SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB
[ X ] Annual Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
For the fiscal year ended December 31st 1997
Commission file number 2-93426-D
CALDERA, INC.
-------------------------
(Name of Small Business issuer in its Charter)
DELAWARE 87-0419568
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9 1/2 Casimir St. Toronto. Ontario. Canada M5T 2P6
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(Address of principal executive offices) (Zip Code)
Issuer's telephone number including area code: 416 603-9184
Securities Registered Pursuant to Section 12(b) of the Exchange
Act:
NAME OF EACH EXCHANGE
TITLE OF CLASS ON WHICH REGISTERED
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None None
Securities Registered Pursuant to Section 12(g) of the Exchange
Act:
NAME OF EACH EXCHANGE
TITLE OF CLASS ON WHICH REGISTERED
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None None
Check whether the Issuer (1) filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the past 12 months (or for such shorter period that
the Issuer was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes [ X ] No [ ]
Check if there is no disclosure of delinquent filers in
response to Item 405 of Regulation S-B is not contained in this
form, and no disclosure will be contained, to the best of
Issuer's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-KSB or any
amendments to this Form 10-KSB [ X ]
State Issuer's revenues for its most recent fiscal year:
$0.00.
The aggregate market value of the Issuer's voting and non-
voting common stock held by non-affiliates computed was
approximately $0.00 on March 29, 1998 and as of May 31, 1998.
As of March 29, 1998, the Issuer had 3,345,000 shares
outstanding of its common stock, par value $0.01.
Transitional Small Business Disclosure Format: (Check one):
Yes [ ] No [ X ]
DOCUMENTS INCORPORATED BY REFERENCE
List hereunder the following documents if incorporated by
reference and the part of the Form 10-KSB (e.g., Part I, Part II,
etc.) into which the document is incorporated (1) any annual
report to security holders, (2) any proxy or information
statement; and (3) any prospectus filed pursuant to rule 424(b)
or (c) under the Securities Act of 1933.
No annual report to securities holders, proxy statement or
prospectus is incorporated herein by reference.
<PAGE>
PART I
ITEM 1. DESCRIPTION OF BUSINESS
HISTORY AND ORGANIZATION OF ISSUER PRIOR TO NOVEMBER 1988
Caldera, Inc., a Delaware corporation, (the "Issuer"), is a
shell corporation with no business or assets. It is seeking to
acquire a company which would become the business of the Issuer.
On May 26, 1998, the Issuer entered into a letter of intent to
acquire International Fidelity Holding Corp. and its wholly-owned
subsidiary, International Surety & Casualty Corp., a Texas
insurance company, in exchange for a controlling interest in the
Issuer. The parties entered into a definitive Stock Purchase
Agreement, dated as of July 7. 1998. These companies are engaged
in the property and casualty insurance business, primarily
reinsurance of automobile insurance products in the State of
Texas. The transaction would be subject to stockholder approval
of the Agreement and related proposals, and regulatory consent.
The proxy material is to be sent to the Company';s stockholders
for a special meeting to be held in late August. No assurance
can be given that this transaction will be successfully
consummated.
The Issuer was formerly MW Companies, Inc. ("MW Companies"),
the successor corporation to Sansidra Corporation ("Sansidra").
Sansidra was organized under the laws of the state of Nevada on
September 19, 1984, and initially sold 160,000 shares of common
stock to its officers, directors and others. On December 31,
1984, Sansidra completed a public offering of 700,000 shares of
common stock pursuant to a registration statement on Form S-18
that became effective November 9, 1984. As a result of the
public offering, there were 860,000 shares of Sansidra common
stock issued and outstanding as of December 31, 1984. Sansidra
also had a total of 70,000 warrants outstanding which were sold
to the underwriter pursuant to the 1984 public offering. These
warrants had entitled the holder to purchase one share of common
stock for each warrant at a price of $0.75 per share at any time
prior to November 8, 1989.
On May 3, 1985, Sansidra acquired 80% of the outstanding
capital stock of LUSA, Inc. (at the time known as Lundeen USA,
Inc.), a Delaware corporation ("LUSA"), from Mantle White
Company, a Delaware corporation ("Mantle White"), pursuant to an
Agreement and Plan of Reorganization dated May 3, 1985 (the
"Reorganization Agreement"), between Sansidra and Mantle White.
In exchange for said interest in LUSA, Sansidra issued to Mantle
White 1,100,000 shares of common stock; 80,000 shares of
non-voting redeemable convertible preferred stock, par value
$0.01; warrants to purchase 900,000 shares of common stock
exercisable during the two-year period ending May 15, 1987, at an
exercise price of $0.625 per share, or by exchange of the
remaining 20% of the outstanding capital stock of LUSA at the
exchange ratio of one share of LUSA for each 10,000 shares of
Sansidra common stock; and warrants to purchase an additional
570,000 shares of common stock exercisable during the four year
period ending May 15, 1989, at an exercise price of $1.00 per
share. Each share of Sansidra redeemable preferred stock was
convertible into ten shares of common stock on or before December
31, 1986, at $0.50 per share of common stock received. The
preferred stock, if not converted, had to be redeemed by the
Company on December 31, 1986, at a redemption price of $0.05 per
share. Such shares were redeemed at December 31, 1986, in
exchange for a note payable.
On May 7, 1985, LUSA acquired all of the issued and
outstanding common stock of Lundeen Coatings Corporation, a
California corporation ("Lundeen"); Controlled Coatings
Corporation, a California corporation ("Controlled"); Lundeen
Coatings International, a California corporation
("International"); and Lundeen TBT Holding, Inc., a Delaware
corporation (hereinafter collectively referred to as the "Lundeen
Group"). Controlled and International were subsequently merged
into Lundeen.
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<PAGE>
Effective December 31, 1985, Sansidra merged with and into
MW Companies. MW Companies was organized on December 20, 1985,
for the sole purpose of entering into this merger transaction.
As part of the merger Sansidra changed its state of domicile to
Delaware and changed its name to MW Companies, Inc. In addition,
the merger effected a 1-for-50 reverse stock split carried out by
exchanging one share of MW Companies' common stock for each 50
shares of Sansidra's common stock and exchanging one share of MW
Companies' Convertible Preferred Stock, Series A for each 50
shares of Sansidra's Convertible Preferred Stock, Series A. All
references to the number of common and preferred shares for all
periods presented in this annual report have been adjusted to
reflect this 1-for-50 reverse stock split.
Due to cash flow problems and prevailing economic conditions
in the industry in which these operations were conducted, the
management of MW Companies concluded that it would be in the best
interests of the shareholders of MW Companies to divest its
assets and seek alternative business opportunities.
Effective March 31, 1988, MW Companies entered into an
Agreement with Mantle White for the sale of substantially all of
MW Companies' assets. Pursuant to the Agreement, MW Companies
transferred to Mantle White all of its ownership interest in LUSA
and its two operating subsidiaries, Lundeen and Applied Systems
Company ("Applied"), through which MW Companies' operations were
then conducted. In June 1988, upon the closing of the Agreement,
the Issuer changed its name to Caldera, Inc.
On September 14, 1988, the Issuer completed the sale of
2,300,000 shares of common stock, at $0.05 per share for an
aggregate of $115,000. Following the transaction the Issuer had
a total of 3,345,000 shares of Common Stock issued and
outstanding.
In October and November 1988, the Issuer made loans of
$50,000 to Pegasus Truck Cab, Inc. ("Pegasus"). In November
1988, the Issuer elected to convert the loans into 50,000 shares
of Pegasus common stock, and purchased an additional 25,000
shares of Pegasus common stock for a purchase price of $25,000.
Pegasus' principal activities had been research, design and
development of an aerodynamic cabover style truck cab (the
"Pegasus Cab"). The research, design and development led to the
development of a model and basic mold for the completion of a
prototype, installation and testing of the Pegasus Cab. Pegasus
had begun limited marketing of the Pegasus Cab, had sold only one
Pegasus Cab and had incurred substantial losses related to its
business since its inception. On December 31, 1990, the Board of
Directors reviewed the status of the Issuer and decided that
there had been a significant deterioration in the investment in
Pegasus Cab and that the investment was insolvent. The Board
accordingly decided to write off the investment in Pegasus.
Since 1991, the Issuer has been dormant seeking business
opportunities.
ITEM 2. DESCRIPTION OF PROPERTY
The Issuer's current office is at 9 1/2 Casimir St. Toronto,
Ontario, Canada, M5T 2P6. The space is free of charge as it is
sub-let from Ronald K. Mann an officer and director of the
Issuer. There is no rent agreement. It is anticipated that the
Issuer will continue to remain in such premises until such time
as it locates a business opportunity for participation by it, at
which time the Issuer may be required to rent space suitable for
its needs.
ITEM 3. LEGAL PROCEEDINGS
The Issuer is not a party to any material pending legal
proceedings, and to the best knowledge of the Issuer, no such
proceedings have been threatened.
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<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
During the Issuer's fourth fiscal quarter ended December 31,
1997, no matters were submitted to a vote of the security holders
of the Issuer.
PART II
ITEM 5. MARKET FOR ISSUER'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS
The Issuer's shares of Common Stock are eligible for trading
in the over-the-counter market, however they are not currently
listed in the National Quotation Bureau's "pink sheets".
The following table sets forth, for the periods indicated,
the high and low bid quotations of the common stock:
$ $
HIGH BID LOW BID
--------- -------
1996
Quarter ended March 31 . . . . . . . 0.00 0.00
Quarter ended June 30 . . . . . . . . 0.00 0.00
Quarter ended September 30 . . . . . 0.00 0.00
Quarter ended December 31 . . . . . . 0.00 0.00
1997
Quarter ended March 31 . . . . . . . 0.00 0.00
Quarter ended June 30 . . . . . . . . 0.00 0.00
Quarter ended September 30 . . . . . 0.00 0.00
Quarter ended December 31 . . . . . . 0.00 0.00
No dividends have been paid on the Common Stock, and the Issuer
does not anticipate paying dividends in the foreseeable future.
