SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) OCTOBER 8, 1999
---------------
ELECTRONIC BUSINESS SERVICES, INC.
------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 2-96392-A 65-0952956
---------------------------------------------------------------
(STATE OR OTHER (COMMISSION (IRS EMPLOYER
JURISDICTION OF FILE NUMBER) IDENTIFICATION NO.)
FORMATION)
1800 NW 49TH STREET, SUITE 100, FORT LAUDERDALE, FLORIDA 33309
--------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (954) 229-5100
--------------
@ebs, inc.
-------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGES SINCE LAST REPORT)
-------------------------
<PAGE>
ITEM 5. OTHER EVENTS
At a meeting of the shareholders of @ebs, inc. (formerly, Triangle
Imaging Group, Inc.) (the "Company") held on May 27, 1999, a majority of the
Company's shareholders voted in favor of, among other things, to change the
Company's state of incorporation from the State of Florida to the State of
Delaware through a merger with and into a wholly owned Delaware subsidiary.
Accordingly, on October 8, 1999, the Company merged with and into Electronic
Business Services, Inc. a Delaware corporation ("EBS"). The Certificate of
Incorporation and By-laws of EBS survive the merger. In addition, on October 15,
1999 the Company changed its trading symbol on the OTC Bulletin Board from
"TRIG" to "AEBS".
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS.
(i) Certificate of Incorporation of Electronic Business Services,
Inc.
(ii) By-laws of Electronic Business Services, Inc.
(iii) Certificate of Ownership and Merger between @ebs, inc. and
Electronic Business Services, Inc.
(iv) Articles of Merger between @ebs, inc. and Electronic Business
Services, Inc.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly authorized and caused the undersigned to sign this
Report on the Registrant's behalf.
ELECTRONIC BUSINESS SERVICES, INC.
By: /s/ HAROLD S. FISCHER
-------------------------------------------
Harold S. Fischer
Chief Executive Officer and President
Dated: October 19, 1999
3
CERTIFICATE OF INCORPORATION
OF
ELECTRONIC BUSINESS SERVICES, INC.
<PAGE>
CERTIFICATE OF INCORPORATION
OF
ELECTRONIC BUSINESS SERVICES, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purpose 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 acts
amendatory thereof and supplemental thereto, and known, identified, and referred
to as the "General Corporation Law of the State of Delaware"), hereby certifies:
FIRST: The name of the corporation is Electronic Business Services,
Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware shall be at 1013 Centre Road, City of Wilmington, County of
New Castle, Delaware 19805. The name and address of the Corporation's registered
agent in the State of Delaware at such address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may now or hereafter be organized under the
General Corporation Law of the State of Delaware.
FOURTH: A. The total number of shares of stock which the Corporation
shall have authority to issue is Fifty One Million (51,000,000) shares,
consisting of Fifty Million (50,000,000) shares of Common Stock, par value $.001
per share (the "Common Stock"), and One Million (1,000,000) shares of Preferred
Stock, par value $.001 per share (the "Preferred Stock").
B. Shares of Preferred Stock may be issued from time to time
in one or more series as may be established from time to time by resolution of
the Board of Directors of the Corporation (the "Board of Directors"), each of
which series shall consist of such number of shares and have such distinctive
designation or title as shall be fixed by resolution of the Board of Directors
prior to the issuance of any shares of such series. Each such class or series of
Preferred Stock shall have such voting powers, full or limited, or no voting
powers, and such preferences and relative, participating, optional or other
special rights and such qualifications, limitations or restrictions thereof, as
shall be stated in such resolution of the Board of Directors providing for the
issuance of such series of Preferred Stock. The Board of Directors is further
authorized to increase or decrease (but not below the number of shares of such
class or series then outstanding) the number of shares of any series subsequent
to the issuance of shares of that series.
I. SERIES C PREFERRED STOCK. A series of the Preferred Stock,
designated the Series C Redeemable Preferred Stock (herein the "Series C
Preferred Stock"), is hereby established. The aggregate number of shares of the
Series C Preferred Stock shall
<PAGE>
be 1,500 and the stated value of such stock shall be One Thousand Dollars
($1,000) per share; provided, that upon redemption, repurchase, or other
reacquisition of shares of the Series C Preferred Stock, the number of shares of
such Series C Preferred Stock and the number of shares of authorized Series C
Preferred Stock shall automatically be reduced by such number of shares that
have been redeemed, repurchased or reacquired. The foregoing notwithstanding,
during such period in which shares of the Corporation's Series C Preferred Stock
are outstanding, the Corporation shall not issue other series of Preferred Stock
having dividend rights, powers, rights, privileges or preferences upon
liquidation that are superior to the Series C Preferred Stock. The preferences,
powers, rights and privileges and the qualifications, limitations and
restrictions of the Series C Preferred Stock are as follows:
a. DIVIDEND RIGHTS. The holders of the Series C Preferred
Stock shall be entitled to receive, out of any funds legally available therefor,
dividends at the rate of $125 per share (the "Dividend") per annum from the date
of issuance which shall accrue quarterly in equal increments of $31.25 on
January 15, April 15, July 15 and October 15 of each year (each a "Dividend
Accrual Date") commencing April 15, 1999, which Dividend shall be payable on the
first business day that is ten (10) days following each such Dividend Accrual
Date (each such date being a "Dividend Payment Date") which dividends shall be
payable in preference and priority to any payment of any cash dividend on Common
Stock and any shares of any other class or series of preferred or other form of
capital stock of the Corporation (such Common Stock and other stock being
collectively referred to as "Junior Stock"), when and as declared by the Board
of Directors of the Corporation. Such dividends shall accrue and be deemed to
accrue whether or not earned or declared, and shall be cumulative so that if
such dividends on the Series C Preferred Stock shall not have been paid, or
declared and set apart for payment, the deficiency shall be fully paid or
declared and set apart for payment before any dividend shall be paid or declared
or set apart for any shares of Junior Stock and before any purchase or
acquisition of any shares of Junior Stock is made by the Corporation. Accrued,
but unpaid, Dividends shall bear interest at twelve and one-half percent (12.5%)
per annum, compounded annually.
b. LIQUIDATION RIGHTS. In the event of the liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the holders of each share of Series C Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its shareholders, before any payment or declaration and setting
apart for payment of any amount shall be made in respect of the Junior Stock, an
amount equal to One Thousand Dollars ($1,000) per share, plus all accrued and
unpaid dividends and interest on the Series C Preferred Stock (no less and no
more) and any unpaid penalties. If the assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay in full all
amounts to which the holders of the Series C Preferred Stock are entitled, the
amount available for distribution shall be shared PRO RATA by the holders of
such series. For the purposes of this Section b, a merger or consolidation of
the Corporation with any other corporation or other entity in which the
corporation's shareholders do not have a controlling interest in the surviving
2
<PAGE>
corporation in the merger or consolidation, or the sale, transfer or lease of
all or substantially all the Corporation's assets shall constitute and be deemed
a liquidation, dissolution, or winding up of the Corporation.
c. VOTING RIGHTS. In addition to any other vote or consent
required by the laws of the State of Delaware, the Corporation will not, without
the affirmative votes or written consent of the holders of at least sixty six
and two-thirds percent (66 2/3%) of the outstanding shares of Series C Preferred
Stock (with each share of Series C Preferred Stock being entitled to one vote):
(1) In any manner, including by amendment of its Certificate of
Incorporation or By-laws, alter or change the powers, rights, preferences or
privileges or the qualifications, limitations or restrictions of the Series C
Preferred Stock;
(2) Create, authorize or issue a new class or series (or change or
reclassify a class or series of shares with junior, subordinate or inferior
rights into a class or series of shares) having rights, preferences or
privileges prior, superior or on parity with the shares of Series C Preferred
Stock or increase the rights, preferences, privileges or number of any class or
series having rights, preferences or privileges on dissolution that are prior,
superior or on parity with those of the Series C Preferred Stock;
(3) Increase or decrease the aggregate number of authorized shares of
Series C Preferred Stock, except for any decrease resulting from any redemption,
repurchase or other reacquisition; effect an exchange or reclassification or
create a right of exchange, of all or part of the shares of Series C Preferred
Stock into shares of another class; effect an exchange or reclassification or
create a right of exchange, of all or part of the shares of another class or
series into the shares of Series C Preferred Stock; change the shares of all or
part of the Series C Preferred Stock into a different number of shares of Series
C Preferred Stock.
