capital Growth & Income
Fund III, Inc./29/
--
10.113 Stock Purchase Warrant issued to Renaissance US Growth & Income Trust
PLC/29/
--
10.114 J. William Brandner Lock-Up Agreement/29/
--
10.115 J. Melvin Stewart Lock-Up Agreement/29/
--
10.116 Pledge Agreement dated March 2, 1998 between La-Man Corporation and
Renaissance Capital Growth & Income Fund III, Inc. and Renaissance US
Growth & Income Trust PLC/29/
--
10.117 Security Agreement dated March 2, 1998 between La-Man Corporation and
Renaissance Capital Growth & Income Fund III, Inc. and Renaissance US
Growth & Income Trust PLC/29/
--
10.118 Form of Subsidiary Continuing Guaranty/29/
--
10.119 Form of Subsidiary Security Agreement/29/
--
10.120 Amendment No. 2 to La-Man Corporation 1992 Stock Option and
Appreciation Rights Plan, as amended/29/
--
10.121 Amendment No. 3 to La-Man Corporation 1992 Stock Option and
Appreciation Rights Plan, as amended/29/
--
10.122 Amendment No. 2 to La-Man Corporation Amended and Restated 1994
Employee and Consultant Stock Compensation Plan, as amended/29/
--
10.123 February 17, 1998 promissory note from Electronic Sign Corporation
payable to the order of Terry J. Long/28/
--
10.124 February 17, 1998 promissory note from Electronic Sign Corporation
payable to the order of Daniel Gregory O'Leary, as Co-Trustee under
the Daniel and Beverly O'Leary Revocable Family Trust Dated January
17, 1997/28/
--
II-5
<PAGE>
10.125 February 17, 1998 promissory note from Electronic Sign Corporation
payable to the order of Betty E. Papais, as Trustee of the Papais
Trust Dated January 29, 1991/28/
--
10.126 Employment Agreement dated February 18, 1998 between and among La-Man
Corporation, Ad Art Displays, Inc. and Terry J. Long/28/
--
10.127 Employee Stock Option Agreement dated February 18, 1998 by and between
La-Man Corporation and Terry J. Long/28/
--
10.128 Consulting Agreement dated February 18, 1998 between and among Ad Art
Displays, Inc. and Lou A. Papais/28/
--
10.129 Employment Agreement dated as of February 17, 1998 among Registrant,
Don Bell Industries, Inc. and Gary D. Bell
16.01 Statement of Change in Independent Principal Accountants/21/
--
21 Sub sidiaries
23.1 Consent of Broad and Cassel
23.2 Consent of BDO Seidman, LLP
24 Power of Attorney
99.3 U.S. Patent No. 4,483,417/1/
-
99.4 Trademark Registration No. 1,287,666/1/
-
99.5 U.S. Patent No. 4,487,618/2/
-
99.6 Trademark Registration No. 1,328,054/2/
-
99.7 Trademark Registration No. 1,359,880 (Supplemental Register)/4/
-
99.8 Canadian Patent No. 1,197,477/16/
--
99.9 U.S. Patent Number 4,600,416 for the Extractor Dryer/16/
--
99.10 Canadian Patent Number 1,206,889 for the Pneumatic Dryer/16/
--
99.11 Trademark Registration Number 1,372,359/16/
--
99.12 Canadian Patent Number 1,207,674/16/
--
99.13 Japanese Patent Number 1,410,903 for the Airline Lubricator/9/
-
99.14 U.S. Patent Number 4,865,815 for the In-Line Compressed Air Carbon
Monoxide Filter/11/
--
99.15 Taiwanese Patent Certificate Number UM 55136 for the Air Inlet Valve
Arrangement for Pneumatic Equipment/14/
--
99.16 U.S. Patent Number 5,030,262 for the Air Vapor Trap and Drain
Therefore/14/
--
99.17 U.S. Patent Number 5,114,443 for the Air Line Vapor Trap With Air
Warming System/16/
--
99.18 Japanese Patent Number 1,899,252 for the Air Line Vapor Trap/16/
--
II-6
<PAGE>
_____________
/1/ Incorporated by reference from Registrant's Pre-Effective Amendment No. 1
- to the Registrant's Registration Statement on Form S-18 (Registration
No. 2-89341).
/2/ Incorporated by reference from Registrant's Pre-Effective Amendment No. 2
- to the Registrant's Registration Statement on Form S-18 (Registration
No. 2-89341).
/3/ Filed as an exhibit to Registrant's Form 10-Q for the period ended June
- 30, 1986 (File No. 0-14427), and incorporated by reference.
/4/ Incorporated by reference from Registrant's Post-Effective Amendment No. 1
- to Registrant's Registration Statement on Form S-18 (Registration
No. 2-89341).
/5/ Filed as an exhibit to Registrant's Form 10-Q for the period ended
- December 31, 1985 (File No. 0-14427), and incorporated by reference.
/6/ Filed as an exhibit to Registrant's Form 8-K filed on December 23, 1987
- (File No. 0-14427), and incorporated by reference.
/7/ Filed as an exhibit to Registrant's Form 10-K for the period ended
- September 30, 1986 (File No. 0-14427), and incorporated by reference.
/8/ Filed as an exhibit to Registrant's Form 10-K for the period ended
September 30, 1987 (File No. 0-14427), and incorporated by reference.
/9/ Filed as an exhibit to Registrant's Form 10-K for the period ended
- September 30, 1988 (File No. 0-14427), and incorporated by reference.
/10/ Filed as an exhibit to Registrant's Form 8-K filed on October 3, 1989
-- (File No. 0-14427), and incorporated by reference.
/11/ Filed as an exhibit to Registrant's Form 10-K for the period ending
-- September 30, 1989 (File No. 0-14427), and incorporated by reference.
/12/ Filed as an exhibit to Registrant's Form 8-K dated March 29, 1990 (File
-- No. 0-14427), and incorporated by reference.
/13/ Filed as an exhibit to Registrant's Form 8-K dated January 5, 1991 (File
-- No. 0-14427), and incorporated by reference.
/14/ Filed as an exhibit to Registrant's Form 10-K for the period ending
-- September 30, 1991 (File No. 0-14427), and incorporated by reference.
/15/ Filed as an exhibit to Registrant's Form 8-K filed on September 3, 1992
-- (File No. 0-14427), and incorporated by reference.
/16/ Filed as an exhibit to Registrant's Form 10-K for the transition period
-- ending June 30, 1992 (File No. 0-14427), and incorporated by reference.
/17/ Previously filed as an exhibit to the Registration Statement (Registration
-- No. 33-54230) and incorporated by reference.
/18/ Filed as an Exhibit to Registrant's Form 8-K dated August 19, 1993 (File
-- No. 0-14427) and incorporated by reference.
/19/ Previously filed as an exhibit to Post Effective Amendment No. 2 to the
-- Registration Statement (Registration No. 33-54230) and incorporated by
reference.
/20/ Filed as an exhibit to Registrant's Form 8-K dated June 23, 1994 filed on
-- June 28,1994 (File No. 0-14427), and incorporated by reference.
/21/ Filed as an exhibit to Registrant's Form 8-K dated January 27, 1994 and
-- filed on February 3, 1994 (File No. 0-14427), and incorporated by
reference.
/22/ Filed as an exhibit to Registrant's Form 10-K for the period ending June
-- 30, 1994 (File No. 0-14427), and incorporated by reference.
/23/ Filed as an exhibit to Registrant's Form 8-K dated November 14, 1994 and
-- filed on January 27, 1995 (File No. 0-14427), and incorporated by
reference.
/24/ Filed as an exhibit to Registrant's Form 8-K dated September 7, 1995 and
-- filed effective September 22, 1995 (File No. 0-14427), and incorporated by
reference.
/25/ Filed as an exhibit to Registrant's Form 10-KSB for the period ending June
-- 30, 1995 (File No. 0-14427), and incorporated by reference.
/26/ Filed as an exhibit to Registrant's Post-Effective Amendment No. 7 to
-- Registration Statement on Form S-3 (Registration No. 33-54230), and
incorporated by reference.
/27/ Filed as an exhibit to Registrant's Form 8-K dated August 28, 1996 (File
-- No. 0-14427), and incorporated by reference.
/28/ Filed as an exhibit to Registrant's Form 8-K dated February 18, 1998 and
-- filed March 2, 1998 (File No. 0-14427), and incorporated by reference.
/29/ Filed as an exhibit to Registrant's Form 8-K dated March 2, 1998 and filed
-- March 12, 1998 (File No. 0-144227), and incorporated by reference.
II-7
<PAGE>
ITEM 17. UNDERTAKINGS
A. Rule 415 Offering
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the 1933 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; (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.
(2) For the purpose of determining any liability under the 1933 Act,
each post-effective amendment that contains a form of prospectus 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.
(3) 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 offering.
B. Indemnification
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15
above, 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 of 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 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.
C. Rule 430A
The undersigned Registrant will:
(1) For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form of a
prospectus filed by the small business issuer under Rule 424(b)(1) or (4) or
497(h) under the Securities Act as part of this Registration Statement as of the
time the Commission declared it effective.
(2) For any liability under the Securities Act, treat each post-
effective amendment that contains a form of prospectus as a new Registration
Statement for the securities offered in the Registration Statement, and that the
offering of the securities at that time as the initial bona fide offering of
those securities.
II-8
<PAGE>
SIGNATURES
In accordance with 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 of filing on Form S-3 and authorized this registration
statement to be signed on its behalf by the undersigned, in the County of
Orange in the State of Florida on the 4th day of May, 1998.
La-Man Corporation
By: /s/ J. William Brandner
----------------------------
J. William Brandner
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints J. Melvin Stewart and J. William Brandner , and
each of their true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as full to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or either of them or their
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
In accordance with the requirements of the Securities Act of 1933, as
amended, this Registration Statement was signed by the following persons in the
capacities and on this 4th day of May 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ J. Melvin Stewart
- ---------------------------- Chairman of the Board and Director
J. Melvin Stewart
/s/ J. William Brandner
- ---------------------------- President, Chief Executive Officer
J. William Brandner and Director
/s/ Gary Donald Bell
- ---------------------------- President, Don Bell Industries,
Gary Donald Bell Inc. and Director
/s/ Edwin M. Freakley
- ---------------------------- Director
Edwin M. Freakley
/s/ Thomas N. Grant
- ---------------------------- Director
Thomas N. Grant
/s/ Philip Howe Hoard
- ---------------------------- Vice Present, Secretary and
Philip Howe Hoard Director
- ---------------------------- Director
Lester Jacobs
- ---------------------------- Director
Lou A. Papais
- ---------------------------- Director
Terry J. Long
</TABLE>
II-9
<PAGE>
<TABLE>
<S> <C>
- ---------------------------- Director
William A. Retz
- ---------------------------- Director
Robert M. Smither
</TABLE>
II-10
<PAGE>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
3.19 Articles of Incorporation of Displays Acquisition Corp. (n/k/a Ad Art
Electronic Sign Corporation)
3.20 Articles of Merger of Electronic Sign Corporation into Displays
Acquisition Corp. (with the surviving corporation Displays
Acquisitions Corp. changing its name to Ad Art Displays, Inc.
3.21 Articles of Amendment to Articles of Incorporation of Ad Art Displays,
Inc. (changing the corporate name to Ad Art Electronic Sign
Corporation)
3.22 Bylaws of Ad Art Electronic Sign Corporation f/k/a Ad Art Displays,
Inc.
3.23 Articles of Incorporation of ESC of Nevada, Inc.
3.24 Bylaws of ESC of Nevada, Inc.
4.14 Amendment No. 2 to Warrant Agreement, dated as of January 10, 1997,
between La-Man Corporation and Continental Stock Transfer & Trust
Company, as Warrant Agent
4.15 Amendment No. 3 to Warrant Agreement, dated as of March 20, 1998,
between La-Man Corporation and Continental Stock Transfer & Trust
Company, as Warrant Agent
5.3 Opinion of Broad and Cassel as to the legality of the securities
10.123 Employment Agreement dated as of February 17, 1998 among Registrant,
Don Bell Industries, Inc. and Gary D. Bell
21 Subsidiaries
23.1 Consent of Broad and Cassel
23.2 Consent of BDO Seidman, LLP
24 Power of Attorney
<PAGE>
Exhibit 3.19
ARTICLES OF INCORPORATION
OF
DISPLAYS ACQUISITIONS CORP.
The undersigned incorporator of these Articles of Incorporation, a natural
person competent to contract, hereby forms a corporation for profit under the
laws of the State of Florida.
ARTICLE I - NAME
----------------
The name of the Corporation is DISPLAYS ACQUISITIONS CORP.
ARTICLE II - NATURE OF BUSINESS
-------------------------------
The Corporation is organized for the purpose of transacting any and all lawful
business and shall have those powers generally conferred by Florida Statutes
upon corporations organized in this state, and in addition to but not in
limitation of such powers, shall also have the power:
(a) To acquire by purchase, lease or otherwise, lands and interests in
lands, and to own, hold, improve, develop and manage any real estate so
acquired, and to erect, or cause to be erected, on any lands owned, held, or
occupied by the Corporation, buildings or other structures, public or private,
with their appurtenances and to manage, operate, lease, rent, rebuild, enlarge,
alter or improve any buildings or other structures, now or hereafter erected on
any lands so owned, held, or occupied and to encumber or dispose of any lands or
interests in lands and any buildings or other structures, at any time owned or
held by the Corporation. To buy, sell, mortgage, exchange, lease, hold for
investment or otherwise, use and operate real estate of all kinds, improved or
unimproved, and any right or interest therein.
(b) To acquire, by purchase, lease, manufacture or otherwise any personal
property deemed necessary or useful in the equipment, furnishing, improvement,
development or management of any property, real or personal, at any time owned,
held or occupied by the Corporation and to invest, trade and deal in any
personal property deemed beneficial to the Corporation and to lease, rent,
encumber or dispose of any personal property at any time owned or held by the
Corporation.
(c) To contract debts and borrow money, issue and sell or pledge bonds,
debentures, notes and other evidences of indebtedness and to execute such
mortgages, transfers or corporate indebtedness as required.
1
<PAGE>
(d) To purchase the corporate assets of any other corporation and engage in
the same or other character of business.
(e) To guarantee, endorse, purchase, hold, sell, transfer, mortgage, pledge
or otherwise acquire or dispose of the shares of the capital stock of, or any
bonds, securities, or other evidences of indebtedness created by, any other
corporation of the State of Florida or any other state or government and while
owner of such stock to exercise all the rights, powers and privileges of
ownership, including the right to vote such stock.
(f) To enter into, make, perform and carry out contracts and agreements of
every kind, for any lawful purpose, without limit as to amount, with any person,
firm, association or corporation; and to transact any further and other business
necessarily connected with the purposes of the Corporation or calculated to
facilitate the same.
(g) To carry on any or all of its operations and businesses and to promote
its objects within the State of Florida or elsewhere, without restriction as to
place or amount; and to have, use, exercise and enjoy all of the general powers
of like corporations.
(h) To engage in any and all lawful businesses, trades, occupations and
professions.
(i) To do any or all of the things herein set forth to the same extent as
natural persons might or could do and in any part of the world as principals,
agents, contractors or otherwise, alone, or in company with others and to do and
perform all such other things and acts as may be necessary, profitable or
expedient in carrying on any of the business or acts above-named.
The intention is that none of the objects and powers as hereinabove set forth,
except where otherwise specified in this Article, shall be in anywise limited or
restricted by reference to or inference from the terms of any other objects,
powers or clauses of this Article or any other Articles; but that the objects
and powers specified in each of the clauses in this Article shall be regarded as
independent objects and powers.
ARTICLE III - CAPITAL STOCK
---------------------------
The maximum number of shares of capital stock that the Corporation is
authorized to have outstanding at any time is 10,000 shares of common stock,
each having the par value of $.01.
Authorized capital stock may be paid for in cash, services, or property, at a
just value to be fixed by the Board of Directors of the Corporation at any
regular or special meeting.
2
<PAGE>
ARTICLE IV - COMMENCEMENT AND TERM OF EXISTENCE
-----------------------------------------------
The Corporation shall have perpetual existence. These Articles of
Incorporation shall be effective and the Corporation's existence shall commence
upon the filing of these Articles of Incorporation by the Department of State.
ARTICLE V - ADDRESS
-------------------
The initial street and mailing address of the principal office of the
Corporation is to be at 5029 Edgewater Drive, Orlando, Florida 32810. The Board
of Directors may from time to time designate such other address and place for
the principal office of the Corporation as it may see fit.
ARTICLE VI - DIRECTORS
----------------------
The Corporation shall have one (1) director initially. The number of
directors may be increased or diminished from time to time by the Bylaws. The
shareholders shall have the right and power at any regular meeting or at any
special meeting called for such purpose to remove any director of the
Corporation with or without cause.
ARTICLE VII - INITIAL DIRECTORS
-------------------------------
The name and address of the initial director who shall hold office until his
successors are elected and have qualified, is as follows:
J. William Brandner
5029 Edgewater Drive
Orlando, Florida 32810
ARTICLE VIII - INCORPORATOR
---------------------------
The name and post office address of the incorporator of these Articles of
Incorporation is:
Marshall S. Harris
390 North Orange Avenue, Suite 1100
Orlando, Florida 32810
ARTICLE IX - INITIAL REGISTERED OFFICE AND AGENT
------------------------------------------------
The initial registered agent of the Corporation is B&C Corporate Services of
Central Florida, Inc. whose address is 390 North Orange Ave., Suite 1100,
Orlando, FL 32801.
3
<PAGE>
ARTICLE X - VOTING RIGHTS
-------------------------
Except as otherwise provided by law, the entire voting power for the election
of directors and for all other purposes shall be vested exclusively in the
holders of the outstanding common shares.
