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SECURITIES AND EXCHANGE COMMISSION
450 Fifth Street, N.W.
Washington, D.C. 20549
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FORM 10-SB
General Form For Registration of Securities
of Small Business Issuers Under Section 12(b)
or 12 (g) of the Securities Exchange Act of 1934
CONSTRUCTION TECHNOLOGY INDUSTRIES INC.
(Name of Small Business Issuer in Its Charter)
<TABLE>
<CAPTION>
Delaware 22-2535380
<S> <C>
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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68 Schraalenburg Road, P.O. Box 233
Harrington Park, New Jersey 07640
With copies to:
John Gitlin
3008 Falls Church Lane
Mesquite, Texas 75149
(Address of principal executive offices, including zip code)
(201) 784-5190
(Registrant's Telephone Number, Including Area Code)
Securities to be registered pursuant to Section 12(b)of the Act:
NONE
---------------------------------------------
(Title of Class)
Securities to be registered pursuant to Section 12(g)of the Act:
Common Stock, par value $.0001 per share
(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
PART I
ITEM 1. DESCRIPTION OF BUSINESS.
Business Development. Construction Technology Industries Inc. (the
"Company" or "CTI") was incorporated in the state of Delaware on March 8, 1984.
Subsequent to its date of incorporation, the Company filed with the Securities
and Exchange Commission a Registration Statement for the public sale of
6,600,000 units consisting of 6,600,000 shares of common stock, $0.0001 par
value and 6,600,000 warrants to purchase 19,800,000 shares of the Company's
common stock. All unexercised warrants have expired. The effective date of the
Prospectus and Registration Statement was October 1, 1985. The Company initially
engaged in the manufacture of modular building components for the residential
housing industry, which were sold to developers of residential housing units.
In November, 1986, the Company filed a voluntary petition under Chapter
11 of the Bankruptcy Code in the United States Bankruptcy Court, District of New
Jersey, Bk. No. 86-07021, which was converted by order of the court to a
liquidation proceeding under Chapter 7 of the Bankruptcy Code on October 5,
1987. On September 22, 1993 a Final Decree was entered by the court closing the
Chapter 7 proceedings. During the bankruptcy proceedings the Company ceased
operations which it never revived.
On June 12,1984, the Company, by amendment to its certificate of
incorporation, increased the authorized number of shares to 50,000,000 at par
value $0.0001.
In February 2000, the Company decided to engage in the pursuit of seeking a
partnership with a viable business entity. The primary activity of the Company
will involve seeking business opportunity candidates which it can acquire or
with whom it can merge. The Company has not selected any company for acquisition
or merger and does not intend to limit potential acquisition candidates to any
particular field or industry, but does retain the right to limit acquisition or
merger candidates, if it so chooses, to a particular field or industry. The
Company is currently in a development stage of its business.
The proposed business activities classify the Company as a "blank
check" company. The Securities and Exchange Commission defines such companies as
"any development stage company that is issuing a penny stock within the meaning
of section 3 (a)(51) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and that has no specific business plan or purpose, or has
indicated that its business plan is to merge with an unidentified company or
companies." Many states have enacted statutes, rules and regulations limiting
the sale of securities of "blank check" companies in their respective
jurisdictions. Management does not intend to undertake any further efforts to
cause a market to develop in the Company's securities other than, upon its
becoming a reporting company, to locate a broker dealer to apply to the National
Association of Securities Dealers to trade the Company's common stock on the
NASD Bulletin Board. The Company does not intend to undertake any offering of
the Company's securities, either debt or equity, until such time as the Company
has successfully implemented its business plan. On March 10, 2000 the Company
completed a private placement with its major shareholder which resulted in the
Company receiving $15,000.00, which management feels will be sufficient to fund
the Company's efforts to become a reporting and listed company. There is,
however, no assurances that the Company will be accepted for listing on the NASD
Bulletin Board. The Company intends to comply with the periodic reporting
requirements of the Exchange Act for so long as it is subject to those
requirements.
The Company is filing this Form 10SB on a voluntary basis. It has no obligation
to do so under the Exchange Act. The Company believes that by filing such Form
10SB and being obligated to file reports pursuant to Section 13 of the Exchange
Act, and by being listed on the NASDQ Bulletin Board, the Company will best
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position itself as an attractive partner for potential merger or acquisition
companies of greater financial value with a history of success. While the
Company believes it will be a more attractive acquisition candidate, there is no
assurance that the foregoing assumption is correct. Further, effective January
4, 1999, in order to become listed for trading on the Bulletin Board operated by
the National Association of Securities Dealers, Inc., the Company must be filing
reports with the Securities and Exchange Commission (the "Commission") pursuant
to Section 13 of the Exchange Act.
The Company believes that there is a demand by non-public corporations for shell
corporations that have a public distribution of securities, such as the Company.
The Company believes that demand for shells has increased dramatically since the
Commission imposed additional requirements upon "blank check" companies pursuant
to Rule 419 of the Securities Act of 1933, as amended (the " '33 Act").
According to the Commission, Rule 419 was designed to strengthen regulation of
securities offerings by blank check companies, which Congress has found to have
been a common vehicle for fraud and manipulation in the penny stock market. See
Securities Act Releases No. 6891 (April 17, 1991), 48 SEC Docket 1131 and No.
6932 (April 13, 1992) 51 SEC Docket 0382. The foregoing regulation has
decreased, substantially, the number of "blank check" offerings filed with the
Commission, and as a result has stimulated an increased demand for shell
corporations. While the Company has made the foregoing assumption, there is no
assurance that the same is accurate or correct and accordingly, no assurance
that the Company will be acquired by or acquire an existing non-public entity.
Furthermore, any business combination or transaction will likely result in a
significant issuance of shares and substantial dilution to present stockholders
of the Company.
Forward Looking Statements
Certain statements contained in this Registration Statement discuss potential
future events and/or transactions concerning the Company and may be deemed to be
forward looking statements. Forward looking statements are statements not based
on historical information and which relate to future operations, strategies,
financial results or other developments. Forward looking statements are
necessarily based upon estimates and assumptions that are inherently subject to
significant business, economic and competitive uncertainties and contingencies,
many of which are beyond the Company's control and many of which, with respect
to future business decisions, are subject to change. These uncertainties and
contingencies can affect actual results and could cause actual results to differ
materially from those expressed in any forward looking statements made by or on
behalf of the Company. The Company strongly urges the reader of this
Registration Statement to carefully read and consider the risk factors and other
cautionary statements identified by the Company in conjunction with the
discussions by the Company of the forward looking statements.
Risk Factors.
The Company's business is subject to numerous risk factors which
include the following:
1. No Operating History or Revenue and Minimal Assets. We have had no
recent operating history nor any revenues or earnings from operations since
inception. The Company has no significant assets or financial resources. We
will, in all likelihood, sustain operating expenses without corresponding
revenues, at least until the consummation of a business combination. This may
result in the Company incurring a net operating loss that will increase
continuously until we can consummate a business combination with a profitable
business opportunity. There is no assurance that the Company can identify such a
business opportunity and consummate such a business combination.
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2. Assets of the Corporation. The Company has no substantial, material,
tangible assets as of the filling date of this registration statement. Its
present assets are extremely limited. Any business activity that the Company
eventually undertakes may require substantial capital.
3. Speculative Nature of Company's Proposed Operations. The success of the
Company's proposed plan of operation will depend to a great extent on the
operations, financial condition and management of the companies with which the
Company may merge or which it acquires. While management intends to seek a
merger or acquisition of privately held entities with established operating
histories, there can be no assurance that the Company will be successful in
locating an acquisition candidate meeting such criteria. In the event the
Company completes a merger or acquisition transaction, of which there can be no
assurance, the success of the Company's operations will be dependent upon
management of the successor firm and numerous other factors beyond the Company's
control.
4. Dilution in Merger or Acquisition Transaction. The Company's plan of
operation is based upon a merger with or acquisition of a private concern, which
in all likelihood would result in the Company issuing securities to shareholders
of any such target concern. The issuance of previously authorized and unissued
Common Stock of the Company would result in substantial dilution to present and
prospective shareholders of the Company, which may necessarily result in a
change in control or management of the Company.
5. Impact of Limited Time Devoted to the Company. Opportunities available
to the Company for mergers or acquisitions may be lost or delayed as a result of
the limited amount of time devoted to the Company by management. As a result,
an acquisition or merger may never take place.
6. No Business Plan. The Company has not identified the business
opportunities in which it will attempt to obtain an interest. The Company
therefore cannot describe the specific risks presented by such business. In
general, it may be expected that such business will present such a level of
risks that conventional bank financing would not be available on favorable
terms. Such business may involve an unproven product, technology or marketing
strategy, the ultimate success of which cannot be assured. The acquired business
opportunity may be in competition with larger, more established firms over which
it will have no competitive advantage. The Company's investment in a business
opportunity may be expected to be highly illiquid and could result in a total
loss to the Company if the opportunity is unsuccessful.
7. Company's Securities are Subject to Penny Stock Rules. The Company's
shares are "penny stocks" and consequently they are subject to Commission
regulations which impose sales practice requirements upon broker/dealers.
8. Conflicts of Interest. All of the Directors are associated with other
firms or occupations involving a range of business activities. Because of these
affiliations and because these individuals will devote only a minor amount of
time to the affairs of the Company. There are potential inherent conflicts of
interest in their acting as Directors and Officers of the Company. All of the
Company's Directors and Officers are Officers and/or Directors of the majority
shareholder of the Company and are or may be Directors and/or Officers of other
entities engaged in a variety of businesses which may in the future have various
transactions with the Company. Additional conflicts of interest and non-arm's
length transactions may also arise in the future in the event the Company's
Officers or Directors are involved in the management of any firms with which the
Company transacts business. Management has adopted a policy that the Company
will not seek a merger with or an acquisition of any entity with which any of
the Officers or Directors serve as Officers, Directors or partners or in which
they or their family members own or hold an ownership interest. Business
combinations with entities owned or controlled by affiliates or associates of
the Company will not be considered, however, securities owned or controlled by
the affiliates and associates of the Company may be sold in the business
combination transaction without affording all existing shareholders a similar
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opportunity. A buy-out of the Company's majority shareholder's interest could
occur by an offer from a merger/acquisition candidate. See, also "Plan of
Operation".
9. No Dividends Anticipated. At the present time the Company does not
anticipate paying dividends, cash or otherwise, on its Common Stock in the
foreseeable future. Future dividends will depend on earnings, if any, of the
Company, its financial requirements and other factors. Investors who anticipate
the need of an immediate income from their investment in the Company's Common
Stock should refrain from the purchase of the Company's securities.
10. Scarcity of and Competition for Merger or Acquisition Prospects. The
Company is and will continue to be an insignificant participant in the business
of seeking mergers with and acquisitions of small private entities. A large
number of established and well financed entities, including venture capital
firms, are active in mergers and acquisitions of private companies which may be
desirable target candidates for the Company. Nearly all such entities have
significantly greater financial resources, technical expertise and managerial
capabilities than the Company, and consequently, the Company will be at a
competitive disadvantage in identifying possible merger or acquisition
candidates with numerous other small public companies.
11. No Agreement for Business Combination or Other Transaction. The Company
has no arrangement, agreement or understanding with respect to engaging in a
merger with, or acquisition of, any entity private or public. There can be no
assurance the Company will be successful in identifying and evaluating suitable
merger or acquisition candidates or in concluding a merger or acquisition
transaction. Management has not identified any specific business within an
industry for evaluation by the Company. There is no assurance the Company will
be able to negotiate a merger or acquisition on favorable terms.
12. Lack of Market Research or Marketing Organization. The Company has
neither conducted nor has the Company engaged other entities to conduct market
research such that management has assurance market demand exists for the
transactions contemplated by the Company. Moreover, the Company does not have
and does not plan to establish, a marketing organization. Even in the event
demand is identified for a merger or acquisition of the type contemplated by the
Company, there is no assurance the Company will be successful in completing any
such transaction.
13. Impracticability of Exhaustive Investigation. The Company's limited
funds and the lack of full-time management will likely make it impracticable to
conduct a complete and exhaustive investigation and analysis of a business
opportunity before the Company commits its capital or other resources thereto.
Therefore, management decisions will likely be made without detailed feasibility
studies, independent analysis, market surveys and the like which, if the Company
had more funds available to it, would be desirable. The Company will be
particularly dependent in making decisions upon information provided by the
promoter, owner, sponsor, or others associated with the business opportunity
seeking the Company's participation. There are numerous individuals, publicly
held companies, and privately held companies seeking merger and acquisition
prospects. There is significant competition among such groups for attractive
merger and acquisition prospects. However, the number of suitable and attractive
prospects is limited and the Company may find a scarcity of suitable companies
with audited financial statements seeking merger partners of the type and size
of the Company.
14. Possible Lack of Diversification. The Company may be unable to
diversify its business activities, which creates the possibility of a total loss
to the Company and its shareholders should an acquisition by the Company prove
to be unprofitable. The Company's failure or inability to diversify its
activities into a number of areas may subject the Company to economic
fluctuations within a particular business or industry and, therefore, increase
the risks associated with the Company's operations.