On March 29, 1998, there were approximately 369 holders of record
of the Common Stock.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF
OPERATION
RESULTS OF OPERATIONS
Year ended December 31, 1997 vs. Year ended December 31, 1996
Overall Results of Operations
For the years ended December 31, 1997 and 1996, the Issuer
had no significant activities.
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<PAGE>
REVENUES
For the years ended December 31, 1997 and 1996, the Issuer
had no revenues.
GROSS PROFIT
For the years ended December 31, 1997 and 1996, the Issuer
had no gross profit.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
For each of the years ended December 31, 1997 and 1996, the
Issuer had administrative expenses of $2000, which expenses
related to preparations of periodic reports filed with the
Securities and Excluding Commission.
OTHER INCOME AND EXPENSES
For the years ended December 31, 1997 and 1996, the Issuer
had no other income or expenses.
LIQUIDITY AND CAPITAL RESOURCES
For the years ended December 31, 1997 and 1996, the Issuer
had no liquidity and or assets. The Issuer will continue its
search for a suitable business opportunity. (See "ITEM 1. --
BUSINESS"). The Issuer may need additional working capital to
accomplish a business acquisition, but does not have any
arrangements with respect to obtaining additional capital.
BALANCE SHEETS
AT DECEMBER 31, AT DECEMBER 31,
1997 1996
-------------- --------------
Total Current Assets . . . . 0 0
Total Current Liabilities . . 0 17,000
Stockholders' Deficit . . . . (0) (17,000)
STATEMENT OF OPERATIONS
AT DECEMBER 31, AT DECEMBER 31,
1997 1996
------------- --------------
Revenues . . . . . . . . . . 0 0
Net income (loss) . . . . . . (2,000) (2,000)
Net income (loss) per share
of Common Stock . . . . . Nil Nil
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<PAGE>
ITEM 7. FINANCIAL STATEMENTS
CALDERA, INC.
FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 1997 AND 1996
(EXPRESSED IN U.S. DOLLARS)
CONTENTS
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AUDITORS' REPORT 6
FINANCIAL STATEMENTS
Balance Sheets 7
Statements of Operations and Deficit 8
Statements of Changes in Cash Flows 8
Notes to Financial Statements 9
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<PAGE>
AUDITOR' REPORT
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TO THE SHAREHOLDERS OF
CALDERA, INC.
We have audited the accompanying balance sheets of CALDERA, Inc.
as at December 31, 1997 and 1996 and the related statement of
operations, and changes in cash flows for each of the two years
in the period ended December 31, 1997. These financial
statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with Canadian generally
accepted auditing standards. Those standards require that we
plan and perform the audit to obtain reasonable assurance 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 used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of CALDERA, Inc. at December 31, 1997 and 1996, and the results
of its operations and the changes in its cash flows for each of
the two years in the period ended December 31, 1997 in conformity
with United States generally accepted accounting principles.
(signed) BDO Dunwoody
Chartered Accountants
Toronto, Canada
June 3, 1998
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<PAGE>
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CALDERA, INC.
BALANCE SHEETS
(EXPRESSED IN U.S. DOLLARS)
December 31 1997 1996
------------------------------------------- ---- ----
ASSETS $ - $ -
---------------------------------------------------- ---------
LIABILITIES AND SHAREHOLDERS' EQUITY
(DEFICIENCY)
CURRENT
Accounts payable $ - $ 17,000
--------- ---------
SHAREHOLDERS' EQUITY (DEFICIENCY)
Share capital (Note 2) 608,152 589,152
Deficit (608,152) (606,152)
--------- ---------
- (17,000)
--------- ---------
$ - $ -
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On behalf of the Board:
(signed) Ronald K. Mann Director
---------------------------------
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
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<PAGE>
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CALDERA, INC.
STATEMENTS OF OPERATIONS AND DEFICIT
(EXPRESSED IN U.S. DOLLARS)
FOR THE YEARS ENDED DECEMBER 31 1997 1996
------------------------------------------ ---- ----
EXPENSES
Administrative $ 2,000 $ 2,000
---------------------
NET LOSS FOR THE YEAR (2,000) (2,000)
DEFICIT, beginning of year (606,152) (604,152)
---------------------
DEFICIT, end of year $(608,152) $(606,152)
---------------------------------------------------------------
LOSS PER COMMON SHARE $ - $ -
---------------------------------------------------------------
---------------------------------------------------------------
CALDERA, INC.
STATEMENTS OF CHANGES IN CASH FLOWS
(EXPRESSED IN U.S. DOLLARS)
FOR THE YEARS ENDED DECEMBER 31 1997 1996
------------------------------------------ ---- ----
CASH PROVIDED BY (USED IN)
OPERATING ACTIVITIES
Net loss for the year $ 2,000 $ (2,000)
Change in non-cash working capital balance
Increase (decrease) in accounts
payable (2,000) 2,000
--------------------
INCREASE IN CASH FOR THE YEAR - -
CASH, beginning of year - -
--------------------
CASH, end of year $ - $ -
--------------------------------------------------------------
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
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<PAGE>
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CALDERA, INC.
NOTES TO FINANCIAL STATEMENTS
(EXPRESSED IN U.S. DOLLARS)
DECEMBER 31, 1997 AND 1996
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1. INCORPORATION AND NATURE OF BUSINESS
CALDERA, Inc. (the "Company") is incorporated under the laws of
the State of Delaware. Since 1989, the Company has been
inactive with no assets and no business focus.
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2. SHARE CAPITAL
(a) Authorized
50,000,000 shares of common stock with a par value of $.01
5,000,000 shares of preferred stock
(b) Issued - Common Stock
NUMBER ADDITIONAL TOTAL
OF PAID IN SHARE
SHARES CONSIDERATION CAPITAL CAPITAL
Balance,
December 31,
1996 $3,345,000 $33,450 $555,702 $589,152
Additional
paid in
capital 1997 - - 19,000 19,000
--------- --------- -------- --------
Balance,
December 31,
1997 $3,345,000 $33,450 $574,702 $608,152
--------- --------- -------- --------
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3. SUPPLEMENTAL INFORMATION OF NON-CASH INVESTING AND FINANCING
ACTIVITIES
During 1997, the directors and officers waived amounts owed to
them by the Company. Accounts payable of $19,000 have been
reclassified to additional paid in capital to reflect this
forgiveness.
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4. INCOME TAXES
The Company has not filed income tax returns with the
Department of the Treasury, Internal Revenue Service since
December 31, 1989 and is, therefore, unable to determine its
net operating loss carry forward for income tax purposes. Such
losses will give rise to a related income tax benefit by
reducing the amount of income taxes otherwise payable in future
years.
Realization of the income tax benefits is dependent upon
generating future taxable income. Based on positive and
negative evidence available at December 31, 1997 and 1996, a
valuation allowance would have been recorded for the entire net
deferred income tax assets at December 31, 1997 and 1996.
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5. SUBSEQUENT EVENTS
On May 26, 1998 CALDERA, Inc. entered into a Letter of Intent
to purchase 100% of the outstanding common shares of
International Surety & Casualty Company, a Texas corporation
whose business focus is an insurance company, for 46,655,000
common shares of CALDERA, Inc.
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<PAGE>
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
None
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL
PERSONS; COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE
ACT
Set forth below are the name and age of each executive officer
and director of the Issuer, together with all positions and
offices held by each as of June 20, 1998:
-------------
NAME AGE POSITION
---- --- --------
Scott Griffith 36 Director
Ronald Mann 47 Director, Vice President,
Secretary and Treasurer
Michael Nixon 35 Director
All board members will continue in their positions until the next
annual meeting of stockholders or until his successor has been
elected and qualified.
Set forth below is biographical information for each of the
Issuer's officers and directors.
Mr. Griffith has been a director of the Issuer since June 5,
1998 and a shareholder in the law firm of Griffith & Nixon, P.C.
in Dallas, Texas for more than the last five years.
Mr. Mann has been a director of the Issuer since 1988, and its
Vice President, Secretary and Treasurer since 1991. He is a
barrister and solicitor in Toronto, Ontario, Canada.
Mr. Nixon has been a director of the Issuer since June 5, 1998
and a shareholder in the law firm of Griffith & Nixon, P.C. in
Dallas, Texas for more than the last five years.
The Issuer is not subject to Section 16 of the Exchange Act.
ITEM 10. EXECUTIVE COMPENSATION
COMPENSATION
During the fiscal year ended December 31, 1997, no officer or
director received compensation from the Issuer. Cash
Compensation paid during the fiscal year to all officers and
directors as a group (2 persons) was nil. There are no warrants
or options outstanding to directors or officers.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth, as of June 20, 1998, the
number of shares of the Issuer's Common Stock, par value $0.01,
held of record or beneficially by each person who held of record,
or was known by the Issuer to own beneficially, more than 5% of
the Issuer's Common Stock, and the name and shareholdings of each
officer, director, and all officers and directors as a group:
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<PAGE>
NAME AND ADDRESS OF % OF
BENEFICIAL OWNERS BENEFICIAL OWNERSHIP CLASS
----------------------------- -------------------- -----
NATURE (1) AMOUNT
---------- ------
PRINCIPAL SHAREHOLDERS:
Marc A. Sparks Indirect (2) 800,000 23.9%
4635 McEwen Road
Dallas, Texas 75224
F. Jeffrey Nelson Indirect (2) 800,000 23.9%
4635 McEwen Road
Dallas, Texas 75224
U.S. Fidelity Holding Corp. Direct 800,000 23.9%
4635 McEwen Road
Dallas, Texas 75224
Julius Karosen and Hannah Direct 400,000 12.0%
Karosen Trust
10108 Empyrean Way, #204
Los Angeles,
California 90067
Robert K. Bench Direct 215,000 6.4%
1889 North 1500 East Indirect (3) 73,000 2.2%
Provo, Utah 84604
OFFICERS AND DIRECTORS:
Scott Griffith 0 0%
Ronald Mann 0 0%
Michael Nixon 0 0%
All Officers and Directors 0 0%
as a Group (3 persons)
(1) All shares owned directly are owned beneficially and of
record.
