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SECURITIES AND EXCHANGE COMMISSION
450 Fifth Street, N.W.
Washington, D.C. 20549
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FORM 10-SB
General Form For Registration of Securities
of Small Business Issuers Under Section 12(b)
or 12 (g) of the Securities Exchange Act of 1934
CATHEL PARTNERS, LTD.
(Name of Small Business Issuer in Its Charter)
Delaware 59-2571253
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
68 Schraalenburg Road, P.O. Box 233
Harrington Park, New Jersey 07640
(Address of principal executive offices, including zip code)
(201) 784-5190
(Registrant's Telephone Number, Including Area Code)
With copies to:
Roger Fidler, Esq.
163 South Street
Hackensack, NJ 07601
Tel: (201) 457-1221
Securities to be registered pursuant to Section 12(b) of the Act:
NONE
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(Title of Class)
Securities to be registered pursuant to Section 12(g) of the Act:
common stock, par value $.00001 per share
(Title of Class)
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ITEM 1 DESCRIPTION OF BUSINESS
Cathel Partners, Ltd. (the "Company") has not engaged in any operations
since 1993. The Company was incorporated in the state of Delaware on June 7,
1985 as BC Communications, Inc. Subsequent to its date of incorporation, the
Company filed with the Securities and Exchange Commission a Registration
Statement for the public sale of 25,000,000 units consisting of 25,000,000
shares of common stock, $0.00001 par value and 50,000,000 warrants to purchase
50,000,000 shares of the Company's common stock. The effective date of the
Prospectus and Registration Statement was September 18, 1985. Initially, the
Company intended upon completion of the offering and through the utilization of
the proceeds from the offering, to engage in the business of developing,
producing, and distributing programming of a talk and interview format for
commercial, cable and pay television markets. Following the offering the Company
exhausted its funds on the incomplete production of a show and decided to seek
other business opportunities which would offer growth and development.
On February 14, 1987, the Company acquired 73.75 percent of Kinetic
Systems, Inc. ("Kinetic Systems"), a Delaware corporation, which was in the
process of developing a closed chamber, forced hot air, liquid heating system
for use in residential and commercial buildings and in 1988 the Company
purchased the remaining 26.25 percent of Kinetic Systems. Thereafter, through
Kinetic Systems, the Company pursued development of the heating system. In 1990,
Kinetic Systems entered into a technology and patent license agreement with a
Michigan based manufacturer pursuant to which the manufacturer was granted a
limited license to develop, manufacture and market the Kinetic heating system
apparatus. The agreement subsequently expired by its own terms in 1992 due in
large part to the manufacturer's inability to complete development of the
heating system.
On January 28, 1993, the Company sold all of its shares in Kinetic
Systems to the Barrister Group, Ltd., for $100,000. The Company has been
inactive since 1993.
In November 1994, the Company, by amendment to its certificate of
incorporation, changed its name to Cathel Partners, Ltd.
In January 1995, the Company recorded a 1,000 to 1 reverse stock split
reducing the number of shares outstanding to 469,423.
In 1999, the Company decided to engage in the pursuit of seeking a
partnership with a viable business entity. The primary activity of the Company
will involve seeking business opportunity candidates which it can acquire or
with whom it can merge. The Company has not selected any company for acquisition
or merger and does not intend to limit potential acquisition candidates to any
particular field or industry, but does retain the right to limit acquisition or
merger candidates, if it so chooses, to a particular field or industry. The
Company is currently in a development stage of its business.
The proposed business activities classify the Company as a "blank
check" company. The Securities and Exchange Commission defines such companies as
"any development stage company that is issuing a penny stock (within the meaning
of section 3 (a)(51) of the Securities Exchange Act of 1934) and that has no
specific business plan or purpose, or has indicated that its business plan is to
merge with an unidentified company or companies." Many states have enacted
statutes, rules and regulations limiting the sale of securities of "blank check"
companies in their respective jurisdictions. Management does not intend to
undertake any further efforts to cause a market to develop in the Company's
securities other than, upon its becoming a reporting company, to complete the
application process with the National Association of Securities Dealers to be
listed on the NASDAQ Bulletin Board. The Company does not intend to undertake
any offering of the Company's securities, either debt or equity, until such time
as the Company has successfully implemented its business plan. On March 10, 2000
the Company completed a private
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placement with its major shareholder which resulted in the Company receiving
$15,000.00, which management feels will be sufficient to fund the Company's
efforts to become a reporting and listed company. There is, however, no
assurances that the Company will be accepted for listing on the NASDAQ Bulletin
Board. The Company intends to comply with the periodic reporting requirements of
the Securities Exchange Act of 1934 for so long as it is subject to those
requirements.
The Company is filing this Form 10SB on a voluntary basis. It has no
obligation to do so under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The Company believes that by filing such Form 10SB and being
obligated to file reports pursuant to Section 13 of the Exchange Act, and by
being listed on the NASDQ Bulletin Board, the Company will best position itself
as an attractive partner for potential merger or acquisition companies of
greater financial value with a history of success. While the Company believes it
will be a more attractive acquisition candidate, there is no assurance that the
foregoing assumption is correct. Further, effective January 4, 1999, in order to
become listed for trading on the Bulletin Board operated by the National
Association of Securities Dealers, Inc., the Company must be filing reports with
the Securities and Exchange Commission (the "Commission") pursuant to Section 13
of the Exchange Act.
The Company believes that there is a demand by non-public corporations
for shell corporations that have a public distribution of securities, such as
the Company. The Company believes that demand for shells has increased
dramatically since the Securities and Exchange Commission (the "Commission")
imposed additional requirements upon "blank check" companies pursuant to Reg.