(4) Repurchase redeem or otherwise acquire any shares of the
Corporation's capital stock other than the Series C Preferred Stock if any
dividends on the Series C Preferred Stock which have accrued and are payable
remain outstanding at the time;
(5) Liquidate, dissolve or wind-up the affairs of the Corporation or
merge or consolidate the Corporation with any other entity or sell or encumber
all or substantially all of the Corporation's assets or issue in one or a series
of related transactions shares representing more than fifty percent (50%) of the
aggregate voting power of all classes and series of the Corporation's voting
stock if any dividends on the Series C Preferred Stock which have accrued and
are payable remain outstanding at the time; or
(6) Declare or pay any dividend or other distribution with respect to
Junior Stock if any dividends on the Series C Preferred Stock which have accrued
and are payable remain outstanding at the time.
3
<PAGE>
d. DIRECTORS. In addition to the rights specified above and
any other rights provided in the Corporation's Bylaws or the laws of the State
of Delaware, a majority of the holders of the Series C Preferred Stock shall
have the right at all times to elect one member to the Board of Directors of the
Corporation. The right to elect one director accorded to the holders of the
Series C Preferred Stock may be exercised either at a special meeting of the
holders of Series C Preferred Stock, or at a special meeting of the stockholders
of the Corporation, or by written consent of such holders in lieu of a meeting
which such holders shall have the right to execute from time to time
irrespective of the call of any special meeting of the stockholders; provided
that in no event shall the holders of the Series C Preferred Stock have the
right to elect a member to the Board of Directors any more frequently than the
election of the other members of the Board of Directors by the shareholders
(although such holders may replace their designated director at any time as
provided above). The director to be elected by the holders of the Series C
Preferred Stock shall serve for terms extending from the date of his election
and qualification until the time of the next succeeding annual meeting of the
stockholders of the Corporation and until his successor has been elected and
qualified; provided, however, that such director may be removed by the Company
immediately and without notice upon redemption by repurchase or other
reacquisition of all of the Series C Preferred Stock.
II. SERIES D CONVERTIBLE PREFERRED STOCK. A series of the
Preferred Stock, designated the Series D Redeemable Convertible Preferred Stock
(herein the "Series D Preferred Stock"), is hereby established. The aggregate
number of shares of the Series D Preferred Stock shall be 700 and the stated
value of such stock shall be One Thousand Dollars ($1,000) per share; provided,
that upon redemption, repurchase, or other reacquisition of shares of the Series
D Preferred Stock, the number of shares of such Series D and the number of
shares of authorized Series D Preferred Stock shall automatically be reduced by
such number of shares that have been redeemed, repurchased or reacquired. The
foregoing notwithstanding, during such period in which shares of the
Corporation's Series D Preferred Stock are outstanding, the Corporation shall
not issue other series of Preferred Stock having dividend rights, powers,
rights, privileges or preferences upon liquidation that are superior to the
Series D Preferred Stock except for the 1,500 shares of Series C Preferred Stock
issued to Waterside Capital Corporation. The preferences, powers, rights and
privileges and the qualifications, limitations and restrictions of the Series D
Preferred Stock are as follows:
a. DIVIDEND RIGHTS. The holders of the Series D Preferred Stock shall
be entitled to receive, out of any funds legally available therefor, dividends
at the rate of $125 per share (the "Dividend") per annum from the date of
issuance which shall accrue quarterly in equal increments of $31.25 on January
15, April 15, July 15 and October 15 of each year (each a "Dividend Accrual
Date") commencing October 15, 1999, which Dividend shall be payable on the first
business day that is ten (10) days following each such Dividend Accrual Date
(each such date being a "Dividend Payment Date") which dividends shall be
payable in preference and priority to any payment of any cash dividend on Common
Stock and any shares of any other class or series of preferred (other than the
Series C Preferred Stock) or other form of capital stock of the Corporation
(such Common Stock and other stock (other than the Series C Preferred Stock)
4
<PAGE>
being collectively referred to as "Additional Junior Stock"), when and as
declared by the Board of Directors of the Corporation. Such dividends shall
accrue and be deemed to accrue whether or not earned or declared, and shall be
cumulative so that if such dividends on the Series D Preferred Stock shall not
have been paid, or declared and set apart for payment, the deficiency shall be
fully paid or declared and set apart for payment before any dividend shall be
paid or declared or set apart for any shares of Additional Junior Stock and
before any purchase or acquisition of any shares of Additional Junior Stock is
made by the Corporation. Accrued, but unpaid, Dividends shall bear interest at
twelve and one-half percent (12.5%) per annum, compounded annually.
b. LIQUIDATION RIGHTS. In the event of the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the holders of
each share of Series D Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
shareholders (after the payment in full of an amount equal to One Thousand
Dollars ($1,000) per share of Series C Preferred Stock, plus all accrued and
unpaid dividends and interest on the Series C Preferred Stock and any unpaid
penalties, but before any payment or declaration and setting apart for payment
of any amount shall be made in respect of the Additional Junior Stock) an amount
equal to One Thousand Dollars ($1,000) per share, plus all accrued and unpaid
dividends and interest on the Series D Preferred Stock (no less and no more) and
any unpaid penalties. If the assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay in full all
amounts to which the holders of the Series D Preferred Stock are entitled, the
amount available for distribution shall be shared PRO RATA by the holders of
such series. For the purposes of this Section b, a merger or consolidation of
the Corporation with any other corporation or other entity in which the
corporation's shareholders do not have a controlling interest in the surviving
corporation in the merger or consolidation, or the sale, transfer or lease of
all or substantially all the Corporation's assets shall constitute and be deemed
a liquidation, dissolution, or winding up of the Corporation.
c. VOTING RIGHTS. In addition to any other vote or consent required by
the laws of the State of Delaware, the Corporation will not, without the
affirmative votes or written consent of the holders of at least sixty six and
two-thirds percent (66 2/3%) of the outstanding shares of Series D Preferred
Stock (with each share of Series D Preferred Stock being entitled to one vote):
(1) In any manner, including by amendment of its Certificate of
Incorporation or By-laws, alter or change the powers, rights, preferences or
privileges or the qualifications, limitations or restrictions of the Series D
Preferred Stock;
(2) Create, authorize or issue a new class or series (or change or
reclassify a class or series of shares with junior, subordinate or inferior
rights into a class or series of shares) having rights, preferences or
privileges prior, superior or on parity with the shares of Series D Preferred
Stock (other than the Series C Preferred Stock) or increase the rights,
5
<PAGE>
preferences, privileges or number of any class or series having rights,
preferences or privileges on dissolution that are prior, superior or on parity
with those of the Series D Preferred Stock;
(3) Increase or decrease the aggregate number of authorized shares of
Series D Preferred Stock, except for any decrease resulting from any redemption,
repurchase or other reacquisition; effect an exchange or reclassification or
create a right of exchange, of all or part of the shares of Series D Preferred
Stock into shares of another class; effect an exchange or reclassification or
create a right of exchange, of all or part of the shares of another class or
series into the shares of the Series C Preferred Stock or Series D Preferred
Stock; change the shares of all or part of the Series D Preferred Stock into a
different number of shares of Series D Preferred Stock.