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15. The Company May Pay a Finder's Fee. In connection with a
merger/acquisition, the Company may issue "restricted" shares of the Company's
Common Stock to finders. A finder's fee will not be paid, however, to any
officer, director, shareholder or other affiliated party. At the present time,
there are no plans to pay any finder's fees.
16. Issuance of Additional Shares. The Board of Directors has the power to
issue shares and may do so in an exchange offer or a stock for stock exchange
agreement. The Company may also issue additional shares of Common Stock pursuant
to a plan and agreement of merger with a private corporation. Although the
Company presently has no commitments, contracts or intentions to issue any
additional shares to other persons, the Company may in the future attempt to
issue shares to acquire products, properties or businesses, or for other
corporate purposes.
17. Lack of Public Market for Securities. At present, no market exists for
the Company's securities and there is no assurance that a regular trading market
will develop and if developed, that it will be sustained. A market for the
securities cannot develop until a merger or acquisition has been concluded. A
purchaser of stock may, therefore, be unable to resell the securities offered
herein should he or she desire to do so. Furthermore, it is unlikely that a
lending institution will accept the Company's securities as pledged collateral
for loans unless a regular trading market develops.
18. Change of Control. As part of the acquisition of a business
opportunity, some or all of the current Board of Directors may resign after
appointing their successors, without shareholder approval. The acquisition of an
opportunity may also involve the issuance of a majority of the Company's stock
to promoters of the opportunity. In such event, purchasers of shares offered
hereunder would be unable to elect or remove Directors against the wishes of
such promoters.
ITEM 2 PLAN OF OPERATION
The Company intends to seek to acquire assets or shares of an entity
actively engaged in a business that generates revenues, in exchange for its
securities. We have not identified a particular acquisition target and have not
entered into any negotiations regarding such an acquisition. As soon as this
registration statement becomes effective under Section 12 of the Exchange Act,
we intend to contact securities broker/dealers, venture capitalists, members of
the financial community and others who may present solicited and unsolicited
proposals. None of our officers, directors, or affiliates have engaged in any
preliminary contact or discussions with any representative of any other company
regarding the future possibility of an acquisition or merger between the Company
and such other company as of the date of this registration statement.
Due to the Company's intent to remain a shell corporation until a merger
or acquisition candidate is identified, it is anticipated that its cash
requirements shall be minimal, and that any further necessary capital, to the
extent required, will be provided by the directors, officers or affiliates. The
Company does not anticipate that it will have to raise capital in the next
twelve months. The Company does not intend to engage in the acquisition of any
assets.
The Company has no full time employees. Our President and Vice President have
agreed to allocate a portion of their time to the activities of the Company at a
salary of $250.00 per month. These officers anticipate that the business plan of
the Company can be implemented by their devoting an average of approximately 20
hours each per month to the business affairs of the Company and, consequently,
conflicts of interest may arise with respect to the limited time commitment by
such officers. The Company does not expect any significant changes in the number
of employees.
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Our officers and directors may become involved with other companies
which have a business purpose similar to that of the Company. As a result,
potential conflicts of interest may arise in the future. If such a conflict does
arise and an officer or director of the Company is presented with business
opportunities under circumstances where there may be a doubt as to whether the
opportunity should belong to the Company or another "blank check" company they
are affiliated with, they will disclose the opportunity to all such companies.
If a situation arises in which more than one company desires to merge with or
acquire that target company and the principals of the proposed target company
have no preference as to which company will merge with or acquire such target
company, the company which first filed a registration statement with the
Commission will be entitled to proceed with the proposed transaction. See "Risk
Factors - "Conflicts of Interest"
Selection of Opportunities
The Company proposes to seek, investigate and, if warranted, acquire an interest
in one or more business opportunities ventures. As of the date hereof the
Company has no business opportunities or ventures under contemplation for
acquisition but proposes to investigate potential opportunities in the form of
investors or entrepreneurs with a concept which has not yet been placed in
operation, or in the form of firms which are developing companies. The Company
may seek out established businesses which may be experiencing financial or
operation difficulties and are in need of the limited additional capital the
Company could provide. The Company anticipates that it will seek to merge with
or acquire an existing business. After the merger or acquisition has taken
place, it is likely that management from the acquired entity will operate the
Company. Due to the absence of capital available for investment by the Company,
the types of business seeking to be acquired by the Company will no doubt be
smaller and higher risk types of businesses. In all likelihood, a business
opportunity will involve the acquisition of or merger with a corporation which
does not need additional cash but which desires to establish a public trading
market for its Common Stock. Accordingly, the Company's ability to acquire any
business of substance will be extremely limited.
The Company does not propose to restrict its search for investment
opportunities to any particular industry or geographical location and may,
therefore, engage in essentially any business, anywhere, to the extent of its
limited resources.
This discussion of the proposed business is purposefully general and is not
meant to be restrictive of the Company's virtually unlimited discretion to
search for and enter into potential business opportunities. Management
anticipates that it may be able to participate in only one potential business
venture because the Company has nominal assets and limited financial resources.
See "Part F/S, Financial Statements." This lack of diversification should be
considered a substantial risk to shareholders of the Company because it will not
permit the Company to offset potential losses from one venture against gains
from another.
We anticipate that the selection of a business opportunity in which to
participate will be complex and extremely risky. Due to general economic
conditions, rapid technological advances being made in some industries and
shortages of available capital, management believes that there are numerous
firms seeking the perceived benefits of a publicly registered corporation. Such
perceived benefits may include facilitating or improving the terms on which
additional equity financing may be sought, providing liquidity for incentive
stock options or similar benefits to key employees, providing liquidity (subject
to restrictions of applicable statutes) for all shareholders and other factors.
Potentially, available business opportunities may occur in many different
industries and at various stages of development, all of which will make the task
of comparative investigation and analysis of such business opportunities
extremely difficult and complex.
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We have, and will continue to have, no capital with which to provide
the owners of business opportunities with any significant cash or other assets.
However, management believes we will be able to offer owners of acquisition
candidates the opportunity to acquire a controlling ownership interest in a
publicly registered company without incurring the cost and time required to
conduct an initial public offering. The owners of the business opportunities
will, however, incur significant legal and accounting costs in connection with
acquisition of a business opportunity, including the costs of preparing Form
8-K's, 10-K's or 10-KSB's, 10-Q's or 10-QSB's, agreements and related reports
and documents. The Exchange Act specifically requires that any merger or
acquisition candidate comply with all applicable reporting requirements, which
include providing audited financial statements to be included within the
numerous filings relevant to complying with the Exchange Act. Nevertheless, the
officers and directors of the Company have not conducted market research and are
not aware of statistical data which would support the perceived benefits of a
merger or acquisition transaction for the owners of a business opportunity.
The analysis of new business opportunities will be undertaken by, or
under the supervision of, the officers and directors of the Company, none of
whom is a professional business analyst. Inasmuch as the Company will have no
funds available to it in its search for business opportunities and ventures, the
Company will not be able to expend significant funds on a complete and
exhaustive investigation of potential business opportunities or ventures. The
Company will however investigate to the extent believed reasonable by its
management, potential business opportunities or ventures. Management intends to
concentrate on identifying preliminary prospective business opportunities which
may be brought to its attention through present associations of our officers and
directors, or by our shareholders. In analyzing prospective business
opportunities, management will consider such matters as the available technical,
financial and managerial resources; working capital and other financial
requirements; history of operations, if any; prospects for the future; nature of
present and expected competition; the quality and experience of management
services which may be available and the depth of that management; the potential
for further research, development, or exploration; specific risk factors not now
foreseeable but which then may be anticipated to impact the proposed activities
of the Company; the potential for growth or expansion; the potential for profit;
the perceived public recognition or acceptance of products, services, or
trademarks; name identification; and other relevant factors. To the extent
possible, the Company intends to utilize written reports and personal
investigations to evaluate the above factors.
It is not anticipated that any outside consultants or advisors, except
for our legal counsel and accountants, will be utilized by the Company to
effectuate its business purposes. However, if we do retain such an outside
consultant or advisor, any cash fee earned by such party will be paid by the
prospective merger/acquisition candidate, as the Company has no cash assets with
which to pay such obligation. We have no contracts or agreements with any
outside consultants and none are contemplated. It is the Company's policy that
no finder's or other fee will be paid to any of the Company's officers,
directors or shareholders who are instrumental in finding a merger or
acquisition candidate for the Company. Management does not intend to make any
changes to this policy.
It is anticipated that the Company will incur nominal expenses in the
implementation of its business plan and that the capital raised by the Company
through a private placement with its major shareholder in March, 2000 will be
sufficient to cover such expenses. If additional funding is necessary,
management and or shareholders may continue to provide capital or arrange for
additional outside funding. However, the only opportunity which management would
have to have these loans repaid will be from a prospective merger or acquisition
candidate. Neither management nor any of the Company's shareholders have any
agreements with the Company that would impede or prevent consummation of a
proposed transaction. There is no assurance, however, that management or any
shareholder will continue to provide capital indefinitely if a merger candidate
cannot be found. If a merger candidate cannot be found in a reasonable
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period of time, management may be required to reconsider its business strategy,
which could result in the dissolution of the Company.
Form of Acquisition
The manner in which the Company participates in an opportunity will depend
upon the nature of the opportunity, the respective needs and desires of the
Company and the promoters of the opportunity, and the relative negotiating
strength of the Company and such promoters. The exact form or structure of the
Company's participation in a business opportunity or venture will be dependent
upon the needs of the particular situation. The Company's participation may be
structured as an asset purchase agreement, a lease, a license, a joint venture,
a partnership, a merger, or acquisition of securities.
As set forth above, the Company may acquire its participation in a business
opportunity through the issuance of Common Stock or other securities in the
Company. Although the terms of any such transaction cannot be predicted, it
should be noted that in certain circumstances the criteria for determining
whether or not an acquisition is so-called "tax free" reorganization under
Section 368(a)(1) of the Internal Revenue Code of 1986, as amended, may depend
upon the issuance to the shareholders of the acquired company of at least eighty
percent (80%) of the Common Stock of the combined entities immediately following
the reorganization. If a transaction were structured to take advantage of these
provisions rather than other "tax free" provisions provided under the Internal
Revenue Code all prior shareholders may, in such circumstances, retain twenty
percent (20%) or less of the total issued and outstanding Common Stock. This
could result in substantial additional dilution to the equity of those who were
shareholders of the Company prior to such reorganization.
Further, extreme caution should be exercised by any investor relying upon any
tax benefits in light of proposed new tax laws. It is possible that no tax
benefits will exist at all. Prospective investors should consult their own
legal, financial and other business advisors.
The present management and the shareholders of the Company will in all
likelihood not have control of a majority of the voting shares of the Company
following a reorganization transaction. In fact, it is most probable that the
shareholders of the acquired entity will gain control of the Company. As part of
such a transaction, all or a majority of the Company's Directors may resign and
new Directors may be appointed without any vote by shareholders.
It may be anticipated that any opportunity in which the Company
participates will present certain risks. Many of these risks cannot be
adequately identified prior to selection of the specific opportunity, and the
Company's shareholders must, therefore, depend on the ability of management to
identify and evaluate such risk. In the case of some of the opportunities
available to the Company, it may be anticipated that the promoters thereof have
been unable to develop a going concern or that such business is in its
development stage in that it has not generated significant revenues from its
principal business activities prior to the Company's participation. There is a
risk, even after the Company's participation in the activity and the related
expenditure of the Company's funds, that the combined enterprises will still be
unable to become a going concern or advance beyond the development stage. Many
of the opportunities may involve new and untested products, processes, or market
strategies that may not succeed. The Company and, therefore, its shareholders
will assume such risks.
The Company has an unwritten policy that it will not acquire or merge
with a business or company in which the Company's management or their affiliates
or associates directly or indirectly have an ownership interest. Management is
not aware of any circumstances under which the foregoing policy will be changed
and management, through their own initiative, will not change said policy.
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It is anticipated that any securities issued in any such reorganization
would be issued in reliance upon an exemption from registration under applicable
federal and state securities laws. In some circumstances, however, as a
negotiated element of its transaction, we may agree to register all or a part of
such securities immediately after the transaction is consummated or at specified
times thereafter. If such registration occurs, of which there can be no
assurance, it will be undertaken by the surviving entity after the Company has
successfully consummated a merger or acquisition and the Company is no longer
considered a "shell" company. Until a merger or acquisition is consummated, the
Company will not attempt to register any additional securities. The issuance of
substantial additional securities and their potential sale into any trading
market which may develop in the Company's securities may have a depressive
effect on the value of the Company's securities in the future, if such a market
develops, of which there is no assurance.
We will participate in a business opportunity only after the
negotiation and execution of appropriate written agreements. Although the terms
of such agreements cannot be predicted, generally such agreements will require
some specific representations and warranties by all of the parties, will specify
certain events of default, will detail the terms of closing and the conditions
that must be satisfied by each of the parties prior to and after such closing,
will outline the manner of bearing costs, including costs associated with the
Company's attorneys and accountants, will set forth remedies on default and will
include miscellaneous other terms.