419 of the Securities Act of 1933 (the "Act"). According to the Commission, Rule
419 was designed to strengthen regulation of securities offerings by blank check
companies, which Congress has found to have been a common vehicle for fraud and
manipulation in the penny stock market. See Securities Act Releases No. 6891
(April 17, 1991), 48 SEC Docket 1131 and No. 6932 (April 13, 1992) 51 Docket
0382, SEC Docket 0382. The foregoing regulation has decreased, substantially,
the number of "blank check" offerings filed with the Commission, and as a result
has stimulated an increased demand for shell corporations. While the Company has
made the foregoing assumption, there is no assurance that the same is accurate
or correct and accordingly, no assurance that the Company will be acquired by or
acquire an existing non-public entity. Furthermore, any business combination or
transaction will likely result in a significant issuance of shares and
substantial dilution to present stockholders of the Company.
Forward Looking Statements
Certain statements contained in this Registration Statement discuss
potential future events and/or transactions concerning the Company and may be
deemed to be forward looking statements. Forward looking statements are
statements not based on historical information and which relate to future
operations, strategies, financial results or other developments. Forward looking
statements are necessarily based upon estimates and assumptions that are
inherently subject to significant business, economic and competitive
uncertainties and contingencies, many of which are beyond the Company's control
and many of which, with respect to future business decisions, are subject to
change. These uncertainties and contingencies can affect actual results and
could cause actual results to differ materially from those expressed in any
forward looking statements made by or on behalf of the Company. The Company
strongly urges the reader of this Registration Statement to carefully read and
consider the risk factors and other cautionary statements identified by the
Company in conjunction with the discussions by the Company of the forward
looking statements.
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Risk Factors.
The Company's business is subject to numerous risk factors which
include the following:
1. No Operating History or Revenue and Minimal Assets. We have had no
recent operating history nor any revenues or earnings from operations since its
inception. The Company has no significant assets or financial resources. We
will, in all likelihood, sustain operating expenses without corresponding
revenues, at least until the consummation of a business combination. This may
result in the Company incurring a net operating loss that will increase
continuously until we can consummate a business combination with a profitable
business opportunity. There is no assurance that the Company can identify such a
business opportunity and consummate such a business combination.
2. Assets of the Corporation. The Company has no substantial, material,
tangible assets as of the filling date of this registration statement. Its
present assets are extremely limited. Any business activity that the Company
eventually undertakes may require substantial capital.
3. Speculative Nature of Company's Proposed Operations. The success of the
Company's proposed plan of operation will depend to a great extent on the
operations, financial condition and management of the companies with which the
Company may merge or which it acquires. While management intends to seek a
merger or acquisition of privately held entities with established operating
histories, there can be no assurance that the Company will be successful in
locating an acquisition candidate meeting such criteria. In the event the
Company completes a merger or acquisition transaction, of which there can be no
assurance, the success of the Company's operations will be dependent upon
management of the successor firm and numerous other factors beyond the Company's
control.
4. Dilution in Merger or Acquisition Transaction. The Company's plan of
operation is based upon a merger with or acquisition of a private concern, which
in all likelihood would result in the Company issuing securities to shareholders
of any such target concern. The issuance of previously authorized and unissued
Common Stock of the Company would result in substantial dilution to present and
prospective shareholders of the Company, which may necessarily result in a
change in control or management of the Company.
5. Impact of Limited Time Devoted to the Company. Opportunities available
to the Company for mergers or acquisitions may be lost or delayed as a result of
the limited amount of time devoted to the Company by management. As a result, an
acquisition or merger may never take place.
6. No Business Plan. The Company has not identified the business
opportunities in which it will attempt to obtain an interest. The Company
therefore cannot describe the specific risks presented by such business. In
general, it may be expected that such business will present such a level of
risks that conventional bank financing would not be available on favorable
terms. Such business may involve an unproven product, technology or marketing
strategy, the ultimate success of which cannot be assured. The acquired business
opportunity may be in competition with larger, more established firms over which
it will have no competitive advantage. The Company's investment in a business
opportunity may be expected to be highly illiquid and could result in a total
loss to the Company if the opportunity is unsuccessful.
7. Company's Securities are Subject to Penny Stock Rules. The Company's
shares are "penny stocks" consequently they are subject to Securities and
Exchange Commission regulations which impose sales practice requirements upon
broker/dealer.
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8. Conflicts of Interest. All of the Directors are associated with other
firms or occupations involving a range of business activities. Because of these
affiliations and because these individuals will devote only a minor amount of
time to the affairs of the Company. There are potential inherent conflicts of
interest in their acting as Directors and Officers of the Company. All of the
Company's Directors and Officers are Officers and/or Directors of the majority
shareholder of the Company and are or may be Directors and/or Officers of other
entities engaged in a variety of businesses which may in the future have various
transactions with the Company. Additional conflicts of interest and non-arm's
length transactions may also arise in the future in the event the Company's
Officers or Directors are involved in the management of any firms with which the
Company transacts business. Management has adopted a policy that the Company
will not seek a merger with or an acquisition of any entity with which any of
the Officers or Directors serve as Officers, Directors or partners or in which
they or their family member own or hold an ownership interest. Business
combinations with entities owned or controlled by affiliates or associates of
the Company will not be considered, however, securities owned or controlled by
the affiliates and associates of the Company may be sold in the business
combination transaction without affording all existing shareholders a similar
opportunity. A buy-out of the Company's majority shareholder's share could occur
by an offer from a merger/acquisition candidate.
9. No Dividends Anticipated. At the present time the Company does not
anticipate paying dividends, cash or otherwise, on its Common Stock in the
foreseeable future. Future dividends will depend on earnings, if any, of the
Company, its financial requirements and other factors. Investors who anticipate
the need of an immediate income from their investment in the Company's Common
Stock should refrain from the purchase of the Company's securities.