(4) Repurchase redeem or otherwise acquire any shares of the
Corporation's capital stock other than the Series D Preferred Stock if any
dividends on the Series D Preferred Stock which have accrued and are payable
remain outstanding at the time;
(5) Liquidate, dissolve or wind-up the affairs of the Corporation or
merge or consolidate the Corporation with any other entity or sell or encumber
all or substantially all of the Corporation's assets or issue in one or a series
of related transactions shares representing more than fifty percent (50%) of the
aggregate voting power of all classes and series of the Corporation's voting
stock if any dividends on the Series D Preferred Stock which have accrued and
are payable remain outstanding at the time; or
(6) Declare or pay any dividend or other distribution with respect to
Additional Junior Stock if any dividends on the Series D Preferred Stock which
have accrued and are payable remain outstanding at the time.
d. CONVERSIONS. The holders of shares of Series D Preferred Stock shall
have the following conversion rights:
(1) RIGHT TO CONVERT. Subject to the terms and conditions of this
paragraph d, the holder of any share of Series D Preferred Stock shall have the
right, at its option at any time, to convert any such share of Series D
Preferred Stock into 870 fully paid and nonassessable shares of Common Stock or,
in case an adjustment (an "Adjustment") has taken place pursuant to the further
provisions of this paragraph d, then as last adjusted and in effect at the date
any share or shares of Series D Preferred Stock are surrendered for conversion.
Such rights of conversion shall be exercised by the holder thereof by giving
written notice that the holder elects to convert a stated number of shares of
Series D Preferred Stock into Common Stock and by surrender of a certificate or
certificates for the shares so to be converted to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of the Series D
Preferred Stock) at any time during its usual business hours on the date set
forth in such notice, together with a statement of the name or names (with
address) in which the certificate or certificates for shares of Common Stock
shall be issued.
6
<PAGE>
(2) ISSUANCE OF CERTIFICATES: TIME CONVERSION EFFECTED. Promptly after
receipt of the written notice referred to in subparagraph d.1. and surrender of
the certificate or certificates for the share or shares of Series D Preferred
Stock to be converted, the Corporation shall issue and deliver, or cause to be
issued and delivered, to the holder, registered in such name or names as such
holder may direct, a certificate or certificates for the number of whole shares
of Common Stock issuable upon the conversion of such share or shares of Series D
Preferred Stock. To the extent permitted by law, such conversion shall be deemed
to have been effected as of the close of business on the date on which such
written notice shall have been received by the Corporation and the certificate
or certificates for such share or shares shall have been surrendered as
aforesaid, and at such time the rights of the holder of such share or shares of
Series D Preferred Stock shall cease, and the person or persons in whose name or
names any certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby.
(3) FRACTIONAL SHARES; DIVIDENDS; PARTIAL CONVERSION. No fractional
shares shall be issued upon conversion of Series D Preferred Stock into Common
Stock and no payment or adjustment shall be made upon any conversion on account
of any cash dividends on the Common Stock issued upon such conversion. At the
time of each conversion, the Corporation shall pay in cash within ninety days
after the date of conversion an amount equal to all dividends accrued and unpaid
on the shares of Series D Convertible Preferred Stock surrendered for conversion
to the date upon which such conversion is deemed to take place as provided in
subparagraph d.2. In case the number of shares of Series D Preferred Stock
represented by the certificate or certificates surrendered pursuant to
subparagraph d.1. exceeds the number of shares converted, the Corporation shall,
upon such conversion, execute and deliver to the holder, at the expense of the
Corporation, a new certificate or certificates for the number of shares of
Series D Preferred Stock represented by the certificate or certificates
surrendered which are not to be converted. If any fractional share of Common
Stock would, except for the provisions of the first sentence of this
subparagraph d.3., be delivered upon such conversion, the Corporation, in lieu
of delivering such fractional share, shall pay to the holder surrendering the
Series D Preferred Stock for conversion, an amount in cash equal to the current
market price of such fractional share as determined in good faith by the Board
of Directors of the Corporation.
(4) ADJUSTMENT OF PRICE FOR STOCK SPLITS AND OTHER SUBDIVISION AND
COMBINATIONS. In case the Corporation shall at any time subdivide (by any stock
split, stock dividend or otherwise) its outstanding shares of Common Stock into
a greater number of shares, or shall declare a dividend or make any other
distribution upon any stock of the Corporation payable in Common Stock (except
for dividends or distributions upon the Common Stock), or shall otherwise issue
Common Stock for no consideration, then the number of shares of Common Stock
into which the Series D Preferred Stock may be converted will be adjusted
appropriately.
7
<PAGE>
In case the Corporation shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or other
distribution payable in Common Stock then such record date shall be deemed to be
the date of the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(5) REORGANIZATION OR RECLASSIFICATION. If any capital reorganization
or reclassification of the capital stock of the Corporation shall be effected in
such a way that holders of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock, then, as a
condition of such reorganization or reclassification, lawful and adequate
provisions shall be made whereby each holder of a share or shares of Series D
Preferred Stock shall thereupon have the right to receive, upon the basis and
upon the terms and conditions specified herein and in lieu of the shares of
Common Stock immediately theretofore receivable upon the conversion of such
share or shares of Series D Preferred Stock, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore receivable upon such conversion had such
reorganization or reclassification not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
such holder to the end that the provisions hereof (including without limitation
provisions for Adjustments) shall thereafter be applicable, as nearly as may be,
in relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise of such conversion rights.
(6) NOTICE OF ADJUSTMENT Upon any Adjustment, then and in each such
case the Corporation shall give written notice thereof, by delivery in person,
certified or registered mail, return receipt requested, telecopier or telex,
addressed to each holder of shares of Series D Preferred Stock at the address of
such holder as shown on the books of the Corporation, which notice shall state
the adjustment resulting from such Adjustment, setting forth in reasonable
detail the method upon which such calculation is based.
(7) STOCK TO BE RESERVED. The Corporation will at all times reserve and
keep available out of its authorized Common Stock, solely for the purpose of
issuance upon the conversion of Series D Preferred Stock as herein provided,
such number of shares of Common Stock as shall then be issuable upon the
conversion of all outstanding shares of Series D Preferred Stock. The
Corporation covenants that all shares of Common Stock which shall be so issued
shall be duly and validly issued and fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issue thereof. The Corporation
will take all such action as may be necessary to assure that all such shares of
Common Stock may be so issued without violation of any applicable law or
regulation, or of any requirement of any national securities exchange upon which
the Common Stock may be listed. The Corporation will not take any action which
results in any adjustment if the total number of shares of Common Stock issued
and issuable after such action upon conversion of the Series D Preferred Stock
would exceed the total number of shares of Common Stock then authorized by the
Articles of Incorporation.
8
<PAGE>
(8) NO REISSUANCE OF SERIES D PREFERRED STOCK. Shares of Series D
Preferred Stock which are converted into shares of Common Stock as provided
herein shall not be reissued.
(9) ISSUE TAX. The issuance of certificates for shares of Common Stock
upon conversion of Series D Preferred Stock shall be made without charge to the
holders thereof for any issuance tax in respect thereof, provided that the
Corporation shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any certificate in a
name other than that of the holder of the Series D Preferred Stock which is
being converted.
(10) CLOSING OF BOOKS. The Corporation will at no time close its
Transfer books against the transfer of any Series D Preferred Stock or of any
shares of Common Stock issued or issuable upon the conversion of any shares of
Series D Preferred Stock in any manner which interferes with the timely
conversion of such Series D Preferred Stock, except as may otherwise be required
to comply with applicable securities laws.
III. COMMON STOCK
a. RELATIVE RIGHTS OF PREFERRED STOCK AND COMMON STOCK. All
preferences, powers, rights and privileges, and qualifications, limitations, or
restrictions of the Common Stock are expressly made subject to and subordinate
to those that are or may be fixed with respect to the Preferred Stock.
b. DIVIDEND RIGHTS. The Corporation shall not make any
dividend payments upon the Common Stock as long as any shares of Series C
Preferred Stock or Series D Preferred Stock are outstanding unless all
dividends, deficiencies and penalties relating to the Series C Preferred Stock
and Series D Preferred Stock have been fully paid or declared and set apart for
payment.
c. LIQUIDATION RIGHTS. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the rights of the holders of the Common Stock shall be subordinate to the rights
of the holders of the Preferred Stock, as more specifically described above, and
the assets of the Corporation shall not be deemed available for distribution
unless and until the liquidation preference of the Preferred Stock has been
satisfied.