ARTICLE XI - BYLAWS
-------------------
The power to adopt, alter, amend or repeal the Bylaws of the Corporation shall
be reserved to and vested in the Shareholders of the Corporation.
ARTICLE XII - INDEMNIFICATION
-----------------------------
A. 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 or 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 another corporation, partnership, joint
venture, trust, or other enterprise, against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement, actually and reasonably
incurred by him in connection with such action, suit, or proceeding, including
any appeal thereof, if he acted in good faith or in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and
with respect to any criminal action or proceeding, if he had no reasonable cause
to believe his conduct was unlawful. However, with respect to any action by or
in the right of the Corporation to procure a judgment in its favor, no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person is adjudged liable for negligence or misconduct in the
performance of his duty to the Corporation unless, and only to the extent that,
the court in which such action or suit was brought determines, on application,
that despite the adjudication of liability, such person is fairly and reasonably
entitled to indemnity in view of all the circumstances of the case. Any
indemnification hereunder shall be made only on a determination by a majority of
disinterested directors or a majority of shareholders that indemnification is
proper in the particular circumstances because the party to be indemnified has
met the applicable standard of conduct. Determination of any action, suit, or
proceeding by judgment, order, settlement, conviction, or on a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the party did not meet the applicable standard of conduct. Indemnification
hereunder may be paid by the Corporation in advance of the final disposition of
any action, suit, or proceeding, on a preliminary determination that the
director, officer, employee, or agent met the applicable standard of conduct and
on receipt of an undertaking by or on behalf of the director, officer, employee,
or agent to repay such amount, unless it is ultimately determined that he is
entitled to be indemnified by the Corporation as authorized in this section.
4
<PAGE>
B. The Corporation shall also indemnify any director, officer, employee, or
agent who has been successful on the merits or otherwise, in defense of any
action, suit, or proceeding, or in defense of any claim, issue, or matter
therein, against all expenses, including attorneys' fees, actually and
reasonably incurred by him in connection therewith, without the necessity of an
independent determination that such director, officer, employee, or agent met
any appropriate standard of conduct.
C. The indemnification provided for herein shall continue as to any person
who has ceased to be a director, officer, employee, or agent, and shall inure to
the benefit of the heirs, executors, and administrators of such person.
D. In addition to the indemnification provided for herein, the Corporation
shall have the power to make any other or further indemnification, except an
indemnification against gross negligence or wilful misconduct, under any
resolution or agreement duly adopted by a majority of disinterested directors,
or duly authorized by a majority of shareholders.
E. If any expenses or other amounts are paid by way of indemnification,
otherwise than by court order or action by the shareholders, the Corporation
shall, not later than the time of delivery to the shareholders of written notice
of the next annual meeting, unless such meeting is held within three months from
the date of such payment, and, in any event, within fifteen months from the date
of such payment, deliver by mail to each shareholder of record at the time
entitled to vote for the election of directors, a statement specifying the
persons paid, the amounts paid, and the nature and status at the time of such
payment of the litigations or threatened litigation.
ARTICLE XIII - PREEMPTIVE RIGHTS
--------------------------------
Each shareholder of the Corporation shall have the right to purchase,
subscribe for, or receive a right or rights to purchase or subscribe for, at the
price at which it is offered to others, a pro rata portion of:
(1) Any stock of any class that the Corporation may issue or sell, whether
or not exchangeable for any stock of the Corporation of any class or classes,
and whether or not of unissued shares authorized by the Articles of
Incorporation as originally filed or by any amendment thereof or out of shares
of stock of the Corporation acquired by it after the issuance thereof, and
whether issued for cash, labor done, personal property, or real property or
leases thereof; or
(2) Any obligation that the Corporation may issue or sell which is
convertible into or exchangeable for any stock of the Corporation of any class
or classes, or to which is attached or pertinent any warrant or warrants or
other instrument or instruments conferring on the
5
<PAGE>
holder the right to subscribe for or purchase from the Corporation any shares of
its stock of any class or classes.
ARTICLE XIV - RESTRICTIONS ON STOCK TRANSFERS
---------------------------------------------
All of the issued and outstanding shares of the Corporation may be made
subject to restrictions on their transferability by agreement among the holders
of such shares or between the holders of such shares and the Corporation. A
copy of any such agreement shall be kept on file with the Secretary of the
Corporation, and shall be subject to inspection by shareholders of record and
bona fide creditors of the Corporation at reasonable times during business
hours. Any transfer of stock in the Corporation in violation of any such
agreement effectively restricting such transfer shall be void. Each share
certificate issued by the Corporation shall have printed or stamped thereon
either a notice that such shares are subject to transfer restrictions set forth
in a specifically referenced document or the following legend:
"The shares of capital stock evidenced by this certificate have not been
registered under applicable federal or state securities laws and may not be
sold or otherwise transferred unless so registered or unless the
Corporation receives a legal opinion acceptable to the Corporation and its
counsel that any such sale or other transfer is exempt from such
registration requirements."
ARTICLE XV AMENDMENT
---------------------
These Articles of Incorporation may be amended in the manner provided by law.
Every amendment shall be approved by the Board of Directors, proposed by them to
the shareholders and approved at a shareholders' meeting by a majority of the
stock entitled to vote thereon, unless all the shareholders sign a written
statement manifesting their intention that a certain amendment of these Articles
of Incorporation may be made.
IN WITNESS WHEREOF, the undersigned has hereunto signed and acknowledged the
foregoing Articles of Incorporation under the laws of the State of Florida, on
the date set forth next to his signature.
/s/ Marshall S. Harris February 6, 1998
-------------------------- ----------------
Marshall S. Harris Date
Incorporator
6
<PAGE>
CERTIFICATE DESIGNATING PLACE OF REGISTERED OFFICE FOR
SERVICE OF PROCESS WITHIN THIS STATE AND
NAMING REGISTERED AGENT UPON WHOM PROCESS MAY BE SERVED
PURSUANT to Chapter 48.091 of the Florida Statutes, the following is
submitted in compliance with said Act:
DISPLAYS ACQUISITIONS CORP., desiring to organize under the laws of the State
of Florida, with its principal office as indicated in the Articles of
Incorporation in the City of Orlando, County of Orange, State of Florida, has
named as Registered Agent, B&C Corporate Services of Central Florida, Inc. and
Registered Office at 390 North Orange Ave., Suite 1100, Orlando, FL 32801, to
accept service of process within this State.
ACKNOWLEDGMENT:
Having been named to accept service of process for the above-stated
Corporation, at the place designated in this Certificate, I hereby accept to act
in this capacity and agree to comply with the provisions of said Act relative to
keeping open such office.
B&C Corporate Services of Central Florida, Inc.
By: /s/ Helen Brock Ford
--------------------
Name: Helen Brock Ford
Its: Vice President
Registered Agent
7
<PAGE>
Exhibit 3.20
ARTICLES OF MERGER
OF ELECTRONIC SIGN CORPORATION
INTO DISPLAYS ACQUISITIONS CORP.
Pursuant to the provisions of Section 607.1105 of the Florida Business
Corporation Act, these Articles of Merger provide as follows:
ARTICLE I
Names and Surviving Corporation
-------------------------------
The names and states of incorporation of the corporations which are parties to
the merger are:
Name State of Incorporation
---- ----------------------
Electronic Sign Corporation, d/b/a Ad Art California
Displays Acquisitions Corp. Florida
La-Man Corporation Nevada
Displays Acquisitions Corp. shall be the surviving corporation (the "Surviving
Corporation").
ARTICLE II
Plan of Merger
--------------
The Plan of Merger is attached hereto as Exhibit A.
---------
ARTICLE III
Approval of the Plan of Merger
------------------------------
The Plan of Merger was adopted and approved, in accordance with California
law, by Electronic Sign Corporation d/b/a Ad Art ("Ad Art") as of February 17,
1998, by unanimous written consent of all of the directors, pursuant to which
the board of directors of Ad Art submitted it for vote by the shareholders with
a recommendation that it be approved. On the same date, one hundred percent
(100%) of all of the votes entitled to be cast of each class of shares entitled
to vote, approved the Plan of Merger by written consent.
The Plan of Merger was adopted by Displays Acquisitions Corp. on February 17,
1998, in accordance with Florida law, by written consent of all of the directors
of Displays Acquisitions Corp., pursuant to which the board of directors of
Displays Acquisitions Corp. submitted it to the sole shareholder for its
approval. On the same date, the sole shareholder of Displays Acquisitions Corp.
approved the Plan of Merger by written consent.
<PAGE>
The Plan of Merger was adopted by La-Man Corporation on February 17, 1998, in
accordance with Nevada law, by written consent of all of the directors of La-Man
Corporation. Approval by the shareholders of La-Man Corporation is not required
for this transaction.
ARTICLE IV
Effective Date of Merger
------------------------
The merger shall be effective on the date of filing of these Articles of
Merger by the Secretary of State of Florida.
ARTICLE V
Amendment to Articles
---------------------
Simultaneously with filing of these Articles of Merger and without any further
action by the Surviving Corporation, the name of the surviving corporation shall
hereinafter be Ad Art Displays, Inc.
ARTICLE VI
Filing in California
--------------------
Pursuant to California law, a copy of these Articles of Merger certified by
the Department of State of the State of Florida shall be filed with the
Department of State of the State of California.
Dated as of the 17th day of February, 1998.
ELECTRONIC SIGN CORPORATION
D/B/A AD ART
By: /s/ Terry J. Long
---------------------------------
Terry J. Long, President
DISPLAYS ACQUISITIONS CORP.
By: /s/ J. William Brandner
---------------------------------
J. William Brandner, President
LA-MAN CORPORATION
By: /s/ J. William Brandner
---------------------------------
J. William Brandner,
President/Chief Executive Officer
2
<PAGE>
EXHIBIT 3.21
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION
OF
AD ART DISPLAYS, INC.
1. The name of the Corporation is AD ART DISPLAYS, INC. (the
"Corporation").
2. Article I of the Articles of Incorporation of the Corporation is
amended to read as follows:
"ARTICLE I - NAME
----------------
The name of the Corporation is AD ART ELECTRONIC SIGN
CORPORATION"
3. The foregoing amendment was adopted by the sole shareholder and
directors of the Corporation by Joint Written Consent dated April 10, 1998.
IN WITNESS WHEREOF, the undersigned President of the Corporation has
executed these Articles of Amendment this 10th day of April, 1998.
/s/ J. William Brandner
---------------------------
J. William Brandner
President
<PAGE>
Exhibit 3.22
================================================================================
BYLAWS
OF
AD ART DISPLAYS, INC.
(F/K/A DISPLAYS ACQUISITIONS CORP.)
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION CAPTION PAGE
- ------- ------- ----
<S> <C> <C>
ARTICLE I - Meetings of Shareholders ............ 1
Section 1 Annual Meeting........................................ 1
Section 2 Special Meetings...................................... 1
Section 3 Place................................................. 1
Section 4 Action by Shareholders Without a Meeting.............. 1
Section 5 Notice of Meeting..................................... 2
Section 6 Notice of Adjourned Meetings.......................... 2
Section 7 Waiver of Notice...................................... 3
Section 8 Record Date........................................... 3
Section 9 Shareholders' List for Meeting........................ 3
Section 10 Voting Entitlement of Shares.......................... 4
Section 11 Proxies............................................... 4
Section 12 Shareholder Quorum and Voting......................... 5
Section 13 Voting Trusts......................................... 5
Section 14 Shareholders' Agreements.............................. 5
ARTICLE II - Directors............. 6
Section 1 General Powers........................................ 6
Section 2 Qualifications of Directors........................... 6
Section 3 Number................................................ 6
Section 4 Election and Term..................................... 6
Section 5 Vacancy on Board...................................... 6
Section 6 Removal of Directors by Shareholders.................. 6
Section 7 Compensation.......................................... 7
Section 8 Presumption of Assent................................. 7
Section 9 Directors' Meetings................................... 7
Section 10 Notice of Meetings.................................... 7
Section 11 Waiver of Notice...................................... 7
Section 12 Quorum and Voting..................................... 7
Section 13 Action by Directors Without a Meeting................. 7
Section 14 Adjournments.......................................... 8
Section 15 Participation by Conference Telephone................. 8
ARTICLE III - Committees........... 8
Section 1 Executive and Other Committees........................... 8
<PAGE>
ARTICLE IV - Officers.............. 9
Section 1 Officers, Election and Terms of Office................. 9
Section 2 Resignation and Removal of Officers.................... 9
Section 3 Vacancies.............................................. 9
Section 4 Chairman of the Board.................................. 9
Section 5 President.............................................. 10
Section 6 Vice President......................................... 10
Section 7 Secretary.............................................. 10
Section 8 Treasurer.............................................. 11
Section 9 Delegation of Duties................................... 11
ARTICLE V - Stock Certificates..... 11
Section 1 Issuance............................................... 11
Section 2 Signatures; Form....................................... 11
Section 3 Transfer of Stock...................................... 12
Section 4 Lost Certificates...................................... 12
ARTICLE VI - Indemnification....... 13
Section 1 Definitions............................................ 13
Section 2 Indemnification of Officers, Directors,
Employees and Agents.................................. 13
ARTICLE VII - General Provisions... 16
Section 1 Fiscal Year............................................ 16
Section 2 Seal................................................... 17
Section 3 Amendment of Bylaws.................................... 17
CERTIFICATE OF ADOPTION............ 17
</TABLE>
<PAGE>
BYLAWS
OF
AD ART DISPLAYS, INC.
(F/K/A/ DISPLAYS ACQUISITIONS CORP.)
ARTICLE I
---------
Meetings of Shareholders
------------------------
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders of this
--------- --------------
Corporation shall be held following the end of the Corporation's fiscal year at
such time as shall be determined by the Board of Directors. The annual meeting
shall be held for the election of directors of the Corporation and the
transaction of any business which may be brought before the meeting. The annual
meeting of the shareholders for any year shall be held no later than thirteen
months after the last preceding annual meeting of shareholders. The failure to
hold the annual meeting at the time stated shall not affect the validity of any
corporate action and shall not work a forfeiture of or dissolution of the
Corporation. Annual meetings shall be held at the Corporation's principal
office unless stated otherwise in the notice of the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders shall be
--------- ----------------
held when directed by the President or the Board of Directors, or when requested
in writing by the holders of not less than one-tenth of all the votes entitled
to be cast on any issue proposed to be considered at the proposed special
meeting. Shareholders should sign, date, and deliver to the Corporation's
Secretary one or more written demands for the meeting describing the purpose or
purposes for which it is to be held. A meeting requested by shareholders shall
be called for a date not less than ten nor more than sixty days after the
request is made. The call for the meeting shall be issued by the Secretary,
unless the President, the Board of Directors, or shareholders requesting the
calling of the meeting shall designate another person to do so.
SECTION 3. PLACE. Meetings of shareholders may be held either within or
--------- -----
without the State of Florida. Unless otherwise directed by the Board of
Directors, meetings of the shareholders shall be held at the principal offices
of the Corporation in the State of Florida.
SECTION 4. ACTION BY SHAREHOLDERS WITHOUT A MEETING. Action that is required
--------- ----------------------------------------
or permitted to be taken at an annual or special meeting of shareholders may be
taken without a meeting, without prior notice, and without a vote if the action
is taken by the holders of outstanding stock of each voting group entitled to
vote thereon having not less than a minimum
<PAGE>
number of votes with respect to each voting group that would be necessary to
authorize or take such action at a meeting at which all voting groups and shares
entitled to vote thereon were present and voted. In order to be effective, the
action must be evidenced by one or more written consents describing the action
taken, dated and signed by approving shareholders having the requisite number of
votes of each voting group entitled to vote thereon, and delivered to the
Corporation by delivery to its principal office in this State, its principal
place of business, the corporate secretary, or another officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
shareholders are recorded. No written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the date of
the earliest dated consent delivered in the manner required by this Section,
written consent signed by the number of holders required to take action is
delivered to the Corporation by delivery as set forth in this Section.
Any written consent may be revoked prior to the date that the Corporation
receives the required number of consents to authorize the proposed action. No
revocation shall be effective unless in writing and until received by the
Corporation at its principal office in this State or its principal place of
business, or received by the corporate secretary or other officer or agent of
the Corporation having custody of the book in which proceedings of meetings of
shareholders are recorded.
Within ten days after obtaining such authorization by written consent, notice
must be given to those shareholders who have not consented in writing or who are
not entitled to vote on the action. The notice shall fairly summarize the
material features of the authorized action and, if the action be such for which
dissenters' rights are provided under Florida law, the notice shall contain a
clear statement of the right of shareholders dissenting therefrom to be paid the
fair value of their shares upon compliance with further provisions of Florida
law regarding the rights of dissenting shareholders.
A consent signed under this Section has the effect of a meeting vote and may
be described as such in any document.
Whenever action is taken pursuant to this Section, the written consent of the
shareholders consenting thereto or the written reports of inspectors appointed
to tabulate such consents shall be filed with the minutes of proceedings of
shareholders.
SECTION 5. NOTICE OF MEETING. The Corporation shall notify shareholders in
--------- -----------------
writing of the date, time, and place of each annual and special shareholders'
meeting no fewer than ten or more than sixty days before the meeting date.
Notice of a shareholders' meeting may be communicated or delivered to any
shareholder in person, or by teletype, telegraph or other form of electronic
communication, or by mail, by or at the direction of the President, the
Secretary, or the officer or persons calling the meeting. If notice is mailed,
it shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at his address as it appears on the stock transfer
books of the Corporation, with postage thereon prepaid.