(2) Messrs. Sparks and Nelson are principal shareholders of U.S.
Fidelity Holding Corp. and may be deemed the beneficial owners
of the shares owned of record by it. U.S. Fidelity is affiliated
with International Fidelity Holding Corp. ("IFHC"), see Item 1
of this Report.
(3) Consists of 23,000 shares owned of record by Mr. Bench's
wife, Mary Bench, and 50,000 shares owned of record by Little
Hollow Farms, a family partnership.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Subject to stockholder approval, the Issuer is negotiating an
agreement to purchase IFHC and its wholly-owned International
Surety & Casualty Corp. The shareholders of IFHC consist of Marc
A. Sparks, F. Jeffrey Nelson and a third person. Messrs Sparks
and Nelson are the only stockholders of U.S. Fidelity Holding
Corp., the principal stockholder of the Company.
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<PAGE>
PART IV
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBITS
Exhibit 3 - Articles of Incorporation and By-laws
Exhibit 27 - Financial Data Schedule
(B) REPORTS ON FORM 8-K
During the last quarter of the fiscal year ended December 31,
1997, the Issuer filed no reports on Form 8-K.
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<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, the Issuer has duly
caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
CALDERA, INC.
Dated: July 23, 1998 By /s/ Ronald K. Mann
------------------------------
Ronald K. Mann, Vice
President and Treasurer
Pursuant to the requirements of section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, the Issuer had duly
caused this report to be signed on its behalf by the following
persons on behalf of the Issuer and in the capacities and on the
dates indicated.
Dated: July 21, 1998 By /s/ Scott Griffith
------------------------------
Scott Griffith, Director
Dated: July 23, 1998 By /s/ Ronald K. Mann
------------------------------
Ronald K. Mann, Director,
Vice President and
Treasurer
Dated: July 21, 1998 By /s/ Michael Nixon
------------------------------
Michael Nixon, Director
SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED
PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED, BY NON-REPORTING ISSUERS.
The Issuer has not sent to its security holders an annual
report for the fiscal year ended December 31, 1997 or proxy
material as no security holders meetings have been held in the
past several years. Subsequent to filing this report the Issuer
may be calling a special meeting of stockholders to authorize the
transactions contemplated in the May 26, 1998 letter of intent,
assuming a definitive agreement is reached. Should such meeting
be called, the Issuer shall furnish copies of the proxy material
to the securities and Exchange Commission at the time such
material is sent to security holders.
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<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
3 Articles of Incorporation and Bylaws
27 Financial Data Schedule
CERTIFICATE OF INCORPORATION
OF
MW COMPANIES 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 provisions
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:
1. The name of this corporation (hereinafter called
the "corporation") is MW Companies Inc.
2. The address of its registered office in the State
of Delaware is 100 West Tenth Street in the City of Wilmington,
County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
3. The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or activity
for which corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of stock which the
corporation shall have the authority to issue is Fifty-Five
Million (55,000,000), of which Fifty Million (50,000,000) shares
shall be Common Stock of the par value of One Cent ($.01) per
share, and Five Million (5,000,000) shares shall be Preferred
Stock, issuable in series, of the par value of One Cent ($.01)
per share, amounting in the aggregate to Five Hundred Fifty
Thousand Dollars ($550,000).
COMMON STOCK
------------
A. Each share of the Common Stock shall be equal
in all respects to every other share of the Common
Stock. Every holder of the Common Stock shall have one
vote for each share of such stock held by him for the
election of directors and upon all other matters.
B. In the event of liquidation, dissolution, or
winding up of the corporation, the par value of all
Preferred Stock, together with all dividends declared
thereon and remaining unpaid to the date fixed for
distribution of Preferred Stock, shall be paid in full
before any class of Common Stock or any part thereof or
any dividend thereon is paid.
PREFERRED STOCK
---------------
A. The shares of the Preferred Stock may be
issued in one or more series as may be fixed from time
to time by the Board of Directors, each of such series
to be distinctively designated. The Board of Directors
is authorized to fix from time to time before issuance
the designations and the powers, preferences and
relative rights, and the qualifications, limitations or
restrictions of the shares of each series of the
Preferred Stock, respectively, except for such
provisions as are applicable to all shares of the
Preferred Stock irrespective of series.
B. All shares of any particular series of Pre-
ferred Stock shall be alike in every particular, and
all shares of all series shall rank equally. The
shares of Preferred Stock of different series may vary
as to:
(1) The designation of series:
(2) The annual dividend rate;
(3) The dividend payment dates and the date
from which dividends shall be cumulative, if cum-
ulative;
(4) The sum payable per share upon the dis-
solution, liquidation or winding up of the
corporation;
(5) Whether or not the shares shall be
redeemable, and if made redeemable, the redemption
price or prices per share and the manner of
effecting a redemption;
(6) Whether or not the shares of each series
shall be made convertible into or exchangeable for
other securities of the corporation, and if made
convertible or exchangeable, the price or prices
or the rate or rates of conversion or exchange,
and the adjustments, if any, at which such
conversion or exchange may be made;
(7) Whether or not there shall be a sinking
fund, or other fund analogous thereto, with
respect to the shares of each series and the terms
and provisions of such fund, if any; and
(8) Any other relative, participating,
optional or other rights, preferences or
limitations of the shares of each series, not
inconsistent with the provisions applicable to all
shares of the Preferred Stock irrespective of
series.
C. The following provisions shall apply to all
shares of the Preferred Stock irrespective of series:
(1) The holders of the Preferred Stock of
each series at the time outstanding shall be
entitled to receive, but only when and as declared
by the Board of Directors, dividends at the rate
fixed for such series and no more. Such dividends
shall be payable quarter-yearly in cash, stock or
other property on such dividend dates as may be
fixed for said series, and, if cumulative, shall
be cumulative from such date as may be fixed. All
dividends accrued or declared (as the case may be)
on the Preferred Stock shall be fully paid, or set
apart for payment, before any dividends on any
class of Common Stock shall be paid or set apart
for payment. Accruals for dividends shall not
bear interest. Dividends in full shall not be
declared and set apart for payment or paid on the
Preferred Stock of any series for any particular
dividend period unless dividends in full have been
paid or are contemporaneously declared and set
apart for payment on the Preferred Stock of all
series then outstanding, for all the dividend
periods terminating at or before the end of the
particular dividend period. If the stated
dividends on the Preferred Stock are not paid in
full, the shares of all series of the Preferred
Stock shall share ratably in the payment of
dividends including accumulations, if any, in
accordance with the sums which would be payable on
such shares if all dividends were declared and
paid in full.
(2) The corporation may, by action of its
Board of Directors and in the manner hereinafter
provided (except as further or different
requirements may by issue resolution be made
applicable to a particular series of the Preferred
Stock), redeem the whole or any part of any series
of the Preferred Stock, at any time or from time
to time, by paying the redemption price of the
shares of the particular series fixed therefor as
herein provided, together with a sum in the case
of each share of each series so to be redeemed,
computed at the annual dividend rate for the
series of which the particular share is a part,
from the date from which dividends on such share
became cumulative to the date fixed for such
redemption, less the aggregate of the dividends
theretofore or on such redemption dated paid
thereon. No Preferred Stock shall be called for
redemption while any dividend for a past dividend
period shall be in arrears on any share of any
series of said stock.
(3) Upon any dissolution, liquidation or
winding up of the corporation, whether voluntary
or involuntary, the holders of the Preferred Stock
of each and every series then outstanding shall be
entitled to receive out of the net assets of the
corporation, whether capital or surplus, the sums
per share fixed for the shares of the respective
series and payable upon such dissolution,
liquidation or winding up, plus, in the case of
each share, an amount equal to the dividends
accrued and unpaid thereon, whether or not earned
or declared, before any distribution of the assets
of the corporation shall be made to the holders of
any class of Common Stock.
If the assets distributable on such dissolution,
liquidation or winding up shall be insufficient to
permit the payment to the holders of the Preferred
Stock of the full amounts to which they respectively
are entitled as aforesaid, then said assets shall be
distributed ratably among the holders of the respective
series of Preferred Stock in proportion to the amounts
which would be payable on such dissolution, liquidation
or winding up, if all such amounts were paid in full in
preference and priority over the shares of any class of
Common Stock.
The sale, conveyance, exchange or transfer of all
or substantially all of the property of the corpora-
tion, or the merger or consolidation into or with any
other corporation, shall not be deemed a dissolution,
liquidation or winding up for the purposes hereof.
(4) Nothing herein contained shall limit any
legal right of the corporation to purchase or
otherwise acquire any shares of the Preferred
Stock.
(5) No holder of the Preferred Stock of the
corporation shall have any preemptive right to
purchase or subscribe for any part of the unissued
stock of the corporation or of any stock of the
corporation to be issued by reason of any increase
of the authorized capital stock of the
corporation, or to purchase or subscribe for any
bonds, certificates or indebtedness, debentures or
other securities convertible into or carrying
options or warrants to purchase stock or other
securities of the corporation or to purchase or
subscribe for any stock of the corporation
purchased by the corporation or by its nominee or
nominees, or to have any other preemptive rights
as now or hereafter defined by applicable laws.