FIFTH: In furtherance and not in limitation of the powers conferred by
statute and subject to Article Sixth hereof, the Board of Directors is expressly
authorized to adopt, repeal, rescind, alter or amend in any respect the Bylaws
of the Corporation (the "Bylaws").
SIXTH: Notwithstanding Article Fifth hereof, the Bylaws may be adopted,
rescinded, altered or amended in any respect by the shareholders of the
Corporation, but only by the affirmative vote of the holders of not less than a
9
<PAGE>
majority of the voting power of all outstanding shares of voting stock
regardless of class and voting together as a single voting class.
SEVENTH: The business and affairs of the Corporation shall be managed
by and under the direction of the Board of Directors. Except as may otherwise be
provided pursuant to Section B of Article Fourth hereof in connection with
rights to elect additional directors under specified circumstances which may be
granted to the holders of any series of Preferred Stock, the exact number of
directors of the Corporation shall be determined from time to time by a Bylaw or
Amendment thereto provided that the number of directors shall not be reduced to
less than three (3), except that there need be only as many directors as there
are shareholders in the event that the outstanding shares are held of record by
fewer than three (3) shareholders. Elections of directors need not be by written
ballot unless the Bylaws of the Corporation shall so provide.
EIGHTH: Each director shall serve until his successor is elected and
qualified or until his death, resignation or removal; no decrease in the
authorized number of directors shall shorten the term of any incumbent director;
and additional directors, elected pursuant to Section B of Article Fourth hereof
in connection with rights to elect such additional directors under specified
circumstances which may be granted to the holders of any series of Preferred
Stock, shall not be included in any class, but shall serve for such term or
terms and pursuant to such other provisions as are specified in the resolution
of the Board of Directors establishing such series. Any stockholder proposals
and nominations for the election of a director by a stockholder shall be
delivered to the Corporate Secretary of the Corporation no less than ninety (90)
days nor more than one hundred twenty (120) days in advance of the first
anniversary of the Company's annual meeting held in the prior year, provided,
however, in the event the Company shall not have had an annual meeting in the
prior year, such notice shall be delivered no less than ninety (90) days nor
more than one hundred twenty (120) days in advance of May 15 of the current
year. Such stockholder nominations must contain (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director at
the annual meeting: (w) the name, age, business address and residence address of
the proposed nominee, (x) the principal occupation or employment of the proposed
nominee, (y) the class and number of shares of capital stock of the Corporation
which are beneficially owned by the proposed nominee, and (z) any other
information relating to the proposed nominee that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Rule 14a under
the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder
giving notice of nominees for election at the annual meeting, (x) the name and
record address of the stockholder, and (y) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder.
NINTH: Except as may otherwise be provided pursuant to Section B of
Article Fourth hereof in connection with rights to elect additional directors
under specified circumstances which may be granted to the holders of any series
of Preferred Stock, newly created directorships resulting from any increase in
the number of directors, or any vacancies on the Board of Directors resulting
10
<PAGE>
from death, resignation, removal or other causes, shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been elected and qualified or until such director's death, resignation or
removal, whichever first occurs.
TENTH: Except for such additional directors as may be elected by the
holders of any series of Preferred Stock pursuant to the terms thereof
established by a resolution of the Board of Directors pursuant to Article Fourth
hereof, any director may be removed from office with or without cause and only
by the affirmative vote of the holders of not less than 50% of the voting power
of all outstanding shares of voting stock entitled to vote in connection with
the election of such director regardless of class and voting together as a
single voting class.
ELEVENTH: Meetings of shareholders of the Corporation may be held
within or without the State of Delaware, as the Bylaws may provide. The books of
the Corporation may be kept (subject to any provision of applicable law) outside
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the Bylaws.
TWELFTH: For the purposes of this Certificate of Incorporation, the
terms "affiliate," "associate," "control," "interested stockholder," "owner,"
"person" and "voting stock" shall have the meanings set forth in Section 203(c)
of the Delaware General Corporation Law.
THIRTEENTH: The Corporation reserves the right to adopt, repeal,
rescind, alter or amend in any respect any provision contained in this
Certificate in the manner now or hereafter prescribed by applicable law, and all
rights conferred on shareholders herein are granted subject to this reservation.
FOURTEENTH: No director of the Corporation shall be liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (a) for any breach of the director's
duty of loyalty to the Corporation or its shareholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the Delaware General Corporation Law,
or (d) for any transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law hereafter is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of a director of the Corporation, in addition to the
limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Delaware General Corporation Law. Any
repeal or modification of this Section by the shareholders of the Corporation
shall be prospective only and shall not adversely affect any limitation on the
11
<PAGE>
personal liability of a director of the Corporation existing at the time of such
repeal or modification.
FIFTEENTH: No contract or other transaction of the Corporation with any
other person, firm or corporation, or in which this corporation is interested,
shall be affected or invalidated by: (a) the fact that any one or more of the
directors or officers of the Corporation is interested in or is a director or
officer of such other firm or corporation; or, (b) the fact that any director or
officer of the Corporation, individually or jointly with others, may be a party
to or may be interested in any such contract or transaction, so long as the
contract or transaction is authorized, approved or ratified at a meeting of the
Board of Directors by sufficient vote thereon by directors not interested
therein, to which such fact of relationship or interest has been disclosed, or
the contract or transaction has been approved or ratified by vote or written
consent of the shareholders entitled to vote, to whom such fact of relationship
or interest has been disclosed, or so long as the contract or transaction is
fair and reasonable to the Corporation. Each person who may become a director or
officer of the Corporation is hereby relieved from any liability that might
otherwise arise by reason of his contracting with the Corporation for the
benefit of himself or any firm or corporation in which he may in any way be
interested.
September 24, 1999 ELECTRONIC BUSINESS SERVICES, INC.
By: /s/ HAROLD S. FISCHER
------------------------------------------------
Name: Harold S. Fischer
Title: President and Chief Executive Officer
12
BY-LAWS OF ELECTRONIC BUSINESS SERVICES, INC.
<PAGE>
BYLAWS
OF
ELECTRONIC BUSINESS SERVICES, INC.
(A DELAWARE CORPORATION)
The following are the Bylaws of Electronic Business Services, Inc., a
Delaware corporation (the "Corporation"), effective as of September 24, 1999.
ARTICLE I
OFFICES
SECTION 1.01. PRINCIPAL EXECUTIVE OFFICE. The principal executive
office of the Corporation shall be located at 1800 NW 49th Street, Suite 100,
Fort Lauderdale, FL 33309. The Board of Directors of the Corporation (the "Board
of Directors") may change the location of said principal executive office.
SECTION 1.02. OTHER OFFICES. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.01. ANNUAL MEETINGS. The annual meeting of shareholders of
the Corporation shall be held at a date and at such time as the Board of
Directors shall determine. At each annual meeting of shareholders, directors
shall be elected in accordance with the provisions of Section 3.03 hereof and
any other proper business may be transacted.
SECTION 2.02. SPECIAL MEETINGS. Special meetings of shareholders for
any purpose or purposes may be called at any time by a majority of the Board of
Directors, by the Chairman of the Board, the President or by holders of not less
than ten percent (10%) of the voting power of all outstanding shares of voting
stock regardless of class and voting together as a single voting class. The term
"voting stock" as used in these Bylaws shall have the meaning set forth in
Section 203(c) of the Delaware General Corporation Law.