<PAGE>
SECTION 6. NOTICE OF ADJOURNED MEETINGS. When an annual or special
--------- ----------------------------
shareholders' meeting is adjourned to a different date, time or place, notice
need not be given of the new date, time or place if the new date, time or place
is announced at the meeting before an adjournment is taken, and any business may
be transacted at the adjourned meeting that might have been transacted on the
original date of the meeting. If, however, after the adjournment the Board of
Directors fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting must be given to persons who are shareholders as of the new
record date who are entitled to notice of the meeting.
SECTION 7. WAIVER OF NOTICE. A shareholder may waive any notice required by
--------- ----------------
the Articles of Incorporation or Bylaws before or after the date and time stated
in the notice. The waiver must be in writing, be signed by the shareholder
entitled to the notice, and be delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. Attendance by a shareholder at a
meeting waives objection to lack of notice or defective notice of the meeting,
unless the shareholder at the beginning of the meeting objects to holding the
meeting or transacting business at the meeting.
SECTION 8. RECORD DATE. For the purpose of determining the shareholders
--------- -----------
entitled to notice of a shareholders' meeting, to demand a special meeting, to
vote, or to take any other action, the Board of Directors may fix the record
date for any such determination of shareholders.
The record date for determining shareholders entitled to demand a special
meeting is the date the first shareholder delivers his demand to the
Corporation. The record date for determining shareholders entitled to take
action without a meeting is the date the first signed written consent is
delivered to the Corporation under Section 4 of this Article. A record date for
purposes of this Section may not be more than 70 days before the meeting or
action requiring a determination of shareholders.
If the stock transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section, such determination shall
apply to any adjournment thereof, unless the Board of Directors fixes a new
record date for the adjourned meeting.
SECTION 9. SHAREHOLDERS' LIST FOR MEETING. After fixing a record date for a
--------- ------------------------------
meeting, the Corporation shall prepare an alphabetical list of the names of all
its shareholders who
<PAGE>
are entitled to notice of a shareholders' meeting, arranged by voting group with
the address of, and the number and class and series, if any, of shares held by
each. The shareholders' list shall be available for inspection by any
shareholder for a period of ten days prior to the meeting or such shorter time
as exists between the record date and the meeting and continuing through the
meeting at the Corporation's principal office, at a place identified in the
meeting notice in the city where the meeting will be held, or at the office of
the Corporation's transfer agent or registrar. A shareholder or his agent or
attorney is entitled on written demand to inspect the list, during regular
business hours and at the shareholder's expense, during the period it is
available for inspection.
The Corporation shall make the shareholders' list available at the meeting,
and any shareholder or his agent or attorney is entitled to inspect the list at
any time during the meeting or any adjournment.
SECTION 10. VOTING ENTITLEMENT OF SHARES. Except as provided otherwise in
---------- ----------------------------
the Articles of Incorporation or herein, each outstanding share, regardless of
class, is entitled to one vote on each matter submitted to vote at a meeting of
the shareholders. Shares standing in the name of another Corporation, domestic
or foreign, may be voted by such officer, agent, or proxy as the bylaws of the
corporate shareholder may prescribe or, in the absence of any applicable
provision, by such person as the board of directors of the corporate shareholder
may designate. In the absence of any such designation or in case of conflicting
designation by the corporate shareholder, the President, any Vice President, the
Secretary, and the Treasurer of the corporate shareholder, in that order, shall
be presumed to be fully authorized to vote such shares.
Shares entitled to vote held by an administrator, executor, guardian, personal
representative, or conservator may be voted by him, either in person or by
proxy, without a transfer of such shares into his name. Shares standing in the
name of a trustee may be voted by him, either in person or by proxy, but no
trustee shall be entitled to vote shares held by him without a transfer of such
shares into his name or the name of his nominee.
Shares held by or under the control of a receiver, a trustee in bankruptcy
proceedings, or an assignee for the benefit of creditors may be voted by him
without the transfer thereof into his name.
Nothing herein contained shall prevent trustees or other fiduciaries holding
shares registered in the name of a nominee from causing such shares to be voted
by such nominee as the trustee or other fiduciary may direct. Such nominee may
vote shares as directed by a trustee or other fiduciary without the necessity of
transferring the shares to the name of the trustee or other fiduciary.
SECTION 11. PROXIES. A shareholder, other person entitled to vote on behalf
---------- -------
of a shareholder pursuant to law, or attorney in fact, may vote the
shareholder's shares in person or by proxy.
<PAGE>
A shareholder may appoint a proxy to vote or otherwise act for him by signing
an appointment form, either personally or by his attorney in fact. An executed
telegram or cablegram appearing to have been transmitted by such person, or a
photographic, photostatic, telecopy or equivalent reproduction of an appointment
form is a sufficient appointment form. An appointment of a proxy is effective
when received by the Secretary or other officer authorized to tabulate votes and
is valid for up to eleven months unless a longer period is expressly provided in
the appointment form.
The death or incapacity of a shareholder appointing a proxy does not affect
the right of the Corporation to accept the proxy's authority unless notice of
the death or incapacity is received by the Secretary or other officer or agent
authorized to tabulate votes before the proxy exercises his authority under the
appointment.
SECTION 12. SHAREHOLDER QUORUM AND VOTING. A majority of the shares entitled
---------- -----------------------------
to vote, represented in person or by proxy, shall constitutes a quorum at a
meeting of shareholders.
If a quorum exists, action on a matter (other than the election of directors)
by a voting group is approved if the votes cast within the voting group favoring
the action exceed the votes cast opposing the action, unless the Articles of
Incorporation or applicable law requires a greater number of affirmative votes.
After a quorum has been established at a shareholders' meeting, a subsequent
withdrawal of shareholders, so as to reduce the number of shares entitled to
vote at the meeting below the number required for a quorum, shall not affect the
validity of any action taken at the meeting or any adjournment thereof.
SECTION 13. VOTING TRUSTS. One or more shareholders may create a voting
---------- -------------
trust, conferring on a trustee the right to vote or otherwise act for them, by
signing an agreement setting out the provisions of the trust (which may include
anything consistent with its purpose) and transferring their shares to the
trustee. When a voting trust agreement is signed, the trustee shall prepare a
list of the names and addresses of all owners of beneficial interests in the
trust, together with the number and class of shares each transferred to the
trust, and deliver copies of the list and agreement to the Corporation's
principal office. After filing a copy of the list and agreement in the
Corporation's principal office, such copy shall be open to inspection by any
shareholder of the Corporation or any beneficiary of the trust under the
agreement during business hours.
A voting trust is valid for not more than ten years after its effective date,
provided that all or some of the parties to a voting trust may extend it for
additional terms of not more than ten years each by signing an extension
agreement and obtaining the voting trustee's written consent to the extension.
An extension is valid for the period set forth therein, up to ten years, from
the date the first shareholder signs the extension agreement. The voting
trustee must deliver copies of the extension agreement and list of beneficial
owners to the Corporation's principal office. An extension agreement binds only
those parties signing it.
<PAGE>
SECTION 14. SHAREHOLDERS' AGREEMENTS. Two or more shareholders may provide
---------- ------------------------
for the manner in which they will vote their shares by signing an agreement for
that purpose.
When a shareholders' agreement is signed, the shareholders parties thereto
shall deliver copies of the agreement to the Corporation's principal office.
After filing a copy of the agreement in a Corporation's principal office, such
copy shall be open to inspection by any shareholder of the Corporation, or any
party to the agreement during business hours.
ARTICLE II
----------
DIRECTORS
---------
SECTION 1. GENERAL POWERS. All corporate powers shall be exercised by or
--------- --------------
under the authority of, and the business and affairs of the Corporation shall be
managed under the direction of its Board of Directors.
SECTION 2. QUALIFICATIONS OF DIRECTORS. Directors must be natural persons
--------- ---------------------------
who are eighteen years of age or older but need not be residents of this state
or shareholders of this Corporation.
SECTION 3. NUMBER. The Board of Directors of this Corporation as of the date
--------- ------
of adoption of these Bylaws shall consist of not less than one (1) member and
not more than ten (10) members. The maximum number of directors may be
increased or decreased from time to time by action of the Board of Directors,
but no decrease shall have the effect of shortening the terms of any incumbent
director. Directors are elected at each annual meeting of shareholders.
SECTION 4. ELECTION AND TERM. Each person named in the Articles of
--------- -----------------
Incorporation as a member of the initial Board of Directors shall hold office
until the first shareholders' meeting at which directors are elected and until
such person's successor shall have been elected and qualified or until such
person's earlier resignation, removal from office or death.
At the first annual meeting of shareholders and at each annual meeting
thereafter the shareholders shall elect directors to hold office until the next
succeeding annual meeting. Each director shall hold office for the term for
which such director is elected and until such director's successor shall have
been elected and qualified or until such director's earlier resignation, removal
from office or death.
SECTION 5. VACANCY ON BOARD. Any vacancy occurring in the Board of
--------- ----------------
Directors, including a vacancy from an increase in the number of directors, may
be filled by the affirmative vote of a majority of the remaining directors,
though less than a quorum of the Board of Directors. A director elected to fill
a vacancy shall hold office only until the next election of directors by the
shareholders.
<PAGE>
SECTION 6. REMOVAL OF DIRECTORS BY SHAREHOLDERS. The shareholders may remove
--------- ------------------------------------
one or more directors with or without cause. A director may be removed by the
shareholders at a meeting of shareholders, provided the notice of the meeting
states that the purpose, or one of the purposes, of the meeting is removal of
the director.
SECTION 7. COMPENSATION. The Board of Directors shall have authority to fix
- --------- ------------
the compensation of directors.
SECTION 8. PRESUMPTION OF ASSENT. A director of the Corporation who is
--------- ---------------------
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
such director votes against such action or abstains from voting in respect
thereto because of an asserted conflict of interests.
SECTION 9. DIRECTORS' MEETINGS. The Board of Directors may hold regular or
--------- -------------------
special meetings in or out of the state. Meetings of the Board of Directors may
be called at any time by the President of the Corporation, or by any two
directors.
SECTION 10. NOTICE OF MEETINGS. Regular meetings of the Board of Directors
---------- ------------------
may be held without notice of the date, time, place or purpose of the meetings.
Special meetings of the Board of Directors must be preceded by at least two
days' notice of the date, time and place of the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
SECTION 11. WAIVER OF NOTICE. Notice of a meeting of the Board of Directors
---------- ----------------
need not be given to any director who signs a waiver of notice either before or
after the meeting. Attendance of a director at a meeting shall constitute a
waiver of notice of such meeting and waiver of any and all objections to the
place of the meeting, the time of the meeting, or the manner in which it has
been called or convened, except when a director states, at the beginning of the
meeting or promptly upon arrival at the meeting, any objection to the
transaction of business because the meeting is not lawfully called or convened.
SECTION 12. QUORUM AND VOTING. A majority of the number of directors fixed
---------- -----------------
by these Bylaws shall constitute a quorum for the transaction of business. If a
quorum is present when a vote is taken, the affirmative vote of a majority of
directors present is the act of the Board of Directors.
SECTION 13. ACTION BY DIRECTORS WITHOUT A MEETING. Any action required or
---------- -------------------------------------
permitted by law to be taken at a Board of Directors' meeting or committee
meeting may be taken without a meeting if action is taken by all members of the
Board or the committee. The action
<PAGE>
must be evidenced by one or more written consents describing the action taken
and signed by each director or committee member. Action taken shall be effective
when the last director signs the consent, unless the consent specifies a
different effective date. The consent signed shall have the effect of a meeting
vote and may be described as such in any document.
SECTION 14. ADJOURNMENTS. A majority of the directors present, whether or
---------- ------------
not a quorum exists, may adjourn any meeting of the Board of Directors to
another time and place. Notice of any such adjourned meeting shall be given to
the directors who were not present at the time of the adjournment and, unless
the time and place of the adjourned meeting are announced at the time of the
adjournment, to the other directors.
SECTION 15. PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of
---------- -------------------------------------
Directors may participate in a meeting of such Board by means of a conference
telephone or similar communications equipment by which all persons participating
in the meeting can hear each other at the same time. Participation by such
means shall constitute presence in person at a meeting.
ARTICLE III
-----------
COMMITTEES
----------
SECTION 1. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors, by
--------- ------------------------------
resolution adopted by a majority of the full Board of Directors, may designate
from among its members an Executive Committee and one or more other committees
each of which, to the extent provided in such resolution, shall have and may
exercise all the authority of the Board of Directors, except that no committee
shall have the authority to:
(a) Approve or recommend to shareholders actions or proposals required by law
to be approved by shareholders.
(b) Fill vacancies on the Board of Directors or any committee thereof.
(c) Adopt, amend, or repeal the Bylaws.
(d) Authorize or approve the reacquisition of shares unless pursuant to a
general formula or method specified by the Board of Directors.
(e) Authorize or approve the issuance or sale, or contract for the sale of
shares, or determine the designation and relative rights, preferences, and
limitations of a voting group except that the Board of Directors may authorize a
committee (or a senior executive officer of the Corporation) to do so within
limits specifically prescribed by the Board of Directors.
<PAGE>
Each committee must have two or more members who serve at the pleasure of the
Board of Directors. The Board, by resolution adopted in accordance with this
Section, may designate one or more directors as alternate members of any such
committee who may act in the place and stead of any absent member or members at
any meeting of such committee.
Neither the designation of any such committee, the delegation thereto of
authority, nor action by such committee pursuant to such authority shall alone
constitute compliance by any member of the Board of Directors not a member of
the committee in question with his responsibility to act in good faith, in a
manner he reasonably believes to be in the best interest of the Corporation, and
with such care as an ordinarily prudent person in a like position would use
under similar circumstances.
ARTICLE IV
----------
OFFICERS
--------
SECTION 1. OFFICERS, ELECTION AND TERMS OF OFFICE. The principal officers of
--------- --------------------------------------
this Corporation shall consist of a Chairman, a President, a Secretary, a
Treasurer and, in the discretion of the Board of Directors, one or more Vice
Presidents, each of whom shall be elected by the Board of Directors at the first
meeting of directors immediately following the annual meeting of shareholders of
this Corporation, and shall hold their respective offices from the date of the
meeting at which elected until the time of the next succeeding meeting of the
Board following the annual meeting of the shareholders. The Board of Directors
shall have the power to elect or appoint, for such term as it may see fit, such
other officers and assistant officers and agents as it may deem necessary, and
to prescribe such duties for them to perform as it may deem advisable. Any two
or more offices may be held by the same person. Failure to elect a Chairman,
President, Vice President, Secretary or Treasurer shall not affect the existence
of the Corporation.
SECTION 2. RESIGNATION AND REMOVAL OF OFFICERS. An officer may resign at any
--------- -----------------------------------
time by delivering notice to the Corporation. A resignation is effective when
the notice is delivered unless the notice specifies a later effective date. If
a resignation is made effective at a later date and the Corporation accepts the
future effective date, the Board of Directors may fill the pending vacancy
before the effective date if the Board of Directors provides that the successor
does not take office until the effective date.
The Board of Directors may remove any officer at any time with or without
cause. Any officer or assistant officer, if appointed by another officer, may
likewise be removed by such officer. Removal of any officer shall be without
prejudice to the contract rights, if any, of the person so removed; however,
election or appointment of an officer or agent shall not of itself create
contract rights.
SECTION 3. VACANCIES. Any vacancy, however occurring, in any office may be
- --------- ---------
filled by the Board of Directors.
<PAGE>
Section 4. CHAIRMAN. The Chairman of the Board of Directors shall preside at
---------- --------
all meetings of the Board of Directors, shall be deemed a senior executive of
the Corporation, and shall have and perform such other duties as from time to
time may be assigned to him by the Board of Directors.
SECTION 5. PRESIDENT. The President shall be the chief executive officer of
--------- ---------
the Corporation and, subject to the direction of and limitations imposed by the
Board of Directors, shall have general charge of the business, affairs and
property of the Corporation and general supervision over its other officers and
agents. The President shall preside at all meetings of the shareholders and in
the absence of the Chairman, the Board of Directors. The President, unless some
other person is thereunto expressly authorized by resolution of the Board of
Directors, shall sign all certificates of stock, execute all contracts, deeds,
notes, mortgages, bonds and other instruments and papers in the name of the
Corporation and on its behalf; subject, however, to the control, when exercised,
of the Board of Directors. The President shall, at each annual meeting, present
a report of the business and affairs of the Corporation. The President shall
have the power to employ and terminate the employment of all such subordinate
officers, agents, clerks and other employees not herein provided to be selected
by the Board, as such President may find necessary to transact the business of
the Corporation, and shall have the right to fix the compensation thereof.
SECTION 6. VICE PRESIDENT. One or more Vice Presidents may be designated by
--------- --------------
that title or such additional title or titles as the Board of Directors may
determine. A Vice President shall have the powers and perform such duties as
may be delegated to such Vice President by the Board of Directors, or in the
absence of such action by the Board, then by the President. A Vice President
(in such order of seniority as may be determined by the Board of Directors, if
any) shall, except as may be expressly limited by action of the Board of
Directors, perform the duties and exercise the powers of the President during
the absence or disability of the President; and, in such case, concurrently with
the President, shall at all times have the power to sign all certificates of
stock, execute all contracts, deeds, notes, mortgages, bonds and other
instruments and documents in the name of the Corporation on its behalf which the
President is authorized to do, but subject to the control and authority at all
times of the Board of Directors. A Vice President also shall have such powers
and perform such duties as usually pertain to such office or as are properly
required by the Board of Directors.