ITEM 3. DESCRIPTION OF PROPERTY. The Company's executive offices are currently
located at 68 Schraalenburg Road, Harrington Park, New Jersey, under a month to
month sub-lease with Power Tech Services, Inc. The Company pays rent of $250.00
per month for the leased space. Mr. Robert Schuck who is an officer and director
of the Company acts as a consultant to Power Tech. Mr. Schuck receives no
benefit from the sub-lease of the property by the Company.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth certain information regarding the beneficial
ownership of common stock, the only class of securities of the Company, as of
the filing date of this registration statement by (i) each person known by the
Company to beneficially own more than five percent of the Company's common
stock; (ii) each director and executive officer of the Company; and (iii) all
current directors and executive officers of the Company as a group.
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Name and Amount and
Title of Address of Nature of Percentage
Class Beneficial Owner Beneficial Ownership of Class*
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<S> <C> <C> <C>
common stock, par HITK Corporation 3,173,000 shares 88.4 %
value $.0001 68 Schraalenburg Road
per share Harrington Park, New Jersey 07640
</TABLE>
*Based on 3,587,243 shares issued and outstanding as of the filing date of
this registration statement.
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The number of shares of common stock of the Company owned by the
Directors and Executive Officers of the Company as of the filing date of this
registration statement is as follows:
<TABLE>
<CAPTION>
Name and Amount and
Title of Address of Nature of Percentage
Class Beneficial Owner Beneficial Ownership of Class*
-------- ---------------- -------------------- ----------
<S> <C> <C> <C>
common stock, par Robert N. Schuck 3,293,000 shares(1)(2) 91.7%
value $.0001 85 Somerset Road
per share Norwood, New Jersey 07648
common stock, par John J. Gitlin 3,293,000 shares(1)(2) 91.7 %
value $.00001 3008 Falls Church Lane
per share Mesquite, Texas 75149
common stock, par Herbert Maslo 3,173,000 shares(1)(2) 88.4%
value $.00001 9 Kathy Lane
per share Warren, NJ 07060
All Officers and Directors as
a Group (3 persons) 3,413,000 shares (1)(2) 95.1%
</TABLE>
* Based on 3,587,243 shares issued and outstanding as of the filing date of this
registration statement.
(1) For purposes of this table, beneficial ownership is determined in
accordance with Rule 13d-3 under the Exchange Act and generally
includes voting or investment power with respect to securities.
(2) Robert Schuck and John Gitlin who respectively hold the positions of
President and Vice President/Secretary-Treasurer and Directors and
Herbert Maslo who holds the position of Director of the Company hold
identical positions with HITK Corporation which owns as of the filing
date of this registration statement, an equity interest in the Company
of 88.4%, and therefore are deemed to be beneficial owners of the
shares held by HITK Corporation.
ITEM 5. Directors, Executive Officers, Promoters and Control Persons.
(a) Directors and Executive Officers.
Directors of the Company serve for a term of one year or until their
successors are elected. Officers are appointed by, and serve at the pleasure of,
the Board. The Directors and Executive Officers of the Company are as follows:
Robert N. Schuck, age 63. President and Director. Mr. Schuck has been President
and a Director of the Company since February 2000. Mr. Schuck has been a
Director of Power Tech Systems, Inc. since September 1988 and President and
Director of Cathel Partners Ltd. since 1987. He held the position of Executive
Vice President of eGlobe, Inc. from 1989 to 1997 and Director from 1989 to 1995.
Mr. Schuck has since 1986 been the President and a Director of HITK Corporation.
11
<PAGE> 12
Herbert Maslo, age 62. Mr. Maslo has been a Director of the Company since March
2000. Mr. Maslo has been, since 1990, a director of HITK Corporation. He has
also been a Director of Power Tech Systems, Inc. since 1990 and was its
President from 1990 to 1995. Prior to that, Mr. Maslo was employed by New York
Telephone, a division of Nynex for 23 years where he held various engineering
positions including central office planning, installations and engineering as a
project manager. Mr. Maslo holds a B.A. degree in Mechanical Engineering from
the Newark College of Engineering.
John Gitlin, age 57. John Gitlin has been Vice President/ Secretary-Treasurer
and a Director of the Company since February 2000. From 1978 to 1982, Mr. Gitlin
held the position of staff attorney with the United States Department of
Justice, Antitrust Division. From 1982 through April of 1994, he was a partner
in the law firm of Fischer, Gitlin & Sanger in Dallas, Texas. From May 1994 to
September, 1997, Mr. Gitlin held the position of Secretary with eGlobe, Inc. Mr.
Gitlin has been a director since January 1997 and an officer since October 1997
of HITK Corporation.
(b) Significant Employees.
There are no other employees of the Company other than its executive
officers, John Gitlin and Robert Schuck.
(c) Family relationships.
There are no family relationships among the present directors or officers
of the Company and there are presently no nominees or persons chosen by the
Company to become executive officers or directors of the Company.
(d) Involvement in certain legal proceedings.
During the past five years, none of the directors or officers of the
Company (i) has had any bankruptcy petitions filed by or against them, (ii) has
been convicted in a criminal proceeding or been subject to a pending criminal
proceeding, (iii) has been subject to any order, judgment, or decree, not
subsequently reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining, barring, suspending or
otherwise limiting his involvement in any type of business, securities or
banking activities; nor (iv) has been found by a court of competent jurisdiction
(in a civil action), the Commission or the Commodity Futures Trading Commission
to have violated a federal or state securities or commodities law, and the
judgment has not been reversed, suspended, or vacated.
ITEM 6. EXECUTIVE COMPENSATION.
On March 14, 2000 the Company entered into employment agreements
with its two executive officers, Robert Schuck, President and John Gitlin, Vice
President/ Secretary-Treasurer, under the terms of which each was granted the
right to purchase 120,000 shares of the Company's stock at a purchase price of
$.005 per share. The employment agreements further provide that each officer is
to receive a salary of $250.00 per month. The Company relied on the exemption
provided by Section 4(2) of the '33 Act for the issuance of the shares of Common
Stock to Mr. Gitlin and Mr. Schuck. All of the shares issued were issued for
investment purposes in a private transaction and are restricted shares as
defined in Rule 144 under the '33 Act. These shares may not be offered for
public sale except under Rule 144, or other exemption from registration which
may be applicable pursuant to the '33 Act.
No retirement, pension, profit sharing, stock option plans or other
compensatory programs have been adopted by the Company for its officers or
directors.
12
<PAGE> 13
Directors serve without fees or any other compensation for their
services.
No Officer and Director is entitled to any finder's or other fees for
any services performed by them in finding a merger or acquisition candidate for
the Company.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
(a) On March 10, 2000 the Company entered into a private placement,
pursuant to Section 4(2) under the '33 Act with HITK Corporation ("HITK") under
which HITK purchased a total of 3,000,000 shares of the Company's common stock
at a purchase price of $.005 per share. Prior to the sale, the Company
effectuated a one hundred to one reverse stock split of its common stock
resulting in a reduction of the issued and outstanding shares to 347,243. HITK,
prior to the sale, held a total of 173,000 post-reverse stock split shares of
the Company's common stock or 49.8% of the outstanding shares. Robert Schuck,
President and John Gitlin,Vice President/ Secretary-Treasurer and Directors and
Herbert Maslo, a Director of the Company, hold identical positions with HITK and
therefore would be deemed to have an indirect material interest in the
transaction.
On March 14, 2000 the Company entered into employment agreements with its two
executive officers, Robert Schuck, President and John Gitlin, Vice President/
Secretary-Treasurer, under the terms of which each was granted the right to
purchase 120,000 shares of the Company's stock at a purchase price of $.005 per
share. The employment agreements further provide that each officer is to receive
a salary of $250.00 per month.
(b) As of the filing date of this registration statement, HITK
Corporation holds a total of 3,173,000 shares of the Company's common stock
which represent 88.4 % of the issued and outstanding shares.
(c) Transactions with Promoters.
None.
ITEM 8. DESCRIPTION OF SECURITIES.
(a) Common Stock
The Company is authorized to issue up to 50,000,000 shares of common
stock, par value $.0001 per share ("common stock"), of which 3,587,243 shares
were outstanding as of the filing date of this registration statement. Holders
of common stock are entitled to one vote for each share held of record on each
matter submitted to a vote of stockholders. There is no cumulative voting for
election of directors. Subject to the prior rights of any series of preferred
stock which may from time to time be outstanding, if any, holders of common
stock are entitled to receive ratably dividends when, as, and if declared by the
Board of Directors out of funds legally available therefor and, upon the
liquidation, dissolution, or winding up of the Company, are entitled to share
ratably in all assets remaining after payment of liabilities and payment of
accrued dividends and liquidation preferences on the preferred stock, if any.
Holders of common stock have no preemptive rights and have no rights to convert
their common stock into any other securities. The outstanding common stock is
validly authorized and issued, fully paid, and nonassessable.
13
<PAGE> 14
(b) Preferred Stock
None
(c) Change in Control Provisions.
There are no provisions in the Company's Certificate of Incorporation
which would delay, defer or prevent a change in control of the Company. There
are provisions in the Company's By-Laws which may be deemed to delay or defer a
change in control. These include (i) that no special meeting may be called by
stockholders unless a request is made in writing by shareholders holding at
least sixty-six and two thirds of the issued and outstanding shares of the
Company's common stock and entitled to vote; (ii) nominations of persons for
election to the Board of Directors may only be made by a stockholder delivering
notice to the Company at least 60 days prior to the annual or a special meeting
called for the purpose of electing a director or not later than 10 days
following the date on which the Company announces the special or annual meeting
and providing in the notice all information relating to such person that is
required to be disclosed pursuant to Regulation 14A under the Exchange Act,
including such person's written consent to be nominated and to serve if elected;
(iii)any proposal by a stockholder of business to be considered at an annual
meeting must also be delivered to the Company within the same time limitations
set for nominations of persons for election to the Board and must include a
brief description of the proposed business to be considered, the reasons for
conducting such business and any material interest in such business of such
stockholder.
PART II.
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
OTHER SHAREHOLDER MATTERS
(a) Market information.
As of the filing date of this registration statement, there is no
trading market for the Company's common stock and there has been no trading
market since at least 1987. There is no assurance that a trading market will
ever develop or, if such a market does develop, that it will continue. It is
contemplated that a broker-dealer will file a Form 211 with the National
Association of Securities Dealers ("NASD") to permit the Company's common stock
to be quoted on the NASD Bulletin Board. Subject to approval of the NASD, the
Company's shares of common stock will trade on the Bulletin Board under the
symbol CTI, if available. There are no outstanding options or warrants to
purchase or securities convertible into the Company's common stock.
Market Price
The Company's common stock is not quoted at the present time. The
Commission has adopted a Rule which established the definition of a "penny
stock," for purposes relevant to the Company, as any equity security that has a
market price of less than $5.00 per share or with an exercise price of less than
$5.00 per share, subject to certain exceptions. For any transaction involving a
penny stock, unless exempt, the rules require: (i) that a broker or dealer
approve a person's account for transactions in penny stocks; and (ii) the broker
or dealer receive from the investor a written agreement to the transaction,
setting forth the identity and quantity of the penny stock to be purchased. In
order to approve a person's
14
<PAGE> 15
account for transactions in penny stocks, the broker or dealer must (i) obtain
financial information and information regarding the investment experience and
objectives of the person; and (ii) make a reasonable determination that the
transactions in penny stocks are suitable for that person and that person has
sufficient knowledge and experience in financial matters to be capable of
evaluating the risks of transactions in penny stocks. The broker or dealer must
also deliver, prior to any transaction in a penny stock, a disclosure schedule
prepared by the Commission relating to the penny stock market, which, in
highlight form, (i) sets forth the basis on which the broker or dealer made the
suitability determination; and (ii) that the broker or dealer received a signed,
written agreement from the investor prior to the transaction. Disclosure also
has to be made about the risks of investing in penny stocks in both public
offerings and in secondary trading, and about commissions payable to both the
broker-dealer and the registered representative, current quotations for the
securities and the rights and remedies available to an investor in cases of
fraud in penny stock transactions. Finally, monthly statements have to be sent
disclosing recent price information for the penny stock held in the account and
information on the limited market in penny stocks.
Effective January 4, 1999, the National Association of Securities
Dealers, Inc. (the "NASD") requires that companies listed for trading on the
Bulletin Board must file a Form 10-SB that must become effective by operation of
law and have no outstanding comments before trading may commence.
Transfer Agent
American Stock Transfer & Trust Co., 40 Wall Street, New York, New York
10005, shall act as the Company's transfer agent.
(b) Holders.
According to the Company's transfer agent, there are 1211 shareholders
of record of the Company's common stock.
(c) Dividends.
The Company has not paid any dividends since inception and does not
anticipate paying any dividends in the foreseeable future.
ITEM 2. LEGAL PROCEEDINGS.
The Company is not presently a party to any pending litigation nor, to
the knowledge of management, is any litigation threatened.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE.