(6) Except as and to the extent otherwise
provided by this Certificate or by issue resolu-
tions relating to shares of a particular series of
Preferred Stock or applicable laws, the Preferred
Stock shall not entitle any holder thereof to vote
at any meeting of stockholders or election of the
corporation, or otherwise to participate in any
action taken by the corporation or the
stockholders thereof. Except when some mandatory
provision of law shall be controlling and, as
regards the special rights of any series of the
Preferred Stock, as provided in the resolutions
creating such series, whenever shares of two or
more particular series of the Preferred Stock
shall be entitled to vote as a separate series on
any matter and all shares of the Preferred Stock
of all series shall be deemed to constitute but
one class for any purpose for which a vote of the
stockholders of the corporation by classes may now
or hereafter be required.
5. The Board of Directors is authorized to make,
alter or repeal the Bylaws of the corporation. Election of
Directors need not be by ballot.
6. The name and mailing address of the Incorporator
is:
Mary Genevieve Rich
1000 Kearns Building
136 South Main Street
Salt Lake City, Utah 84101
The powers of the Incorporator are to terminate upon the filing
of this Certificate.
7. The names and addresses of the original Board of
Directors, who are to serve until the first annual meeting of
stockholders or until their successors are elected and qualify,
are:
James M. Mantle
8777 East Via de Ventura
Suite 100
Scottsdale, Arizona 85258
Stephen T. White
8777 East Via de Ventura
Suite 100
Scottsdale, Arizona 85258
Robert K. Bench
710 Crandall Bldg.
10 West 100 South
Salt Lake City, Utah 84101
8. 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 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as
the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders
or class of stockholders, of this corporation, as the case may
be, and also on this corporation.
9. The corporation shall, to the fullest extent per-
mitted by Section 145 of the General Corporation Law of the State
of Delaware, as the same may be amended and supplemented, or by
any successor thereto, 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. Such right to
indemnification shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person. The indemnification provided for herein shall not be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any Bylaw, agreement, vote
of stockholders or disinterested directors or otherwise.
I, THE UNDERSIGNED, being the Incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation Law of Delaware, do make this certificate,
hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto
set my hand this 19th day of December, 1985.
/s/ Mary Genevieve Rich
-------------------------
Mary Genevieve Rich
<PAGE>
FIRST AMENDMENT TO CERTIFICATE OF INCORPORATION
OF
MW COMPANIES, INC.
Pursuant to section 242 of the General Corporation Law
of the state of Delaware, MW Companies, Inc., a Delaware
corporation, hereinafter referred to as the "Corporation," hereby
adopts the following first amendment to its certificate of
incorporation.
1. The certificate of incorporation of the
Corporation is hereby amended by deleting article 1 thereof in
its entirety and substituting the following therefor:
ARTICLE 1
NAME
The name of the Corporation hereby created shall
be Caldera, Inc. (hereinafter referred to as the
"Corporation").
2. The certificate of incorporation of the
Corporation is hereby amended by adding the following article 10:
ARTICLE 10
LIMITATION ON LIABILITY
A director of the Corporation shall have no
personal liability to the Corporation or its
stockholders for monetary damages for breach of
fiduciary duty as a director, except (i) for any breach
of a director's duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under section 174 of
the General Corporation Law of Delaware as it may from
time to time be amended or any successor provision
thereto, or (iv) for any transaction from which a
director derived an improper personal benefit.
3. Except as specifically provided herein, the
provisions of the Corporation's certificate of incorporation
shall remain unamended and shall continue in full force and
effect.
4. By execution of this First Amendment to
Certificate of Incorporation, the president and the secretary of
the Corporation do hereby certify that the foregoing Amendment to
certificate of incorporation of MW Companies, Inc., was
authorized and approved on June 3, 1988, at a duly called and
held special meeting of its shareholders. On May 10, 1988, the
record date for such meeting, there were 2,293,333 shares of
common stock of the Corporation issued and outstanding. Each of
the common shares is entitled to one vote. At the special
meeting, 2,081,413 shares of common stock were voted in favor of
each of the above amendments and no shares of common stock were
voted against such amendments. As a result, each amendment was
approved by 91% of the total voting power of the Corporation.
DATED this 8th day of August, 1988.
MW COMPANIES, INC.
By: /s/ Robert K. Bench
----------------------
Robert K. Bench, President
By: /s/ Mary Bench
---------------------
Mary Bench, Secretary
STATE OF UTAH )
:ss
COUNTY OF SALT LAKE )
On the 8th day of August, 1988, personally appeared
before me Robert K. Bench and Mary Bench, who being by me duly
sworn did say, each for himself/herself, that he, the said Robert
K. Bench, is the president, and she, the said Mary Bench, is the
secretary, of MW Companies, Inc., and that the within and
foregoing instrument was signed in behalf of said corporation by
authority of a resolution of its board of directors, and Robert
K. Bench and Mary Bench each duly acknowledged to me that said
corporation executed the same and that the seal affixed is the
seal of said corporation.
[Notary Signature]
-------------------------
Notary Public
Residing in Salt Lake City, UT
------------------
My Commission Expires: Jan. 15, 1993
--------------
<PAGE>
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL
AND REVIVAL OF CHARTER
CALDERA, INC., a corporation organized under the laws
of Delaware, the charter of which was voided for non-payment of
taxes, now desires to procure a restoration, renewal and revival
of its charter, and hereby certifies as follows:
1. The name of this corporation is CALDERA, INC.
2. Its registered office in the State of Delaware is
located at Corporation Trust Center, 1209 Orange
Street, City of Wilmington, Zip Code 19801 County
of New Castle. The name and address of its
registered agent is The Corporation Trust Company.
3. The date of filing of the original Certificate of
Incorporation in Delaware was December 20, 1985.
4. The date when restoration, renewal, and revival of
the charter of this company is to commence is the
28th day of February 1991 same being prior to the
date of the expiration of the charter. This
renewal and revival of the charter of this
corporation is to be perpetual.
5. This corporation was duly organized and carried on
the business authorized by its charter until the
1st day of March A.D. 1991 at which time its
charter became inoperative and void for
non-payment of taxes and this certificate for
renewal and revival is filed by authority of the
duly elected directors of the corporation in
accordance with the laws of the State of Delaware.
IN TESTIMONY WHEREOF, and in compliance with the
provisions of Section 312 of the General Corporation
Law of the State of Delaware, as amended, providing for
the renewal, extension and restoration of charters,
Ron Mann the last and acting authorized officer
hereunto set his/her hand to this certificate this 12th
day of May 1997.
By: /s/ Ronald K. Mann
----------------------
TITLE OF OFFICER: Secretary
-----------
<PAGE>
BYLAWS
OF
CALDERA, INC.
A DELAWARE CORPORATION
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. OFFICES . . . . . . . . . . . . . . . . . . . . 1
Section 1.01 Registered Office . . . . . . . . . . 1
Section 1.02 Locations of Offices . . . . . . . . . 1
ARTICLE II. STOCKHOLDERS . . . . . . . . . . . . . . . . . . 1
Section 2.01 Annual Meeting . . . . . . . . . . . . 1
Section 2.02 Special Meetings . . . . . . . . . . . 1
Section 2.03 Place of Meetings . . . . . . . . . . 1
Section 2.04 Notice of Meetings . . . . . . . . . . 2
Section 2.05 Waiver of Notice . . . . . . . . . . . 2
Section 2.06 Fixing Record Date . . . . . . . . . . 2
Section 2.07 Voting Lists . . . . . . . . . . . . . 2
Section 2.08 Quorum . . . . . . . . . . . . . . . . 3
Section 2.09 Vote Required . . . . . . . . . . . . 3
Section 2.10 Voting of Stock . . . . . . . . . . . 3
Section 2.11 Proxies . . . . . . . . . . . . . . . 3
Section 2.12 Written Consent to Action by
Stockholders . . . . . . . . . . . . . 4
ARTICLE III. DIRECTORS . . . . . . . . . . . . . . . . . . . 4
Section 3.01 Number, Term, and
Qualifications . . . . . . . . . . . . 4
Section 3.02 Vacancies and Newly Created
Directorships . . . . . . . . . . . . 4
Section 3.03 General Powers . . . . . . . . . . . . 4
Section 3.04 Regular Meetings . . . . . . . . . . . 4
Section 3.05 Special Meetings . . . . . . . . . . . 5
Section 3.06 Meetings by Telephone
Conference Call . . . . . . . . . . . 5
Section 3.07 Notice . . . . . . . . . . . . . . . . 5
Section 3.08 Quorum . . . . . . . . . . . . . . . . 5
Section 3.09 Manner of Acting . . . . . . . . . . . 5
Section 3.10 Compensation . . . . . . . . . . . . . 5
Section 3.11 Presumption of Assent . . . . . . . . 5
Section 3.12 Resignations . . . . . . . . . . . . . 6
Section 3.13 Written Consent to Action by
Directors . . . . . . . . . . . . . . 6
Section 3.14 Removal . . . . . . . . . . . . . . . 6
ARTICLE IV. OFFICERS . . . . . . . . . . . . . . . . . . . . 6
Section 4.01 Number . . . . . . . . . . . . . . . . 6
Section 4.02 Election, Term of Office, and
Qualifications . . . . . . . . . . . . 6
Section 4.03 Subordinate Officers, Etc. . . . . . . 7
Section 4.04 Resignations . . . . . . . . . . . . . 7
Section 4.05 Removal . . . . . . . . . . . . . . . 7
Section 4.06 Vacancies and Newly Created
Offices . . . . . . . . . . . . . . . 7
Section 4.07 The Chairman of the Board . . . . . . 7
Section 4.08 The President . . . . . . . . . . . . 7
Section 4.09 The Vice Presidents . . . . . . . . . 8
Section 4.10 The Secretary . . . . . . . . . . . . 8
Section 4.11 The Treasurer . . . . . . . . . . . . 9
Section 4.12 General Manager . . . . . . . . . . 10
Section 4.13 Salaries . . . . . . . . . . . . . . 10
Section 4.14 Surety Bonds . . . . . . . . . . . . 10
ARTICLE V. EXECUTION OF INSTRUMENTS, BORROWING
OF MONEY, AND DEPOSIT OF CORPORATE
FUNDS . . . . . . . . . . . . . . . . . . . . 10
Section 5.01 Execution of Instruments . . . . . . 10