SECTION 7. SECRETARY. The Secretary shall keep the minutes of all meetings
--------- ---------
of the shareholders and the Board of Directors in a book or books to be kept for
such purposes, and also, when so requested, the minutes of all meetings of
committees in a book or books to be kept for such purposes. The Secretary shall
attend to giving and serving of all notices, and such Secretary shall have
charge of all books and papers of the Corporation, except those hereinafter
directed to be in charge of the Treasurer, or except as otherwise expressly
directed by the Board of Directors. The Secretary shall keep the stock
certificate book or books. The Secretary shall be the custodian of the seal of
the Corporation. The Secretary shall sign with the President all
<PAGE>
certificates of stock as the Secretary of this Corporation and as Secretary
affix or cause to be affixed thereto the seal of the Corporation. The Secretary
may sign as Secretary of the Corporation, with the President in the name of the
Corporation and on its behalf, all contracts, deeds, mortgages, bonds, notes and
other papers, instruments and documents, except as otherwise expressly provided
by the Board of Directors, and as such, the Secretary shall affix the seal of
the Corporation thereto when required thereby. Under the direction of the Board
of Directors, or the President, the Secretary shall perform all the duties
usually pertaining to the office of Secretary; and such Secretary shall perform
such other duties as may be prescribed by the Board of Directors or the
President.
SECTION 8. TREASURER. The Treasurer shall have the custody of all the funds
--------- ---------
and securities of the Corporation except as may be otherwise provided by the
Board of Directors, and the Treasurer shall make such disposition of the funds
and other assets of the Corporation as such Treasurer may be directed by the
Board of Directors. The Treasurer shall keep or cause to be kept a record of
all money received and paid out, and all vouchers and receipts given therefor,
and all other financial transactions of the Corporation. The Treasurer shall
have general charge of all financial books, vouchers and papers belonging to the
Corporation or pertaining to its business. The Treasurer shall render an
account of the Corporation's funds at the first meeting of the Board of
Directors immediately following the annual meeting of shareholders of this
Corporation, and at such other meetings as such Treasurer may be requested, and
such Treasurer shall make an annual statement of the finances of the
Corporation. If at any time there is a person designated as Comptroller of the
Corporation, the Treasurer may delegate to such Comptroller such duties and
powers as to the Treasurer may seem proper. The Treasurer shall perform such
other duties as are usually incident by law or otherwise to the office of the
Treasurer, and as such Treasurer may be directed or required by the Board of
Directors or the President.
SECTION 9. DELEGATION OF DUTIES. In the case of the absence or disability of
--------- --------------------
any officer of the Corporation, or in case of a vacancy in any office or for any
other reason that the Board of Directors may deem sufficient, the Board of
Directors, except as otherwise provided by law, may delegate the powers or
duties of any officer during the period of such officer's absence or disability
to any other officer or to any director.
ARTICLE V
---------
STOCK CERTIFICATES
------------------
SECTION 1. ISSUANCE. Every holder of shares in this Corporation shall be
--------- --------
entitled to have a certificate, representing all shares to which such holder is
entitled. No certificate shall be issued for any share until such share is
fully paid.
SECTION 2. SIGNATURES; FORM. Certificates representing shares in this
--------- ----------------
Corporation shall be signed by the Chairman, the President or a Vice President,
and by the Secretary or an Assistant Secretary or the Treasurer and may be
sealed with the seal of this Corporation or a
<PAGE>
facsimile thereof. The signatures of the President, the Secretary and the
Treasurer may be facsimiles if the certificate is manually signed on behalf of a
transfer agent or a registrar, other than the Corporation itself or an employee
of the Corporation. In case any officer who signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer at the date of its issuance.
Every certificate representing shares which are restricted as to the sale,
disposition or other transfer of such shares shall state that such shares are
restricted as to transfer and shall set forth or fairly summarize such
restrictions upon the certificate. Alternatively, each certificate may state
conspicuously that the Corporation will furnish to any shareholder upon request
and without charge a full statement of such restrictions.
SECTION 3. TRANSFER OF STOCK. Shares of stock of the Corporation shall be
--------- -----------------
transferred on the books of the Corporation only upon surrender to the
Corporation of the certificate or certificates representing the shares to be
transferred accompanied by an assignment in writing of such shares properly
executed by the shareholder of record or his duly authorized attorney in fact
and with all taxes on the transfer having been paid. The Corporation may refuse
any requested transfer until furnished evidence satisfactory to it that such
transfer is proper. Upon the surrender of a certificate for transfer of stock,
such certificate shall be marked on its face "Canceled." The Board of Directors
may make such additional rules concerning the issuance, transfer and
registration of stock as it deems appropriate.
If any holder of any stock of the Corporation shall have entered into an
agreement with any other holder of any stock of the Corporation or with the
Corporation, or both, relating to a sale or sales or transfer of any shares of
stock of the Corporation, or wherein or whereby any restriction or condition is
imposed or placed upon or in connection with the sale or transfer of any share
of stock of the Corporation, and if a duly executed or certified copy thereof
shall have been filed with the Secretary of the Corporation, none of the shares
of stock covered by such agreement or to which it relates, of any such
contracting shareholder, shall be transferred upon the books of the Corporation
until there has been filed with the Secretary of the Corporation evidence
satisfactory to the Secretary of the Corporation of compliance with such
agreement, and any evidence of any kind or quality, of compliance with the terms
of such agreement which the Secretary deems satisfactory or sufficient shall be
conclusive upon all parties interested; provided, however, that neither the
Corporation nor any director, officer, employee or transfer agent thereof shall
be liable for transferring or effecting or permitting the transfer of any such
shares of stock contrary to or inconsistent with the terms of any such
agreement, in the absence of proof of willful disregard thereof or fraud, bad
faith or gross negligence on the part of the party to be charged; provided,
further, that the certificate of the Secretary, under the seal of the
Corporation, bearing the date of its issuance by the Secretary, certifying that
such an agreement is or is not on file with the Secretary, shall be conclusive
as to such fact so certified for a period of five days from the date of such
certificate, with respect to the rights of any innocent purchaser or transferee
for value of any such shares without actual notice of the existence of any
restrictive agreement.
<PAGE>
SECTION 4. LOST CERTIFICATES. Any shareholder claiming a certificate of
--------- -----------------
stock to be lost or destroyed shall make affidavit or affirmation of the fact
and the fact that such shareholder is the owner and holder thereof, and give
notice of the loss or destruction of same in such manner as the Board of
Directors may require, and shall give the Corporation a bond of indemnity in
form, and with one or more sureties satisfactory to the Board of Directors,
payable as may be required by the Board of Directors to protect the Corporation
and any person injured by the issuance of the new certificate from any liability
or expense which it or they may incur by reason of the original certificate
remaining outstanding, whereupon the President or a Vice President and the
Secretary or an Assistant Secretary may cause to be issued a new certificate in
the same tenor as the one alleged to be lost or destroyed, but always subject to
approval of the Board of Directors.
ARTICLE VI
----------
INDEMNIFICATION
---------------
SECTION 1. DEFINITIONS. For purposes of this Article VI, the following terms
--------- -----------
shall have the meanings hereafter ascribed to them:
(a) "Agent" includes a volunteer.
(b) "Corporation" includes, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director, officer,
employee, or agent of a constituent corporation, or is or was serving at the
request of a constituent corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust or other enterprise,
is in the same position with respect to the resulting or surviving corporation
as he would have with respect to such constituent corporation if its separate
existence had continued.
(c) "Expenses" includes counsel's fees, including those for appeal.
(d) "Liability" includes obligations to pay a judgment, settlement, penalty,
fine (including an excise tax assessed with respect to any employee benefit
plan), and Expenses actually and reasonably incurred with respect to a
Proceeding.
(e) "Proceeding" includes any threatened, pending, or completed action, suit,
or other type of proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
(f) "Serving at the Request of the Corporation" includes any service as a
director, officer, employee, or agent of the Corporation that imposes duties on
such persons, including duties relating to an employee benefit plan and its
participants or beneficiaries.
<PAGE>
(g) "Not Opposed to the Best Interest of the Corporation" describes the
actions of a person who acts in good faith and in a manner he reasonably
believes to be in the best interests of the participants and beneficiaries of an
employee benefit plan.
(h) "Other Enterprise" includes employee benefit plans.
SECTION 2. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS.
--------- ------------------------------------------------------------
A. The Corporation shall have power to indemnify any person who was or is a
party to any proceeding (other than an action by, or in the right of, the
Corporation), by reason of the fact that he is or was a director, officer,
employee, or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability
incurred in connection with such proceeding, including any appeal thereof, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interest of the Corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any proceeding by judgment, order, settlement,
or conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner in which he reasonably believed to be in, or not opposed to, the best
interest of the Corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
B. The Corporation shall have power to indemnify any person, who was or is a
party to any proceeding by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the judgment of the
Board of Directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interest of
the Corporation, except that no indemnification shall be made in respect of any
claim, issue, or matter as to which such person shall have been adjudged to be
liable unless, and only to the extent that, the court in which such proceeding
was brought, or any other court of competent jurisdiction, shall determine upon
application that, despite the adjudication of liability that in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
C. To the extent that a director, officer, employee, or agent of the
Corporation has been successful on the merits or otherwise in the defense of any
proceeding referred to in subsection A or subsection B, or in the defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith.
<PAGE>
D. Any indemnification under subsection A or subsection B, unless pursuant to
determination by a court, shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth herein. Such determination shall
be made:
1. By the Board of Directors by a majority vote of a quorum consisting of
directors who are not parties to such proceeding;
2. If such a quorum is not obtainable or, even if obtainable, by majority
vote of a committee duly designated by the Board of Directors (in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
3. By independent legal counsel:
a. Selected by the Board of Directors or the committee;
b. If a quorum of the directors cannot be obtained and a committee
cannot be designated, selected by majority vote of the full Board of Directors
(in which directors who are parties may participate);
4. By the shareholders by a majority vote of a quorum consisting of
shareholders who were not parties to such proceeding or, if no such quorum is
obtainable, by a majority vote of shareholders who were not parties to such
proceeding.
E. Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons designated by independent legal
counsel shall evaluate the reasonableness of expenses and may authorize
indemnification.
F. Expenses incurred by an officer or director in defending a civil or
criminal proceeding may be paid by the Corporation in advance of the final
disposition of the such proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if he is ultimately
found not to be entitled to indemnification by the Corporation pursuant to this
section. Expenses incurred by other employees and agents may be paid in advance
upon such terms or conditions that the Board of Directors deems appropriate.
G. The indemnification and advancement of expenses provided pursuant to this
Article are not exclusive, and the Corporation may make \any other or further
indemnification or
<PAGE>
advancement of expenses of any of its directors, officers, employees, or agents,
under any bylaw, agreement, vote of shareholders, or disinterested directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. However, indemnification or
advancement of expenses shall not be made to or on behalf of any director,
officer, employee, or agent if a judgment or other final adjudication
establishes that his actions, or omissions to act, were material to the cause of
action so adjudicated and constitute:
1. A violation of the criminal law, unless the director, officer,
employee, or agent had reasonable cause to believe his conduct was lawful or had
no reasonable cause to believe his conduct was unlawful;
2. A transaction from which the director, officer, employee, or agent
derived an improper personal benefit;
3. In the case of a director, a circumstance under which the liability
provisions of Section 607.0834, Florida Statutes, are applicable; or
4. Willful misconduct or a conscious disregard for the best interests of
the Corporation in a proceeding by or in the right of the Corporation to procure
a judgment in its favor or in a proceeding by or in the right of a shareholder.
H. Indemnification and advancement of expenses as provided in this Article
shall continue as, unless otherwise provided when authorized or ratified, to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person, unless otherwise provided when authorized or ratified.
I. Notwithstanding the failure of the Corporation to provide indemnification,
and despite any contrary determination of the Board or of the shareholders in
the specific case, a director, officer, employee or agent of the Corporation who
is or was a party to a proceeding may apply for indemnification or advancement
of expenses, or both, to the court conducting the proceeding, to the Circuit
Court, or to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice that it considers necessary, may
order indemnification and advancement of expenses, including expenses incurred
in seeking court ordered indemnification or advancement of expenses, if it
determines that:
1. The director, officer, employee or agent is entitled to mandatory
indemnification in which case the court shall also order the Corporation to pay
the director reasonable expenses incurred in obtaining court ordered
indemnification or advancement of expenses;
2. The director, officer, employee or agent is entitled to indemnification
or advancement of expenses, or both, by virtue of the exercise by the
Corporation of its power; or
<PAGE>
3. The director, officer, employee or agent is fairly and reasonably
entitled to indemnification or advancement of expenses, or both, in view of all
the relevant circumstances, regardless of whether such person met the standard
of conduct set forth herein.
ARTICLE VII
-----------
GENERAL PROVISIONS
------------------
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall begin on
--------- -----------
the first day of July and end on the last day of June in each year.
SECTION 2. SEAL. The Board of Directors in its discretion may adopt
--------- ----
a seal for the Corporation in such form as may be determined from time to time
by the Board of Directors.
SECTION 3. AMENDMENT OF BYLAWS. The Board of Directors shall have
--------- -------------------
the power to repeal, alter, amend, and rescind these Bylaws.
<PAGE>
EXHIBIT 3.23
ARTICLES OF INCORPORATION OF
E.S.C. OF NEVADA, INC.
FIRST. The name of the corporation is:
E.S.C. OF NEVADA, INC.
SECOND. The resident agent for this corporation shall be:
CORPORATE SERVCIE CENTER
The address of said agent, and the principal or statutory address of this
corporation in the State of Nevada, shall be 1280 TERMINAL WAY, SUITE 15, RENO,
NEVADA 89502, located in WASHOE COUNTY, State of Nevada. This corporation may
maintain an office, or offices, in such other place or places within or without
the State of Nevada as may be from time to time designated by the Board of
Directors, or by the bylaws of said corporation, and that this corporation may
conduct all corporation business of every kind and nature, including the holding
of all meetings of directors and stockholders, outside the State of Nevada as
well as within the State of Nevada.
THIRD. The objects for which this corporation is formed are as follows: To
engage in any lawful activity.
FOURTH. That the total number of voting common stock authorized that may be
issued by the corporation is TWENTY FIVE THOUSAND (25,000) shares of stock with
NO par value, and no other class of stock shall be authorized. Said shares may
be issued by the corporation from time to time for such considerations as may be
fixed from time to time by the Board of Directors.
FIFTH. The governing board of this corporation shall be known as directors, and
the number of directors may from time to time be increased or decreased in such
manner as shall be provided by the bylaws of this corporation providing that the
number of directors shall not be reduced to less than one (1). The name and
post office address of the first Board of Directors shall be one (1); number and
listed as follows: TREVOR C. ROWLEY, 1280 TERMINAL WAY, SUITE 15, RENO NV
89502.
SIXTH. The capital stock, after the amount of the subscription price, or par
value, has been paid in, shall not be subject to assessment to pay the Debts of
the corporation.
SEVENTH. The name and post office address of the Incorporator signing the
Articles of Incorporation is as follows: TREVOR C. ROWLEY, 1280 TERMINAL WAY,
SUITE 15, RENO, NV 89502.
EIGHTH. The corporation is to have perpetual existence.
1
<PAGE>
NINTH. No director of officer of the corporation shall be personally liable to
the corporation or any of its stockholders for damages for breach of fiduciary
duty as a director or officer or for any act or omission of any such director of
officer; however, the foregoing provision shall not eliminate or limit the
liability of a director or officer for (a) acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law; or (b) the payment
of dividends in violation of Section 78.300 of the Nevada Revised Statutes. Any
repeal or modification of this Article by the stockholders of the corporation
shall be prospective only and shall not adversely affect any limitation on the
personal liability of a director or officer of the corporation for acts or
omissions prior to such repeal or modification.
TENTH. This corporation reserves the right to amend, alter, change or repeal
any provisions contained in the Articles of Incorporation, in the manner now or
hereafter prescribed by statute, or by the Articles of Incorporation, and all
rights conferred upon stockholder herein are granted subject to this
reservation.
I, THE UNDERSINGED, being the Incorporator hereinbefore named for the purpose of
forming a corporation pursuant to the General Corporation Laws of the State of
Nevada, do make and file these Articles of Incorporation, hereby declaring and
certifying that the facts herein stated are true, and accordingly have hereunto
set my hand this Wednesday, June 21, 1995.
/s/ Trevor C. Rowley
- ------------------------------
TREVOR C. ROWLEY, Incorporator
STATE OF NEVADA )
)SS:
WASHOE COUNTY )
On this Wednesday, June 21, 1995 in Reno, Washoe County, Nevada, before me, the
undersigned, a Notary Public in and for Washoe County, State of Nevada,
personally appeared TREVOR C. ROWLEY, known to me to be the person whose name is
subscribed to the foregoing document and acknowledge to me that he executed the
same.
/s/ D.K. Melius
- ------------------------------
Notary Public
2
<PAGE>
EXHIBIT 3.24
BY-LAWS
OF
E.S.C. OF NEVADA, INC.
A NEVADA CORPORATION
ARTICLE I
OFFICES
-------
Section 1. PRINCIPAL OFFICE. The principal office fixed and located at
2880 Meade Ave., Suite 105, Las Vegas, County of Clark, State of Nevada. The
location may be and changed by approval of a majority of the authorized
Directors, offices may be established and maintained at such other place or
places, either within or without California, as the Board of Directors may from
time to time designate.
Section 2. OTHER OFFICES. Branch or subordinate offices may at any time
be established by the Board of Directors at any place or places where the
corporation is qualified to do business.
ARTICLE II
DIRECTORS - MANAGEMENT
----------------------
Section 1. RESPONSIBILITY OF BOARD OF DIRECTORS. Subject to the
provisions of the General Corporation Law and to any limitations in the Articles
of incorporation of the corporation relating to action required to be approved
by the Shareholders, as that term is defined in Section 153 of the California
Corporations Code, or by the outstanding shares, as the term is defined in
Section 152 of the Code, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
the Board of Directors. The Board may delegate the management of the day-to-day
operation of the business of the corporation to a management company or other
person, provided that the business affairs of the corporation shall be managed
and all corporate powers shall be exercised under the ultimate direction of the
Board.