<PAGE>
Special meetings may not be called by any other person or persons. Each special
meeting shall be held at such date and time as is requested by the person or
persons calling the meeting, within the limits fixed by law.
SECTION 2.03. PLACE OF MEETINGS. Each annual or special meeting of
shareholders shall be held at such location as may be determined by the Board of
Directors or, if no such determination is made, at such place as may be
determined by the Chairman of the Board. If no location is so determined, any
annual or special meeting shall be held at the principal executive office of the
Corporation.
SECTION 2.04. NOTICE OF MEETINGS. Written notice of each annual or
special meeting of shareholders stating the date and time when, and the place
where, it is to be held shall be delivered either personally or by mail to
shareholders entitled to vote at such meeting not less than ten (10) nor more
than sixty (60) days before the date of the meeting. The purpose or purposes for
which the meeting is called may, in the case of an annual meeting, and shall, in
the case of a special meeting, also be stated. If mailed, such notice shall be
directed to a stockholder at his address as it shall appear on the stock books
of the Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be mailed to some
other address, in which case such notice shall be mailed to the address
designated in such request.
SECTION 2.05. CONDUCT OF MEETINGS. All annual and special meetings of
shareholders shall be conducted in accordance with such rules and procedures as
the Board of Directors may determine subject to the requirements of applicable
law and, as to matters not governed by such rules and procedures, as the
chairman of such meeting shall determine. The chairman of any annual or special
meeting of shareholders shall be the Chairman of the Board. The Secretary, or in
the absence of the Secretary, a person designated by the Chairman of the Board,
shall act as secretary of the meeting.
SECTION 2.06. QUORUM. At any meeting of shareholders of the
Corporation, the presence, in person or by proxy, of the holders of record of a
majority of the shares then issued and outstanding and entitled to vote at the
meeting shall constitute a quorum for the transaction of business; PROVIDED,
HOWEVER, that this Section 2.06 shall not affect any different requirement which
may exist under statute, pursuant to the rights of any authorized class or
series of stock, or under the Certificate of Incorporation of the Corporation,
as amended or restated from time to time (the "Certificate"), for the vote
necessary for the adoption of any measure governed thereby.
In the absence of a quorum, the shareholders present in person or by
proxy, by majority vote and without further notice, may adjourn the meeting from
time to time until a quorum is attained. At any reconvened meeting following
such adjournment at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 2.07. VOTES REQUIRED. The affirmative vote of a majority of the
shares present in person or represented by proxy at a duly called meeting of
shareholders of the Corporation, at which a quorum is present and entitled to
2
<PAGE>
vote on the subject matter, shall be sufficient to take or authorize action upon
any matter which may properly come before the meeting, except that the election
of directors shall be by plurality vote, unless the vote of a greater or
different number thereof is required by statute, by the rights of any authorized
class of stock or by the Certificate.
Unless the Certificate or a resolution of the Board of Directors
adopted in connection with the issuance of shares of any class or series of
stock provides for a greater or lesser number of votes per share, or limits or
denies voting rights, each outstanding share of stock, regardless of class or
series, shall be entitled to one (l) vote on each matter submitted to a vote at
a meeting of shareholders.
SECTION 2.08. PROXIES. A stockholder may vote the shares owned of
record by him either in person or by proxy executed in writing (which shall
include writings sent by telex, telegraph, cable or facsimile transmission) by
the stockholder himself or by his duly authorized attorney-in-fact. No proxy
shall be valid after three (3) years from its date, unless the proxy provides
for a longer period. Each proxy shall be in writing, subscribed by the
stockholder or his duly authorized attorney-in-fact, and dated, but it need not
be sealed, witnessed or acknowledged.
SECTION 2.09. ACTION BY WRITTEN CONSENT. Any action that may be taken
at any annual or special meeting of shareholders 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. Notice of the taking of such action shall be given
promptly to each stockholder that would have been entitled to vote thereon at a
meeting of shareholders and that did not consent thereto in writing.
SECTION 2.10. LIST OF SHAREHOLDERS. The Secretary of the Corporation
shall prepare and make (or cause to be prepared and made), at least ten (10)
days before every meeting of shareholders, a complete list of the shareholders
entitled to vote at the meeting, arranged in alphabetical order and showing the
address of, 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 (10) 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 duration thereof, and may be inspected by any stockholder
who is present.
SECTION 2.11. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board of Directors may appoint Inspectors of Election to act
at such meeting or at any adjournment or adjournments thereof. If such
Inspectors are not so appointed or fail or refuse to act, the chairman of any
3
<PAGE>
such meeting may (and, upon the demand of any stockholder or stockholder's
proxy, shall) make such an appointment.
The number of Inspectors of Election shall be one (1) or three (3). If
there are three (3) Inspectors of Election, the decision, act or certificate of
a majority shall be effective and shall represent the decision, act or
certificate of all. No such Inspector need be a stockholder of the Corporation.
Subject to any provisions of the Certificate of Incorporation, the
Inspectors of Election shall determine the number of shares outstanding, the
voting power of each, the shares represented at the meeting, the existence of a
quorum and the authenticity, validity and effect of proxies; they shall receive
votes, ballots or consents, hear and determine all challenges and questions in
any way arising in connection with the right to vote, count and tabulate all
votes or consents, determine when the polls shall close and determine the
result; and finally, they shall do such acts as may be proper to conduct the
election or vote with fairness to all shareholders. On request, the Inspectors
shall make a report in writing to the secretary of the meeting concerning any
challenge, question or other matter as may have been determined by them and
shall execute and deliver to such secretary a certificate of any fact found by
them.
SECTION 2.13 NOTICE OF STOCKHOLDER ACTION. Any stockholder proposal or
nomination for the election of a director by a stockholder shall be delivered to
the Corporate Secretary of the Corporation no less than ninety (90) days nor
more than one hundred twenty (120) days in advance of the first anniversary of
the Company's annual meeting held in the prior year, provided, however, in the
event the Company shall not have had an annual meeting in the prior year, such
notice shall be delivered no less than ninety (90) days nor more than one
hundred twenty (120) days in advance of May 15 of the current year. Such
stockholder nominations must contain (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director at the annual
meeting: (w) the name, age, business address and residence address of the
proposed nominee, (x) the principal occupation or employment or the proposed
nominee, (y) the class and number of shares of capital stock of the Corporation
which are beneficially owned by the proposed nominee, and (z) any other
information relating to the proposed nominee that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Rule 14a under
the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder
giving notice of nominees for election at the annual meeting, (x) the name and
record address of the stockholder, and (y) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder.
4
<PAGE>
ARTICLE III
DIRECTORS
SECTION 3.01. POWERS. The business and affairs of the Corporation shall
be managed by and be under the direction of the Board of Directors. The Board of
Directors shall exercise all the powers of the Corporation, except those that
are conferred upon or reserved to the shareholders by statute, the Certificate
of Incorporation or these Bylaws.
SECTION 3.02. NUMBER. The number of directors shall be fixed from time
to time by resolution of the Board of Directors but shall not be less than three
(3) nor more than nine (9).
SECTION 3.03. ELECTION AND TERM OF OFFICE. Each director shall serve
until his successor is elected and qualified or until his death, resignation or
removal, no decrease in the authorized number of directors shall shorten the
term of any incumbent director, and additional directors elected in connection
with rights to elect such additional directors under specified circumstances
which may be granted to the holders of any series of Preferred Stock shall not
be included in any class, but shall serve for such term or terms and pursuant to
such other provisions as are specified in the resolution of the Board of
Directors establishing such series.
SECTION 3.04. ELECTION OF CHAIRMAN OF THE BOARD. At the organizational
meeting immediately following the annual meeting of shareholders, the directors
shall elect a Chairman of the Board from among the directors who shall hold
office until the corresponding meeting of the Board of Directors in the next
year and until his successor shall have been elected or until his earlier
resignation or removal. Any vacancy in such office may be filled for the
unexpired portion of the term in the same manner by the Board of Directors at
any regular or special meeting.