Section 5.02 Loans . . . . . . . . . . . . . . . 11
Section 5.03 Deposits . . . . . . . . . . . . . . 11
Section 5.04 Checks, Drafts, Etc. . . . . . . . . 11
Section 5.05 Bonds and Debentures . . . . . . . . 11
Section 5.06 Sale, Transfer, Etc. of
Securities . . . . . . . . . . . . . 11
Section 5.07 Proxies . . . . . . . . . . . . . . 12
ARTICLE VI. CAPITAL SHARES . . . . . . . . . . . . . . . . 12
Section 6.01 Stock Certificates . . . . . . . . . 12
Section 6.02 Transfer of Stock . . . . . . . . . 12
Section 6.03 Regulations . . . . . . . . . . . . 12
Section 6.04 Maintenance of Stock Ledger at
Principal Place of Business . . . . 13
Section 6.05 Transfer Agents and
Registrars . . . . . . . . . . . . . 13
Section 6.06 Closing of Transfer Books and Fixing
of Record Date . . . . . . . . . . . 13
Section 6.07 Lost or Destroyed
Certificates . . . . . . . . . . . . 13
ARTICLE VII. EXECUTIVE COMMITTEE AND OTHER COMMITTEES . . . 14
Section 7.01 How Constituted . . . . . . . . . . 14
Section 7.02 Powers . . . . . . . . . . . . . . . 14
Section 7.03 Proceedings . . . . . . . . . . . . 14
Section 7.04 Quorum and Manner of Acting . . . . 14
Section 7.05 Resignations . . . . . . . . . . . . 14
Section 7.06 Removal . . . . . . . . . . . . . . 15
Section 7.07 Vacancies . . . . . . . . . . . . . 15
Section 7.08 Compensation . . . . . . . . . . . . 15
ARTICLE VIII. INDEMNIFICATION, INSURANCE, AND
OFFICER AND DIRECTOR CONTRACTS . . . . . . . . 15
Section 8.01 Indemnification: Third Party
Actions . . . . . . . . . . . . . . 15
Section 8.02 Indemnification: Corporate
Actions . . . . . . . . . . . . . . 16
Section 8.03 Determination . . . . . . . . . . . 16
Section 8.04 Advances . . . . . . . . . . . . . . 16
Section 8.05 Scope of Indemnification . . . . . . 16
Section 8.06 Insurance . . . . . . . . . . . . . 17
Section 8.07 Officer and Director
Contracts . . . . . . . . . . . . . 17
ARTICLE IX. FISCAL YEAR . . . . . . . . . . . . . . . . . 17
ARTICLE X. DIVIDENDS . . . . . . . . . . . . . . . . . . 18
ARTICLE XI. AMENDMENTS . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF SECRETARY . . . . . . . . . . . . . . . . . . 19
<PAGE>
BYLAWS
OF
CALDERA, INC.
ARTICLE I.
OFFICES
Section 1.01 Registered Office. The registered office shall
------------------
be in the city of Wilmington, county of New Castle, state of
Delaware.
Section 1.02 Locations of Offices. The corporation may also
--------------------
have offices at such other places both within and without the
state of Delaware as the board of directors may from time to time
determine or the business of the corporation may require.
ARTICLE II.
STOCKHOLDERS
Section 2.01 Annual Meeting. The annual meeting of the
--------------
stockholders shall be held within 180 days after the end of the
corporation's fiscal year at such time as is designated by the
board of directors and as is provided for in the notice of the
meeting. If the election of directors shall not be held on the
day designated herein for the annual meeting of the stockholders,
or at any adjournment thereof, the board of directors shall cause
the election to be held at a special meeting of the stockholders
as soon thereafter as may be convenient.
Section 2.02 Special Meetings. Special meetings of the
----------------
stockholders may be called at any time by the chairman of the
board, the president, or by the board of directors, or in their
absence or disability, by any vice president, and shall be
immediately called by the president, or in his absence or
disability, by a vice president, or by the secretary, on the
written request of the holders of not less than one-tenth of all
the shares entitled to vote at the meeting, such written request
to state the purpose, or purposes, of the meeting and to be
delivered to the president, such vice president or the secretary.
In case of failure to call such meeting within 90 days after such
request, such stockholder or stockholders may call the same.
Section 2.03 Place of Meetings. The board of directors may
-----------------
designate any place, either within or without the state of
incorporation, as the place of meeting for any annual meeting or
for any special meeting called by the board of directors. A
waiver of notice signed by all stockholders entitled to vote at a
meeting may designate any place, either within or without the
state of incorporation, as the place for the holding of such
meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be at the principal
office of the corporation.
Section 2.04 Notice of Meetings. The secretary or assistant
------------------
secretary, if any, shall cause notice of the time, place, and
purpose or purposes of all meetings of the stockholders (whether
annual or special), to be mailed at least ten but not more than
60 days prior to the meeting, to each stockholder of record
entitled to vote.
Section 2.05 Waiver of Notice. Any stockholder may waive
----------------
notice of any meeting of stockholders (however called or noticed,
whether or not called or noticed and whether before, during, or
after the meeting), signing a written waiver of notice or a
consent to the holding of such meeting, or an approval of the
minutes thereof. Attendance at a meeting, in person or by proxy,
shall constitute waiver of all defects of notice regardless of
whether waiver, consent, or approval is signed or any objections
are made, unless attendance is solely for the purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened. All such waivers, consents, or approvals shall be made
a part of the minutes of the meeting.
Section 2.06 Fixing Record Date. For the purpose of
------------------
determining stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or
stockholder entitled to receive payment of any dividend or other
distribution or allotment of any rights or entitled to exercise
any rights in respect to any change, conversion, or exchange of
stock, 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 in any case to be
not more than 60 days and, in case of a meeting of stockholders,
not less than 10 days prior to the date on which the particular
action requiring such determination of stockholders is to be
taken. If no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting, the
day preceding the date on which notice of the meeting is mailed
shall be the record date. For any other purpose, the record date
shall be the close of business on the date on which the
resolution of the board of directors pertaining thereto is
adopted. When a determination of stockholders entitled to vote
at any meeting of stockholders has been made as provided in this
section, such determination shall apply to any adjournment
thereof. Failure to comply with this section shall not affect
the validity of any action taken at a meeting of stockholders.
Section 2.07 Voting Lists. The officers of the corporation
------------
shall cause to be prepared from the stock ledger at least ten
days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting or any adjournment
thereof, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the
name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who
is present. The original stock ledger shall be the only evidence
as to who are the stockholders entitled to examine the stock
ledger, the list required by this section, or the books of the
corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 2.08 Quorum. Stock representing one-third of the
------
voting power of all outstanding stock of the corporation entitled
to vote, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute
or by the certificate of incorporation. If, however, such quorum
shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall
be present or represented any business may be transacted which
might have been transacted at the meeting as originally notified.
If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.09 Vote Required. When a quorum is present at any
-------------
meeting, the vote of the holders of stock having a majority of
the voting power present in person or represented by proxy shall
decide any question brought before such meeting, unless the
question is one on which by express provision of the statutes of
the state of Delaware or of the certificate of incorporation a
different vote is required, in which case such express provision
shall govern and control the decision of such question.
Section 2.10 Voting of Stock. Unless otherwise provided in
---------------
the certificate of incorporation, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or
by proxy for each share of the capital stock having voting power
held by such stockholder, subject to the modification of such
voting rights of any class or classes of the corporation's
capital stock by the certificate of incorporation.
Section 2.11 Proxies. At each meeting of the stockholders,
-------
each stockholder entitled to vote shall be entitled to vote in
person or by proxy; PROVIDED, however, that the right to vote by
proxy shall exist only in case the instrument authorizing such
proxy to act shall have been executed in writing by the
registered holder or holders of such stock, as the case may be,
as shown on the stock ledger of the corporation or by his
attorney thereunto duly authorized in writing. Such instrument
authorizing a proxy to act shall be delivered at the beginning of
such meeting to the secretary of the corporation or to such other
officer or person who may, in the absence of the secretary, be
acting as secretary of the meeting. In the event that any such
instrument shall designate two or more persons to act as proxy, a
majority of such persons present at the meeting, or if only one
be present, that one shall (unless the instrument shall otherwise
provide) have all of the powers conferred by the instrument on
all persons so designated. Persons holding stock in a fiduciary
capacity shall be entitled to vote the stock so held and the
persons whose shares are pledged shall be entitled to vote,
unless the transfer by the pledgor in the books and records of
the corporation shall have expressly empowered the pledgee to
vote thereon, in which case the pledgee, or his proxy, may
represent such stock and vote thereon. No proxy shall be voted
or acted on after three years from its date, unless the proxy
provides for a longer period.
Section 2.12 Written Consent to Action by Stockholders.
-----------------------------------------
Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may
be taken without a meeting, without prior notice, and without a
vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice
of the taking of the corporation action without a meeting by less
than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III.