Section 2. STANDARD OF CARE. Each Director shall perform the duties of a
Director, including the duties as a member of any committee of the Board upon
which the Director may serve, in good faith, in a manner such Director believes
to be in the best interest of the corporation, and with such care, including
reasonable inquiry, as an ordinary prudent person in a like position would use
under similar circumstances. (Sec. 309)
Section 3. EXCEPTION FOR CLOSE CORPORATION. Notwithstanding the
provisions of Section 1, in the event that this corporation shall elect to
become a close
1
<PAGE>
corporation as defined in Sec. 158, its Shareholders may enter into a
Shareholders' Agreement as defined in Sec. 186. Said Agreement may provide for
the exercise of corporate powers and the management of the business and affairs
of this corporation by the Shareholders, provided, however, such agreement
shall, to the extent and so long as the discretion or the powers of the Board in
its management of corporate affairs is controlled by such agreement, impose upon
each Shareholder who is a party thereof, liability for managerial acts performed
or omitted by such person pursuant thereto otherwise imposed upon Directors as
provided in Sec. 300 (d); and the Directors shall be relieved to the extent from
such liability.
Section 4. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized number
of Directors shall be one (1) until changed by a duly adopted amendment to the
Articles of Incorporation or by an amendment to this by-law adopted by the vote
or written consent of holders of a majority of the outstanding shares entitled
to vote, as provided in Sec. 212.
Section 5. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be
elected at each annual of the Shareholders to hold office until the next annual
meeting. Each Director, including a Director elected to fill a vacancy, shall
hold office until the expiration of the term for which elected and until a
successor has been elected and qualified.
Section 6. VACANCIES. Vacancies in the Board of Directors may be filled
by a majority of the remaining Director, though less than a quorum, or by a sole
remaining Director, except that a vacancy created by the removal of a Director
by the vote or written consent of the Shareholders or by court order may be
filled only by the vote of a majority of the shares entitled to vote represented
at a duly held meeting at which a quorum is present, or by the written consent
of holders of a majority of the outstanding shares entitled to vote. Each
Director so elected shall hold office until the next annual meeting of the
Shareholders and until successor has been elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to exist
in the event of the death, resignation, or removal of any Director, or if the
Board of Directors by resolution declares vacant the office of Director who has
been declared of unsound mind by an order of court or convicted of a felony, or
if the authorized number of Directors is increased, or if the shareholders
fail, at any meeting of shareholders at which any Director or Directors are
elected, to elect the number of Directors to be voted for at that meeting.
The Shareholders may elect a Director or Directors at any time to fill any
vacancy or vacancies not filled by the Directors, but any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
Any Director may resign effective on giving written notice to the Chairman
of the Board, the President, the Secretary, or the Board of Directors, unless
the notice specifies a later time for that resignation to become effective. If
the resignation of a Director is effective
2
<PAGE>
at a future time, the Board of Directors may elect a successor to take office
when the resignation becomes effective.
No reduction of the authorized number of Directors shall have the effect of
removing any Director before that Director's term of office expires.
Section 7. REMOVAL OF DIRECTORS. The entire Board of Directors or any
individual Director may be removed from office as provided by Secs. 302, 303 and
304 of the Corporations Code of the State of California. In such case, the
remaining Board members may elect a successor Director to fill such vacancy for
the remaining unexpired term of the Director so removed.
Section 8. NOTICE, PLACE AND MANNER OF MEETINGS. Meetings of the Board of
Directors may be called by the Chairman of the Board, or the President, or any
Vice President, or the Secretary, or any two (2) Directors and shall be held at
the principal executive office of the corporation, unless some other place is
designated in the notice of the meeting. Members of the Board may participate
in a meeting through use of a conference telephone or similar communications
equipment so long as all members participating in such a meeting can hear one
another. Accurate minutes of any meeting of the Board or any committee thereof,
shall be maintained as required by Sec. 1500 of the Code by the Secretary or
other Officer designated for that purpose.
Section 9. ORGANIZATION MEETINGS. The organization meetings of the Board
of Directors shall be held immediately following the adjournment of the annual
meetings of the Shareholders.
Section 10. OTHER REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at the corporate offices or such other place as may be
designated by the Board of Directors, as follows:
Time of Regular Meeting: 10:00 a.m.
Date of Regular Meeting: 3rd Friday in June
If said day shall fall upon a holiday, such meetings shall be held on the
next succeeding business day thereafter. No notice need by given of such
regular meetings.
Section 11. SPECIAL MEETINGS - NOTICES - WAIVERS. Special meetings of the
Board may be called at any time by any of the aforesaid officers, i.e. by the
Chairman of the Board or the President or any Vice President or the Secretary or
any (2) Directors.
At least forty-eight (48) hours notice of the time and place of special
meetings shall be delivered personally to the Directors or personally
communicated to them by a corporate Officer by telephone or telegraph. If the
notice is sent to a Director by letter, it shall be addressed to him or her at
his or her address as it is shown upon the records of the corporation, or if it
is not so shown on such records or is not readily ascertainable, at the
3
<PAGE>
place in which the meetings of the Directors are regularly held. In case such
notice is mailed, it shall be deposited in the United States mail, postage
prepaid, in the place in which the principal executive office of the corporation
is located at least four (4) days prior to the time of the holding of the
meeting. Such mailing, telegraphing, telephoning or delivery as above provided
shall be due, legal and personal notice to such Director.
When all the Directors are present at any Directors' meeting, however
called or noticed, and either (i) sign a written consent thereto on the records
of such meeting, or, (ii) if a majority of the Directors are present and if
those not present sign a waiver of notice of such meeting or a consent to
whether prior to or after the holding such meeting, which said waiver, consent
or approval shall be filed with the Secretary of the corporation, or, (iii) if
a Director attends a meeting without notice but without protesting, prior
thereto or at its commencement, the lack of notice, then the transactions
thereof are as valid as if had at a meeting regularly called and noticed.
Section 12. SOLE DIRECTOR PROVIDED BY ARTICLES OF INCORPORATION OR BY-
LAWS. In the event only one (1) Director is required by the By-Laws or Articles
of Incorporation, then any reference herein to notices, waivers, consents,
meetings or other actions by a majority or quorum of the Directors shall be
deemed to refer to such notice, waiver, etc., by such sole Director, who shall
have all the rights and duties and shall be entitled to exercise all of the
powers and shall assume all the responsibilities otherwise herein described as
given to a Board of Directors.
Section 13. DIRECTORS ACTION BY UNANIMOUS WRITTEN CONSENT. Any action
required or permitted to be taken by the Board of Directors may be taken without
a meeting and with the same force and effect as if taken by a unanimous vote of
Directors, if authorized by a writing signed individually or collectively by all
members of the Board. Such consent shall be filed with the regular minutes of
the Board.
Section 14. QUORUM. A majority of the number of Directors as fixed by the
Articles of Incorporation or By-Laws shall be necessary to constitute a quorum
for the transaction of business, and the action of a majority of the Directors
present at any meeting at which there is a quorum, when duly assembled, is valid
as a corporate act; provided that a minority of the Directors, in the absence of
a quorum, may adjourn from time to time, but may not transact any business. A
meeting at which a quorum is initially present may continue to transaction
business, notwithstanding the withdrawal of Directors, if any action taken is
approved by a majority of the required quorum for such meeting.
Section 15. NOTICE OF ADJOURNMENT. Notice of the time and place of
holding an adjourned meeting need not be given to absent Directors if the time
and place be fixed at the meeting adjourned and held within twenty-four (24)
hours, but if adjourned more than twenty-four (24) hours, notice shall be given
to all Directors not present at the time of the adjournment.
4
<PAGE>
Section 16. COMPENSATION OF DIRECTORS. Directors, as such, shall not
receive any stated salary for their services, but by resolution of the Board a
fixed sum and expense of attendance, if any, may be allowed for attendance at
each regular and special meeting of the Board; provided, that nothing herein
contained shall be construed to preclude any Director from serving the
corporation in any other capacity and receiving compensation therefor.
Section 17. COMMITTEES. Committees of the Board may be appointed by
resolution passed by a majority of the whole Board. Committees shall be
composed of two (2) or more members of the Board, and shall have such powers of
the Board as may be expressly delegated to it by resolution of the Board of
Directors, except those powers expressly made non-delegable by Sec. 311.
Section 18. ADVISORY DIRECTORS. The Board of Directors from to time may
elect one or more persons to be Advisory Directors who shall not by such
appointment be members of the Board of Directors. Advisory Directors shall be
available from time to time to perform special assignments specified by the
President, to attend meetings of the Board of Directors upon invitation and to
furnish consultation to the Board. The period during which the title shall be
held may be prescribed by the Board of Directors. If no period is prescribed,
the title shall be held at the pleasure of the Board.
Section 19. RESIGNATIONS. Any Director may resign effective upon giving
written notice to the Chairman of the Board, the President, the Secretary or the
Board of Directors of the corporation, unless the notice specifies a later time
for the effectiveness of such resignation. If the resignation is effective at a
future time, a successor may be elected to take office when the resignation
becomes effective.
ARTICLE III
OFFICERS
--------
Section 1. OFFICERS. The Officers of the corporation shall be a
President, a Secretary, and a Chief Financial Officer. The corporation may also
have, at the discretion of the Board of Directors, a Chairman of the Board, one
or more Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, and such other Officers as may be appointed in accordance
with the provisions of Section 3 of this Article III. Any number of offices may
be held by the same person.
Section 2. ELECTION. The Officers of the corporation, except such
Officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article, shall be chosen annually by the Board of Directors,
and each shall hold of f ice until he or she shall resign or shall be removed or
otherwise disqualified to serve, or a successor shall be elected and qualified.
5
<PAGE>
Section 3. SUBORDINATE OFFICERS, ETC. The Board of Directors may appoint
such other Officers as the business of the corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in the By-Laws or as the Board of Directors may from time to
time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if
any, of an Officer under any contract of employment, any Officer may be removed,
either with or without cause, by the Board of Directors, at any regular or
special meeting of the Board, or, except in case of an Officer chosen by the
Board of Directors, by any Officer upon whom such power of removal may be
conferred by the Board of Directors.
Any Officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the Officer is a
party.
Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the By-Laws for regular appointments to that office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at meetings of the Board of
Directors and exercise and perform such other powers and duties as may be from
time to time assigned by the Board of Directors or prescribed by the By-Laws.
If there is no President, the Chairman of the Board shall in addition be the
Chief Executive Officer of the corporation and shall have the powers and duties
prescribed in Section 7 of this Article III.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may
be given by the Board of Directors to the Chairman of the Board, if there be
such an Officer, the President shall be the Chief Executive Officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and Officers of the
corporation. He or she shall preside at all meetings of the Shareholders and in
the absence of the Chairman of the Board, or if there be none, at all meetings
of the Board of Directors. The President shall be ex officio a member of all
the standing committees, including the Executive Committee, if usually vested in
the office of President of a corporation, and shall have such other powers and
duties as may be prescribed by the Board of Directors or the By-Laws.
Section 8. VICE PRESIDENT. In the absence or disability of the President,
the Vice Presidents, if any, in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and be subject to, all the restrictions upon, the
President. The Vice Presidents shall have such other powers and
6
<PAGE>
perform such other duties as from time to time may be prescribed for them
respectively by the Board of Directors or the By-Laws.
Section 9. SECRETARY. The Secretary shall keep, or cause to be kept, a
book of minutes at the principal office or such other place as the Board of
Directors and Shareholders, with the time and place of holding, whether regular
or special, and if special, how authorized, the notice thereof given, the names
of those present at Directors' meetings, the number of shares present or
represented at Shareholders' meetings and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal office or
at the office of the corporation's transfer agent, a share register, or
duplicate share register, showing the names of the Shareholders and their
addresses; the number and classes of shares held by each; the number and date of
certificates issued for the same; and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the meetings
of the Shareholders and of the Board of Directors required by the By-Laws or by
law to be given. He or she shall keep the seal of the corporation in safe
custody, and shall have such other powers and perform such other duties as may
be prescribed by the Board of Directors or by the By-Laws.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained in accordance with
generally accepted accounting principles, adequate and correct accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
earnings (or surplus) and shares. The books of accounts shall at all reasonable
times be open to inspection by any Director.
This Officer shall deposit all moneys and other valuables in the name and
to the credit of the corporation with such depositories as may be designated by
the Board of Directors. He or she shall disburse the funds of the corporation
as may be ordered by the Board of Directors, shall render to the President and
Directors, whenever they request it, an account of all of his or her
transactions and of the financial condition of the corporation, and shall have
such other powers and perform such other duties as may be prescribed by the
Board of Directors or the By-Laws.
ARTICLE IV
SHAREHOLDERS' MEETINGS
----------------------
Section 1. PLACE OF MEETINGS. The annual meetings of the Shareholders
shall be held, each year, at the time and on the day following:
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Time of Meeting: 10::00 a.m.
Date of Meeting: 3rd Friday in June
If this day shall be a legal holiday, then the meeting shall be held on the
next succeeding business day, at the same hour. At the annual meeting, the
Shareholders shall elect s Board of directors, consider reports of the affairs
of the corporation and transact such other business as may be properly brought
before the meeting.
Section 2. SPECIAL MEETINGS. Special meetings of the Shareholders may be
called at any time by the Board of directors, the Chairman of the Board, the
President, a Vice President, the Secretary, or by one or more Shareholders
holding not less than one-tenth (1/10) of the voting power of the corporation.
Except as next provided, notice shall be given as for the annual meeting.
Upon receipt of a written request addressed to the Chairman, President,
Vice President, or Secretary, mailed or delivered personally to such Officer by
any person (other than the Board) entitled to call a special meeting of
Shareholders, such Officer shall cause notice to be given, to the Shareholders
entitled to vote, that a meeting will be held at a time requested by the person
or persons calling the meeting, not less than thirty-five (35) nor more than
sixty (60) days after the receipt of such request. If such notice is not given
within twenty (20) days after receipt of such request, the persons calling the
meeting may give notice thereof in the manner provided by these By-Laws or apply
to the Superior Court as Provided in Sec. 305 (c).
Section 3. NOTICE OF MEETING - REPORTS. Notice of meetings, annual or
special, shall be given in writing not less than ten (10) nor more than sixty
(60) days before the date of the meeting to the Shareholders entitled to vote
thereat. Such notice shall be given by the Secretary or the Assistant
Secretary, or if there be no such Officer, or in the case of his or her neglect
or refusal, by any Director or Shareholder.
Such notices or any reports shall be given personally or by mail or other
means of written communication as provided in Sec. 601 of the Code and shall be
sent to the Shareholder's address appearing on the books of the corporation, or
supplied by him or her to the corporation for the purpose of notice, and in the
absence thereof, as provided in Sec. 601 of the Code.
Notice of any meeting of Shareholders shall specify the place, the day and
the hour of meeting, and (1) in case of a special meeting, the general nature of
the business to be transacted and no other business may be transacted, or (2) in
the case of an annual meeting, those matters which the Board at date of mailing,
intends to present for action by the Shareholders. At any meeting where
Directors are to be elected, notice shall include the names of the nominees, if
any, intended at date of notice to be presented by management for election.
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If a Shareholder supplies no address, notice shall be deemed to have been
given if mailed to the place where the principal executive office of the
corporation, in California, is situated, or published at least once in some
newspaper of general circulation in the County of said principal office.
Notice shall be deemed to have been given at the time it is delivered
personally or deposited in the mail or sent by other means of written
communication. The officer giving such notice or report shall prepare and file
an affidavit or declaration thereof.
When a meeting is adjourned for forty-five (45) days or more, notice of the
adjourned meeting shall be given as in case of an original meeting. Save, as
aforesaid, it shall not be necessary to give any notice of adjournment or of the
business to be transacted at an adjourned meeting other than by announcement at
the meeting at which such adjournment is taken.
Section 4. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of Shareholders, however called and noticed, shall
be valid as though had at a meeting duly held after regular call and notice, if
a quorum be present either in person or by proxy, and if, either before or after
the meeting, each of the Shareholders entitled to vote, not present in person or
by proxy, sign a written waiver of notice, or a consent to the holding of such
meeting or an approval of the minutes thereof. All waivers, consents or
approvals shall be filed with the corporation records or made a part of the
minutes of the meeting. Attendance shall constitute a waiver of notice, unless
objection shall be made as provided in Sec. 601 (e).
Section 5. SHAREHOLDERS ACTING WITHOUT A MEETING-DIRECTORS. Any action
which be taken at a meeting of the Shareholders, may be taken without a meeting
or notice of meeting if authorized by writing signed by all of the Shareholders
entitled to vote at a meeting for such purpose, and filed with the Secretary of
the corporation, provided, further, that while ordinarily Directors can only be
elected by unanimous written consent under Sec. 603 (d), if the Directors fail
to fill a vacancy, then a Director to fill that vacancy may be elected by the
written consent of persons holding a majority of shares entitled to votes for
the election of Directors.
Section 6. OTHER ACTIONS WITHOUT A MEETING. Unless otherwise provided in
the GCL or the Articles, any action which may be taken at any annual or special
meeting of Shareholders may be taken without a meeting and without prior notice,
if a consent in writing, setting forth the action so taken, signed by the
holders of outstanding shares 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.