10. Scarcity of and Competition for Merger or Acquisition Prospects. The
Company is and will continue to be an insignificant participant in the business
of seeking mergers with and acquisitions of small private entities. A large
number of established and well financed entities, including venture capital
firms, are active in mergers and acquisitions of private companies which may be
desirable target candidates for the Company. Nearly all such entities have
significantly greater financial resources, technical expertise and managerial
capabilities than the Company, and consequently, the Company will be at a
competitive disadvantage in identifying possible merger or acquisition
candidates with numerous other small public companies.
11. No Agreement for Business Combination or Other Transaction. The Company
has no arrangement, agreement or understanding with respect to engaging in a
merger with, or acquisition of, any entity private or public. There can be no
assurance the Company will be successful in identifying and evaluating suitable
merger or acquisition candidates or in concluding a merger or acquisition
transaction. Management has not identified any specific business within an
industry for evaluation by the Company. There is no assurance the Company will
be able to negotiate a merger or acquisition on favorable terms.
12. Lack of Market Research or Marketing Organization. The Company has
neither conducted nor has the Company engaged other entities to conduct market
research such that management has assurance market demand exists for the
transactions contemplated by the Company. Moreover, the Company does not have
and does not plan to establish, a marketing organization. Even in the event
demand is identified for a merger or acquisition of the type contemplated by the
Company, there is no assurance the Company will be successful in completing any
such transaction.
13. Impracticability of Exhaustive Investigation. The Company's limited
funds and the lack of full-time management will likely make it impracticable to
conduct a complete and exhaustive investigation and analysis of a business
opportunity before the Company commits its capital or other resources thereto.
Therefore, management decisions will likely be made without detailed feasibility
studies, independent
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analysis, market surveys and the like which, if the Company had more funds
available to it, would be desirable. The Company will be particularly dependent
in making decisions upon information provided by the promoter, owner, sponsor,
or others associated with the business opportunity seeking the Company's
participation. There are numerous individuals, publicly held companies, and
privately held companies seeking merger and acquisition prospects. There is
significant competition among such groups for attractive merger and acquisition
prospects. However, the number of suitable and attractive prospects is limited
and the Company may find a scarcity of suitable companies with audited financial
statements seeking merger partners of the type and size of the Company.
14. Possible Lack of Diversification. The Company may be unable to
diversify its business activities, which creates the possibility of a total loss
to the Company and its shareholders should an acquisition by the Company prove
to be unprofitable. The Company's failure or inability to diversify its
activities into a number of areas may subject the Company to economic
fluctuations within a particular business or industry and, therefore, increase
the risks associated with the Company's operations.
15. The Company May Pay a Finder's Fee. In connection with a
merger/acquisition, the Company may issue "restricted" shares of the Company's
Common Stock to finders. A finder's fee will not be paid, however, to any
officer, director, shareholder or other affiliated party. At the present time,
there are no plans to pay any finder's fees.
16. Issuance of Additional Shares. The Board of Directors has the power to
issue shares and may do so in an exchange offer or a stock for stock exchange
agreement. The Company may also issue additional shares of Common Stock pursuant
to a plan and agreement of merger with a private corporation. Although the
Company presently has no commitments, contracts or intentions to issue any
additional shares to other persons, the Company may in the future attempt to
issue shares to acquire products, properties or businesses, or for other
corporate purposes.
17. Lack of Public Market for Securities. At present, no market exists for
the Company's securities and there is no assurance that a regular trading market
will develop and if developed, that it will be sustained. A market for the
securities cannot develop until a merger or acquisition has been concluded. A
purchaser of stock may, therefore, be unable to resell the securities offered
herein should he or she desire to do so. Furthermore, it is unlikely that a
lending institution will accept the Company's securities as pledged collateral
for loans unless a regular trading market develops.
18. Change of Control. As part of the acquisition of a business
opportunity, some or all of the current Board of Directors may resign after
appointing their successors, without shareholder approval. The acquisition of an
opportunity may also involve the issuance of a majority of the Company's stock
to promoters of the opportunity. In such event, purchasers of shares offered
hereunder would be unable to elect or remove Directors against the wishes of
such promoters.
19. Year 2000 Disclosure. Many existing computer programs use only two
digits to identify a year in the date field. These programs were designed and
developed without considering the impact of the upcoming change in the century.
If not corrected, many computer applications could fail or create erroneous
results by or at the year 2000. As a result, many companies will be required to
undertake major projects to address the Year 2000 issue. Because the Company has
no assets, including any personal property such as computers, it is not
anticipated that we will incur any negative impact as a result of this potential
problem. However, it is possible that this issue may have an impact on us after
we successfully consummate a merger or acquisition. Management intends to
address this potential problem with any prospective merger or acquisition
candidate. There can be no assurances that new management of the Company will be
able to avoid a problem in this regard after a merger or acquisition is
consummated.
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ITEM 2 PLAN OF OPERATION
The Company intends to seek to acquire assets or shares of an entity
actively engaged in a business that generates revenues, in exchange for its
securities. We have not identified a particular acquisition target and have not
entered into any negotiations regarding such an acquisition. As soon as this
registration statement becomes effective under Section 12 of the '34 Act, we
intend to contact securities broker/dealers, venture capitalists, members of the
financial community and others who may present solicited and unsolicited
proposals. None of our officers, directors, or affiliates have engaged in any
preliminary contact or discussions with any representative of any other company
regarding the future possibility of an acquisition or merger between the Company
and such other company as of the date of this registration statement.
Due to the Company's intent to remain a shell corporation until a merger
or acquisition candidate is identified, it is anticipated that its cash
requirements shall be minimal, and that any further necessary capital, to the
extent required, will be provided by the directors, officers or affiliates. The
Company does not anticipate that it will have to raise capital in the next
twelve months. The Company does not intend to engage in the acquisition of any
assets.