None.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
On March 10, 2000 the Company entered into a private placement,
pursuant to Section 4(2) under the '33 Act with HITK pursuant to which HITK
purchased a total of 3,000,000 shares of the Company's
15
<PAGE> 16
common stock at a purchase price of $.005 per share or a total purchase price of
$15,000.00. Prior to the sale, the Company effectuated a one hundred to one
reverse stock split of its common stock resulting in a reduction of the issued
and outstanding shares to 347,243. HITK, prior to the sale, held a total of
173,000 post-reverse stock split shares of the Company's common stock or 49.8%
of the outstanding shares. The Company relied on exemptions provided by Section
4(2) of the '33 Act for the issuance of the shares of Common Stock. All of the
shares issued were issued for investment purposes only in a private transaction
and are restricted shares as defined in Rule 144 under the '33 Act. These shares
may not be offered for public sale except under Rule 144, or other exemption
from registration which may be applicable pursuant to the '33 Act.
On March 14, 2000, pursuant to rights granted to them under the terms of their
respective employment agreements with the Company, the Company's two executive
officers, John Gitlin and Robert Schuck each purchased a total of one hundred
and twenty thousand shares of the Company's common stock at a purchase price of
$.005 per share or a total of $600.00 for each sale. The Company relied on
exemptions provided by Section 4(2) of the '33 Act for the issuance of the
shares of Common Stock. All of the shares issued were issued for investment
purposes only in a private transaction and are restricted shares as defined in
Rule 144 under the '33 Act, as amended. These shares may not be offered for
public sale except under Rule 144, or other exemption from registration which
may be applicable pursuant to the '33 Act.
ITEM 5. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Corporation's Certificate and By-Laws provide mandatory indemnification
rights to the fullest extent permitted under the General Corporation Law of
Delaware, subject to limited exceptions, to any person who was or is party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person is or was a director
or officer of the Company, or is or was serving at the request of the Company as
a director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise. Such indemnification rights include
reimbursement for expenses incurred by such person in advance of the final
disposition of such proceeding in accordance with the applicable provisions of
the Delaware General Corporation Law.
PART F/S
16
<PAGE> 17
THOMAS P. MONAHAN
CERTIFIED PUBLIC ACCOUNTANT
208 LEXINGTON AVENUE
PATERSON, NEW JERSEY 07502
(973) 790-8775
FAX (973) 790-8845
To The Board of Directors and Shareholders
of Construction Technology Industries, Inc.
I have audited the accompanying balance sheet of Construction Technology
Industries, Inc. as of December 31, 1999 and the related statements of
operations, cash flows and shareholders' equity for the years ended December 31,
1998 and 1999. These financial statements are the responsibility of the
Company's management. My responsibility is to express an opinion on these
financial statements based on my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that I plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
I believe that my audit provides a reasonable basis for my opinion.
In my opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Construction Technology
Industries, Inc. as of December 31, 1999 and the results of its operations,
shareholders equity and cash flows for the years ended December 31, 1998 and
1999 in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that
Construction Technology Industries, Inc. will continue as a going concern. As
more fully described in Note 2, the Company has incurred operating losses since
the date of reorganization and requires additional capital to continue
operations. These conditions raise substantial doubt about the Company's ability
to continue as a going concern. Management's plans as to these matters are
described in Note 2. The financial statements do not include any adjustments to
reflect the possible effects on the recoverability and classification of assets
or the amounts and classifications of liabilities that may result from the
possible inability of Construction Technology Industries, Inc. to continue as a
going concern.
Thomas P. Monahan, CPA
March 5, 2000
Paterson, New Jersey
17
<PAGE> 18
<TABLE>
<CAPTION>
CONSTRUCTION TECHNOLOGY INDUSTRIES, INC.
BALANCE SHEET
DECEMBER 31, 1999
ASSETS
<S> <C>
Current assets
Cash and cash equivalents $-0-
----
Total current assets -0-
Total assets $-0-
----
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable and accrued expenses $9,121
------
Total current liabilities 9,121
Stockholders' equity
Common Stock authorized 50,000,000 shares, $0.0001 par value each.
At December 31, 1999, there are 347,244 shares outstanding . 35
Additional paid in capital -0-
Deficit accumulated during the development stage (9,156)
-------
Total stockholders' equity (9,121)
------
Total liabilities and stockholders' equity $-0-
====
</TABLE>
18
<PAGE> 19
<TABLE>
<CAPTION>
CONSTRUCTION TECHNOLOGY INDUSTRIES, INC.
STATEMENT OF OPERATIONS
FOR THE YEARS ENDED
December 31, December 31,
1998 1999
------------- ------------
<S> <C> <C>
Revenue $-0- $-0-
Costs of goods sold -0- -0-
Gross profit -0- -0-
Operations:
General and administrative -0- 9,121
Depreciation and amortization -0- -0-
--- ---
Total expense -0- 9,121
Loss from operations -0- (9,121)
Net income (loss) $-0- $(9,121)
====== =======
Net income (loss) per share -basic $-0- $(0.03)
------ ------
Number of shares outstanding-basic 347,244 347,244
======== =======
</TABLE>
19
<PAGE> 20
<TABLE>
<CAPTION>
CONSTRUCTION TECHNOLOGY INDUSTRIES, INC.
STATEMENT OF STOCKHOLDERS EQUITY
Deficit
Additional accumulated during
Date Common Stock Common Stock paid in capital developent stage Total
- ---- ------------ ------------ --------------- ------------------ -----
<S> <C> <C> <C> <C> <C>
Balance December 31, 1997(1) 347,244 $35 $-0- $(35) $-0-
Net loss $-0- $-0-
--- ----
Balance December 31, 1998 347,244 35 -0- (35) -0-
Net loss (9,121) (9,121)
------ ------
Balance December 31, 1999 347,244 $35 $-0- (9,156) $(9,121)
======== ==== ====== ======= =======
</TABLE>
(1) On March 10, 2000, the Company reverse split the number of shares of common
stock outstanding in a ratio of 100 to 1
20
<PAGE> 21
<TABLE>
<CAPTION>
CONSTRUCTION TECHNOLOGY INDUSTRIES, INC.
STATEMENT OF CASH FLOWS
FOR THE YEARS ENDED
December 31, December 31,
1998 1999
----------- ------------
CASH FLOWS FROM OPERATING ACTIVITIES
<S> <C> <C>
Net income (loss) $-0- $(9,121)
Adjustments to reconcile net loss to cash used in operating
activities
Depreciation -0- -0-
Accounts payable -0- 9,121
--- ------
TOTAL CASH FLOWS FROM OPERATIONS -0- -0-
TOTAL CASH FLOWS FROM FINANCING ACTIVITIES -0- -0-
TOTAL CASH FLOWS FROM INVESTING ACTIVITIES -0- -0-
NET INCREASE (DECREASE) IN CASH -0- -0-
CASH BALANCE BEGINNING OF PERIOD -0- -0-
--- ---
CASH BALANCE END OF PERIOD $-0- $-0-
==== ====
</TABLE>
21
<PAGE> 22
22
<PAGE> 23
NOTE 1 - FORMATION OF COMPANY AND ISSUANCE OF COMMON STOCK
a. Formation and Description of the Company
Construction Technology Industries, Inc. (the "Company"), was formed under
the laws of the State of Delaware on March 8, 1984 and authorized to issue to
50,000,000 shares of common stock, $0.0001 par value.
b. Description of Company
The Company is a development stage company that is without a business
purpose since the date of the Company's discharge from a bankruptcy on September
22, 1993 and is in the process of seeking a viable business opportunity.
c. Reverse Split in Shares of Common Stock
Subsequent to the date of the financial statements, the Company reverse
split the number of shares of common stock outstanding in a ratio of 100 to 1.
The number of shares of common stock outstanding as of December 31, 1999 has
been restated from 34,724,360 to 347,244.
NOTE 2-SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
a. Basis of Financial Statement Presentation
The accompanying unaudited financial statements have been prepared on a
going concern basis, which contemplates the realization of assets and the
satisfaction of liabilities in the normal course of business. The Company has
had no business activities since 1992 and has incurred net losses of $9,156 for
the period from reorganization, September 22, 1993, to December 31, 1999. These
factors indicate that the Company's continuation as a going concern is dependent
upon its ability to obtain adequate financing. The Company will be relying upon
the resources of management to provide the necessary working capital to sustain
the Company's existence until a viable business opportunity can be located. The
Company will require substantial additional funds to finance its business
activities on an ongoing basis and will have a continuing long-term need to
obtain additional financing once a viable business opportunity is found.
The financial statements presented at December 31, 1999 consist of the
balance sheet as at December 31, 1999 and the statements of operations, cash
flows and stockholders equity for the years ended December 31, 1998 and 1999.
b. Cash and Cash Equivalents
Cash and Cash Equivalents - Temporary investments with a maturity of less
than three months when purchased are treated as cash
c. Loss Per Share:
Basic loss per common share is computed by dividing the loss by the
weighted average number of common shares outstanding during the period. During
the period from reorganization September 22, 1993 through December 31, 1999,
there were no dilutive securities outstanding.
d. Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that effect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
23
<PAGE> 24
NOTE 3 - RELATED PARTY TRANSACTIONS
a. Office Space
Beginning in February, 2000, the Company occupies office space at 68
Schraalenburg Road, P.O. Box 233, Harrington Park, New Jersey 07640 for a
monthly rental of $250.
b. Officer Salaries
No officer has received a salary in excess of $100,000.
NOTE 6 - INCOME TAXES
The Company provides for the tax effects of transactions reported in the
financial statements. The provision if any, consists of taxes currently due plus
deferred taxes related primarily to differences between the basis of assets and
liabilities for financial and income tax reporting. The deferred tax assets and
liabilities, if any, represent the future tax return consequences of those
differences, which will either be taxable or deductible when the assets and
liabilities are recovered or settled. As of December 31, 1999, the Company had
no material current tax liability, deferred tax assets, or liabilities to impact
on the Company's financial position because the deferred tax asset related to
the Company's net operating loss carry forward and was fully offset by a
valuation allowance.
At December 31, 1999, the Company has net operating loss carry forwards for
income tax purposes of $9,156. These carry forward losses are available to
offset future taxable income, if any, and expire in the year 2010. The Company's
utilization of this carry forward against future taxable income may become
subject to an annual limitation due to a cumulative change in ownership of the
Company of more than 50 percent.
The components of the net deferred tax asset as of December 31, 1999 are as
follows:
<TABLE>
<S> <C>
Deferred tax asset:
Net operating loss carry forward $ 3,113
Valuation allowance $(3,113)
--------
Net deferred tax asset $ -0-
</TABLE>
The Company recognized no income tax benefit from the loss generated for the
period from the date of reorganization September 22, 1993 to December 31, 1998.
SFAS No. 109 requires that a valuation allowance be provided if it is more
likely than not that some portion or all of a deferred tax asset will not be
realized. The Company's ability to realize benefit of its deferred tax asset
will depend on the generation of future taxable income. Because the Company has
yet to recognize significant revenue from the sale of its products, the Company
believes that a full valuation allowance should be provided.
NOTE 7 - COMMITMENTS AND CONTINGENCIES
As of December 31, 1998 and 1999, the Company is not a party to any
outstanding contractual agreements.
NOTE 8 - BUSINESS AND CREDIT CONCENTRATIONS
The amount reported in the financial statements for cash approximates fair
market value. Because the difference between cost and the lower of cost or
market is immaterial, no adjustment has been recognized and investments are
recorded at cost.
NOTE 9 - DEVELOPMENT STAGE COMPANY
The Company is considered to be a development stage company with little
operating history. The Company is dependent upon the financial resources of the
Company's management and from the net proceeds of any private placement for its
continued existence. The Company will also be dependent upon its ability to
raise additional capital
24
<PAGE> 25
to complete is search for a new viable business opportunity, management talent,
and working capital to engage in any profitable business activity. Since its
reorganization, the Company's activities have been limited to the search for a
new viable business opportunity and office space.
25
<PAGE> 26
PART III
ITEM 1. INDEX TO EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
3.1 Certificate of Incorporation of Registrant
3.2 Certificates of Amendment to Certificate of
Incorporation of Registrant
3.3 By-laws of Registrant
10 Stock Purchase Agreement between the Company and HITK
Corporation
</TABLE>
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
CONSTRUCTION TECHNOLOGY INDUSTRIES INC.
Date: March 27, 2000 By: /s/ Robert N. Schuck
---------------------
Robert N. Schuck
President
<PAGE> 1
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
Construction Technology Industries, Inc.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisi and subject to the requirements of the Laws of the
State of Delaware (particularly Chapter 1 Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is Construction Technology Industries, Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is 100 West Tenth
Street, City of Wilmington, County of New Castle, and the name of the registered
agent of the Corporation in the State of Delaware at such address is The
Corporation Trust Company.