Unless the consents of all Shareholders entitled to vote have been
solicited in writing,
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(1) Notice of any Shareholder approval pursuant to secs, 310,
317, 1201, or 2007 without a meeting by less than unanimous written consent
shall be given at least ten (10) days before the consummation of the action
authorized by such approval, and
(2) Prompt notice shall be given of the taking of any other
corporate action approved by Shareholders without a meeting by less than
unanimous written consent, to each of those Shareholders entitled to vote
who have not consented in writing.
Any Shareholder giving a written consent, or the Shareholder's
proxyholders, or a transferee of the shares of a personal representative of the
Shareholder or their respective proxyholders, may revoke the consent by a
writing received by the corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary of the corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the Secretary of the corporation.
Section 7. QUORUM. The holders of a majority of the shares entitled to
vote thereat, present in person, or represented entitled to vote thereat,
present in person,, or represented by proxy,, shall constitute a quorum at all
meetings of the Shareholders for the transaction of business except as otherwise
provided by law, by the Articles of Incorporation, or by these By-Laws. If,
however, such majority shall not be present or represented at any meeting of the
Shareholders, the Shareholders entitled to vote thereat, present in person, or
by proxy, shall have the power to adjourn the meeting from time to time, until
the requisite amount of voting shares shall be present. A such adjourned
meeting at which the requisite amount of voting shares shall be represented, any
business may be transacted which might have been transacted at a meeting as
originally notified.
If a quorum be initially present, the Shareholders may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum, if any action taken is approved by a
majority of the Shareholders required to initially constitute a quorum.
Section 8. VOTING. Only persons in whose names shares entitled to vote
stand on the stock, records of the corporation on the day of any meeting of
Shareholders, unless some other day be fixed by the Board of Directors for the
determination of Shareholders of record, and then on such other day, shall be
entitled to vote at such meeting.
Provided the candidate's name has been placed in nomination prior to the
voting and one or more Shareholder has given notice at the meeting prior to the
voting of the Shareholder's intent to cumulate the Shareholder's votes, every
Shareholder entitled to vote at any election for Directors of any corporation
for profit may cumulate their votes and give one candidate a number of votes
equal to the number of Directors to be elected multiplied by the number of votes
to which his or her shares are entitled, or distribute his or her votes on the
same principle among as many candidates as he or she thinks fit.
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The candidates receiving the highest number of votes up to the number of
Directors to be elected are elected.
The Board of Directors may fix a time in the future not exceeding thirty
(30) days preceding the date of any meeting of Shareholders or the date fixed
for the payment of any dividend or distribution, or for the allotment of rights,
or when any change or conversion or exchange of shares shall go into effect, as
a record date for the determination of the Shareholders entitled to notice of
and to vote at any such meeting, or entitled to receive any such dividend or
distribution, or any allotment of rights, or to exercise the rights in respect
to any such change, conversion or exchange of shares. In such case only
Shareholders of record on the date so fixed shall be entitled to notice of and
to vote at such meeting, or to exercise such rights, as the case may be
notwithstanding any transfer of any share on the books of the corporation after
any record date fixed as aforesaid. The Board of Directors may close the books
of the corporation against transfers of shares during the whole or any part of
such period.
Section 9. PROXIES. Every Shareholder entitled to vote,, or to execute
consents, may do so, either in person or by written proxy, executed in
accordance with the provisions of Secs. 604 and 705 of the Code and filed with
the Secretary of the corporation.
Section 10. ORGANIZATION. The President, or in the absence of the
President, any Vice President, shall call the meeting of the Shareholders to
order, and shall act as chairman of the meeting. In the absence of the
President and all of the Vice Presidents, Shareholders shall appoint a chairman
for such meeting. The Secretary of the corporation shall act as Secretary of
all meetings of the Shareholders, but in the absence of the Secretary at any
meeting of the Shareholders, the presiding Officer may appoint any person to act
as Secretary of the meeting.
Section 11. INSPECTORS OF ELECTION. In advance of any meeting of
Shareholders the Board of Directors may, if they so elect, appoint inspectors of
election to act at such meeting or any adjournment thereof. If inspectors of
election be not so appointed, or if any persons so appointed fail to appear or
refuse to act, the chairman of any such meeting may, and on the request of any
Shareholder or his or her proxy shall, make such appointment at the meeting in
which case the number of inspectors shall be either one (1) or three (3) as
determined by a majority of the Shareholders represented at the meeting.
Section 12. (A) SHAREHOLDERS' AGREEMENTS. Notwithstanding the above
provisions, in the event this corporation elects to become a close corporation,
an agreement between two (2) or more Shareholders thereof, if in writing and
signed by the parties thereof, may provide that in exercising any voting rights
the shares held by them shall be voted as provided therein or in Sec 706, and
may otherwise modify these provisions as to Shareholders' meetings and actions.
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(B) EFFECT OF SHAREHOLDERS' AGREEMENTS. Any Shareholders' Agreement
authorized by Sec 300 (b), shall only be effective to modify the terms of these
By-Laws if this corporation elects to become a close corporation with
appropriate filing of or amendment to its Articles as required by Sec. 202 and
shall terminate when this corporation ceases to be a close corporation. Such an
agreement cannot waive or alter Sec. 158,1 (defining close corporations), 202
(requirements of Articles of Incorporation), 500 and 501 relative to
distributions, 111 (merger), 1201 (e) (reorganization) or Chapter 15 (Records
and Reports), 16 (Rights of Inspection), 18 (Involuntary Dissolution) or 22
(Crimes and Penalties). Any other provisions of the Code or these By-Laws may
be altered or waived thereby, but to the extent they are not so altered or
waived, these By-Laws shall be applicable.
ARTICLE V
CERTIFICATES AND TRANSFER OF SHARES
-----------------------------------
Section 1. CERTIFICATES FOR SHARES. Certificates for shares shall be of
such form and device as the Board of Directors may designate and shall state the
name of the record holder of the shares represented thereby; its number; date of
issuance; the number of shares for which it is issued; a statement of the
rights, privileges, preferences and restrictions, if any; a statement as to the
redemption or conversion, if any; a statement of liens or restrictions upon
transfer or voting, if any; if the shares be assessable or, if assessments are
collectible by personal action, a plain statement of such facts.
All certificates shall be signed in the name of the corporation by the
Chairman of the Board or Vice Chairman of the Board or the President or Vice
President and by the Chief Financial Officer or an Assistant Treasurer or the
Secretary or any Assistant Secretary, certifying the number of shares and the
class or series of shares owned by the Shareholder.
Any or all of the signatures on the certificate may be facsimile. In case
any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed on a certificate shall have ceased to be that Officer,
transfer agent, or registrar before that certificate is issued, it may be issued
by the corporation with the same effect as if that person were an Officer,
transfer agent, or registrar at the date of issue.
Section 2. TRANSFER ON THE BOOKS. Upon surrender to the Secretary or
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 3. LOST OR DESTROYED CERTIFICATES. Any person claiming a
certificate of stock to be lost or destroyed shall make an affidavit or
affirmation of that fact and shall, if the Directors so require, give the
corporation a bond of indemnity, in form and
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with one or more sureties satisfactory to the Board, in at least double the
value of the stock represented by said certificate, whereupon a new certificate
may be issued in the same tenor and for the same number of shares as the one
alleged to be lost or destroyed.
Section 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint one or more transfer agents or transfer clerks, and one or more
registrars, which shall be an incorporated bank or trust company, either
domestic or foreign, who shall be appointed at such times and places as the
requirements of the corporation may necessitate and the Board of Directors may
designate.
Section 5. CLOSING STOCK TRANSFER BOOKS - RECORD DATE. In order that the
corporation may determine the Shareholders entitled to notice of any meeting or
to vote or entitled to receive payment of any dividend or other distribution or
allotment of any rights or entitled to exercise any rights in respect of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days prior to the date of
such meeting nor more than sixty (60) days prior to any other action.
If no record date is fixed; the record date for determining Shareholders
entitled to notice of or vote at a meeting of Shareholders shall be at the close
of business on the business day preceding the day on which notice is given, or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held. The record date for determining
Shareholders entitled to give consent to corporate action in writing without a
meeting, when no prior action by the Board is necessary, shall be the day on
which the first written consent is given.
The record date for determining Shareholders for any other purpose shall be
at the close of business on the day on which the Board adopts the resolution
relating thereto, or the sixtieth (60th) day prior to the date of such other
action', whichever is later.
Section 6. LEGEND CONDITION. In the event any shares of this corporation
are issued pursuant to a permit or exemption therefrom requiring the imposition
of a legend condition, the person or persons issuing or transferring said shares
shall make sure said legend appears on the certificate and shall not be required
to transfer any shares free of such legend unless an amendment to such permit or
new permit be first issued so authorizing such deletion.
Section 7. CORPORATE REDEMPTION. In the event a shareholder dies, becomes
a resident of a state other than California, becomes Bankrupt or if a charging
order is issued against the shareholder's shares herein, makes an attempted
transfer of shares in violation of these by-laws, or enters into a business
enterprise directly competitive with that of the corporation, the corporation
shall have the right to redeem the shares of such shareholder. the redemptive
price shall be the book value of such shares as of the end of the month
preceding the date the redemption is effected. Redemption shall be effected by
giving notice thereof.
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Section 8. PROVISION RESTRICTING TRANSFER OF SHARES. Before there can be
a valid sale or transfer of any of the shares of this corporation by the holders
thereof, the holder of the shares to be sold or transferred shall first give
notice in writing to the Secretary of this corporation of his or her intention
to sell or transfer such shares. Said notice shall specify the number of shares
to be sold or transferred, the price per share and the terms upon which such
holder intends to make such sale or transfer. the Secretary shall within five
(5) days thereafter, mail or deliver a copy of said notice to each of the other
Shareholders of record of this corporation. Such notice may be delivered to
such Shareholders personally or may be mailed to the last known addresses of
such Shareholders, as the same may appear on the books of this corporation.
Within fifteen (15) days after the mailing or delivery of said notices to such
Shareholders, any such Shareholder or Shareholders desiring to acquire any part
or all of the shares referred to in the Secretary of this corporation a written
offer or offers to purchase a specified number or numbers of such shares at the
price and upon the terms stated in said notice.
If the total number of shares specified in such offers exceeds the number
of shares referred to in said notice, each offering Shareholder shall be
entitled to purchase such proportion of the shares referred to in said notice to
the Secretary, as the number of shares of this corporation, which he or she
holds, bears to the total number of shares held by all Shareholders desiring to
purchase the shares referred to in said notice to the Secretary.
If all of the shares referred to in said notice to the secretary are not
disposed of under such apportionment, each Shareholder desiring to purchase
shares in a number in excess of his or her proportionate share, as provided
above, shall be entitled to purchase such proportion of those shares which
remain thus undisposed of, as the total number of shares which he or she holds
bears to the total number of shares held by all of the Shareholders desiring to
purchase shares held by all of the Shareholders desiring to purchase shares in
excess of those to which they are entitled under such apportionment.
The aforesaid right to purchase the shares referred to in the aforesaid
notice to the Secretary shall apply only if all of the shares referred to in
said notice are purchased. Unless all of the shares referred to in said notice
to the Secretary are purchased, as aforesaid, in accordance with offers made
within said days, the Shareholder desiring to sell or transfer may dispose of
all shares of stock referred to in said notice to the Secretary to any person or
persons whomsoever; provided, however, that he or she shall not sell or transfer
such shares at a lower price or on terms more favorable to the purchaser or
transferee than those specified in said notice to Secretary.
Any sale or transfer, or purported sale or transfer, of the shares of
said corporation shall be null and void unless the terms, conditions and
provisions of this section are strictly observed and followed.
Section 9. PLEDGED OR HYPOTHECATED SHARES. Any shareholder desiring to
borrow money on or hypothecate any or all of the shares of stock held by such
Shareholder shall first mail notice in writing to the Secretary of this
corporation of his or her
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intention to do so. Said notice shall specify the number of shares to be pledged
or hypothecated, the amount to be borrowed per share, the terms, rate of
interest, and other provisions upon which each Shareholder intends to make such
loan or hypothecation. The Secretary shall, within five (5) days thereafter,
mail or deliver a copy of said notice to each of the other Shareholders of
record of this corporation. Such notice may be delivered to such Shareholder
personally, or may be mailed to the last known addresses of such Shareholders as
the same may appear on the books of this corporation. Within fifteen (15) days
after the mailing or delivering of said notice to said shareholders, any such
Shareholder or Shareholders desiring to lend any part or all of the amount
sought to be borrowed, as set forth in said notice, at the -terms therein
specified, shall deliver by mail, or otherwise, to the Secretary of this
corporation a written offer or offers to lend a certain amount of money for this
term, at the rate of interest, and upon the other provisions specified in said
notice.
If the total amount of money subscribed in such offers exceeds the amount
sought to be borrowed, specified in said notice, each offering Shareholder shall
be entitled to lend such proportion of the amount sought to be borrowed, as set
forth in said notice, as the number of shares which he or she holds bears to the
total number of shares held by all such Shareholders desiring to lend all or
part of the amount specified in said notice.
If the entire amount of monies sought to be borrowed, as specified in said
notice, is not subscribed as set forth in the preceding paragraphs, each
Shareholder desiring to lend an amount in excess of his or her proportionate
share, as specified in the preceding paragraph, shall be entitled to lend such
proportion of the subscribed amount as the total number of shares which he or
she holds bears to the total number of shares held by all of the Shareholders
desiring to lend an amount in excess of that to which they are entitled under
such apportionment. If there be but one Shareholder so desiring to lend, such
Shareholder shall be entitled to lend up to the full amount sought to be
borrowed.
If none, or only a part of the amount sought to be borrowed, as specified
in said notice, is subscribed as aforesaid, in accordance with offers made
within said fifteen (15) day period, the Shareholder desiring to borrow may
borrow from any person or persons he or she may so desire as to any or all
shares of stock held by him or her which have not been covered by lending
Shareholders; provided, however, that said Shareholders shall not borrow any
lesser amount, or any amount on terms less favorable to the borrower, than those
specified in said notice to the Secretary.
Any pledge or hypothecation, or other purported transfer as security for a
loan of the shares of this corporation, shall be null and void unless the terms,
conditions and provisions of these By-Laws are strictly observed and followed.
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ARTICLE VI
RECORDS - REPORTS - INSPECTION
------------------------------
Section 1. RECORDS. The corporation shall maintain, in accordance with
generally accepted accounting principles, adequate and correct accounts, books
and records of its business and properties. All of such books, records and
accounts shall be kept at its principal executive office in the State of
California, as fixed by the Board of Directors from time to time.
Section 2. INSPECTION OF BOOKS AND RECORDS. All books and records
provided for in Sec. 1500 shall be open to inspection of the Directors and
Shareholders from time to time and in the manner provided in said Sec. 1600 -
1602.
Section 3. CERTIFICATION AND INSPECTION OF BY-LAWS. The original or a
copy of these By-Laws, as amended or otherwise altered to date, certified by the
Secretary, shall be kept at the corporation's principal executive office and
shall be open to inspection by the Shareholders of the corporation at all
reasonable times during office hours, as provided in Sec. 213 of the Corporation
Code.
Section 4. CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
Section 5. CONTRACTS, ETC. -- HOW EXECUTED. The Board of Directors,
except as in the By-Laws otherwise provided, may authorize any Officer or
Officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the corporation. Such authority may be general
or confined to specific instances. Unless so authorized by the Board of
directors, no Officer, agent or employee shall have any power or authority to
bind the corporation by any contract or agreement, or to pledge its credit, or
to render it liable for any purpose or to any amount, except as provided in Sec.
313 of the corporations Code.
ARTICLE VII
ANNUAL REPORTS
--------------
Section 1. REPORT TO SHAREHOLDERS, DUE DATE. The Board of Directors shall
cause an annual report to be sent to the Shareholders not later than one hundred
twenty (120) days after the close of the fiscal or calendar year adopted by the
corporation. This report shall be sent at least fifteen (15) days before the
annual meeting of Shareholders to be held during the next fiscal year and in the
manner specified in Section 4 of Article IV of these By-Laws for giving notice
to Shareholders of the corporation. The annual
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report shall contain a balance sheet as of the end of the fiscal year and an
income statement and statement of changes in financial position for the fiscal
year, accompanied by any report of independent accountants or, if there is no
such report, the certificate of an authorized Officer of the corporation that
the statements were prepared without audit from the books and records of the
corporation.
Section 2. WAIVER. The annual report to Shareholders referred to in
Section 1501 of the California General Corporation Law is expressly dispensed
with so long as this corporation shall have less than one hundred (100)
Shareholders. However, nothing herein shall be interpreted as prohibiting the
Board of Directors from issuing annual or other periodic reports to the
Shareholders of the corporation as they consider appropriate.
ARTICLE VIII
AMENDMENTS TO BY-LAWS
---------------------
Section 1. AMENDMENT BY SHAREHOLDERS. New By-Laws may be adopted or these
By-Laws may be amended or repealed by the vote or written consent of holders of
a majority of the outstanding shares entitled to vote; provided, however, that
if the Articles of incorporation of the corporation set forth the number of
authorized Directors of the corporation, the authorized number of directors may
be changed only by an amendment of the Articles of Incorporation.
Section 2. POWERS OF DIRECTORS. Subject to the right of the Shareholders
to adopt, amend or repeal By-Laws, as provided in Section 1 of this Article
VIII, and the limitations of Sec. 204 (a) (5) and Sec. 212, the Board of
Directors may adopt, amend or repeal any of these By-Laws other than a by-law or
amendment thereof changing the authorized number of directors.
Section 3. RECORD OF AMENDMENTS. Whenever an amendment or new By-Law is
adopted, it shall be copied in the book of By-Laws with the original By-Laws, in
the appropriate place. If any By-Law is repealed, the fact of repeal with the
date of the meeting at which the repeal was enacted or written assent was filed
shall be stated in said book.