The Company has no full time employees. Our President and Vice President have
agreed to allocate a portion of their time to the activities of the Company,
without further compensation. These officers anticipate that the business plan
of the Company can be implemented by their devoting on an average of
approximately 20 hours each per month to the business affairs of the Company
and, consequently, conflicts of interest may arise with respect to the limited
time commitment by such officers. The Company does not expect any significant
changes in the number of employees.
Our officers and directors may become involved with other companies
which have a business purpose similar to that of the Company. As a result,
potential conflicts of interest may arise in the future. If such a conflict does
arise and an officer or director of the Company is presented with business
opportunities under circumstances where there may be a doubt as to whether the
opportunity should belong to the Company or another "blank check" company they
are affiliated with, they will disclose the opportunity to all such companies.
If a situation arises in which more than one company desires to merge with or
acquire that target company and the principals of the proposed target company
have no preference as to which company will merge with or acquire such target
company, the company which first filed a registration statement with the
Securities and Exchange Commission will be entitled to proceed with the proposed
transaction. See "Risk Factors - Affiliation With Other "Blank Check"
Companies."
Selection of Opportunities
The Company proposes to seek, investigate and, if warranted, acquire an interest
in one or more business opportunities ventures. As of the date hereof the
Company has no business opportunities or ventures under contemplation for
acquisition but proposes to investigate potential opportunities in the form of
investors or entrepreneurs with a concept which has not yet been placed in
operation, or in the form of firms which are developing companies. The Company
may seek out established businesses which may be experiencing financial or
operation difficulties and are in need of the limited additional capital the
Company could provide. The Company anticipates that it will seek to merge with
or acquire an existing business. After the merger or acquisition has taken
place, it is likely that management from the acquired entity will operate the
Company. Due to the absence of capital available for investment by the Company,
the types of business seeking to be acquired by the Company will no doubt be
smaller and higher risk types of businesses. In all likelihood, a business
opportunity will involve the acquisition of or merger with a corporation which
does
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not need additional cash but which desires to establish a public trading market
for its common stock. Accordingly, the Company's ability to acquire any business
of substance will be extremely limited.
The Company does not propose to restrict its search for investment
opportunities to any particular industry or geographical location and may,
therefore, engage in essentially any business, anywhere, to the extent of its
limited resources.
This discussion of the proposed business is purposefully general and is not
meant to be restrictive of the Company's virtually unlimited discretion to
search for and enter into potential business opportunities. Management
anticipates that it may be able to participate in only one potential business
venture because the Company has nominal assets and limited financial resources.
See "Part F/S, Financial Statements." This lack of diversification should be
considered a substantial risk to shareholders of the Company because it will not
permit the Company to offset potential losses from one venture against gains
from another.
We anticipate that the selection of a business opportunity in which to
participate will be complex and extremely risky. Due to general economic
conditions, rapid technological advances being made in some industries and
shortages of available capital, management believes that there are numerous
firms seeking the perceived benefits of a publicly registered corporation. Such
perceived benefits may include facilitating or improving the terms on which
additional equity financing may be sought, providing liquidity for incentive
stock options or similar benefits to key employees, providing liquidity (subject
to restrictions of applicable statutes) for all shareholders and other factors.
Potentially, available business opportunities may occur in many different
industries and at various stages of development, all of which will make the task
of comparative investigation and analysis of such business opportunities
extremely difficult and complex.
We have, and will continue to have, no capital with which to provide
the owners of business opportunities with any significant cash or other assets.
However, management believes we will be able to offer owners of acquisition
candidates the opportunity to acquire a controlling ownership interest in a
publicly registered company without incurring the cost and time required to
conduct an initial public offering. The owners of the business opportunities
will, however, incur significant legal and accounting costs in connection with
acquisition of a business opportunity, including the costs of preparing Form
8-K's, 10-K's or 10-KSBs, 10-Q's or 10-QSBs, agreements and related reports and
documents. The '34 Act specifically requires that any merger or acquisition
candidate comply with all applicable reporting requirements, which include
providing audited financial statements to be included within the numerous
filings relevant to complying with the '34 Act. Nevertheless, the officers and
directors of the Company have not conducted market research and are not aware of
statistical data which would support the perceived benefits of a merger or
acquisition transaction for the owners of a business opportunity.
The analysis of new business opportunities will be undertaken by, or
under the supervision of, the officers and directors of the Company, none of
whom is a professional business analyst. Inasmuch as the Company will have no
funds available to it in its search for business opportunities and venture, the
Company will not be able to expend significant funds on a complete and
exhaustive investigation of potential business opportunities or ventures. The
Company will however investigate to the extent believed reasonable by its
management, potential business opportunities or ventures. Management intends to
concentrate on identifying preliminary prospective business opportunities which
may be brought to its attention through present associations of our officers and
directors, or by our shareholders. In analyzing prospective business
opportunities, management will consider such matters as the available technical,
financial and managerial resources; working capital and other financial
requirements; history of operations, if any; prospects for the future; nature of
present and expected competition; the quality and experience of management
services which may be available and the depth of that management; the potential
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for further research, development, or exploration; specific risk factors not now
foreseeable but which then may be anticipated to impact the proposed activities
of the Company; the potential for growth or expansion; the potential for profit;
the perceived public recognition of acceptance of products, services, or trades;
name identification; and other relevant factors. To the extent possible, the
Company intends to utilize written reports and personal investigations to
evaluate the above factors. \
It is not anticipated that any outside consultants or advisors, except
for our legal counsel and accountants, will be utilized by the Company to
effectuate its business purposes. However, if we do retain such an outside
consultant or advisor, any cash fee earned by such party will be paid by the
prospective merger/acquisition candidate, as the Company has no cash assets with
which to pay such obligation. We have no contracts or agreements with any
outside consultants and none are contemplated. It is the Company's policy that
no finder or other fee will be paid to any of the Company's officers, directors
or shareholders who are instrumental in finding a merger or acquisition
candidate for the Company. Management does not intend to make any changes to
this policy.