DIRECTORS
Section 3.01 Number, Term, and Qualifications. The number
--------------------------------
of directors which shall constitute the whole board shall be not
less than three nor more than nine. Within the limits above
specified, the number of directors shall be determined by
resolution of the board of directors or by the stockholders at
the annual meeting of the stockholders or a special meeting
called for such purpose, except as provided in section 3.02 of
this article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be
residents of the state of incorporation or stockholders of the
corporation.
Section 3.02 Vacancies and Newly Created Directorships.
-----------------------------------------
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so
chosen shall hold office until the next annual election and until
their successors are duly elected and shall qualify. If there
are no directors in office, then an election of directors may be
held in the manner provided by statute.
Section 3.03 General Powers. The business of the
--------------
corporation shall be managed under the direction of its board of
directors which may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed
or required to be exercised or done by the stockholders.
Section 3.04 Regular Meetings. A regular meeting of the
----------------
board of directors shall be held without other notice than this
bylaw immediately following and at the same place as the annual
meeting of stockholders. The board of directors may provide by
resolution the time and place, either within or without the state
of incorporation, for the holding of additional regular meetings
without other notice than such resolution.
Section 3.05 Special Meetings. Special meetings of the
----------------
board of directors may be called by or at the request of the
president, vice president, or any two directors. The person or
persons authorized to call special meetings of the board of
directors may fix any place, either within or without the state
of incorporation, as the place for holding any special meeting of
the board of directors called by them.
Section 3.06 Meetings by Telephone Conference Call. Members
-------------------------------------
of the board of directors may participate in a meeting of the
board of directors or a committee of the board of directors by
means of conference telephone or similar communication equipment
by means of which all persons participating in the meeting can
hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
Section 3.07 Notice. Notice of any special meeting shall be
------
given at least five days prior thereto by written notice
delivered personally or mailed to each director at his regular
business address or residence, or by telegram. If mailed, such
notice shall be deemed to be delivered when deposited in the
United States mail so addressed, with postage thereon prepaid.
If notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph
company. Any director may waive notice of any meeting.
Attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a
meeting solely for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully
called or convened.
Section 3.08 Quorum. A majority of the number of directors
------
shall constitute a quorum for the transaction of business at any
meeting of the board of directors, but if less than a majority is
present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
Section 3.09 Manner of Acting. The act of a majority of the
----------------
directors present at a meeting at which a quorum is present shall
be the act of the board of directors, and individual directors
shall have no power as such.
Section 3.10 Compensation. By resolution of the board of
------------
directors, the directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors, and may be
paid a fixed sum for attendance at each meeting of the board of
directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 3.11 Presumption of Assent. A director of the
---------------------
corporation who is present at a meeting of the board of directors
at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting, unless he shall
file his written dissent to such action with the person acting as
the secretary of the meeting before the adjournment thereof, or
shall forward such dissent by registered or certified mail to the
secretary of the corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 3.12 Resignations. A director may resign at any
------------
time by delivering a written resignation to either the president,
a vice president, the secretary, or assistant secretary, if any.
The resignation shall become effective on its acceptance by the
board of directors; PROVIDED, that if the board has not acted
thereon within ten days from the date presented, the resignation
shall be deemed accepted.
Section 3.13 Written Consent to Action by Directors. Any
--------------------------------------
action required to be taken at a meeting of the directors of the
corporation or any other action which may be taken at a meeting
of the directors or of a committee, may be taken without a
meeting, if a consent in writing, setting forth the action so
taken, shall be signed by all of the directors, or all of the
members of the committee, as the case may be. Such consent shall
have the same legal effect as a unanimous vote of all the
directors or members of the committee.
Section 3.14 Removal. At a meeting expressly called for
-------
that purpose, one or more directors may be removed by a vote of a
majority of the shares of outstanding stock of the corporation
entitled to vote at an election of directors.
ARTICLE IV.
OFFICERS
Section 4.01 Number. The officers of the corporation shall
------
be a president, one or more vice presidents, as shall be
determined by resolution of the board of directors, a secretary,
a treasurer, and such other officers as may be appointed by the
board of directors. The board of directors may elect, but shall
not be required to elect, a chairman of the board, and the board
of directors may appoint a general manager.
Section 4.02 Election, Term of Office, and Qualifications.
--------------------------------------------
The officers shall be chosen by the board of directors annually
at its annual meeting. In the event of failure to choose
officers at an annual meeting of the board of directors, officers
may be chosen at any regular or special meeting of the board of
directors. Each such officer (whether chosen at an annual
meeting of the board of directors to fill a vacancy or otherwise)
shall hold his office until the next ensuing annual meeting of
the board of directors and until his successor shall have been
chosen and qualified, or until his death or until his resignation
or removal in the manner provided in these bylaws. Any one
person may hold any two or more of such offices, except that the
president shall not also be the secretary. No person holding two
or more offices shall act in or execute any instrument in the
capacity of more than one office. The chairman of the board, if
any, shall be and remain director of the corporation during the
term of his office. No other officer need be a director.
Section 4.03 Subordinate Officers, Etc. The board of
--------------------------
directors from time to time may appoint such other officers or
agents as it may deem advisable, each of whom shall have such
title, hold office for such period, have such authority, and
perform such duties as the board of directors from time to time
may determine. The board of directors from time to time may
delegate to any officer or agent the power to appoint any such
subordinate officer or agents and to prescribe their respective
titles, terms of office, authorities, and duties. Subordinate
officers need not be stockholders or directors.
Section 4.04 Resignations. Any officer may resign at any
------------
time by delivering a written resignation to the board of
directors, the president, or the secretary. Unless otherwise
specified therein, such resignation shall take effect on
delivery.
Section 4.05 Removal. Any officer may be removed from
-------
office at any special meeting of the board of directors called
for that purpose or at a regular meeting, by the vote of a
majority of the directors, with or without cause. Any officer or
agent appointed in accordance with the provisions of section 4.03
hereof may also be removed, either with or without cause, by any
officer on whom such power of removal shall have been conferred
by the board of directors.
Section 4.06 Vacancies and Newly Created Offices. If any
-----------------------------------
vacancy shall occur in any office by reason of death,
resignation, removal, disqualification, or any other cause, or if
a new office shall be created, then such vacancies or newly
created offices may be filled by the board of directors at any
regular or special meeting.
Section 4.07 The Chairman of the Board. The chairman of the
-------------------------
board, if there be such an officer, shall have the following
powers and duties:
(a) He shall preside at all stockholders' meetings;
(b) He shall preside at all meetings of the board of
directors; and
(c) He shall be a member of the executive committee,
if any.
Section 4.08 The President. The president shall have the
-------------
following powers and duties:
(a) If no general manager has been appointed, he shall
be the chief executive officer of the corporation and,
subject to the direction of the board of directors, shall
have general charge of the business, affairs, and property
of the corporation and general supervision over its
officers, employees, and agents;
(b) If no chairman of the board has been chosen, or if
such officer is absent or disabled, he shall preside at
meetings of the stockholders and board of directors;
(c) He shall be a member of the executive committee,
if any;
(d) He shall be empowered to sign certificates
representing stock of the corporation, the issuance of which
shall have been authorized by the board of directors; and
(e) He shall have all power and perform all duties
normally incident to the office of a president of a
corporation and shall exercise such other powers and perform
such other duties as from time to time may be assigned to
him by the board of directors.
Section 4.09 The Vice Presidents. The board of directors
-------------------
may, from time to time, designate and elect one or more vice
presidents, one of whom may be designated to serve as executive
vice president. Each vice president shall have such powers and
perform such duties as from time to time may be assigned to him
by the board of directors or the president. At the request or in
the absence or disability of the president, the executive vice
president or, in the absence or disability of the executive vice
president, the vice president designated by the board of
directors or (in the absence of such designation by the board of
directors) by the president, as senior vice president, may
perform all the duties of the president, and when so acting,
shall have all the powers of, and be subject to all the
restrictions on, the president.
Section 4.10 The Secretary. The secretary shall have the
-------------
following powers and duties:
(a) He shall keep or cause to be kept a record of all
of the proceedings of the meetings of the stockholders and
of the board of directors in books provided for that
purpose;
(b) He shall cause all notices to be duly given in
accordance with the provisions of these bylaws and as
required by statute;
(c) He shall be the custodian of the records and of
the seal of the corporation, and shall cause such seal (or a
facsimile thereof) to be affixed to all certificates
representing stock of the corporation prior to the issuance
thereof and to all instruments, the execution of which on
behalf of the corporation under its seal shall have been
duly authorized in accordance with these bylaws, and when so
affixed, he may attest the same;
(d) He shall see that the books, reports, statements,
certificates, and other documents and records required by
statute are properly kept and filed;
(e) He shall have charge of the stock ledger and books
of the corporation and cause such books to be kept in such
manner as to show at any time the amount of the stock of the
corporation of each class issued and outstanding, the manner
in which and the time when such stock was paid for, the
names alphabetically arranged and the addresses of the
holders of record thereof, the amount of stock held by each
holder and time when each became such holder of record; and
he shall exhibit at all reasonable times to any director, on
application, the original or duplicate stock ledger. He
shall cause the stock ledger referred to in section 6.04
hereof to be kept and exhibited at the principal office of
the corporation, or at such other place as the board of
directors shall determine, in the manner and for the purpose
provided in such section;
(f) He shall be empowered to sign certificates
representing stock of the corporation, the issuance of which
shall have been authorized by the board of directors; and
(g) He shall perform in general all duties incident to
the office of secretary and such other duties as are given
to him by these bylaws or as from time to time may be
assigned to him by the board of directors or the president.