ARTICLE IX
CORPORATE SEAL
--------------
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the corporation, the date of its incorporation, and the word
"California".
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ARTICLE X
MISCELLANEOUS
-------------
Section 1. REFERENCES TO THE CODE SECTIONS. "Sec." references herein
refer to the equivalent Section of the General Corporation Law effective January
1, 1977, as amended.
Section 2. REPRESENTATION OF SHARES IN OTHER CORPORATIONS. Shares of
other corporations standing in the name of this corporation may be voted or
represented and all incidents thereto may be exercised on behalf of the
corporation by the Chairman of the Board, the President or any Vice President
and the Secretary or an Assistant Secretary.
Section 3. SUBSIDIARY CORPORATIONS. Shares of this corporation owned by a
subsidiary shall not be entitled to vote on any matter. For the purpose of this
Section, a subsidiary of this corporation is defined as another corporation of
which shares thereof possessing more than 25% of the voting power are owned
directly or indirectly through one or more other corporations of which this
corporation owns, directly or indirectly, more than 50% of the voting power.
Sec.189 (b)
Section 4. INDEMNITY. The corporation may indemnify any Director,
Officer, agent or employee as to those liabilities and on those terms and
conditions as are specified in Sec. 317 of the code. In any event, the
corporation shall have the right to purchase and maintain insurance on behalf of
any such persons whether or not the corporation would have the power to
indemnify such person against the liability insured against.
Section 5. ACCOUNTING YEAR. The accounting year of the corporation shall
be fixed by resolution of the Board of Directors.
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CERTIFICATE OF ADOPTION OF BY-LAWS
----------------------------------
ADOPTION BY INCORPORATORS OR FIRST DIRECTORS
--------------------------------------------
The undersigned persons named in the Articles of incorporation as the
Incorporators or First Directors of the above named corporation hereby adopt the
same as the By-Laws of said corporation executed this 29th day of June, 1995.
/s/ Terry J. Long
- -----------------
Terry J. Long
CERTIFICATE BY SECRETARY
- ------------------------
I DO HEREBY CERTIFY AS FOLLOWS:
That I am the duly elected, qualified and acting Secretary of the above
named corporation, that the foregoing By-Laws were adopted as the By-Laws of
said corporation the date set forth above by the persons named in the Articles
of Incorporation as the Incorporators or First Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal this 29th day of June 1995.
/s/ Terry J. Long
-----------------
Terry J. Long
CERTIFICATE BY SECRETARY OF ADOPTION BY SHAREHOLDERS' VOTE.
----------------------------------------------------------
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary of the above
named corporation and that the above and foregoing Code of By-Laws was submitted
to the Shareholders at their first meeting and recorded in the minutes thereof,
was ratified by the vote of Shareholders entitled to exercise the majority of
the voting power of said corporation.
IN WITNESS WHEREOF, I, have, hereunto set my hand this 29th day of June
1995.
/s/ Terry J. Long
-----------------
Terry J. Long
19
<PAGE>
EXHIBIT 4.14
AMENDMENT NO. 2 TO WARRANT AGREEMENT
This Amendment No. 2 to Warrant Agreement, dated as of January 7, 1997
("Amendment"), by and between LA-MAN CORPORATION, a Nevada corporation (the
"Company"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
(the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Company and the Warrant Agent are parties to a Warrant Agreement
dated as of January 6, 1994, as amended by Amendment No. 1 thereto dated as of
December 8, 1995 (as amended, the "Warrant Agreement"), in connection with up to
713,000 Common Stock Purchase Warrants ("Warrants") registered under the
Securities Act of 1933, as amended, pursuant to a Registration Statement on Form
S-1 (Registration No. 33-54230), as amended by post-effective amendment nos. 1-7
thereto (the "Registration Statement"), initially declared effective by the
Securities and Exchange Commission on January 6, 1994; and
WHEREAS, pursuant to the Warrant Agreement the Warrant Agent acts on behalf of
the Company in connection with transfer, exchange and redemption of the
Warrants, the issuance of certificates representing the Warrants ("Warrant
Certificates"), the exercise of the Warrants and the rights of the holders
thereof; and
WHEREAS, the Company has determined to extend the expiration date of the
Warrants; and
WHEREAS, the Company and the Warrant Agent desire to amend the terms of the
Warrant Agreement in order to conform the terms and provisions thereof to the
modification of the expiration date of the Warrants;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, and for the purpose of amending certain terms and
provisions of the Warrants and the Warrant Certificates and the respective
rights and obligations of the Company, the holders of the Warrant Certificates
and the Warrant Agent, the Company and the Warrant Agent hereby agree as
follows:
1. DEFINITIONS. Unless otherwise defined in this Amendment, capitalized terms
used herein shall have the meanings ascribed to them in the Warrant Agreement.
<PAGE>
2. AMENDMENT TO WARRANT AGREEMENT. The definition of "Warrant Expiration Date"
contained in Section 1(j) of the Warrant Agreement is hereby amended by deleting
such definition in its entirety and substituting the following in lieu thereof:
"(j) "Warrant Expiration Date" shall mean 5:00 P.M. (New York
time) on June 30, 1997, or the Redemption Date as defined in Section 8,
whichever is earlier; provided that if such date shall in the State of New
York be a holiday or day on which banks are authorized to close, then 5:00
P.M. (New York time) on the next following day which in the State of New
York is not a holiday or a day on which banks are authorized to close. The
Company shall have the right to extend the expiration date of the
Warrants."
3. SURVIVAL OF WARRANT AGREEMENT. Except as hereinabove amended, all terms and
provisions of the Warrant Agreement shall remain in full force and effect
following the execution and delivery of this Amendment.
4. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Nevada, without reference to the
principles of conflict of laws thereof.
5. BINDING EFFECT. This Amendment shall be binding upon and inure to the
benefit of the Company and the Warrant Agent and their respective successors and
assigns and the holders from time to time of the Warrant Certificates. Nothing
in this Amendment is intended or shall be construed to confer upon any other
person any right, remedy or claim, in equity or at law, or to impose upon any
other person any duty, liability or obligation.
6. COUNTERPARTS. This Amendment may be executed in counterparts, which taken
together shall constitute a single document.
IN WITNESS WHEREOF, the Company and the Warrant Agent have caused this
Amendment to be duly executed as of the date first above written.
LA-MAN CORPORATION CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as Warrant Agent
By: /s/ J. William Brandner By: /s/ William F.Seegraber
--------------------------------- --------------------------------
J. William Brandner Name: William F. Seegraber
President Title: Vice President
<PAGE>
EXHIBIT 4.15
AMENDMENT NO. 3 TO WARRANT AGREEMENT
This Amendment No. 3 to Warrant Agreement, dated as of May 27, 1997
("Amendment"), by and between LA-MAN CORPORATION, a Nevada corporation (the
"Company"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
(the "Warrant Agent").
W I T N E S S E T H:
WHEREAS, the Company and the Warrant Agent are parties to a Warrant Agreement
dated as of January 6, 1994, as amended by Amendment No. 1 thereto dated as of
December 8, 1995 and Amendment No. 2 thereto dated as of January 10, 1997 (as
amended, the "Warrant Agreement"), in connection with up to 713,000 Common Stock
Purchase Warrants ("Warrants") registered under the Securities Act of 1933, as
amended, pursuant to a Registration Statement on Form S-1 (Registration No. 33-
54230), as amended by post-effective amendment nos. 1-7 thereto (the
"Registration Statement"), initially declared effective by the Securities and
Exchange Commission on January 6, 1994; and
WHEREAS, pursuant to the Warrant Agreement the Warrant Agent acts on behalf of
the Company in connection with transfer, exchange and redemption of the
Warrants, the issuance of certificates representing the Warrants ("Warrant
Certificates"), the exercise of the Warrants and the rights of the holders
thereof; and
WHEREAS, the Company has determined to extend the expiration date of the
Warrants; and
WHEREAS, the Company and the Warrant Agent desire to amend the terms of the
Warrant Agreement in order to conform the terms and provisions thereof to the
modification of the expiration date of the Warrants;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, and for the purpose of amending certain terms and
provisions of the Warrants and the Warrant Certificates and the respective
rights and obligations of the Company, the holders of the Warrant Certificates
and the Warrant Agent, the Company and the Warrant Agent hereby agree as
follows:
1. DEFINITIONS. Unless otherwise defined in this Amendment, capitalized terms
used herein shall have the meanings ascribed to them in the Warrant Agreement.
1
<PAGE>
2. AMENDMENT TO WARRANT AGREEMENT. The definition of "Warrant Expiration Date"
contained in Section 1(j) of the Warrant Agreement is hereby amended by deleting
such definition in its entirety and substituting the following in lieu thereof:
"(j) "Warrant Expiration Date" shall mean 5:00 P.M. (New York
time) on June 30, 1998, or the Redemption Date as defined in Section 8,
whichever is earlier; provided that if such date shall in the State of New
York be a holiday or day on which banks are authorized to close, then 5:00
P.M. (New York time) on the next following day which in the State of New
York is not a holiday or a day on which banks are authorized to close. The
Company shall have the right to extend the expiration date of the
Warrants."
3. SURVIVAL OF WARRANT AGREEMENT. Except as hereinabove amended, all terms and
provisions of the Warrant Agreement shall remain in full force and effect
following the execution and delivery of this Amendment.
4. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Nevada, without reference to the
principles of conflict of laws thereof.
5. BINDING EFFECT. This Amendment shall be binding upon and inure to the
benefit of the Company and the Warrant Agent and their respective successors and
assigns and the holders from time to time of the Warrant Certificates. Nothing
in this Amendment is intended or shall be construed to confer upon any other
person any right, remedy or claim, in equity or at law, or to impose upon any
other person any duty, liability or obligation.
6. COUNTERPARTS. This Amendment may be executed in counterparts, which taken
together shall constitute a single document.
IN WITNESS WHEREOF, the Company and the Warrant Agent have caused this
Amendment to be duly executed as of the date first above written.
LA-MAN CORPORATION CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as Warrant Agent
By: /s/ J. William Brandner By: /s/ William F. Seegraber
-------------------------------- ---------------------------------
J. William Brandner Name: William F. Seegraber
President Title: Vice President
2
<PAGE>
EXHIBIT 5.3
LETTERHEAD OF BROAD AND CASSEL
April 29, 1998
La-Man Corporation
5029 Edgewater Drive
Orlando, FL 32810
Gentlemen:
We have acted as counsel to La-Man Corporation, a Nevada corporation ("La-
Man"), in connection with the preparation of a Registration Statement on Form
S-3 (the "Registration Statement"), to be filed with the Securities and Exchange
Commission (the "Commission") with respect to the following securities of La-Man
to be publicly offered for sale by the holder thereof (the "Selling
Securityholder"): 210,000 shares of Common Stock issuable upon exercise of
outstanding Common Stock Purchase Warrants, each of which entitles the
registered holder thereof to purchase one share of Common Stock at the exercise
price of $1.74 per share prior to November 23, 2001 (the "Warrants").
For purposes of expressing the following opinion, we have examined and relied
upon: (a) the Articles of Incorporation and Bylaws, as amended, of La-Man;
(b) the La-Man Corporation Officer's Certificate dated as of April 30, 1998; and
(c) such other documents and records of La-Man as we deemed necessary for
purposes of expressing the following opinion. Insofar as the opinion expressed
below may relate to shares of Common Stock issuable upon the exercise of the
Warrants, we have assumed that prior to the issuance of any such shares La-Man
will have received the full exercise price therefor and that all other
conditions precedent to the exercise of such warrants will have been fulfilled.
Based upon the foregoing and such other matters as we have deemed relevant, we
are of the opinion that the shares of Common Stock issuable upon exercise of the
Warrants, when issued in accordance with the terms of the Warrants will be, duly
authorized, legally issued, fully paid, and non-assessable.
The opinions expressed above are with respect only to federal law, the laws of
Florida and, to the extent applicable, corporate laws of Nevada. Moreover, we
express no opinion with
<PAGE>
LA-MAN CORPORATION
April 29, 1998
Page 2
respect to the securities laws of any state other than the State of Florida. The
opinion is made as of the date of this letter, and after this date we undertake
no obligation to update such opinion to reflect any facts or circumstances which
may later come to our attention or any changes to applicable laws after the date
hereof.
This opinion is furnished to and is solely for the benefit of La-Man and
neither this opinion nor any copies hereof may be delivered to or relied upon
by, any governmental agency or other person without our prior written approval.
Notwithstanding the foregoing, we consent to the use of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
BROAD AND CASSEL
By: /s/ Marshall S. Harris
----------------------
Marshall S. Harris, P.A.
MSH:bjd
<PAGE>
EXHIBIT 10.123
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
February 17, 1998, between and among DON BELL INDUSTRIES, INC., a Florida
corporation with its principal office at 365 Oak Place, Port Orange, Florida
32127 (the "Company"), LA-MAN CORPORATION, a Nevada corporation ("La-Man"), and
GARY D. BELL ("Employee").
RECITALS:
---------
The Company and the Employee are parties to a Employment Agreement dated as
of September 7, 1995 (the "1995 Employment Agreement"), pursuant to which the
Employee serves as the President and Chief Executive Officer of the Company;
The Company desires that the Employee continue to serve in an employment
capacity as the President and Chief Executive Officer of the Company, and the
Employee desires to continue to serve in such employment capacity, pursuant to a
new employment agreement;
NOW, THEREFORE, the Company and the Employee, in consideration of the
mutual covenants herein contained and intending to be legally bound hereby,
agree as follows:
1. DEFINITIONS. In addition to other terms defined herein, for purposes of
this Agreement, the following terms shall have the meanings specified in this
Section unless the context clearly requires otherwise:
1.01 "AFFILIATE" and "ASSOCIATE" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
1.02 "BASE SALARY" shall mean the total annual cash salary, excluding
bonuses and incentive compensation, earned by the Employee in all capacities
with the Company.
1.03 "CAUSE" shall mean: (a) the repeated intentional failure of the
Employee to observe or perform any of the material terms or provisions of this
Agreement, which failure continues after written notice to the Employee and
remains uncured for
1
<PAGE>
a period of 10 days following such written notice; (b) misappropriation of
funds, willful dishonesty towards, fraud upon, or willful misconduct of a
material nature, to the injury of the Company or its Affiliates; (c) commission
of a felony or other crime involving moral turpitude; or (d) habitual insobriety
or abuse of controlled substances.
1.04 "NOTICE OF TERMINATION" means a written notice which (a) indicates the
specific termination provision in this Agreement relied upon, (b) briefly
summarizes the facts and circumstances deemed to provide a basis for termination
of the Employee's employment under the provision so indicated and (c) specifies
the Termination Date. The Termination Date so specified shall be (i) a date not
less than 60 days from the delivery of such Notice of Termination to the
Employee (in the case of termination by the Company other than for Cause), (ii)
a date not more than 30 days after the delivery of such Notice of Termination to
the Company (in the case of termination by the Employee) or (iii) the date of
receipt of such Notice of Termination by the Employee (in the case of
termination by the Company for Cause).
1.05 "PERSON" shall mean any individual, firm, corporation, partnership or
other entity.
1.06 "TERMINATION DATE" shall mean the date required to be specified in the
Notice of Termination, or the last day of the Employment Term (as hereinafter
defined) if the employment of the Employee by the Company does not continue
thereafter.
1.07 "TERMINATION OF EMPLOYMENT" shall mean the termination of the
Employee's actual employment relationship with the Company whether pursuant to
Section 10 hereof or upon expiration of the Employment Term.
2. EMPLOYMENT TERM.
2.01 EMPLOYMENT TERM. The employment term under this Agreement shall
---------------
commence as of the date hereof (the "Effective Date"), and shall continue until
July 1, 2001 (the "Employment Term").
2.02 TERMINATION. In all cases, the Employment Term may be terminated
-----------
sooner than July 1, 2001 only in accordance with Section 10 hereof.
3. DUTIES AND RESPONSIBILITIES; ELECTIONS.
3.01 DUTIES AND RESPONSIBILITIES. Unless modified by mutual written
---------------------------
consent, the Employee shall perform such services and discharge such duties and
responsibilities of a senior executive nature as may be prescribed from time to
time
2
<PAGE>
by the Board of Directors of the Company ("Board") or such other persons as
may be designated by the Board; provided, however, that the services performed
by, and the duties and responsibilities of, the Employee shall be consistent
with those usually associated with the position of President and Chief Executive
Officer. The Employee shall serve in the capacities, titles and positions with
respect to the Company, and perform all duties and accept all responsibilities
incidental to any such capacities, titles and positions, as the Board may
reasonably direct in conformity with the foregoing sentence.
3.02 ELECTIONS. During the Employment Term, the Company shall use its best
---------
efforts to cause the Employee to be nominated and elected and to continue to
serve as President and Chief Executive Officer of the Company.
4. EXTENT OF SERVICE. The Employee shall devote his best efforts to the
business of the Company and shall devote his full time, attention and energy to
the performance of his services and the discharge of his duties and
responsibilities hereunder. During the existence of the employment relationship
hereunder, the Employee shall not work, on either a part-time, full-time or
independent contracting basis, for any other business or enterprise without the
Company's prior written consent. The foregoing shall not be construed to
preclude the Employee from engaging in part-time business or commercial
activities as a free-lance artist, provided that such activities are not
prohibited by other provisions of this Agreement and do not interfere with the
performance by the Employee of his employment obligations hereunder as President
and Chief Executive Officer of the Company.
5. COMPENSATION.
5.01 ANNUAL SALARY. For all the services to be performed by the Employee
-------------
hereunder, the Company shall pay the Employee a Base Salary at the annual rate
of $170,000 (effective as of July 1, 1997), less withholding required by law.