It is anticipated that the Company will incur nominal expenses in the
implementation of its business plan and that the capital raised by the Company
through a private placement with its major shareholder in March, 2000 will be
sufficient to cover such expenses. If additional funding is necessary,
management and or shareholders may continue to provide capital or arrange for
additional outside funding. However, the only opportunity which management would
have to have these loans repaid will be from a prospective merger or acquisition
candidate. Neither Management nor any of the Company's shareholders have any
agreements with the Company that would impede or prevent consummation of a
proposed transaction. There is no assurance, however, that management or any
shareholder will continue to provide capital indefinitely if a merger candidate
cannot be found. If a merger candidate cannot be found in a reasonable period of
time, management may be required to reconsider its business strategy, which
could result in the dissolution of the Company.
Form of Acquisition
The manner in which the Company participates in an opportunity will depend
upon the nature of the opportunity, the respective needs and desires of the
Company and the promoters of the opportunity, and the relative negotiating
strength of the Company and such promoters. The exact form or structure of the
Company's participation in a business opportunity or venture will be dependent
upon the needs of the of the particular situation. The Company's participation
may be structured as an asset purchase agreement, a lease, a license, a joint
venture, a partnership, a merger, or acquisition of securities.
As set forth above, the Company may acquire its participation in a business
opportunity through the issuance of common stock or other securities in the
Company. Although the terms of any such transaction cannot be predicted, it
should be noted that in certain circumstances the criteria for determining
whether or not an acquisition is so-called "tax free" reorganization under
Section 368(a)(1) of the Internal Revenue Code of 1954, as amended, may depend
upon the issuance to the shareholders of the acquired company of at least eighty
percent (80%)of the common stock of the combined entities immediately following
the reorganization. If a transaction were structured to take advantage of these
provisions rather than other "tax free" provisions provided under the Internal
Revenue Code all prior shareholders may, in such circumstances, retain twenty
percent (20%) or less of the total issued and outstanding common stock. This
could result in substantial additional dilution to the equity of those who were
shareholders of the Company prior to such reorganization.
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Further, extreme caution should be exercised by any investor relying upon any
tax benefits in light of the proposed new tax laws. It is possible that no tax
benefits will exist at all. Prospective investors should consult their own
legal, financial and other business advisors.
The present management and the shareholders of the Company will in all
likelihood not have control of a majority of the voting shares of the Company
following a reorganization transaction. In fact, it is most probable that the
shareholders of the acquired entity will gain control of the Company. As part of
such a transaction, all or a majority of the Company's Directors may resign and
new Directors may be appointed without any vote by shareholders.
It may be anticipated that any opportunity in which the Company
participates will present certain risks. Many of these risks cannot be
adequately identified prior to selection of the specific opportunity, and the
Company's shareholders must, therefore, depend on the ability of management to
identify and evaluate such risk. In the case of some of the opportunities
available to the Company, it may be anticipated that the promoters thereof have
been unable to develop a going concern or that such business is in its
development stage in that it has not generated significant revenues from its
principal business activities prior to the Company's participation. There is a
risk, even after the Company's participation in the activity and the related
expenditure of the Company's funds, that the combined enterprises will still be
unable to become a going concern or advance beyond the development stage. Many
of the opportunities may involve new and untested products, processes, or market
strategies that may not succeed. The Company and, therefore, its shareholders
will assume such risks.
The Company has an unwritten policy that it will not acquire or merge
with a business or company in which the Company's management or their affiliates
or associates directly or indirectly have an ownership interest. Management is
not aware of any circumstances under which the foregoing policy will be changed
and management, through their own initiative, will not change said policy.
It is anticipated that any securities issued in any such reorganization
would be issued in reliance upon exemption from registration under applicable
federal and state securities laws. In some circumstances, however, as a
negotiated element of its transaction, we may agree to register all or a part of
such securities immediately after the transaction is consummated or at specified
times thereafter. If such registration occurs, of which there can be no
assurance, it will be undertaken by the surviving entity after the Company has
successfully consummated a merger or acquisition and the Company is no longer
considered a "shell" company. Until a merger or acquisition is consummated, the
Company will not attempt to register any additional securities. The issuance of
substantial additional securities and their potential sale into any trading
market which may develop in the Company's securities may have a depressive
effect on the value of the Company's securities in the future, if such a market
develops, of which there is no assurance.
We will participate in a business opportunity only after the
negotiation and execution of appropriate written agreements. Although the terms
of such agreements cannot be predicted, generally such agreements will require
some specific representations and warranties by all of the parties, will specify
certain events of default, will detail the terms of closing and the conditions
that must be satisfied by each of the parties prior to and after such closing,
will outline the manner of bearing costs, including costs associated with the
Company's attorneys and accountants, will set forth remedies on default and will
include miscellaneous other terms.
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<PAGE> 11
ITEM 3. DESCRIPTION OF PROPERTY.
The Company's executive offices are currently located at 68
Schraalenburg Road, Harrington Park, New Jersey, under a month to month
sub-lease with Power Tech Services, Inc. The Company pays rent of $250.00 per
month for the leased space. Mr. Robert Schuck who is President and Director of
the Company acts as a consultant to Power Tech. Mr. Schuck receives no benefit
from the sub-lease of the property by the Company.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth certain information regarding the
beneficial ownership of common stock, the only class of securities of the
Company, by (i) each person known by the Company to beneficially own more than
five percent of the Company's common stock; (ii) each director and executive
officer of the Company; and (iii) all current directors and executive officers
of the Company as a group.
<TABLE>
<CAPTION>
Name and Amount and
Title of Address of Nature of Percentage
Class Beneficial Owner Beneficial Ownership of Class*
-------- ---------------- -------------------- ----------
<S> <C> <C> <C>
common stock, par HITK Corporation 3,250,050 87.6 %
value $.00001 68 Schraalenburg Road
per share Harrington Park, New Jersey 07640 Direct
</TABLE>
*Based on 3,709,423 shares issued and outstanding as of the filing date of
this registration statement.