Section 4.11 The Treasurer. The treasurer shall have the
-------------
following powers and duties:
(a) He shall have charge and supervision over and be
responsible for the monies, securities, receipts, and
disbursements of the corporation;
(b) He shall cause the monies and other valuable
effects of the corporation to be deposited in the name and
to the credit of the corporation in such banks or trust
companies or with such banks or other depositories as shall
be selected in accordance with section 5.03 hereof;
(c) He shall cause the monies of the corporation to be
disbursed by checks or drafts (signed as provided in section
5.04 hereof) drawn on the authorized depositories of the
corporation, and cause to be taken and preserved property
vouchers for all monies disbursed;
(d) He shall render to the board of directors or the
president, whenever requested, a statement of the financial
condition of the corporation and of all of his transactions
as treasurer, and render a full financial report at the
annual meeting of the stockholders, if called on to do so;
(e) He shall cause to be kept correct books of account
of all the business and transactions of the corporation and
exhibit such books to any directors on request during
business hours;
(f) He shall be empowered from time to time to require
from all officers or agents of the corporation reports or
statements giving such information as he may desire with
respect to any and all financial transactions of the
corporation; and
(g) He shall perform in general all duties incident to
the office of treasurer and such other duties as are given
to him by these bylaws or as from time to time may be
assigned to him by the board of directors or the president.
Section 4.12 General Manager. The board of directors may
---------------
employ and appoint a general manager who may, or may not, be one
of the officers or directors of the corporation. The general
manager, if any, shall have the following powers and duties:
(a) He shall be the chief executive officer of the
corporation and, subject to the directions of the board of
directors, shall have general charge of the business affairs
and property of the corporation and general supervision over
its officers, employees, and agents;
(b) He shall have the exclusive management of the
business of the corporation and of all of its dealings, but
at all times subject to the control of the board of
directors;
(c) Subject to the approval of the board of directors
or the executive committee, if any, he shall employ all
employees of the corporation, or delegate such employment to
subordinate officers, or such division chiefs, and shall
have authority to discharge any person so employed; and
(d) He shall make a report to the president and
directors quarterly, or more often if required to do so,
setting forth the result of the operations under his charge,
together with suggestions looking to the improvement and
betterment of the condition of the corporation, and shall
perform such other duties as the board of directors shall
require.
Section 4.13 Salaries. The salaries or other compensation
--------
of the officers of the corporation shall be fixed from time to
time by the board of directors, except that the board of
directors may delegate to any person or group of persons the
power to fix the salaries or other compensation of any
subordinate officers or agents appointed in accordance with the
provisions of section 4.03 hereof. No officer shall be prevented
from receiving any such salary or compensation by reason of the
fact that he is also a director of the corporation.
Section 4.14 Surety Bonds. In case the board of directors
------------
shall so require, any officer or agent of the corporation shall
execute to the corporation a bond in such sums and with such
surety or sureties as the board of directors may direct,
conditioned on the faithful performance of his duties to the
corporation, including responsibility for negligence and for the
accounting of all property, monies, or securities of the
corporation which may come into his hands.
ARTICLE V.
EXECUTION OF INSTRUMENTS, BORROWING OF MONEY,
AND DEPOSIT OF CORPORATE FUNDS
Section 5.01 Execution of Instruments. Subject to any
------------------------
limitation contained in the certificate of incorporation or these
bylaws, the president or any vice president or the general
manager, if any, may, in the name and on behalf of the
corporation, execute and deliver any contract or other instrument
authorized in writing by the board of directors. The board of
directors may, subject to any limitation contained in the
certificate of incorporation or in these bylaws, authorize in
writing any officer or agent to execute and deliver any contract
or other instrument in the name and on behalf of the corporation;
any such authorization may be general or confined to specific
instances.
Section 5.02 Loans. No loan or advance shall be contracted
-----
on behalf of the corporation, no negotiable paper or other
evidence of its obligation under any loan or advance shall be
issued in its name, and no property of the corporation shall be
mortgaged, pledged, hypothecated, transferred, or conveyed as
security for the payment of any loan, advance, indebtedness, or
liability of the corporation, unless and except as authorized by
the board of directors. Any such authorization may be general or
confined to specific instances.
Section 5.03 Deposits. All monies of the corporation not
--------
otherwise employed shall be deposited from time to time to its
credit in such banks or trust companies or with such bankers or
other depositories as the board of directors may select, or as
from time to time may be selected by any officer or agent
authorized to do so by the board of directors.
Section 5.04 Checks, Drafts, Etc. All notes, drafts,
--------------------
acceptances, checks, endorsements, and, subject to the provisions
of these bylaws, evidences of indebtedness of the corporation
shall be signed by such officer or officers or such agent or
agents of the corporation and in such manner as the board of
directors from time to time may determine. Endorsements for
deposit to the credit of the corporation in any of its duly
authorized depositories shall be in such manner as the board of
directors from time to time may determine.
Section 5.05 Bonds and Debentures. Every bond or debenture
--------------------
issued by the corporation shall be evidenced by an appropriate
instrument which shall be signed by the president or a vice
president and by the secretary and sealed with the seal of the
corporation. The seal may be a facsimile, engraved or printed.
Where such bond or debenture is authenticated with the manual
signature of an authorized officer of the corporation or other
trustee designated by the indenture of trust or other agreement
under which such security is issued, the signature of any of the
corporation's officers named thereon may be a facsimile. In case
any officer who signed, or whose facsimile signature has been
used on any such bond or debenture, shall cease to be an officer
of the corporation for any reason before the same has been
delivered by the corporation, such bond or debenture may
nevertheless be adopted by the corporation and issued and
delivered as though the person who signed it or whose facsimile
signature has been used thereon had not ceased to be such
officer.
Section 5.06 Sale, Transfer, Etc. of Securities. Sales,
----------------------------------
transfers, endorsements, and assignments of stocks, bonds, and
other securities owned by or standing in the name of the
corporation, and the execution and delivery on behalf of the
corporation of any and all instruments in writing incident to any
such sale, transfer, endorsement, or assignment, shall be
effected by the president, or by any vice president, together
with the secretary, or by any officer or agent thereunto
authorized by the board of directors.
Section 5.07 Proxies. Proxies to vote with respect to stock
-------
of other corporations owned by or standing in the name of the
corporation shall be executed and delivered on behalf of the
corporation by the president or any vice president and the
secretary or assistant secretary of the corporation, or by any
officer or agent thereunder authorized by the board of directors.
ARTICLE VI.
CAPITAL SHARES
Section 6.01 Stock Certificates. Every holder of stock in
------------------
the corporation shall be entitled to have a certificate, signed
by the president or any vice president and the secretary or
assistant secretary, and sealed with the seal (which may be a
facsimile, engraved or printed) of the corporation, certifying
the number and kind, class or series of stock owned by him in the
corporation; PROVIDED, however, that where such a certificate is
countersigned by (a) a transfer agent or an assistant transfer
agent, or (b) registered by a registrar, the signature of any
such president, vice president, secretary, or assistant secretary
may be a facsimile. In case any officer who shall have signed,
or whose facsimile signature or signatures shall have been used
on any such certificate, shall cease to be such officer of the
corporation, for any reason, before the delivery of such
certificate by the corporation, such certificate may nevertheless
be adopted by the corporation and be issued and delivered as
though the person who signed it, or whose facsimile signature or
signatures shall have been used thereon, has not ceased to be
such officer. Certificates representing stock of the corporation
shall be in such form as provided by the statutes of the state of
incorporation. There shall be entered on the stock books of the
corporation at the time of issuance of each share, the number of
the certificate issued, the name and address of the person owning
the stock represented thereby, the number and kind, class or
series of such stock, and the date of issuance thereof. Every
certificate exchanged or returned to the corporation shall be
marked "canceled" with the date of cancellation.
Section 6.02 Transfer of Stock. Transfers of stock of the
-----------------
corporation shall be made on the books of the corporation by the
holder of record thereof, or by his attorney thereunto duly
authorized by a power of attorney duly executed in writing and
filed with the secretary of the corporation or any of its
transfer agents, and on surrender of the certificate or
certificates, properly endorsed or accompanied by proper
instruments of transfer, representing such stock. Except as
provided by law, the corporation and transfer agents and
registrars, if any, shall be entitled to treat the holder of
record of any stock as the absolute owner thereof for all
purposes, and accordingly shall not be bound to recognize any
legal, equitable, or other claim to or interest in such stock on
the part of any other person whether or not it or they shall have
express or other notice thereof.
Section 6.03 Regulations. Subject to the provisions of
-----------
articles IV and V of the certificate of incorporation, the board
of directors may make such rules and regulations as they may deem
expedient concerning the issuance, transfer, redemption, and
registration of certificates for stock of the corporation.
Section 6.04 Maintenance of Stock Ledger at Principal Place
----------------------------------------------
of Business. A stock ledger (or ledgers where more than one kind,
-----------
class, or series of stock is outstanding) shall be kept at the
principal place of business of the corporation, or at such other
place as the board of directors shall determine, containing the
names alphabetically arranged of original stockholders of the
corporation, their addresses, their interest, the amount paid on
their shares, and all transfers thereof and the number and class
of stock held by each. Such stock ledgers shall at all
reasonable hours be subject to inspection by persons entitled by
law to inspect the same.
Section 6.05 Transfer Agents and Registrars. The board of
------------------------------
directors may appoint one or more transfer agents and one or more
registrars with respect to the certificates representing stock of
the corporation, and may require all such certificates to bear
the signature of either or both. The board of directors may from
time to time define the respective duties of such transfer agents
and registrars. No certificate for stock shall be valid until
countersigned by a transfer agent, if at the date appearing
thereon the corporation had a transfer agent for such stock, and
until registered by a registrar, if at such date the corporation
had a registrar for such stock.
Section 6.06 Closing of Transfer Books and Fixing of Record
----------------------------------------------
Date.
----
(a) The board of directors shall have power to close
the stock ledgers of the corporation for a period of not to
exceed 60 days preceding the date of any meeting of
stockholders, or the date for payment of any dividend, or
the date for the allotment of rights, or capital stock shall
go into effect, or a date in connection with obtaining the
consent of stockholders for any purpose.