Such Base Salary shall be payable in installments at such times as the Company
customarily pays its other senior executives (but in any event not less
frequently than monthly).
5.02 INCENTIVE COMPENSATION. In addition to his annual Base Salary, the
----------------------
Employee shall be designated a "Participant" under, and shall participate in,
the La-Man Corporation Senior Management Incentive Plan, commencing with the
fiscal year ending June 30, 1998.
3
<PAGE>
6. BUSINESS EXPENSES; OTHER BENEFITS.
6.01 COMPANY AUTO. The Company will supply the Employee with a leased
------------
Lincoln Town Car or equivalent vehicle (or, at the Company's option, a $500.00
per month auto expense allowance).
6.02 BUSINESS EXPENSES. The Company will reimburse the Employee for
-----------------
Company auto operating expenses and for all other ordinary, necessary and
reasonable out-of-pocket business expenses incurred by Employee in connection
with his performance of services hereunder in accordance with the Company's
expense approval procedures in effect from time to time.
6.03 OTHER BENEFITS. The Company will provide the Employee with such
--------------
individual and dependant group medical insurance coverage, if any, and other
employment benefits as are or may in the future be provided by La-Man to its
officer employees in accordance with La-Man's policies.
7. CONFIDENTIAL INFORMATION. The Employee acknowledges that, by reason of his
employment by and service to the Company, he will have access to confidential
information of the Company and its Affiliates, including, without limitation,
information and knowledge pertaining to products, developments, improvements,
methods of operation, sales and profit figures, customer and client lists and
relationships between the Company and its Affiliates and their agents,
customers, clients, suppliers and others who have business dealings with them
(collectively, "Confidential Information"). The Employee acknowledges that such
Confidential Information is a valuable and unique asset of the Company and its
Affiliates and, in consideration of the benefits specified in this Agreement,
covenants that, both during and after the termination of the employment
relationship between the parties hereto, he will not use any Confidential
Information or disclose any Confidential Information to any Person (except as
his duties as an employee of the Company or any Affiliate may require) without
the prior written authorization of the Board. The obligation of confidentiality
imposed by this Section shall not apply to information which becomes generally
known in the industry through no act of the Employee in breach of this Agreement
or to information which the Employee is legally compelled to disclose pursuant
to subpoena, civil investigative demand or similar process (in such event, the
Employee promptly shall provide the Company with written notice thereof in order
to allow the Company to seek a protective order or other appropriate remedy).
8. NON-COMPETITION. The Employee acknowledges that he will acquire
specialized knowledge and experience in the business of the Company and its
Affiliates and that if his knowledge, experience, reputation or contacts are
used by or on behalf of the Employee to compete with the Company or its
Affiliates or to solicit
4
<PAGE>
employees or agents away from the Company or its Affiliates, serious harm to the
Company and its Affiliates may result. In consideration of the benefits
specified in this Agreement, the Employee agrees that during the Employee's
employment by the Company and for a period of three (3) years thereafter,
subject to the performance by the Company of its obligations under Section 10
hereof upon a Termination of Employment (whether prior to, or as the result of,
expiration of the Employment Term), the Employee shall not, unless acting
pursuant hereto or with the prior written consent of the Board, directly or
indirectly, render any services of a business, commercial, or professional
nature to any Person, whether for compensation or otherwise, within the United
States or elsewhere in competition with the Company or its Affiliates or which
is in conflict with the Company's or its Affiliates' interests, or solicit for
employment or in any other fashion hire any of the employees or agents of the
Company or its Affiliates or, with respect to the three-year period referred to
above, any person who was an employee or agent of the Company or its Affiliates
at any time within six months prior to the termination of employment hereunder;
provided, however, that this provision shall terminate in the event the
employment of the Employee is terminated by the Company in violation of Section
10 hereof. For the purpose of this Section 8, the phrases "in competition with"
and "in conflict with" shall not be deemed to apply to any Person whose
activities do not involve similar lines of business now or hereafter undertaken
by the Company or any Affiliate. In the event that the provisions of this
Section should ever be adjudicated to exceed the time, geographic, service or
product limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, service or product limitations permitted by applicable law.
9. EQUITABLE RELIEF. The Employee acknowledges that the restrictions
contained in Sections 7 and 8 hereof are, in view of the nature of the business
of the Company and its Affiliates, reasonable and necessary to protect the
legitimate interests of the Company, and that any violation of any provisions of
those Sections will result in irreparable injury to the Company. The Employee
also acknowledges that the Company shall be entitled to temporary and permanent
injunctive relief, without the necessity of proving actual damages, and to an
equitable accounting of all earnings, profits and other benefits arising from
any such violation, which rights shall be cumulative and in addition to any
other rights or remedies to which the Company may be entitled. In the event of
any such violation, the Company shall be entitled to commence an action for
temporary and permanent injunctive relief and other equitable relief in any
court of competent jurisdiction and Employee further irrevocably submits to the
jurisdiction of any Florida court or Federal court sitting in the Middle
District of Florida over any suit, action or proceeding arising out of or
relating to this Section 9. The Employee hereby waives, to the fullest extent
permitted by law, any objection that he may now or hereafter have to such
jurisdiction or to the venue of any such suit, action or proceeding brought in
such a
5
<PAGE>
court and any claim that such suit, action or proceeding has been brought
in any inconvenient forum. Effective service of process may be made upon the
Employee by mail under the notice provisions contained in Section 13 hereof.
10. TERMINATION.
10.01 TERMINATION WITHOUT CAUSE. The Company shall have the right to
-------------------------
terminate the employment of the Employee prior to expiration of the Employment
Term only as follows:
(a) As the result of partial or total disability as provided in
Section 10.02 hereof;
(b) Upon death of the Employee as provided in Section 10.03 hereof;
(c) For Cause as provided in Section 10.04 hereof;
(d) Upon breach by the Employee of his obligations under Section 7 or
Section 8 hereof; or
(e) For any other reason if, on or as soon as practicable following
the Termination Date, the Company pays to the Employee as severance, less
withholding required by law, in a single lump sum or, at the Company's option,
in equal installments corresponding to what would have been the Employee's
regular pay dates and amounts, an amount equal to the lesser of (i) 200% of the
---------
Employee's Base Salary or (ii) the Base Salary that would have otherwise have
been payable to the Employee for the remainder of the Employment Term; provided,
however, that in the event the Company does not renew or otherwise extend the
employment of the Employee following expiration of the Employment Term, the
Company shall pay to the Employee, on or as soon as practicable (but in any
event not later than 45 days) following the date of expiration of the Employment
Term, as severance the lump sum amount of $50,000, less withholding required by
law. Any severance payment pursuant to this subpart (e) shall be in addition
to, and not in lieu of, any unpaid salary, incentive compensation and other
benefits earned or accrued prior to the Termination Date.
The Employee acknowledges and agrees that the Company shall have no obligation
to pay any severance or other compensation to the Employee upon termination by
the Company for Cause or in the event the Employee elects to terminate such
employment other than as the result of the failure of the Company to perform its
obligations under this Section 10.
6
<PAGE>
10.02 PARTIAL OR TOTAL DISABILITY. In the event that the Employee is
---------------------------
unable to perform his duties and responsibilities hereunder to the full extent
required hereunder by reason of illness, injury or incapacity for six
consecutive months (herein defined as a "Disability") (during which time, if
during the Employment Term, he shall be entitled to receive payments of the
difference between the Employee's Base Salary and incentive compensation during
such time, or portion thereof, and the payments to which the Employee is
entitled pursuant to any applicable disability insurance policy (less
withholding required by law), each such payment calculated and payable at the
times corresponding to what would have been the Employee's regular pay dates
during such time), the Employment Term may be terminated by the Company and the
Company shall have no further liability or obligation hereunder to the Employee
except for unpaid salary, incentive compensation and benefits accrued through
the date of termination. The Employee agrees, in the event of any dispute under
this Section 10.02, to submit to a physical examination by a licensed physician
selected by the Company, the cost of such examination to be paid by the Company.
10.03 DEATH. In the event that the Employee dies, the Employment Term
-----
shall terminate and thereafter the Company shall have no liability or obligation
to the Employee, his executors, administrators, heirs, assigns or any other
person claiming under or through him except for unpaid salary, incentive
compensation and benefits accrued to the date of his death. Such payments shall
be made to the Employee's surviving spouse, or if none, to the Employee's
surviving children, and the surviving issue of deceased children, in equal
shares per stirpes, or if none, to the Employee's estate.
10.04 CAUSE. Nothing in this Employment Agreement shall be construed to
-----
prevent the termination of the Employment Term by the Company at any time for
Cause. The termination of the Employee's employment hereunder for Cause shall
not be effective until delivery to the Employee of a written decision of the
Board (after reasonable notice in writing to the Employee of the basis for such
termination and an opportunity for the Employee, together with his counsel, to
be heard before the Board), finding that in the good faith opinion of the Board
the Employee committed conduct constituting Cause and specifying the particulars
thereof in conformity with the requirements for a Notice of Termination.
10.05 EFFECT OF TERMINATION. In the event of a Termination of Employment,
---------------------
upon the satisfaction and performance by the Company of its obligations under
Section 10 hereof, the Company and its Affiliates and their respective
shareholders, directors, officers, and employees, shall be deemed fully released
by the Employee from any and all claims of any nature whatsoever for additional
salary or other compensation, severance compensation or benefits, retirement
compensation or benefits, disability compensation or benefits, damages or any
other direct or indirect
7
<PAGE>
compensation of any form whatsoever arising out of or in connection with, or
related to, the Employee's prior employment with the Company or the facts and
circumstances surrounding such Termination of Employment.
10.06 RETURN OF COMPANY PROPERTY. Promptly following any Termination of
--------------------------
Employment, the Employee shall turn over and surrender to the Company all
property of the Company then in his possession, including without limitation
Company automobiles, automobile keys and office keys, credit cards, debit cards,
telephone calling cards, and all business and financial records, statements,
memoranda, notebooks, correspondence and other documentation, and the Employee
shall not retain in his actual or constructive possession copies or
reproductions of any of said items of property or information without the prior
written approval of the Company, the Employee hereby acknowledging that all of
said items are and shall remain the sole and exclusive property of the Company
and that following any Termination of Employment the Employee shall not have any
ownership interest in or right to use, either for his personal benefit or the
benefit of others, any of such items of property or information.
11. SURVIVAL. Notwithstanding the termination of the employment relationship
between the parties hereto, the obligations of the Employee under Sections 7, 8
and 9 hereof shall survive and remain in full force and effect and the Company
shall be entitled to equitable relief against the Employee pursuant to the
provisions of Section 9 hereof. In addition to and not in limitation of the
provisions of the preceding sentence, notwithstanding any such termination of
the employment relationship between the parties hereto, obligations of the
Company under this Agreement that are intended pursuant to the terms hereof to
survive any such termination shall survive and remain in full force and effect
and such obligations shall be enforceable by the Employee in accordance with the
provisions of this Agreement.
12. NOTICE. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed, telexed,
sent by facsimile transmission (provided acknowledgment of receipt thereof is
delivered to the sender) or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally, telegraphed, telexed or sent by facsimile transmission or, if
mailed, three days after the date of deposit in the United States mails as
follows:
8
<PAGE>
If to Employee, to:
Gary D. Bell
4820 South Peninsula Drive
Ponce Inlet, FL 32127
with a copy to:
H. Charles Woerner, Esq.
Woerner and Parsons
2001 South Ridgewood Ave.
South Daytona, FL 32119
If to the Company, to:
Don Bell Industries, Inc.
365 Oak Place
Port Orange, Florida 32127
Attention: Gary D. Bell
President
with a copy to:
Marshall S. Harris, Esq.
Broad and Cassel
390 N. Orange Ave., Suite 1100
Orlando, FL 32801
If to La-Man to:
La-Man Corporation
5029 Edgewater Drive
Orlando, FL 32810
Attention: Mr. J. William Brandner
President and Chief Executive Officer
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with a copy to:
Marshall S. Harris, Esq.
Broad and Cassel
390 N. Orange Ave., Suite 1100
Orlando, FL 32801
or to such other names or addresses as the Company, La-Man or the Employee, as
the case may be, shall designate by notice to the other parties hereto in the
manner specified in this section.
13. REVIEW. The Employee represents and acknowledges that (a) he has been
advised by the Company to consult his own legal counsel with respect to this
Agreement and (b) he has had full opportunity, prior to execution of this
Agreement, to review thoroughly this Agreement with his counsel.
14. GOVERNING LAW. This Agreement shall be governed by, and construed and
interpreted under, the laws of the State of Florida without giving effect to any
conflict of laws provisions.
15. CONTENTS OF AGREEMENT; AMENDMENT AND ASSIGNMENT. This Agreement sets forth
the entire understanding between the parties hereto with respect to the subject
matter hereof and supersedes any and all other employment agreements or
arrangements between the parties hereto, including without limitation the 1995
Employment Agreement, and the Employee hereby releases and forever discharges
the Company, La-Man and all of their respective Affiliates, shareholders,
directors, officers, employees and agents from any and all claims for additional
fixed or incentive compensation or other benefits, or other claims or causes of
action of any nature whatsoever arising out of or in connection with or under
the 1995 Employment Agreement, it being the mutual intent of the Company, La-Man
and the Employee that the 1995 Employment Agreement is superseded in its
entirety by this Agreement. This Agreement cannot be changed, modified or
terminated except upon written amendment duly executed by the parties hereto.
All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs,
representatives, successors and assigns of the parties hereto, except that the
duties and responsibilities of the Employee hereunder are of a personal nature
and shall not be assignable in whole or in part by the Employee. The Employee
acknowledges that, from time to time, the Company may establish, maintain and
distribute employee manuals or handbooks or personnel policy manuals, and
officers or other representatives of the Company may make written or oral
statements relating to personnel policies and procedures. Such manuals,
handbooks and statements are intended only for general guidance. No policies,
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procedures or statements of any nature by or on behalf of the Company (whether
written or oral, and whether or not contained in any employee manual or handbook
or personnel policy manual), and no acts or practices of any nature, shall be
construed to modify this Agreement.
16. SEVERABILITY. If any provision of this Agreement or application thereof to
anyone or under any circumstances is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect any
other provisions or applications of this Agreement which can be given effect
without the invalid or unenforceable provision or application and shall not
invalidate or render unenforceable such provision in any other jurisdiction.
17. ENFORCEMENT; NO MITIGATION; NON-EXCLUSIVITY.
17.01 Any party to this Agreement that is required to incur any expenses
associated with the enforcement of such party's rights under this Agreement,
whether by arbitration, litigation, other legal action or otherwise, shall be
entitled, upon successfully enforcing any such rights, to recover from the party
against whom such rights were successfully enforced all such costs and expenses
(including all reasonable attorneys' fees and expenses). For purposes of this
Section 17.01, "successfully enforcing" shall mean the attainment of a final and
binding determination pursuant to any arbitration, litigation, or other legal
action awarding damages, equitable relief or other relief for the enforcement of
the rights of any party hereunder.
17.02 This Agreement negates and supersedes in its entirety the 1993
Employment Agreement; notwithstanding the foregoing, nothing in this Agreement
shall prevent or limit the Employee's continuing or future participation in or
rights under any benefit, bonus, incentive or other plan or program provided by
the Company or any present or future Subsidiary or Affiliate and for which the
Employee may qualify.
18. REMEDIES CUMULATIVE; NO WAIVER. No remedy conferred by this Agreement is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any other remedy given hereunder
or now or hereafter existing at law or in equity. No delay or omission n
exercising any right, remedy or power hereunder or existing at law or in equity
shall be construed as a waiver thereof, and any such right, remedy or power may
be exercised from time to time and as often as may be deemed expedient or
necessary.
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19. HEADINGS. All section headings contained in this Agreement are for
convenience of reference only, do not form a part of this Agreement and shall
not affect in any way the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed or caused to be executed
this Agreement as of the date first above written.
DON BELL INDUSTRIES, INC.
By: /s/ Gary D. Bell
----------------
Name: Gary D. Bell
Title: President
LA-MAN CORPORATION
By: /s/ J. William Brandner
-----------------------------
J. William Brandner, President
/s/ Gary D. Bell
-------------------------------
GARY D. BELL
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EXHIBIT 21
LA-MAN CORPORATION
SUBSIDIARIES
LA-MAN CORPORATION (Nevada)
Ad Art Electronic Sign Corporation (Florida)
(f/k/a/ Ad Art Displays, Inc., which was f/k/a Displays Acquisitions Corp.)
E.S.C. of Nevada, Inc. (Nevada)
Certified Maintenance Services, Inc. (Florida)
Don Bell Industries, Inc. (Florida)
Don Bell Industries of Nevada, Inc. (Nevada)
J.M. Stewart Manufacturing, Inc. (Florida)
Nevada SEMCO, Inc. (Nevada)
J.M. Stewart Corporation (Florida)
J.M. Stewart Industries, Inc. (Florida)
Vision Trust Marketing, Inc. (Florida)
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EXHIBIT 23.1
CONSENT OF BROAD AND CASSEL
(Contained in Opinion filed as Exhibit 5.3 to this Registration Statement)
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EXHIBIT 23.2
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
La-Man Corporation
Orlando, Florida
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-3 of our report
dated August 15, 1997 (except for Note 21 as to which the date is August 20,
1997) relating to the consolidated financial statements of La-Man Corporation
and subsidiaries appearing in the Company's Annual Report on Form 10-KSB for the
year ended June 30, 1997.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO SEIDMAN, LLP
BDO SEIDMAN, LLP
Orlando, Florida
April 30, 1998
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EXHIBIT 24
POWER OF ATTORNEY
(Included on Page II-9 hereof)