The number of shares of common stock of the Company owned by the
Directors and Executive Officers of the Company as of the filing date of this
registration statement is as follows:
<TABLE>
<CAPTION>
Name and Amount and
Title of Address of Nature of Percentage
Class Beneficial Owner Beneficial Ownership of Class*
-------- ---------------- -------------------- ----------
<S> <C> <C> <C>
common stock, par Robert N. Schuck 3,370,155 shares(1)(2) 90.8%
value $.00001 85 Somerset Road
per share Norwood, New Jersey 07648 Direct
common stock, par John J. Gitlin 3,370,105 shares(1)(2)(3) 90.8%
value $.00001 3008 Falls Church Lane
per share Mesquite, Texas 75149 Direct
common stock, par Herbert Maslo 3,250,050 shares(1)(2) 87.6%
value $.00001 9 Kathy Lane
per share Warren, New Jersey 07060 Indirect
</TABLE>
11
<PAGE> 12
<TABLE>
<S> <C> <C>
All Officers and Directors as
a Group (3 persons) 3,490,205 shares (1)(2) 91.3 %
</TABLE>
* Based on 3,709,423 shares issued and outstanding.
(1) For purposes of this table, beneficial ownership is determined in
accordance with Rule 13d-3 under the Securities Exchange Act of 1934,
as amended, and generally includes voting or investment power with
respect to securities.
(2) Robert Schuck and John Gitlin who respectively hold the positions of
President and Vice President/Secretary-Treasurer and Directors and
Herbert Maslo who holds the position of Director of the Company hold
identical positions with HITK Corporation ("HITK") which holds a
majority shareholder interest in the Company of 87.6%, and therefore
are deemed to be beneficial owners of the shares held by HITK.
(3) Includes 50 shares held as trustee of a testamentary trust for the
benefit of Mr. Gitlin's sister. Does not include 50 shares which are
held in trust for the benefit of Mr. Gitlin as to which beneficial
ownership is disclaimed.
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
(a) Directors and Executive Officers.
Directors of the Company serve for a term of one year or until their
successors are elected. Officers are appointed by, and serve at the pleasure of,
the Board. The Directors and Executive Officers of the Company are as follows:
Robert N. Schuck, age 63. President and Director. Mr. Schuck has been President
and a Director of the Company since February 1987. Mr. Schuck has been a
Director of Power Tech Systems, Inc. since September 1988. He held the position
of Executive Vice President of eGlobe, Inc. from 1989 to 1997 and Director from
1989 to 1995. Mr. Schuck since 1986 has been the President and a Director of
HITK Corporation.
Herbert Maslo, age 62. Herbert Maslo has been a Director of the Company since
March 1994. Mr. Maslo has been, since 1990, a Director of HITK Corporation . He
has also been a Director of Power Tech Systems, Inc. since 1990 and was its
President from 1990 to 1995. Prior to that, Mr. Maslo was employed by New York
Telephone, a division of Nynex for 23 years where he held various engineering
positions including central office planning, installations and engineering as a
project manager. Mr. Maslo holds a B.A. degree in Mechanical Engineering from
the Newark College of Engineering.
John Gitlin, age 57. Mr. Gitlin has been Vice President/
Secretary-Treasurer and a Director of the Company since May 1998. From 1978 to
1982, Mr. Gitlin held the position of staff attorney with the United States
Department of Justice, Antitrust Division. From 1982 through April of 1994, he
was a partner in the law firm of Fischer, Gitlin & Sanger in Dallas, Texas. From
May 1994 to September, 1997, Mr. Gitlin held the position of Secretary with
eGlobe, Inc. Mr. Gitlin has been a Director since January 1997 and Vice
President/ Secretary-Treasurer since October 1997 of HITK Corporation.
12
<PAGE> 13
(b) Significant Employees.
There are no other employees of the Company other than its executive
officers, John Gitlin and Robert Schuck.
(c) Family relationships.
There are no family relationships among the present directors or officers
of the Company and there are presently no nominees or persons chosen by the
Company to become executive officers or directors of the Company.
(d) Involvement in certain legal proceedings.
During the past five years, none of the directors or officers of the
Company (i) has had any bankruptcy petitions filed by or against them, (ii) has
been convicted in a criminal proceeding or been subject to a pending criminal
proceeding, (iii) has been subject to any order, judgment, or decree, not
subsequently reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining, barring, suspending or
otherwise limiting his involvement in any type of business, securities or
banking activities; nor (iv) has been found by a court of competent jurisdiction
(in a civil action), the Commission or the Commodity Futures Trading Commission
to have violated a federal or state securities or commodities law, and the
judgment has not been reversed, suspended, or vacated.
ITEM 6. EXECUTIVE COMPENSATION.
On March 14, 2000 the Company entered into employment agreements with
its two executive officers, Robert Schuck, President and John Gitlin, Vice
President/ Secretary-Treasurer, under the terms of which each was granted the
right to purchase 120,000 shares of the Company's stock at a purchase price of
$.005 per share. The employment agreements further provide that each officer is
to be paid a monthly salary of $250.00. The Company relied on the exemption
provided by Section 4(2) of the Securities Act of 1933, as amended, for the
issuance of the shares of common stock to Mr. Gitlin and Mr. Schuck. All of the
shares issued were issued for investment purposes in a private transaction and
are restricted shares as defined in Rule 144 under the '33 Act, as amended.
These shares may not be offered for public sale except under Rule 144, or other
exemptions from registration which may be applicable pursuant to the '33 Act.
No retirement, pension, profit sharing, stock option plans or other
compensatory programs have been adopted by the Company for its officers or
directors.
Directors serve without fees or any other compensation for their
services.