(b) In lieu of closing the stock ledgers as aforesaid,
the board of directors may fix in advance a date, not
exceeding 60 days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend,
or the date for the allotment of rights, or the date when
any change or conversion or exchange of capital stock shall
go into effect, or a date in connection with obtaining any
such consent, as a record date for the determination of the
stockholders entitled to a notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to
receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of
any such change, conversion or exchange of capital stock, or
to give such consent.
(c) If the stock ledgers shall be closed or a record
date set for the purpose of determining stockholders
entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for or such record
date shall be at least ten days immediately preceding such
meeting.
Section 6.07 Lost or Destroyed Certificates. The
------------------------------
corporation may issue a new certificate for stock of the
corporation in place of any certificate theretofore issued by it,
alleged to have been lost or destroyed, and the board of
directors may, in their discretion, require the owner of the lost
or destroyed certificate or his legal representatives, to give
the corporation a bond in such form and amount as the board of
directors may direct, and with such surety or sureties as may be
satisfactory to the board, to indemnify the corporation and its
transfer agents and registrars, if any, against any claims that
may be made against it or any such transfer agent or registrar on
account of the issuance of such new certificate. A new
certificate may be issued without requiring any bond when, in the
judgment of the board of directors, it is proper to do so.
ARTICLE VII.
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 7.01 How Constituted. The board of directors may
---------------
designate an executive committee and such other committees as the
board of directors may deem appropriate, each of which committees
shall consist of one or more directors. Members of the executive
committee and of any such other committee shall be designated
annually at the annual meeting of the board of directors;
PROVIDED, however, that at any time the board of directors may
abolish or reconstitute the executive committee or any such other
committee. Each member of the executive committee and of any
such other committee shall hold office until his successor shall
have been designated or until his resignation or removal in the
manner provided in these bylaws.
Section 7.02 Powers. During the intervals between meetings
------
of the board of directors, the executive committee shall have and
may exercise all powers of the board of directors in the
management of the business and affairs of the corporation, except
for the power to fill vacancies in the board of directors or to
amend these bylaws, and except for such powers as by law may not
be delegated by the board of directors to an executive committee.
Section 7.03 Proceedings. The executive committee, and such
-----------
other committees as may be designated hereunder by the board of
directors, may fix its own presiding and recording officer or
officers, and may meet at such place or places, at such time or
times and on such notice (or without notice) as it shall
determine from time to time. It will keep a record of its
proceedings and shall report such proceedings to the board of
directors at the meeting of the board of directors next
following.
Section 7.04 Quorum and Manner of Acting. At all meetings
---------------------------
of the executive committee, and of such other committees as may
be designated hereunder by the board of directors, the presence
of members constituting a majority of the total authorized
membership of the committee shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act
of a majority of the members present at any meeting at which a
quorum is present shall be the act of such committee. The
members of the executive committee, and of such other committees
as may be designated hereunder by the board of directors, shall
act only as a committee and the individual members thereof shall
have no powers as such.
Section 7.05 Resignations. Any member of the executive
------------
committee, and of such other committees as may be designated
hereunder by the board of directors, may resign at any time by
delivering a written resignation to either the president, the
secretary, or assistant secretary, or to the presiding officer of
the committee of which he is a member, if any shall have been
appointed and shall be in office. Unless otherwise specified
therein, such resignation shall take effect on delivery.
Section 7.06 Removal. The board of directors may at any
-------
time remove any member of the executive committee or of any other
committee designated by it hereunder either for or without cause.
Section 7.07 Vacancies. If any vacancy shall occur in the
---------
executive committee or of any other committee designated by the
board of directors hereunder, by reason of disqualification,
death, resignation, removal, or removal, or otherwise, the
remaining members shall, until the filling of such vacancy,
constitute the then total authorized membership of the committee
and continue to act, unless such committee consisted of more than
one member prior to the vacancy or vacancies and is left with
only one member as a result thereof. Such vacancy may be filled
at any meeting of the board of directors.
Section 7.08 Compensation. The board of directors may allow
------------
a fixed sum and expenses of attendance to any member of the
executive committee, or of any other committee designated by it
hereunder, who is not an active salaried employee of the
corporation for attendance at each meeting of the said committee.
ARTICLE VIII.
INDEMNIFICATION, INSURANCE, AND OFFICER
AND DIRECTOR CONTRACTS
Section 8.01 Indemnification: Third Party Actions. The
------------------------------------
corporation shall have the power to 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 proceedings,
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 is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with any such action,
suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any
criminal action or proceeding, he had reasonable cause to believe
that his conduct was unlawful.
Section 8.02 Indemnification: Corporate Actions. The
----------------------------------
corporation shall have the power to 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 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 in
connection with the defense or settlement of such action or suit,
if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any
claim, issue, or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the court in which such action or suit was brought
shall determine on application that, despite the adjudication of
liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
Section 8.03 Determination. To the extent that a director,
-------------
officer, employee, or agent of the corporation has been
successful on the merits or otherwise in defense of any action,
suit, or proceeding referred to in sections 8.01 and 8.02 hereof,
or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith. Any
other indemnification under sections 8.01 or 8.02 hereof, unless
ordered by a court, shall be made by the corporation only in the
specific case on a determination that indemnification of the
director, officer, employee, or agent is proper in the
circumstances because he has met the applicable standard or
conduct set forth in sections 8.01 or 8.02 hereof. Such
determination shall be made either (i) by the board of directors
by a majority vote of a quorum consisting of directors who were
not parties to such action, suit, or proceeding, (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel
in a written opinion, or (iii) by the stockholders by a majority
vote of a quorum of stockholders at any meeting duly called for
such purpose.
Section 8.04 Advances. Expenses incurred by an officer or
--------
director in defending a civil or criminal action, suit, or
proceeding may be paid by the corporation in advance of the final
disposition of such action, suit, or proceeding on receipt of an
undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized by
this section. Such expenses incurred by other employees and
agents may be so paid on such terms and conditions, if any, as
the board of directors deems appropriate.
Section 8.05 Scope of Indemnification. The indemnification
------------------------
and advancement of expenses provided by, or granted pursuant to,
sections 8.01, 8.02, and 8.04:
(a) Shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of
expenses 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
(b) Shall, unless otherwise provided when authorized
or ratified, continue as to a person who ceased to be a
director, officer, employee, or agent of the corporation,
and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section 8.06 Insurance. The corporation may purchase and
---------
maintain insurance on behalf of any person who 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 any liability
asserted against him and incurred by him in any such capacity or
arising out of his status as such, whether or not the corporation
would have the power to indemnify him against any such liability.
Section 8.07 Officer and Director Contracts. No contract or
------------------------------
other transaction between the corporation and one or more of its
directors or officers, or between the corporation and any
corporation, partnership, association, or other organization in
which one or more of the corporation's directors or officers are
directors, officers, or have a financial interest, is either void
or voidable solely on the basis of such relationship or solely
because any such director or officer is present at or
participates in the meeting of the board of directors or a
committee thereof which authorizes the contract or transaction,
or solely because the vote or votes of each director or officer
are counted for such purpose, if:
(a) The material facts of the relationship or interest
are disclosed or known to the board of directors or
committee and the board or committee in good faith
authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors even
though the disinterested directors be less than a quorum;
(b) The material facts of the relationship or interest
is disclosed or known to the stockholders and they approve
or ratify the contract or transaction in good faith by a
majority vote of the shares voted at a meeting of
stockholders called for such purpose or written consent of
stockholders holding a majority of the shares entitled to
vote (the votes of the common or interested directors or
officers shall be counted in any such vote of stockholders);
or
(c) The contract or transaction is fair as to the
corporation at the time it is authorized, approved, or
ratified by the board of directors, a committee thereof, or
the stockholders.
ARTICLE IX.
FISCAL YEAR
The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
ARTICLE X.
DIVIDENDS
The board of directors may from time to time declare, and
the corporation may pay, dividends on its outstanding stock in
the manner and on the terms and conditions provided by the
certificate of incorporation and bylaws.
ARTICLE XI.
AMENDMENTS
All bylaws of the corporation, whether adopted by the board
of directors or the stockholders, shall be subject to amendment,
alteration, or repeal, and new bylaws may be made, except that:
(a) No bylaw adopted or amended by the stockholders
shall be altered or repealed by the board of directors; and
(b) No bylaw shall be adopted by the board of
directors which shall require more than the stock
representing a majority of the voting power for a quorum at
a meeting of stockholders, or more than a majority of the
votes cast to constitute action by the stockholders, except
where higher percentages are required by law; PROVIDED,
however, that
(i) If any bylaw regulating an impending election
of directors is adopted or amended or repealed by the
board of directors, there shall be set forth in the
notice of the next meeting of the stockholders for the
election of directors, the bylaws so adopted or amended
or repealed, together with a concise statement of the
changes made; and
(ii) No amendment, alteration, or repeal of this
article XI shall be made except by the stockholders.
<PAGE>
CERTIFICATE OF SECRETARY
The undersigned does hereby certify that she is the
secretary of Caldera, Inc., a corporation duly organized and
existing under and by virtue of the laws of the state of
Delaware; that the above and foregoing bylaws of said corporation
were duly and regularly adopted as such by the board of directors
of said corporation by unanimous consent dated September 7, 1988,
and that the above and foregoing bylaws are now in full force and
effect and supersede and replace any prior bylaws of the
corporation.
DATED this 7th day of September, 1988.
/s/ Mary Bench
------------------
Mary Bench, Secretary
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
CALDERA, INC. FORM 10-KSB FOR THE YEAR ENDED DECEMBER 31, 1997,
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
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0
0
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