SECTION 3.05. REMOVAL. Any director may be removed from office only as
provided in the Certificate of Incorporation.
SECTION 3.06. VACANCIES AND ADDITIONAL DIRECTORSHIPS. Newly created
directorships resulting from death, resignation, disqualification, removal or
other cause shall be filled solely by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors. Any director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of directors
in which the new directorship was created or the vacancy occurred and until such
director's successor shall have been elected and qualified. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
5
<PAGE>
SECTION 3.07. REGULAR AND SPECIAL MEETINGS. Regular meetings of the
Board of Directors shall be held immediately following the annual meeting of the
shareholders; without call at such time as shall from time to time be fixed by
the Board of Directors; and as called by the Chairman of the Board in accordance
with applicable law.
Special meetings of the Board of Directors shall be held upon call by
or at the direction of the Chairman of the Board, the President or any two (2)
directors, except that when the Board of Directors consists of one (1) director,
then the one director may call a special meeting. Except as otherwise required
by law, notice of each special meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, at least three
days before the day on which the meeting is to be held, or shall be sent to him
at such place by telex, telegram, cable, facsimile transmission or telephoned or
delivered to him personally, not later than the day before the day on which the
meeting is to be held. Such notice shall state the time and place of such
meeting, but need not state the purpose or purposes thereof, unless otherwise
required by law, the Certificate of Incorporation or these Bylaws.
Notice of any meeting need not be given to any director who shall
attend such meeting in person (except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened) or who shall waive notice thereof, before or after such meeting, in a
signed writing.
SECTION 3.08. QUORUM. At all meetings of the Board of Directors, a
majority of the fixed number of directors shall constitute a quorum for the
transaction of business, except that when the Board of Directors consists of one
(1) director, then the one director shall constitute a quorum.
In the absence of a quorum, the directors present, by majority vote and
without notice other than by announcement, may adjourn the meeting from time to
time until a quorum shall be present. At any reconvened meeting following such
an adjournment at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 3.09. VOTES REQUIRED. Except as otherwise provided by
applicable law or by the Certificate of Incorporation, the vote of a majority of
the directors present at a meeting duly held at which a quorum is present shall
be sufficient to pass any measure.
SECTION 3.10. PLACE AND CONDUCT OF MEETINGS. Each regular meeting and
special meeting of the Board of Directors shall be held at a location determined
as follows: The Board of Directors may designate any place, within or without
the State of Delaware, for the holding of any meeting. If no such designation is
made: (a) any meeting called by a majority of the directors shall be held at
such location, within the county of the Corporation's principal executive
office, as the directors calling the meeting shall designate; and (b) any other
meeting shall be held at such location, within the county of the Corporation's
6
<PAGE>
principal executive office, as the Chairman of the Board may designate or, in
the absence of such designation, at the Corporation's principal executive
office. Subject to the requirements of applicable law, all regular and special
meetings of the Board of Directors shall be conducted in accordance with such
rules and procedures as the Board of Directors may approve and, as to matters
not governed by such rules and procedures, as the chairman of such meeting shall
determine. The chairman of any regular or special meeting shall be the Chairman
of the Board, or, in his absence, a person designated by the Board of Directors.
The Secretary, or, in the absence of the Secretary, a person designated by the
chairman of the meeting, shall act as secretary of the meeting.
SECTION 3.11. FEES AND COMPENSATION. Directors shall be paid such
compensation as may be fixed from time to time by resolution of the Board of
Directors: (a) for their usual and contemplated services as directors; (b) for
their services as members of committees appointed by the Board of Directors,
including attendance at committee meetings as well as services which may be
required when committee members must consult with management staff; and (c) for
extraordinary services as directors or as members of committees appointed by the
Board of Directors, over and above those services for which compensation is
fixed pursuant to items (a) and (b) in this Section 3.11. Compensation may be in
the form of an annual retainer fee or a fee for attendance at meetings, or both,
or in such other form or on such basis as the resolutions of the Board of
Directors shall fix. Directors shall be reimbursed for all reasonable expenses
incurred by them in attending meetings of the Board of Directors and committees
appointed by the Board of Directors and in performing compensable extraordinary
services. Nothing contained herein shall be construed to preclude any director
from serving the Corporation in any other capacity, such as an officer, agent,
employee, consultant or otherwise, and receiving compensation therefor.
SECTION 3.12. COMMITTEES OF THE BOARD OF DIRECTORS. To the full extent
permitted by applicable law, the Board of Directors may from time to time
establish committees, including, but not limited to, standing or special
committees and an executive committee with authority and responsibility for
bookkeeping, with authority to act as signatories on Corporation bank or similar
accounts and with authority to choose attorneys for the Corporation and direct
litigation strategy, which shall have such duties and powers as are authorized
by these Bylaws or by the Board of Directors. Committee members, and the
chairman of each committee, shall be appointed by the Board of Directors. The
Chairman of the Board, in conjunction with the several committee chairmen, shall
make recommendations to the Board of Directors for its final action concerning
members to be appointed to the several committees of the Board of Directors. Any
member of any committee may be removed at any time with or without cause by the
Board of Directors. Vacancies which occur on any committee shall be filled by a
resolution of the Board of Directors. If any vacancy shall occur in any
committee by reason of death, resignation, disqualification, removal or
otherwise, the remaining members of such committee, so long as a quorum is
present, may continue to act until such vacancy is filled by the Board of
Directors. The Board of Directors may, by resolution, at any time deemed
desirable, discontinue any standing or special committee. Members of standing
7
<PAGE>
committees, and their chairmen, shall be elected yearly at the regular meeting
of the Board of Directors which is held immediately following the annual meeting
of shareholders. The provisions of Sections 3.07, 3.08, 3.09 and 3.10 of these
Bylaws shall apply, MUTATIS MUTANDIS, to any such Committee of the Board of
Directors.
ARTICLE IV
OFFICERS
SECTION 4.01. DESIGNATION, ELECTION AND TERM OF OFFICE. The Corporation
shall have a Chairman of the Board, a President, Treasurer, such senior vice
presidents and vice presidents as the Board of Directors deems appropriate, a
Secretary and such other officers as the Board of Directors may deem
appropriate. These officers shall be elected annually by the Board of Directors
at the meeting following the annual meeting of shareholders, and each such
officer shall hold office until the corresponding meeting of the Board of
Directors in the next year and until his successor shall have been elected and
qualified or until his earlier resignation, death or removal. Any vacancy in any
of the above offices may be filled for the unexpired portion of the term by the
Board of Directors at any regular or special meeting.
SECTION 4.02. CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors shall preside at all meetings of the directors and shall have such
other powers and duties as may from time to time be assigned to him by the Board
of Directors.
SECTION 4.03. CHIEF EXECUTIVE OFFICER, PRESIDENT. The Chief Executive
Officer or, in the event there is no Chief Executive Officer, the President
("President") shall be the chief executive officer of the Corporation and shall,
subject to the power of the Board of Directors, have general supervision,
direction and control of the business and affairs of the Corporation. He shall
preside at all meetings of the shareholders and, in the absence of the Chairman
of the Board, at all meetings of the directors. He shall have the general powers
and duties of management usually vested in the office of president of a
corporation, and shall have such other duties as may be assigned to him from
time to time by the Board of Directors.
SECTION 4.04. TREASURER. The Treasurer shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and records of
account of the properties and business transactions of the Corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained earnings and shares. The books of account shall at all
reasonable times be open to inspection by the directors.
The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the Corporation with such depositories as may be designated
by the Board of Directors. He shall disburse the funds of the Corporation as may
8
<PAGE>
be ordered by the Board of Directors, shall render to the President and
directors, whenever they request it, an account of all of his transactions as
the Treasurer and of the financial condition of the Corporation, and shall have
such other powers and perform such other duties as may be prescribed by the
Board of Directors or the Bylaws.