THIRD: The nature of the business and the purposes to be conducted and
promoted by the Corporation, which shall be in addition to the authority of the
Corporation to conduct any lawful business, to promote any lawful purpose, and
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware, is as follows:
(a) As principal, agent or broker, and on commission or
otherwise: to buy, sell, exchange, lease, let, grant or take
licenses in respect of, improve, develop, repair, manage, maintain
and operate real property of every kind, corporeal and incorporeal,
and every kind of estate, right or interest therein or pertaining
thereto; to construct, improve, repair, raze and wreck buildings,
structures and works of all kinds, for itself or for others; to
buy, sell and deal in building materials and supplies; to advance
loans secured by mortgages or other liens on real estate. To act as
loan broker. Generally to do everything suitable, proper and
conducive to the successful conduct of a real estate and real
estate agency and brokerage business in all its branches and
departments; and
<PAGE> 2
to apply for, register, obtain, purchase, lease, take
licenses in respect of or otherwise acquire, and to hold, own, use,
operate, develop, enjoy, turn to account, grant licenses and
immunities in respect of, manufacture under and introduce, sell
assign, mortgage, pledge or otherwise dispose of, and, in any manner
deal with and contract with reference to:
(i) inventions, devices, formulas, processes or any
improvements, and modifications thereof;
(ii) letters patent, patent rights, patented
processes, copyrights, designs, and similar rights, trademarks,
trade symbols and other indications of origin and ownership granted
by or recognized under the laws of the United States of American or
of any state or subdivision thereof, or of any foreign country or
subdivision thereof, and all rights connected therewith or
appertaining thereunto.
(iii) franchises, licenses, grants and concessions.
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(b) To purchase, own, and hold the stock of other
corporations, and to do every act and thing covered generally by the
denomination "holding corporation", and especially to direct the
operations of other corporations through the ownership of stock
therein; to purchase, subscribe for, acquire, own, hold, sell,
exchange, assign, transfer, create security interest in, pledge, or
otherwise dispose of shares or voting trust certificates for shares
of the capital stock, or any bonds, notes, debentures, mortgages,
securites or evidences of indebtedness created by any other
corporation or corporations organized under the laws of this state
or any other state or district or country, nation, or government
and also bonds or evidences of indebtedness of the United States or
of any state, district, territory, dependency or country or
subdivision or municipality thereof; to issue in exchange therefor
shares of the capital stock, bonds, notes, debentures, mortgages,
or other obligations of the Corporation and while the owner thereof
to excercise all the rights, powers and privileges of ownership
including the right to vote on any shares of stock or voting trust
certificates so owned; to promote, lend money to, and guarantee the
dividends, stocks, bonds, notes, debentures, mortgages, evidences
of indebtedness, contracts, or other obligations of, and otherwise
aid in any manner which shall be lawful, any corporation or
association of which any bonds, stocks, voting trust certificates,
or other securities or evidences of indebtedness shall be held by
or for this Corporation, or in which, or in the welfare of which,
this Corporation shall have any interest, and to do any acts and
things permitted by law and designed to protect, preserve, improve,
or enhance the value of any such bonds, stocks, or other securities
or evidences of indebtedness or the property of this Corporation.
(c) to purchase, receive, take by grant, gift, devise,
bequest or otherwise, lease, or otherwise acquire, own, hold,
improve, employ, use and otherwise deal in and with real or personal
property, or any interest therein, wherever situated, and to sell,
convey, lease, exchange transfer or otherwise dispose of, or
mortgage or pledge, all or any of its property and assets, or any
interest therein, wherever situated.
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(d) To borrow money without limit as to amount and at such
rates of interest as it may determine; from time to time to issue
and sell its own securities, including its shares of stock, notes,
bonds, debentures, and other obligations, in such amounts, on such
terms and conditions, for such purposes and for such prices, now or
hereafter permitted by the laws of the State of Delaware and by this
Certificate of Incorporation, as the Board of Directors of the
Corporation may determine; and to secure any of its obligations by
mortgage, pledge, or other encumbrance of all or any of its
property, franchises and income.
(e) To conduct its business, promote its purposes, carry on
its operations and exercise all or any part of the foregoing
purposes and powers in any and all parts of the world, and to
conduct its business in all or any of its branches as principal,
agent, broker, factor, contractor, and in any other lawful capacity,
either alone or through or in conjunction with any corporations,
associations, partnerships, firms, trustees, syndicates,
individuals, organizations, and other entities in any part of the
world, and in conducting its business and promoting any of its
purposes, to maintain offices, branches and agencies in any part of
the world, to make and perform any contracts and to do any acts and
things, and to carry on any business, and to exercise any powers and
privileges suitable, convenient, or proper for the conduct,
promotion, and attainment of any of the business and purposes herein
specified or which at any time may be incidental thereto or may
appear conducive to or expedient for the accomplishment of any of
such business and purposes and which might be engaged in or carried
on by a corporation incorporated or organized under the General
Corporation Law of the State of Delaware, and to have and exercise
all of the powers conferred by the Laws of the State of Delaware
upon corporations incorporated or organized under the General
Corporation Law of the State of Delaware.
The foregoing provisions of this Article THIRD shall be construed both
as purposes and powers and each as an independent purpose and power. The
foregoing enumeration of specific purposes and powers shall not be held to limit
or restrict in any manner the purposes and powers of the Corporation, and the
purposes and powers herein specified shall, except when otherwise provided in
this Article THIRD, be in no wise limited or restricted by reference to, or
inference from, the terms of any provision of this or any other Article of this
Certificate of Incorporation;
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provided, that the Corporation shall not conduct any business, promote any
purpose, or exercise any power or privilege within or without the State of
Delaware which, under the laws thereof, the Corporation may not lawfully
conduct, promote, or exercise.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is Twenty Five Million (25,000,000). The par value of
each of said shares is $.001. All such shares are one class and are shares of
common stock.
FIFTH: The name and mailing address of the incorporator is as follows:
Name Mailing Address
---- ---------------
Gary B. Wolff 40 Exchange Place
New York, NY 10005
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them, and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code order a meeting of creditors or
class of stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to reorganization of this Corporation
as consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders, of
this Corporation, as the case may be, and also on this Corporation.
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EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of
Directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase "whole
Board" and the phrase "total number of Directors" shall be deemed to
have the same meaning, to wit, the total number of Directors which the
Corporation would have if there were no vacancies. No election of
Directors need be by written ballot.
2. After the original or other By-Laws of the Corporation have been
adopted, amended or repealed as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the Corporation has received any payment for any of
its stock, the power to adopt, amend, or repeal the By-Laws of the
Corporation may be exercised by the Board of Directors of the
Corporation; provided, however, that any provision for the classification
of Directors of the Corporation for staggered terms pursuant to the
provisions of subsection (d) of Section 141 of the General Corporation
Law of the State of Delaware shall be set forth in an initial By-Law or
in a By-Law adopted by the stockholders entitled to vote of the
Corporation unless provisions for such classification shall be set forth
in this Certificate of Incorporation.
3. Whenever the Corporation shall be authorized to issue only one class
of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders.
Whenever the Corporation shall be authorized to issue more than one class
of stock no outstanding share of any class of stock which is denied
voting power under the provisions of the Certificate of Incorporation
shall entitle the holder thereof to the right to vote at any meeting of
stockholders except as the provisions of paragraph (c)(2) of Section 242
of the General Corporation Law of the State of Delaware shall otherwise
require; provided, that no share of any such class which is otherwise
denied voting power shall entitle the holder thereof to vote upon the
increase or decrease in the number of authorized shares of said class.
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NINTH: The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested Directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
TENTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the Laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
Certificate of Incorporation are granted subject to the provisions of this
Article TENTH.
ELEVENTH: The effective date of the Certificate of Incorporation of the
Corporation, and the date upon which the existence of the Corporation shall
commence, shall be its date of filing.
Signed: New York, New York
February 10, 198?
/s/ GARY B. WOLFF
------------------------------------
Gary B. Wolff, Incorporator
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EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Construction Technology Industries, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware.
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting duly
held, adopted a resolution proposing and declaring advisable the following
amendment to the Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of Construction
Technology Industries, Inc. be amended by changing the FOURTH
Article thereof so that, as amended, said Article shall be and
read as follows:
"FOURTH: The total number of shares of stock which the
corporation shall have authorization to issue is Fifty
Million (50,000,000). The par value of each of said shares
is $.0001. All such shares are of one class and are shares
of Common Stock."
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given written consent to said Amendment in accordance with the
provisions of section 228 of the General Corporation Law of the State of
Delaware and written notice of the adoption of the amendment has been given as
provided in section 228 of the General Corporation Law of the State of Delaware
in every stockholder entitled to such notice.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of sections 242 and 228 of the General Corporation Law
of the State of Delaware.
FOURTH: That this Certificate of Amendment of the Certificate of
incorporation shall be effective on the date of filing.
IN WITNESS WHEREOF, said Construction Technology Industries, Inc. has
caused this certificate to be signed by James W. Roe, its President, and
attested by Richard H. Harenberg, its Secretary, this 6th day of June, 1984.
CONSTRUCTION TECHNOLOGY INDUSTRIES, INC.
/s/ JAMES W. ROE
James W. Roe, President
ATTEST:
/s/ RICHARD H. HARENBERG
Richard H. Harenberg, Secretary
<PAGE> 1
Exhibit 3.3
AMENDED BY-LAWS
OF
CONSTRUCTION TECHNOLOGY INDUSTRIES, INC.
ARTICLE I. MEETINGS OF STOCKHOLDERS
Section 1.1. Time and Place. All meetings of stockholders shall be
held at such time and place, whether within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 1.2. Annual Meetings. An annual meeting of stockholders,
commencing with the year 2000, shall be held on the second Tuesday in July of
each year, or, if such day be a legal holiday, on the next business day
following; provided, that if advisable or convenient to hold the meeting on such
day, then in such year the annual meeting shall instead be held on such other
day as the board shall prescribe.
Section 1.3. Special Meetings. Special meetings of stockholders,
unless otherwise prescribed by statute, may be called by the Chairman of the
Board, the President or the Board of Directors, and shall be called by the
Chairman of the Board, the President or the Secretary at the request in writing
of any one or more stockholders owning at least sixty-six and two thirds percent
(66.23%) of the shares of the Corporation issued and outstanding and entitled to
vote. Any such request shall state the purpose or purposes of the proposed
meeting. Special meetings may also be called as provided in Section 2.4 of these
By-Laws.
Section 1.4. Notice of Meetings. Written notice of each meeting of
stockholders stating the time and place thereof, and, in the case of a special
meeting, specifying the purpose or purposes thereof shall be given, in the
manner prescribed by Section 5.1 of these By-Laws, to each stockholder entitled
to vote thereat, not less than ten (10) nor more than sixty (60) days prior to
the meeting except that where the matter to be acted on is a merger or
consolidation of the Corporation or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than twenty
(20) nor more than sixty (60) days prior to such meeting.
Section 1.5. Quorum. Except as otherwise provided by statute, the
holders of a majority of the shares of the Corporation issued and outstanding
and entitled to vote thereat, present in person or by proxy, shall be necessary
and sufficient to constitute a quorum for the transaction of business at each
meeting of stockholders.
Section 1.6. Vote Required. At any meeting of stockholders at which
a quorum is present, directors shall be elected by a plurality of the votes cast
and any other corporate action shall be authorized by a majority of the votes
cast, unless the action is one on which, by express provision of a statute, a
different vote is required, in which case such express provision shall govern
the determination of such action.
Section 1.7. Voting. At any meeting of stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy; and each stockholder of record shall be entitled to one vote for each
outstanding share standing in his name on the books of the Corporation as of the
record date for determining the stockholders entitled to notice of and to vote
at such meeting. The order of business at all meetings of stockholders shall be
determined by the presiding officer.
Section 1.8. Proxies. Each proxy shall be in writing executed by the
stockholder giving
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the proxy or his duly authorized attorney. No proxy shall be
valid after the expiration of three (3) years from its date, unless a longer
period is provided for in the proxy. Unless voted, every proxy shall be
revocable at the pleasure of the person who executed it or of his legal
representatives or assigns, except in those cases where an irrevocable proxy
permitted by statute has been given.
Section 1.9 Notice of Stockholder Business & Nominations
a) Annual Meetings of Stockholders
1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (i)
pursuant to the Corporation's notice of meeting, (ii) by or at the direction of
the Board of Directors or (iii) by a stockholder of the Corporation who was a
stockholder of record at the time of the giving of notice provided for in this
By-Law, who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this By-Law.