No Officer and Director is entitled to any finder or other fees for any
services performed by them in finding a merger or acquisition candidate for the
Company.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
On March 10, 2000 the Company entered into a private placement,
pursuant to Section 4(2) under the Securities Act of 1933 with HITK Corporation
("HITK") under which HITK purchased a total of 3,000,000 shares of the Company's
common stock at a purchase price of $.005 per share. Prior to the sale, HITK
held a total of 250,050 shares of the Company's common stock or 53.2 % of the
outstanding shares.
13
<PAGE> 14
Robert Schuck, President and John Gitlin Vice President/ Secretary-Treasurer and
Directors and Herbert Maslo a Director of the Company hold identical positions
with HITK and therefore would be deemed to have an indirect material interest in
the transaction. Additionally, Mr. Gitlin and Mr. Schuck hold in the aggregate
53.2% of the outstanding shares of HITK.
On March 14, 2000 the Company entered into employment agreements with its two
executive officers, Robert Schuck, President and John Gitlin, Vice President/
Secretary-Treasurer, under the terms of which each was granted the right to
purchase 120,000 shares of the Company's stock at a purchase price of $.005 per
share. The employment agreements further provide that each officer is to be paid
a salary of $250.00 per month.
(b) As of filing date of this registration statement, HITK Corporation
holds a total of 3,250,050 shares of the Company's common stock which represents
87.6 % of the issued and outstanding shares.
(c) Transactions with Promoters.
None.
ITEM 8. DESCRIPTION OF SECURITIES.
(a) common stock
The Company is authorized to issue up to 500,000,000 shares of common
stock, par value $.00001 per share ("common stock"), of which 3,709,423 shares
are issued and outstanding. Holders of common stock are entitled to one vote for
each share held of record on each matter submitted to a vote of stockholders.
There are no preemptive rights nor cumulative voting for election of directors.
Subject to the prior rights of any series of preferred stock which may from time
to time be outstanding, if any, holders of common stock are entitled to receive
ratably, dividends when, as, and if declared by the Board of Directors out of
funds legally available therefor and, upon the liquidation, dissolution, or
winding up of the Company, are entitled to share ratably in all assets remaining
after payment of liabilities and payment of accrued dividends and liquidation
preferences on the preferred stock, if any. Holders of common stock have no
preemptive rights and have no rights to convert their common stock into any
other securities. The outstanding common stock is validly authorized and issued,
fully paid, and nonassessable.
(b) Preferred Stock
None
(c) Change in Control Provisions.
There are no provisions in the Company's Certificate of Incorporation
which would delay, defer or prevent a change in control of the Company. There
are provisions in the Company's By-Laws which may be deemed to delay or defer a
change in control. These include (i) that no special meeting may be called by
stockholders unless a request is made in writing by shareholders holding at
least sixty-six and two thirds of the issued and outstanding shares of the
Company's common stock and entitled to vote; (ii) nominations of persons for
election to the Board of Directors may only be made by a stockholder delivering
notice to the Company at least 60 days prior to the annual or a special meeting
called for the purpose of electing a director
14
<PAGE> 15
or not later than 10 days following the date on which the Company announces the
special or annual meeting and providing in the notice all information relating
to such person that is required to be disclosed pursuant to Regulation 14A under
the Securities Exchange Act of 1934, including such person's written consent to
be nominated and to serve if elected; (iii)any proposal by a stockholder of
business to be considered at an annual meeting must also be delivered to the
Company within the same time limitations set for nominations of persons for
election to the Board and must include a brief description of the proposed
business to be considered, the reasons for conducting such business and any
material interest in such business of such stockholder.
PART II.
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
OTHER SHAREHOLDER MATTERS
(a) Market information.
There is presently no trading market for the Company's common stock and
there has been no trading market since at least 1994. There is no assurance that
a trading market will ever develop or, if such a market does develop, that it
will continue. The Company has caused to be filed a Form 211 with the National
Association of Securities Dealers ("NASD") to permit the Company's common stock
to be quoted on the NASDQ Bulletin Board, which is currently pending. Subject to
approval of the NASD, the Company's shares of common stock will trade on the
Bulletin Board under the symbol BCCM, if available. There are no outstanding
options or warrants to purchase or securities convertible into the Company's
common stock.
Market Price
The Company's common stock is not quoted at the present time. The
Securities and Exchange Commission has adopted a Rule which established the
definition of a "penny stock," for purposes relevant to the Company, as any
equity security that has a market price of less than $5.00 per share or with an
exercise price of less than $5.00 per share, subject to certain exceptions. For
any transaction involving a penny stock, unless exempt, the rules require: (i)
that a broker or dealer approve a person's account for transactions in penny
stocks; and (ii) the broker or dealer receive from the investor a written
agreement to the transaction, setting forth the identity and quantity of the
penny stock to be purchased. In order to approve a person's account for
transactions in penny stocks, the broker or dealer must (i) obtain financial
information and investment experience and objectives of the person; and (ii)
make a reasonable determination that the transactions in penny stocks are
suitable for that person and that person has sufficient knowledge and experience
in financial matters to be capable of evaluating the risks of transactions in
penny stocks. The broker or dealer must also deliver, prior to any transaction
in a penny stock, a disclosure schedule prepared by the Commission relating to
the penny stock market, which, in highlight form, (i) sets forth the basis on
which the broker or dealer made the suitability determination; and (ii) that the
broker or dealer received a signed, written agreement from the investor prior to
the transaction. Disclosure also has to be made about the risks of investing in
penny stock in both public offering and in secondary trading, and about
commissions payable to both the broker-dealer and the registered representative,
current quotations for the securities and the rights and remedies available to
an investor in cases of fraud in penny stock transactions. Finally, monthly
statements have to be sent disclosing recent price information for the penny
stock held in the account and information on the limited market in penny stocks.