SECTION 4.05. SECRETARY. The Secretary shall keep the minutes of the
meetings of the shareholders, the Board of Directors and all committees. He
shall be the custodian of the corporate seal and shall affix it to all documents
which he is authorized by law or the Board of Directors to sign and seal. He
also shall perform such other duties as may be assigned to him from time to time
by the Board of Directors or the Chairman of the Board or President.
SECTION 4.06. ASSISTANT OFFICERS. The President may appoint one or more
assistant secretaries and such other assistant officers as the business of the
Corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as may be specified from time to time by
the President.
SECTION 4.07. WHEN DUTIES OF AN OFFICER MAY BE DELEGATED. In the case
of absence or disability of an officer of the Corporation or for any other
reason that may seem sufficient to the Board of Directors, the Board of
Directors or any officer designated by it, or the President, may, for the time
of the absence or disability, delegate such officer's duties and powers to any
other officer of the Corporation.
SECTION 4.08. OFFICERS HOLDING TWO OR MORE OFFICES. The same person may
hold any two (2) or more of the above-mentioned offices.
SECTION 4.09. COMPENSATION. The Board of Directors shall have the power
to fix the compensation of all officers and employees of the Corporation.
SECTION 4.10. RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Board of Directors, to the President, or to the
Secretary of the Corporation. Any such resignation shall take effect at the time
specified therein unless otherwise determined by the Board of Directors. The
acceptance of a resignation by the Corporation shall not be necessary to make it
effective.
SECTION 4.11. REMOVAL. Any officer of the Corporation may be removed,
with or without cause, by the affirmative vote of a majority of the entire Board
of Directors. Any assistant officer of the Corporation may be removed, with or
without cause, by the President or by the Board of Directors.
9
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS
EMPLOYEES END OTHER CORPORATE AGENTS
SECTION 5.01. ACTION, ETC. OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(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, trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise (all such persons being
referred to hereinafter as an "Agent"), against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding 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 upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner 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, that he had reasonable cause to believe that his conduct was
unlawful.
SECTION 5.02. ACTION, ETC., BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action 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 an Agent 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 by a court of competent jurisdiction, after exhaustion
of all appeals therefrom, unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper.
SECTION 5.03. DETERMINATION OF RIGHT OF INDEMNIFICATION. Any
indemnification under Sections 5.01 or 5.02 (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Agent is proper in the circumstances
10
<PAGE>
because the Agent has met the applicable standard of conduct set forth in
Sections 5.01 and 5.02 hereof, which determination is made (a) 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, or (b) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (c) by the
shareholders.
SECTION 5.04. INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article V, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal of
an action without prejudice or the settlement of an action without admission of
liability, in defense of any action, suit or proceeding referred to in Sections
5.01 or 5.02 hereof, or in defense of any claim, issue or matter therein, such
Agent shall be indemnified against expenses, including attorneys' fees actually
and reasonably incurred by such Agent in connection therewith.
SECTION 5.05. ADVANCES OF EXPENSES. Except as limited by Section 5.06
of this Article V, expenses incurred by an Agent in defending any civil or
criminal action, suit, or proceeding shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding, if the Agent shall
undertake to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified as authorized in this Article V.
Notwithstanding the foregoing, no advance shall be made by the Corporation if a
determination is reasonably and promptly made by the Board of Directors by a
majority vote of a quorum of disinterested directors, or (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, that, based upon the
facts known to the Board of Directors or counsel at the time such determination
is made, such person acted in bad faith and in a manner that such person did not
believe to be in or not opposed to the best interest of the Corporation, or,
with respect to any criminal proceeding, that such person believed or had
reasonable cause to believe his conduct was unlawful.
SECTION 5.06. RIGHT OF AGENT TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION. Any indemnification or advance under this Article V
shall be made promptly, and in any event within ninety days, upon the written
request of the Agent, unless a determination shall be made in the manner set
forth in the second sentence of Subsection 5.05 hereof that such Agent acted in
a manner set forth therein so as to justify the Corporation's not indemnifying
or making an advance to the Agent. The right to indemnification or advances as
granted by this Article V shall be enforceable by the Agent in any court of
competent jurisdiction, if the Board of Directors or independent legal counsel
denies the claim, in whole or in part, or if no disposition of such claim is
made within ninety (90) days. The Agent's expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such proceeding shall also be indemnified by the Corporation.
11
<PAGE>
SECTION 5.07. OTHER RIGHTS AND REMEDIES. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article V
shall not be deemed exclusive of any other rights to which an Agent seeking
indemnification or advancement of expenses may be entitled under any Bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be an Agent and shall inure
to the benefit of the heirs, executors and administrators of such a person. All
rights to indemnification under this Article V shall be deemed to be provided by
a contract between the Corporation and the Agent who serves in such capacity at
any time while these Bylaws and other relevant provisions of the Delaware
General Corporation Law and other applicable law, if any, are in effect. Any
repeal or modification thereof shall not affect any rights or obligations then
existing.
SECTION 5.08. INSURANCE. Upon resolution passed by the Board of
Directors, the Corporation may purchase and maintain insurance on behalf of any
person who is or was an Agent 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
such liability under the provisions of this Article V.
SECTION 5.09. CONSTITUENT CORPORATIONS. For the purposes of this
Article V, references to "the Corporation" shall include, in addition to the
resulting corporation, all constituent corporations (including all constituents
of constituents) absorbed in a consolidation or merger as well as the resulting
or surviving corporation, which, if the separate existence of such constituent
corporation had continued, would have had power and authority to indemnify its
Agents, so that any Agent of such constituent corporation shall stand in the
same position under the provisions of the Article V with respect to the
resulting or surviving corporation as that Agent would have with respect to such
constituent corporation if its separate existence had continued.
SECTION 5.10. OTHER ENTERPRISES, FINES, AND SERVING AT CORPORATION'S
REQUEST. For purposes of this Article V, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
V.
SECTION 5.11. SAVINGS CLAUSE. If this Article V or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Agent as to expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
12
<PAGE>
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether internal or external, including a
grand jury proceeding and an action or suit brought by or in the right of the
Corporation, to the full extent permitted by any applicable portion of this
Article V that shall not have been invalidated, or by any other applicable law.
ARTICLE VI
STOCK
SECTION 6.01. CERTIFICATES. Except as otherwise provided by law, each
stockholder shall be entitled to a certificate or certificates which shall
represent and certify the number and class (and series, if appropriate) of
shares of stock owned by him in the Corporation. Each certificate shall be
signed in the name of the Corporation by the Chairman of the Board or a
Vice-Chairman of the Board or the President or a Vice President, together with
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. Any or all of the signatures on any certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if such person were
such officer, transfer agent or registrar at the date of issue.
SECTION 6.02. TRANSFER OF SHARES. Shares of stock shall be transferable
on the books of the Corporation only by the holder thereof, in person or by his
duly authorized attorney, upon the surrender of the certificate representing the
shares to be transferred, properly endorsed, to the Corporation's transfer
agent, if the Corporation has a transfer agent, or to the Corporation's
registrar, if the Corporation has a registrar, or to the Secretary, if the
Corporation has neither a transfer agent nor a registrar. The Board of Directors
shall have power and authority to make such other rules and regulations
concerning the issue, transfer and registration of certificates of the
Corporation's stock as it may deem expedient.
SECTION 6.03. TRANSFER AGENTS AND REGISTRARS. The Corporation may have
one or more transfer agents and one or more registrars of its stock whose
respective duties the Board of Directors or the Secretary may, from time to
time, define. No certificate of stock shall be valid until countersigned by a
transfer agent, if the Corporation has a transfer agent, or until registered by
a registrar, if the Corporation has a registrar. The duties of transfer agent
and registrar may be combined.
SECTION 6.04. STOCK LEDGERS. Original or duplicate stock ledgers,
containing the names and addresses of the shareholders of the Corporation and
13
<PAGE>
the number of shares of each class of stock held by them, shall be kept at the
principal executive office of the Corporation or at the office of its transfer
agent or registrar.