2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of
paragraph a) 1) of this By-Law, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business of the
60th day nor earlier than the close of business of the 90th day prior to the
first anniversary of the preceding year's annual meeting' provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder, to be timely, must be so delivered not earlier than the close of
business of the 90th day prior to such annual meeting and not later than the
close of business of the later of the 60th day prior to such annual meeting or
the close of business on the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation. Such
stockholder's notice shall set forth (i) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors or is otherwise required, in each case,
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (including such person's written consent to being named in
the proxy statement as a nominee and to serve as a director if elected); (ii) as
to any other business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner, if any,
on whose behalf the nomination or proposal is made, the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
3) Notwithstanding anything in the second sentence of
paragraph a) 2) of this By-Law to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the Corporation
is increased and there is no public announcement by the Corporation naming all
of the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by the By-Law shall also
be considered timely but only
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<PAGE> 3
with respect to the nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business of the 10th day
following the date on which such public announcement is first made by the
Corporation.
b) Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (i) by or at the direction of the Board of
Directors, or (ii) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board, any such stockholder may nominate a
person or persons (as the case may be), for election to such position(s) as
specified in the Corporation's notice of meeting, if the stockholder's notice
required by paragraph a) 2) of this By-Law shall be delivered to the Secretary
at the principal executive offices of the Corporation not earlier than the 90th
day prior to such special meeting and not later than the close of business on
the later of the 60th day prior to such special meeting or the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
c) General
1) Notwithstanding any provision of these By-Laws to the
contrary, only such persons who are nominated in accordance with the
procedures set forth in this By-Law shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this By-Law. Except as otherwise provided by law, the Certificate of
Incorporation, as amended, or these By-Laws, the officer of the Corporation or
other person presiding over the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this By-Law and, if any proposed nomination or business
is not in compliance with this By-Law, to declare that such defective proposal
or nomination shall be disregarded.
2) For purpose of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of the By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations promulgated thereunder with respect to the
matters set forth in this By-Law. Nothing in the By-Law shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 1.10 Consents Whenever any action is required or permitted
to be taken at a meeting of the shareholders, such action may be taken without a
meeting if the required
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<PAGE> 4
number of shareholders consent thereto in writing and such written consent or
consents are filed with the Corporation in compliance with Section 228 of the
General Corporation Law of Delaware.
ARTICLE II. DIRECTORS
Section 2.1. Board of Directors. The property and business of the
Corporation shall be managed by its Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things on its
behalf as are not required to be exercised or done by the stockholders.
Section 2.2. Number; Election and Tenure. The first Board of
Directors shall consist of three (3) members and thereafter the number of
directors constituting the whole Board of Directors shall be not less than one
(1) nor more than nine (9) as fixed from time to time by resolution of the whole
Board or by the stockholders at any annual or special meeting; provided, that no
decrease in the number of directors shall shorten the term of any incumbent
director. With the exception of the first Board of Directors, which shall be
elected by the incorporators of the Corporation, and except as otherwise
provided in these By-Laws, directors shall be elected at the annual meeting of
stockholders. Each director shall hold office until the annual meeting of the
stockholders next succeeding his election and until his successor is elected and
has qualified or until his earlier displacement from office by resignation,
removal or otherwise.
Section 2.3. Resignation and Removal. Any director may resign at any
time by written notice to the Corporation. Any director may be removed, for
cause or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 2.4. Vacancies. Any vacancy in the Board of Directors
occurring by reason of the death, resignation or disqualification of any
director, the removal of any director from office for cause or without cause, an
increase in the number of directors, or otherwise, may be filled by vote of the
stockholders or the Board or, if the number of directors then in office is less
than a quorum, by vote of a majority of the directors then in office or by a
sole remaining director. When one or more director shall resign from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in this Section in the filling of other vacancies. If at any time, by
reason of death or resignation or other cause, the Corporation should have no
directors in office, then any officer or any stockholder or an executor,
administrator, trustee or guardian of a stockholder, or other fiduciary
entrusted with like responsibility for the person or estate of a stockholder,
may call a special meeting of stockholders in accordance with the provisions of
these By-Laws. Each director elected to fill a vacancy shall hold office until
the next succeeding annual meeting of stockholders and until his successor is
elected and has qualified or until his earlier displacement from office by
resignation, removal, replacement or otherwise.
Section 2.5. Access to Books and Reliance. Any director shall have
the right to examine the Corporation's stock ledger, a list of its stockholders
and its other books and records for a purpose reasonably related to his
position as a director. A director shall, in the performance of his duties, be
fully protected in relying in good faith upon the books of account or reports
made to the Corporation by any of its officers, or by an independent certified
public accountant, or by an appraiser selected with reasonable care by the
Board of Directors, or in relying in good faith
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upon other records of the Corporation.
ARTICLE III. MEETINGS OF THE BOARD
Section 3.1. Time and Place. Meetings of the Board of Directors may
be held at such time and place, within or without the State of Delaware, as
shall be determined in accordance with these By-Laws.
Section 3.2. First Meeting. The directors elected at each annual
meeting of stockholders shall hold their first meeting at the place at which the
annual meeting of stockholders shall have been held and immediately thereafter,
and no notice of such meeting to the newly-elected directors shall be necessary
in order legally to constitute the meeting, provided a quorum shall be present.
Section 3.3. Regular Meetings. Regular meetings of the Board of
Directors may be held, without notice, at such time and place as shall from time
to time be fixed in advance by resolution of the Board.
Section 3.4 Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President, and at
the written request of any two (2) directors shall be called by the Chairman of
the Board, the President or the Secretary. Written notice of each special
meeting of directors stating the time and place thereof shall be served on each
director, in the manner provided in Section 5.1 of these By-Laws, at least two
(2) business days before such meeting, provided, however, that if notice is
served by mail it shall be posted at least five (5) business days before such
meeting. The time and place of any special meeting of directors may also be
fixed by a duly executed waiver of notice thereof.
Section 3.5. Quorum and Voting. At all meetings of the Board of
Directors one-third (1/3) of the total number of directors but not less than (2)
directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the vote of a majority of the directors present at
the time of the vote, if a quorum is present at such time, shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute. If a quorum shall not be present at any meeting of the Board of
Directors, the members of the Board present thereat may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum shall be present. Any director who participates in any meeting of the
Board by means of conference telephone or similar communications equipment by
means of which all persons participating in a meeting can hear each other shall
be deemed to be present in person at such meeting.
Section 3.6. Meetings During Emergency. During any nuclear or atomic
disaster, or during the existence of any catastrophe, or other similar emergency
condition, as a result of which a quorum of the Board of Directors cannot
readily be convened for action, notice of any meeting of the Board during such
an emergency may be given only to such of the directors as it may be feasible to
reach at the time and by such means as may be feasible at the time, including
publication or radio. To the extent required to constitute a quorum at any
meeting of the Board of Directors during such an emergency, the officers of the
Corporation who are present shall be deemed, in order of rank and within the
same rank in order of seniority, directors for such meeting.
Section 3.7. Consents. Whenever any action is required or permitted
to be taken at a meeting of the Board of Directors, such action may be taken
without a meeting if all members
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of the Board consent thereto in writing and such written consent or consents are
filed with the minutes of the Proceedings of the Board.
ARTICLE IV. COMMITTEES
Section 4.1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate directors of the
Corporation in such number as the Board shall see fit, but not less than two
(2), as an Executive Committee which shall have and may exercise, during
intervals between meetings of the Board, the powers of the Board of Directors in
the management of the business and affairs of the Corporation (including, but
without limitation, the powers of the Board of Directors as specified in these
By-Laws, provided, however, that it shall not have power to fill vacancies in
its membership, to authorize the issuance of shares of the capital stock of the
Corporation, or to make or amend these By-Laws), and may authorize the seal of
the Corporation to be affixed to all papers which may require it. The Board of
Directors shall designate one of the members of the Executive Committee to be
the Chairman of said Committee. Each member of the Executive Committee shall
continue to act as such only so long as he/she shall be a director of the
Corporation and only during the pleasure of a majority of the total number of
directors of the Corporation at the time in office. In the absence or
disqualification of a member of the Executive Committee, the member or members
present at any meeting and not disqualified from voting, whether or not he/she
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 4.2. Meetings. Regular meetings of the Executive Committee,
of which no notice shall be necessary, shall be held on such days and at such
places, within or without the State of Delaware, as shall be fixed by resolution
adopted by a majority of, and communicated to all, the members of the Executive
Committee. Special meetings of said Committee may be called at the request of
any member. Notice of each special meeting of said Committee shall be given in
the manner provided in Sections 3.4 and 5.1 of these By-Laws. Subject to the
provisions of this Article IV, the Executive Committee, by resolution of the
majority of all its members, shall fix its own rules of procedure and keep a
record of its proceedings and report them to the Board of Directors at the next
regular meeting thereof after such proceedings shall have been taken.
Section 4.3. Quorum and Manner of Acting. Not less than a majority
of the members of the Executive Committee then in office shall constitute a
quorum for the transaction of business, and the act of a majority of those
present at a meeting thereof at which a quorum is present shall be the act of
the Executive Committee. The directors comprising said Committee shall act only
as a committee, and such directors, individually, shall have no power as such.
Section 4.4. Vacancies. The Board of Directors, by vote of a
majority of the whole Board, shall have power to fill any vacancy in the
Executive Committee due to death, resignation, removal, or any other cause.
Section 4.5. Resignation. Any director may resign from the Executive
Committee at any time by giving written notice of his/her resignation to the
Board of Directors or to the Chairman of the Board, the Chairman of the
Executive Committee, the President, or the Secretary. Such resignation shall
take effect at the date of receipt of such notice or at any later time specified
therein; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
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<PAGE> 7
Section 4.6. Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, designate one
or more other committees, each such committee to consist of two (2) or more
directors of the Corporation, which shall have any may exercise such powers as
the Board of Directors may determine and specify in such resolution or
resolutions, such committee or committees to have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors. A
majority of all the members of any such committee may fix its rules of
procedure, determine its actions, and fix the time and place (whether within or
without the State of Delaware) of its meetings and specify what notice thereof,
if any, shall be given, unless the Board of Directors shall otherwise by
resolution provide. The Board of Directors shall have the power to change the
members of any such committee at any time, to fill vacancies, and to discharge
any such committee, either with or without cause, at any time. In the absence or
disqualification of a member of any such committee, the member or members
present at any meeting and not disqualified from voting, whether or not he/she
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 4.7. Action by Consent. Any action required or permitted to
be taken at any meeting of any committee authorized hereunder may be taken
without a meeting if prior to such action a written consent thereto is signed by
all members of such committee, and such written consent is filed with the
minutes of the proceedings of the Board or such committee.
ARTICLE V. NOTICES
Section 5.1. Delivery of Notices. Except as otherwise provided in
these By-Laws, notices to directors and stockholders shall be in writing and may
be delivered personally or by mail. Notice by mail shall be deemed to be given
at the time when deposited in the post office or a letter box, with first class
postage prepaid, and addressed to directors or stockholders at their respective
addresses appearing on the books of the Corporation. Notice to directors may
also be given by telegram or facsimile addressed to the directors at their
respective addresses appearing on the books of the Corporation or by leaving the
notice at the residence or usual place of business of a director. Notice by
telegram shall be deemed to be given when received by the communications
carrier. Notice by facsimile shall be deemed to be given when transmitted.
Section 5.2. Waiver of Notice. Whenever the Corporation or the Board
of Directors is authorized to take any action after notice to any person or
persons, such action may be taken without notice, if at any time before or after
such action is completed the person or persons entitled to such notice submit a
signed waiver of notice. Attendance of a person at a meeting of stockholders or
directors, as the case may be, shall constitute a waiver of notice of such
meeting, except where the person is attending for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of
stockholders or directors need be specified in any written waiver or notice.
ARTICLE VI. OFFICERS
Section 6.1. Executive Officers. The executive officers of the
Corporation shall be a Chairman of the Board, a President, one (1) or more
Executive Vice Presidents, a Treasurer and a Secretary. The Chairman of the
Board and the President shall be selected from among the
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<PAGE> 8
directors, but no other executive officer need be a member of the Board.
Two (2) or more officers, except those of President and Vice President and those
of President and Secretary, may be held by the same person, but no officer
shall execute, acknowledge or verify an instrument in more than one capacity.
The executive officers of the Corporation shall be appointed annually by the
Board of Directors at its first meeting following the meeting of stockholders at
which the Board was elected.
Section 6.2. Other Officers and Agents. The Board of Directors may
also appoint one (1) or more Assistant Vice Presidents, Assistant Treasurers and
Assistant Secretaries, and such other officers and agents as the Board may
determine to be advisable.
Section 6.3. Tenure; Resignation; Removal; Vacancies. Each officer
of the Corporation shall hold office until his successor is appointed or until
his earlier displacement from office by resignation, removal or otherwise. Any
officer may resign by written notice to the Corporation and may be removed for
cause or without cause by the Board of Directors, provided, that any such
removal shall be without prejudice to the rights, if any, of the officer so
removed under any employment contract or other agreement with the Corporation.
If the office of any officer becomes vacant for any reason, the vacancy may be
filled by the Board of Directors.
Section 6.4. Authority and Duties. All officers as between
themselves and the Corporation, shall have such authority and perform such
duties in the management of the Corporation as may be provided in these By-Laws,
or, to the extent not provided, as may be prescribed by the Board of Directors.
Section 6.5. The Chairman of the Board. The Chairman of the Board
may but shall not necessarily be the Chief Executive Officer of the Corporation.
He/She shall preside at all meetings of the stockholders and the directors.