SECTION 6.05. RECORD DATES. The Board of Directors may fix, in advance,
a date as the record date for the purpose of determining shareholders entitled
to notice of, or to vote at, any meeting of shareholders or any adjournment
thereof, or shareholders entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or in order to make a
determination of shareholders for any other proper purpose. Such date in any
case shall be not more than sixty (60) days, and in case of a meeting of
shareholders, not less than ten (10) days, prior to the date on which the
particular action requiring such determination of shareholders is to be taken.
Only those shareholders of record on the date so fixed shall be entitled to any
of the foregoing rights, notwithstanding the transfer of any such stock on the
books of the Corporation after any such record date fixed by the Board of
Directors.
14
CERTIFICATE OF OWNERSHIP AND MERGER
BETWEEN
@EBS, INC.
AND
ELECTORNIC BUSINESS SERVICES, INC.
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
OF
@EBS, INC.
(A FLORIDA CORPORATION)
INTO
ELECTRONIC BUSINESS SERVICES, INC.
(A DELAWARE CORPORATION)
It is hereby certified that:
1. @ebs, inc. ("@ebs") is a corporation of the State of
Florida ("@ebs"), the laws of which permit a merger of a corporation of that
jurisdiction with a corporation of another jurisdiction.
2. @ebs, as the owner of all of the outstanding shares of each
class of the stock of Electronic Business Services, Inc., hereby merges itself
into Electronic Business Services, Inc., a corporation of the State of Delaware
("EBSI").
3. The following is a copy of the resolutions adopted on the
20th day of September, 1999, by the Board of Directors of @ebs to merge @ebs
into EBSI:
RESOLVED that @ebs be reincorporated in the
State of Delaware by merging itself into
Electronic Business Services, Inc. ("EBSI")
pursuant to the laws of the State of Florida
and the State of Delaware as hereinafter
provided, so that the separate existence of
@ebs shall cease as soon as the merger shall
become effective, and thereupon @ebs and EBSI
will become a single corporation, which shall
continue to exist under, and governed by, the
laws of the State of Delaware.
RESOLVED that the terms and conditions of the
proposed merger are as follows:
(a) From and after the effective time of the merger, all of
the estate, property, rights, privileges, powers, and franchises of @ebs shall
become vested in and be held by EBSI as fully entirely and without change or
diminution as the same were before held and enjoyed by @ebs, and EBSI shall
assume all of the obligators of @ebs.
<PAGE>
(b) No pro rata issuance of the shares of stock of EBSI which
are owned by @ebs immediately prior to the effective time of the merger shall be
made, and such shares shall be surrendered and extinguished.
(c) Each share of capital stock of @ebs which shall be issued
and outstanding immediately prior to the effective time of the merger shall be
converted into one (1) issued and outstanding share of similarly designated
capital stock of EBSI, and, from and after the effective time of the merger, the
holders of all of said issued and outstanding shares of capital stock of @ebs
shall automatically be and become holders of shares of EBSI upon the basis above
specified, whether or not certificates representing said shares are then issued
and delivered.
(d) After the effective time of the merger, each holder of
record of any outstanding certificate or certificates theretofore representing
common stock of @ebs may surrender the same to EBSI at its office in Fort
Lauderdale, Florida or to its transfer agent and such holder shall be entitled
upon such surrender to receive in exchange therefor a certificate or
certificates representing and equal number of shares of common stock of EBSI.
Until so surrendered, each outstanding certificate which prior to the effective
time of the merger represented one or more shares of common stock of @ebs shall
be deemed for all corporate purposes to evidence ownership of an equal number of
shares of common stock of EBSI.
(e) From and after the effective time of the merger, the
Certificate of Incorporation and the By-Laws of EBSI shall be the Certificate of
Incorporation and the By-Laws of EBSI as in effect immediately prior to such
effective time and said Certificate of Incorporation shall continue in full
force and effect until amended and changed in the manner prescribed by the
provisions of the General Corporation Law of the State of Delaware.
(f) The members of the Board of Directors and officers of @ebs
shall be the members of the Board of Directors and the corresponding officers of
the Surviving Corporation.
(g) From and after the effective time of the merger, the
assets and liabilities of @ebs and of EBSI shall be entered on the books of EBSI
at the amounts at which they shall be carried at such time on the respective
books of @ebs and of EBSI, subject to such inter-corporate adjustments or
eliminations, if any, as may be required to give effect to the merger; and,
subject to such action as may be taken by the Board of Directors of EBSI, in
accordance with generally accepted accounting principles, the capital and
surplus of EBSI shall be equal to the capital and surplus of @ebs and of EBSI.
RESOLVED that the effective time of the
Certificate of Ownership and Merger setting
forth a copy of these resolutions shall be
October 8, 1999, and that, insofar as the
2
<PAGE>
General Corporation Law of the State of
Delaware shall govern the same, said time shall
be the effective merger time.
RESOLVED that, in the event that the proposed
merger shall not be terminated, the proper
officers of @ebs be and they hereby are
authorized and directed to make and execute a
Certificate of Ownership and merger setting
forth a copy of these resolutions to merger
itself into EBSI and the date of adoption
thereof, and to cause the same to be filed and
recorded as provided by law, and to do all acts
and things whatsoever, within the States of
Florida and Delaware in any other appropriate
jurisdiction, necessary or proper to effect
this merger.
4. The proposed merger herein certified has been adopted,
approved, certified, executed, and acknowledged by @ebs in accordance with the
laws under which it is organized.
5. The effective time of the Certificate of Ownership and
Merger, and the time when the merger therein certified shall become effective,
shall be October 8, 1999.
Signed on October 4, 1999
@ebs, inc.
By: /s/ HAROLD S. FISCHER
------------------------------------------------
Name: Harold S. Fischer
Title: President and Chief Executive Officer
ELECTRONIC BUSINESS SERVICES, INC.
By: /s/ HAROLD S. FISCHER
------------------------------------------------
Name: Harold S. Fischer
Title: President and Chief Executive Officer
3
ARTICLES OF MERGER
BETWEEN
@EBS, INC.
AND
ELECTRONIC BUSIENSS SERVICES, INC.
<PAGE>
ARTICLES OF MERGER
OF
@EBS, INC.
AND
ELECTRONIC BUSINESS SERVICES, INC.
To the Department of State
State of Florida
Pursuant to the provisions of the Florida Business Corporation Act, the domestic
business corporation and the foreign business corporation herein named do hereby
submit the following articles of merger.
1. Annexed hereto and made a part hereof is the Plan of Merger
for merging @ebs, inc., a Florida corporation ("@ebs"), with and into Electronic
Business Services, Inc., a Delaware corporation ("EBSI").
2. The shareholders of @ebs entitled to vote on the aforesaid
Plan of Merger of @ebs with and into EBSI approved and adopted the Plan of
Merger at a meeting of said shareholders held on May 27, 1999.
3. The shareholders of EBSI entitled to vote on the aforesaid
Plan of Merger approved and adopted the Plan of Merger by written consent given
by them on October 4, 1999.
4. The merger of @ebs with and into EBSI is permitted by the
laws of Delaware, the jurisdiction of organization of EBSI, and has been
authorized in compliance with said laws. The date of approval and adoption of
the Plan of Merger by the shareholders of EBSI was October 4, 1999.
5. The effective time and date of the merger herein provided
for in the State of Florida shall be 10 a.m. on October 8, 1999.
Executed on October 4, 1999. @ebs, inc.
By: /s/ HAROLD S. FISCHER
------------------------------------------------
Name: Harold S. Fischer
Title: President and Chief Executive Officer
ELECTRONIC BUSINESS SERVICES, INC.
By: /s/ HAROLD S. FISCHER
------------------------------------------------
Name: Harold S. Fischer
Title: President and Chief Executive Officer