He/She shall have general and active management of the business of the
Corporation, shall see to it that all resolutions and orders of the Board of
Directors are carried into effect, and, in connection therewith, shall be
authorized to delegate to the President and the other executive officers such of
his/her powers and duties as Chairman of the Board at such times and in such
manner as he/she may deem to be advisable. Except where by law or by order of
the Board of Directors the signature of the President is required, the Chairman
of the Board shall have the same power as the President to execute instruments
on behalf of the Corporation.
Section 6.6. The President. The President shall be the Corporation's
executive officer next in authority to the Chairman of the Board. He/She shall
assist the Chairman of the Board in the management of the business of the
Corporation and, in the absence or disability of the Chairman, or in the event
of the explicit refusal of the Chairman to discharge the duties of his office,
he/she shall preside at all meetings of the stockholders and the directors, and
exercise the other powers and perform the other duties of the Chairman or
designate the executive officers of the Corporation by whom such other powers
shall be exercised and other duties performed; and he/she shall have such other
powers and duties as may from time to time be assigned to him/her by the Board
of Directors or the Chairman of the Board. During the vacancy in the office of
Chairman of the Board the President shall serve as Acting Chairman.
Section 6.7. The Vice Presidents. The Vice President or, if there be
more than one, the Vice Presidents, shall assist the Chairman of the Board in
the management of the business of the Corporation and the implementation of
resolutions and orders of the Board of Directors at such times and such manner
as the Chairman of the Board may deem to be advisable. If there be more than one
Vice President, the Board of Directors may grant such titles as shall be
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<PAGE> 9
descriptive of their respective functions or indicative of their relative
seniority. The Vice President, or, if there be more than one, the Vice
Presidents in the order of their seniority as indicated by their titles or as
otherwise determined by the Board of Directors shall in the absence or
disability of the Chairman of the Board and the President, or in the event of
the explicit refusal of the Chairman and the President to discharge the duties
of their offices, exercise the powers and perform the duties of those officers;
and he/she or they shall have such other powers and duties as the Board of
Directors or the Chairman of the Board may from time to time prescribe. Said
Vice President shall serve as Acting President during a vacancy in the office of
President and, in the event the offices of both the Chairman of the Board and
the President are vacant shall serve as Acting Chairman.
Section 6.8. The Assistant Vice Presidents. The Assistant Vice
President, if any, or, if there be more than one, the Assistant Vice Presidents,
shall perform such duties as may from time to time be prescribed by the Board of
Directors or by the Chairman of the Board.
Section 6.9. The Treasurer. The Treasurer shall have the care and
custody of the corporate funds, and other valuable effects, including
securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name of and to the credit of the Corporation
in such depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, shall render
to the Chairman of the Board and the Board of Directors, at meetings or whenever
it may require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation; and he shall perform such other duties
as the Board of Directors or the Chairman of the Board may from time to time
prescribe.
Section 6.10. The Assistant Treasurer. The Assistant Treasurer, if
any, or, if there be more than one, the Assistant Treasurers, in the order
determined by the Board of Directors or by the Chairman of the Board, shall, in
the absence or disability of the Treasurer, or in the event of the explicit
refusal of the Treasurer to discharge the duties of his/her office, exercise the
powers and perform the duties of the Treasurer; and he/she or they shall perform
such other duties as the Board of Directors or the Chairman of the Board may
from time to time prescribe. Said Assistant Treasurer shall serve as Acting
Treasurer during a vacancy in the office of Treasurer.
Section 6.11. The Secretary. The Secretary shall attend all meetings
of the stockholders and of the Board of Directors and shall record the minutes
of all proceedings taken at such meetings, and maintain all documents evidencing
corporate actions taken by written consent of the stockholders or of the Board
of Directors, in a book to be kept for that purpose. He/She shall see to it that
all notices of meetings of the stockholders and of special meetings of the Board
of Directors are duly given in accordance with these By-Laws or as required by
statute; he/she shall be the custodian of the seal of the Corporation, and, when
authorized by the Board of Directors, he shall cause the corporate seal to be
affixed, attested by his signature as Secretary or by the signature of an
Assistant Secretary; he shall also keep or cause to be kept a stock book,
containing the names, alphabetically arranged, of all persons who are
stockholders of the Corporation showing their respective addresses, the number
of shares registered in the name of each, and the dates when they respectively
became the owners of record thereof, and such book shall be open for inspection
as prescribed by the laws of the State of Delaware; and he/she shall perform
such other duties as may from time to time be prescribed by the Board of
Directors or by the Chairman of the Board.
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<PAGE> 10
Section 6.12. The Assistant Secretary. The Assistant Secretary, if
any, or, if there be more than one, the Assistant Secretaries, in the order
determined by the Board of Directors or by the Chairman of the Board shall, in
the absence or disability of the Secretary, or in the event of the explicit
refusal of the Secretary to discharge the duties of his/her office, exercise the
powers and perform the duties of the Secretary; and he/she or they shall perform
such other duties as the Board of Directors or the Chairman of the Board from
time to time prescribe. Said Assistant Secretary shall serve as Acting Secretary
during a vacancy in the office of the Secretary.
ARTICLE VII. STOCK CERTIFICATES
Section 7.1. Form and Signature. The stock certificates of the
Corporation shall be in such form as shall be determined by the Board of
Directors, and shall be numbered and entered in the books of the Corporation as
they are issued. Each certificate shall exhibit the registered holder's name and
the number of shares that it evidences, shall set forth such other statements as
may be required by statute, and shall be signed by the Chairman of the Board,
President or Vice President and by the Treasurer or an Assistant Treasurer or by
the Secretary or an Assistant Secretary.
Section 7.2. Lost Certificates. The Board of Directors may direct
that a new stock certificate or certificates which have been mutilated or which
are alleged to have been lost, stolen or destroyed, upon presentation of each
such mutilated certificate or the making by the person claiming any such
certificate to have been lost, stolen or destroyed of an affidavit as to the
fact and circumstances of the loss, theft or destruction thereof. The Board, in
its discretion and as a condition precedent to the issuance of any new
certificate, may require the owner of any certificate alleged to have been lost,
stolen or destroyed, or his legal representative, to furnish the Corporation
with a bond, in such sum and with such surety or sureties as it may direct, as
indemnity against any claim that may be made against the Corporation in respect
of such lost, stolen or destroyed certificate.
Section 7.3. Registration of Transfer. Upon surrender to the
Corporation or any transfer agent of the Corporation of a stock certificate duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation shall issue or cause its transfer agent
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
ARTICLE VIII. GENERAL PROVISIONS
Section 8.1. Record Date.
(a) For the purpose of determining the stockholders entitled
to notice of, or to vote at, any meeting of stockholders or at any adjournment
thereof in respect of which a new record date is not fixed, or to express
written consent to the taking of corporate action without a meeting or to
receive notice that any such corporate action was taken without a meeting or for
the purpose of determining the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights, or to exercise any
rights in respect of any change, conversion or exchange of shares, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a date as the record date for any such determination of stockholders. Such date
shall not be more than sixty (60) nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any other action.
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<PAGE> 11
(b) If no record date is fixed:
(1) The record date for determining the stockholders
entitled to notice of or to vote at a meeting shall be at the close of business
on the day next preceding the day on which notice is given, or, if no notice is
given, the day next preceding the day on which the meeting is held;
(2) The record date for determining stockholders entitled
to express written consent to the taking of any corporate action without a
meeting, when no prior action by the Board of Directors is necessary, shall be
the day on which the first written consent is expressed; and
(3) The record date for determining stockholders for any
purpose other than those specified in subparagraphs (1) and (2) shall be at the
close of business on the day on which the resolution of the Board of Directors
relating thereto is adopted.
Section 8.2. Registered Stockholders. There shall be kept at the
office of the Corporation in the State of Delaware a record containing the names
and addresses of all stockholders, the number of shares held by each and the
dates when they respectively became the owners of record thereof. Except as
otherwise required by law, the Corporation shall be entitled to recognize a sole
owner of such shares for all purposes, and shall not be bound to recognize any
equitable or legal claim to or interest in such shares on the part of any person
other than such registered holder, regardless of whether it shall have knowledge
or notice of any such claim or interest. Without limiting the generality of the
foregoing, the Corporation shall be entitled to recognize the exclusive right of
a person whose holding of shares is so pursuant to Section 7.1 of these By-Laws
to be treated as the sole owner of such shares for the purpose for which such
record date was so fixed or determined.
Section 8.3. Dividends and Distributions; Reserves. Subject to all
applicable requirements of law and any indenture or other agreement to which the
Corporation is a party or by which it is bound, the Board of Directors may
declare to be payable, in cash, in other property or in shares of the
Corporation, such dividends and distributions upon or in respect of outstanding
shares of the Corporation as the Board may deem to be advisable. Before
declaring any such dividend or distribution, the Board may cause to be set
aside, out of any funds or other property or assets of the Corporation legally
available for the payment of dividends or distributions, such sum or sums as the
Board, in its absolute discretion, may consider to be proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose as the
Board may deem conducive to the interest of the Corporation, and the Board may
modify or abolish any such reserve in the manner in which it was created.
Section 8.4. Annual Statement. The Board of Directors shall
present at each annual meeting of the stockholders a full and clear statement of
the business and financial condition of the Corporation.
Section 8.5. Fiscal Year. The fiscal year of the Corporation shall
be fixed and may from time to time be changed by resolution of the Board of
Directors.
Section 8.6. Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal Delaware".
Section 8.7 Securities of Other Corporations. The Chairman of the
Board or any other
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<PAGE> 12
officer authorized by the Board of Directors shall have power to vote and
otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders or with respect to any action of stockholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
Section 8.8. Loans to Directors. A loan shall not be made by the
Corporation to any director, provided, however, that the Corporation may lend
money to, or guarantee any obligation of, or otherwise assist any officer or
other employee of the Corporation or of any of its subsidiaries, including any
officer or employee who is a director of the Corporation, whenever in the
judgment of the directors such loan, guarantee or assistance may reasonably be
expected to benefit the Corporation.
Section 8.9. Litigation by Corporation. No court action, suit or
arbitration proceeding shall be commenced by the Corporation against a member of
the Board of Directors unless authorized by a specific resolution of the Board
ARTICLE IX. INDEMNIFICATION
Section 9.1. Indemnification. The Corporation shall (a) indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he/she
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) actually and reasonably
incurred by him/her in connection with the defense or settlement of such action
or suit, and (b) indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that
he/she is or was a director, officer, employee or agent of the Corporation, or
served at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him/her in
connection with any such action, suit or proceeding; in each case to the fullest
extent permissible under Subsections (a) through (e) of Section 145 of the
General Corporation Law of Delaware or the indemnification provisions of any
successor statute. The foregoing right of indemnification shall in no way be
exclusive of any other rights of indemnification to which any such person may be
entitled, under any by-law, agreement, vote of stockholders or disinterested
directors or direction of any court or otherwise, and shall inure to the benefit
of the heirs, executors and administrators of such a person.
For purposes of the Section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries.
For the purposes of this Section, references to "the Corporation"
include all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving
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<PAGE> 13
corporation so that any person who is or was a director, officer,
employee or agent of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise shall stand in the same position under the provisions of this Section
with respect to the resulting or surviving corporation as he/she would if he/she
served the resulting or surviving corporation in the same capacity.
ARTICLE X. AMENDMENTS
Section 10.1. Power to Amend. These By-Laws may be amended or
repealed, and new By-Laws may be adopted, in the manner provided in the
Certificate of Incorporation.
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<PAGE> 1
Exhibit 10
THIS STOCK PURCHASE AGREEMENT is made as of the 10th day of March, 2000
by and between Construction Technology Industries Inc., a Delaware Corporation
with its principal offices in Harrington Park, New Jersey (the "Company") and
HITK Corporation, a Delaware Corporation with its executive offices in
Harrington Park, New Jersey ("Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
Subject to the terms and conditions of this Agreement, Investor agrees
to purchase at the Closing and the Company agrees to sell and issue to Investor
at the Closing a total of 3,000,000 shares of the Company's Common Stock (the
"Shares") for a purchase price of $15,000.00.
1.2 Closing.
The purchase and sale of the Shares shall take place at the offices of
the Company at 68 Schraalenburg Road, Harrington Park, New Jersey at 4:00 P.M.,
on March 11, 2000 or at such other time and place as the Company and Investor
mutually agree (which time and place are designated as the "Closing"). At the
Closing the Company shall deliver to Investor a certificate representing the
Shares and Investor shall deliver to the Company payment of the purchase price
therefor by check, wire transfer, cancellation of indebtedness, or any
combination thereof. In the event that payment by Investor is made, in whole or
in part, by cancellation of indebtedness, then such Investor shall deliver to
the Company for cancellation at the Closing any evidence of such indebtedness or
shall execute an instrument of cancellation in form and substance acceptable.
2. Representations and Warranties of the Company.
The Company hereby represents and warrants to Investor that, except as
set forth in the Schedule A Exceptions (the "Schedule of Exceptions") furnished
Investor which exceptions shall be deemed to be representations and warranties
as if made hereunder:
2.1 Organization, Good Standing and Qualification.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as now conducted.
2.2 Capitalization and Voting Rights.
The authorized capital of the Company consists of 50,000,000 shares of
common stock of which 347,243 shares are issued and outstanding. The outstanding
shares of common stock are all duly and validly authorized and issued, fully
paid and non-assessable, and were issued in accordance with the registration or
qualification provisions of the Securities Act of 1933 (the "Act") and any
relevant state securities laws or pursuant to valid exemptions therefrom.
2.3 Agreements for Issuance of Stock
Except for the proposed sale and issuance of not more than 240,000
shares to the Company's officers, there are not outstanding any options,
warrants, rights (including conversion of preemptive rights) or agreements for
the purchase or acquisition from the Company of any shares of its capital
stock. The Company is not a party or subject to any agreement or understanding,
and to the best of the Company's
<PAGE> 2
knowledge, there is no agreement or understanding between any person or
entities, which affects or relates to the voting or giving consents with respect
to any security by a director of the Company.
2.4 Subsidiaries.
The Company does not presently own or control, directly or indirectly,
any interest in any other corporation or other business entity. The Company is
not a participant in any joint venture, partnership, or similar arrangement.
2.5 Authorization.
All corporate action on the part of the Company, its officers, directors
and stockholders necessary for the authorization, execution and delivery of this
Agreement and the performance of all obligations of the Company hereunder and
the authorization, issuance (or reservation for issuance), sale and delivery of
the Shares being sold hereunder has been taken or will be taken prior to the
Closing and this Agreement constitutes a valid and legally binding obligation of
the Company, enforceable in accordance with terms.
2.6 Valid Issuance of Stock.
The Shares that are being purchased by Investor when issued, sold and
delivered in accordance with the terms of this Agreement for the consideration
expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and under applicable state and
federal securities laws.
2.7. Offering
Subject in part to the truth and accuracy of Investor's representations
set forth in Section 3 of this Agreement and in the Investment Letter attached
hereto as Exhibit A, the offer, sale and issuance of the Shares as contemplated
by this Agreement are exempt from the registration requirements of the Act, and
neither the Company nor any authorized agent acting on its behalf will take any
action hereafter that would cause the loss of such exemption.
2.8 Litigation.
There is no action, suit, proceeding or investigation pending or
currently threatened against the Company that questions the validity of this
Agreement or the right of the Company to enter into such agreements, or to
consummate the transaction contemplated herein, or that might result either
individually or in the aggregate, in any material adverse changes in the
assets, equity ownership of the Company or otherwise nor is the Company aware
that there is any basis for any of the foregoing. The foregoing includes
without limitation any actions, suits, pending or threatened (or any basis
therefor known to the Company) involving the prior employment of any of the
Company's employees, their use in connection with the Company business of any
information or techniques, allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. The
Company is not a party or subject to the provisions of any order, writ,
injunction, judgment, or decree of any court or governmental agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently or that the Company intends to initiate.
2.9 Compliance with Other Instruments.
The Company is not in violation or default in any material respect of
any provision of its Certificate of Incorporation or Bylaws or of any contract,
agreement or other instrument. The execution,
<PAGE> 3
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in any such violation or
be in conflict with or constitute, with or without the passage of time and
giving of notice, either a default under any such provision, instrument or
contract or an event that results in the creation of any lien, charge or
encumbrance upon any assets of the Company or the suspension, revocation,
impairment, forfeiture, or nonrenewal of my material permit, license,
authorization, or approval applicable to the Company, its business or operations
or any of its assets or properties.
2.10 Agreements: Action
Except for agreements explicitly referenced in this Agreement:
(a) There are no agreements, understandings or proposed
transactions between the Company and any of its officers,
directors or affiliates;
(b) There are no agreements, understandings, instruments,
contracts, proposed transactions, judgments, orders,
writs or decrees to which the Company is a party or by
which it is bound that may involve (i) obligations
(contingent or otherwise) of, or payments to the Company
in excess of, $5,000.00 or (ii) the license of any
patent, copyright, trade secret or other proprietary
right to or from the Company, or (iii) provisions
restricting or affecting the development, manufacture or
distribution of the Company's products or services.
(c) The Company has not declared or paid any dividends or
authorized or incurred any indebtedness for money
borrowed or any other liabilities in the aggregate in
excess of $15,000.00.
2.11 Information Provided Investor
The Company has provided Investor with all information that Investor
has requested for the purpose of making a decision whether to purchase the
Shares and all information that the Company believes is reasonably necessary to
enable Investor to make such decision. To the best of its knowledge, neither
this Agreement nor any other statements or certificates made or delivered in
connection herewith contain any untrue statements of a material fact nor omits
to state a material fact necessary to make the statements contained herein not
misleading.
2.12 Financial Statements.
The Company will deliver to Investor its audited financial statements,
balance sheet and profit and loss statement, statement of stockholders' equity
and statement of cash flows, including notes thereto as of December 31, 1999 and
for the fiscal year then ended (the "Financial Statements"). The Financial
Statements will have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the period
indicated. The Financial Statements will fairly present the financial condition
and operating results of the Company as of the date and for the period indicated
therein. Except as set forth in the Financial Statements, the Company has no
material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to date of the Financial
Statements and (ii) obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally accepted accounting
principles to he reflected in the Financial Statements, which, in both cases,
individually or in the aggregate, are not material to the financial condition or
operating results of the Company. Except as disclosed in the Financial
Statements, the Company is not a guarantor or indemnitor of any indebtedness of
any other
<PAGE> 4
person, firm or corporation. The Company maintains and will continue
to maintain a standard system of accounting established and administered in
accordance with generally accepted accounting principles. Since the date of the
Financial Statements, there has not been:
(a) any change in the assets, liabilities, financial condition or
operating results of the Company from that reflected in the Financial
Statements, except changes in the ordinary course of business that have not
been, in the aggregate, materially adverse;
(b) any damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting the assets, properties, financial condition
or operating results of the Company.
2.13 Title to Property and Assets.
The Company owns its property and assets free and clear of all
mortgages, liens, loans and encumbrances, except such encumbrances and liens
that arise in the ordinary course of business and do not materially impair the
Company's ownership or use of such property or assets. With respect to the
property and assets it leases, the Company is in compliance with such leases
and, to the best of its knowledge holds a valid leasehold interest free of any
liens, claims or encumbrances.
3.0 Representations and Warranties of the Investor.
Investor hereby represents and warrants that:
3.1 Authority
Investor has full power and authority to enter into this Agreement and
such Agreement constitutes its valid and legally binding obligation, enforceable
in accordance with its terms.
3.2 Purchasing Entirely for Own Account.
This Agreement is made with such Investor in reliance upon such
Investor's representation to the Company, which by such Investor's execution of
this Agreement and execution of the Investment Letter attached hereto, such
Investor hereby confirms, that the Shares to be received by Investor will he
acquired for investment for Investor's own account, not as a nominee or agent
and not with a view to the resale or distribution of any part thereof, and that
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, Investor further
represents that Investor does not have any contract, undertaking or other
arrangement with any person to sell, transfer or grant participations to such
person or to any third person with respect to any of the Shares.
3.3 Disclosure of Information.
Investor believes it has received all the information it considers
necessary or appropriate for deciding whether to purchase the Shares. Investor
further represents that it has had an opportunity to ask questions and
receive answers from the Company regarding the business, properties, prospects
and financial condition of the Company and has had access to all of the books
and records of the Company in the Company's possession or under its control. The
foregoing, however, does not limit or modify the representations and warranties
of the Company in Section 2 of this Agreement or the right of the Investor to
rely thereon.
3.4 Investment Experience.
<PAGE> 5
Investor is an investor in securities of companies in the development
stage and acknowledges that it is able to fend for itself, can bear the economic
risk of its investment and has such knowledge and experience in financial
or business matters that it is capable of evaluating the merits and risks of the
investment in the Shares.
3.5 Restricted Securities.
Investor understands that the Securities it is purchasing are
characterized as restricted securities under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Act, only in
certain limited circumstances. In this connection, Investor represents that it
is familiar with SEC Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Act.
3.6 Further Limitations on Disposition.
Without in any way limiting the representations set forth above,
Investor further agrees not to make any disposition of all or any portion of
the Securities unless and until the transferee has agreed in writing for the
benefit of the Company to be bound by this Section 3 provided and to the extent
this Section and such agreement are then applicable; and
(a) There is then in effect a Registration Statement under the Act
covering such proposed disposition and such disposition is made in accordance
with such Registration Statement; or
(b) (i) Investor shall have notified the Company of the proposed
disposition and shall have provided the Company with a detailed statement of the
circumstances surrounding the proposed disposition, and (ii) if reasonably
requested by the Company, Investor shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company that such disposition
will not require registration of such shares under the Act. It is agreed that
the Company will not require opinions of counsel for transactions made pursuant
to Rule 144 except in unusual circumstances.
3.7 Restrictive Legend.
It is understood that the certificates evidencing the Shares may bear
the following or similar legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN PURCHASED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY OTHER
APPLICABLE STATE SECURITIES LAWS. THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR PURSUANT TO AN EXEMPTION UNDER SAID ACT
AND/OR UNDER SAID STATE SECURITIES LAWS.
4. Conditions of Investor's Obligations at Closing.
The obligations of Investor under subsection 1.2 of this Agreement are
subject to the fulfillment on or before the Closing of each of the following
conditions, the waiver of which shall not he effective against Investor if it
does not consent in writing thereto:
4.1 The representations and warranties of the Company contained in
Section 2 shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the date
of such Closing.
<PAGE> 6
4.2 The Company shall have performed and complied with all agreements
obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Closing.
4.3 All authorizations, approvals, or permits if any, of any
governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
5.1 Survival of Warranties. The warranties, representations and
covenants of the Company and Investor contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investor or the Company.
5.2 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and
be binding upon the respective successors and assigns of the parties (including
transfers of any Shares). Nothing in this Agreement, express or implied, is
intended to confer upon any patty other than the patties hereto or their
respective successors and assigns any rights, remedies. obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
5.3 Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
5.4 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of New Jersey as applied to agreements among New Jersey
residents entered into and to be performed entirely within New Jersey.
5.5 Captions. The captions used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
5.6 Notice. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail sent prepaid and
addressed to the patty to be notified at the address indicated in writing by
such party or at such other address as such party may designate by ten (10)
days' advance written notice to the other party.
5.7 Finder's Fee. Each party represents that it neither is nor will be
obligated for any finders' fee or commission in connection with this
transaction. Investor agrees to indemnify and to hold harmless the Company from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability for which such Investor or any of its officers, partners, employees,
or representatives is responsible. The Company agrees to indemnify and hold
harmless Investor from any liability for any commission or compensation in the
nature of a finders' fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of its officers,
employees or representatives is responsible.
5.8 Amendment. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the party being requested to amend or to waive any provision
contained in the Agreement.
<PAGE> 7
5.9 Enforceability If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
5.10 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party
shall be liable or bound to any other patty in any manner by any warranties,
representations, or covenants except as specifically set forth herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
HITK CORPORATION CONSTRUCTION TECHNOLOGY INDUSTRIES INC.
By: /S/ John Gitlin By: /S/ Robert Shuck
------------------ -------------------
John Gitlin Robert Schuck
Its: Vice President Its: President
<PAGE> 8
EXHIBIT A
INVESTMENT LETTER
HITK Corporation ("HITK") represents and warrants pursuant to the
Agreement dated March 10, 2000 by and between Construction Technology
Industries, Inc ("Construction Technology" or the "Company") and HITK (the
"Agreement") the following:
(a) HITK is acquiring Construction Technology Stock (the "Construction
Technology Shares") for its own account for the purpose of investment, and not
with a view to, or for sale in connection with, any distribution thereof; and
(b) HITK has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of its proposed
investment in the Company and has been a major shareholder of Construction
Technology for more than ten years and therefore is fully knowledgeable
regarding the Company and its business affairs.
(c) HITK understands and acknowledges that the Construction Technology
Shares to be delivered to it pursuant to the provisions of the Agreement will be
"restricted securities" within the meaning of the Securities Act of 1933, as
amended (the" '33 Act"), and agrees that the certificates therefore shall bear
the following legend or substantially similar legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN PURCHASED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY OTHER
APPLICABLE STATE SECURITIES LAWS. THE SHARES MAY NOT SE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR PURSUANT TO AN EXEMPTION UNDER SAID ACT
AND/OR UNDER SAID STATE SECURITIES LAWS.
(d) HITK understands and acknowledges that the Construction Technology
Shares to be delivered pursuant to the provisions of the Agreement will not be
registered under the 1933 Act and, accordingly, HITK recognizes that it may be
required to bear the economic risk of its investment until such shares are
registered. HITK agrees on behalf of itself, and its successors and assigns,
that it will only sell, transfer, pledge or hypothecate any of the Construction
Technology Shares to be acquired by it pursuant to an effective registration
statement under the '33 Act or in a transaction wherein registration under the
'33 Act is not required. HITK understands that Construction Technology has no
obligation to register the Construction Technology Shares under the '33 Act.
HITK CORPORATION
/s/ John Gitlin
--------------------
By: John Gitlin
Its: Vice President
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