Effective January 4, 1999, the National Association of Securities
Dealers, Inc. (the "NASD") requires that companies listed for trading on the
Bulletin Board must file a Form 10-SB that must become effective by operation of
law and have no outstanding comments before trading may commence.
15
<PAGE> 16
Transfer Agent
American Stock Transfer & Trust Co., 40 Wall Street, New York, New York
100005, currently acts as the Company's transfer agent.
(b) Holders.
According to the Company's transfer agent, there are 831 shareholders of
record of the Company's common stock.
(b) Dividends.
The Company has not paid any dividends since its inception and does not
anticipate paying any dividends in the foreseeable future.
ITEM 2. LEGAL PROCEEDINGS.
The Company is not presently a party to any pending litigation or
proceeding nor, to the knowledge of management, is any litigation or proceeding
threatened.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
On March 10, 2000 the Company entered into a private placement,
pursuant to Section 4(2) under the Securities Act of 1933 (the"33 Act") with
HITK Corporation ("HITK") under which HITK purchased a total of 3,000,000 shares
of the Company's common stock at a purchase price of $.005 per share or a total
purchase price of $15,000.00. The Company relied on exemptions provided by
Section 4(2) of the '33 Act, as amended, for the issuance of the shares of
common stock. All of the shares issued were issued for investment purposes only
in a private transaction and are restricted shares as defined in Rule 144 under
the '33 Act, as amended. These shares may not be offered for public sale except
under Rule 144, or other exemptions from registration which may be applicable
pursuant to the '33 Act.
On March 14, 2000, pursuant to rights granted to them under the terms of their
respective employment agreements with the Company, the Company's two executive
officers, Robert Schuck and John Gitlin each purchased 120,000 shares of the
Company's stock. Sale of the shares was pursuant to Section 4(2) of the '33 Act.
All of the shares issued were issued for investment purposes only in a private
transaction and are restricted shares as defined in Rule 144 under the '33 Act,
as amended. These shares may not be offered for public sale except under Rule
144, or other exemptions from registration which may be applicable pursuant to
the '33 Act.
16
<PAGE> 17
ITEM 5. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Both the Certificate and By-Laws provide mandatory indemnification
rights, subject to limited exceptions, to any person who was or is party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person is or was a director
or officer of the Company, or is or was serving at the request of the Company as
a director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise. Such indemnification rights include
reimbursement for expenses incurred by such person in advance of the final
disposition of such proceeding in accordance with the applicable provisions of
the Delaware General Corporation Law.
PART F/S
17
<PAGE> 18
THOMAS P. MONAHAN
CERTIFIED PUBLIC ACCOUNTANT
208 LEXINGTON AVENUE
PATERSON, NEW JERSEY 07502
(973) 790-8775
FAX (973) 790-8845
To The Board of Directors and Shareholders
of Cathel Partners Ltd. (a development stage company)
I have audited the accompanying balance sheet of Cathel Partners Ltd. (a
development stage company) as of December 31, 1999 and the related statements of
operations, cash flows and shareholders' equity for the years ended December 31,
1998 and 1999. These financial statements are the responsibility of the
Company's management. My responsibility is to express an opinion on these
financial statements based on my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that I plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
I believe that my audit provides a reasonable basis for my opinion.
In my opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Cathel Partners Ltd. (a
development stage company) as of December 31, 1999 and the results of its
operations, shareholders equity and cash flows for the years ended December 31,
1998 and 1999 in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that
Cathel Partners Ltd. (a development stage company) will continue as a going
concern. As more fully described in Note 2, the Company has incurred operating
losses since the date of reorganization and requires additional capital to
continue operations. These conditions raise substantial doubt about the
Company's ability to continue as a going concern. Management's plans as to these
matters are described in Note 2. The financial statements do not include any
adjustments to reflect the possible effects on the recoverability and
classification of assets or the amounts and classifications of liabilities that
may result from the possible inability of Cathel Partners Ltd. (a development
stage company) to continue as a going concern.
Thomas P. Monahan, CPA
March 5, 2000
Paterson, New Jersey
18
<PAGE> 19
CATHEL PARTNERS, LTD.
BALANCE SHEET
DECEMBER 31, 1999
<TABLE>
<S> <C>
ASSETS
Current assets
Cash $ 273
-----------
Total current assets 273
Total assets $ 273
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable and accrued expenses $ 19,771
-----------
Total current liabilities 19,771
Stockholders' equity
Common Stock authorized 500,000,000 shares, $0.00001 par value each 5
At December 31, 1999, there are 469,427 shares outstanding.
Additional paid in capital 1,285,279
Deficit accumulated during the development stage (1,304,782)
-----------
Total stockholders' equity (19,498)
-----------
Total liabilities and stockholders' equity $ 273
===========
</TABLE>
19
<PAGE> 20
CATHEL PARTNERS, LTD.
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
For the period
For the For the from inception,
year ended year ended June 7, 1985, to
December 31, December 31, December 31,
1998 1999 1999
----------- ----------- -----------
<S> <C> <C> <C>
Revenue $-0- $-0- $-0-
Costs of goods sold -0- -0- -0-
----------- ----------- -----------
Gross profit -0- -0- -0-
Operations:
General and administrative 72 12,843 1,304,782
Depreciation and amortization -0- -0- -0-
----------- ----------- -----------
Total expense 72 12,843 1,304,782
Loss from operations (72) (12,843) (1,304,782)
Net income (loss) $ (72) $ (12,843) $(1,304,782)
=========== =========== ===========
Net income (loss) per share -basic $ (0.00) $ (0.03) $ (2.78)
=========== =========== ===========
Number of shares outstanding-basic 469,427 469,427 469,427
=========== =========== ===========
</TABLE>
20
<PAGE> 21
CATHEL PARTNERS, LTD.
STATEMENT OF STOCKHOLDERS EQUITY
<TABLE>
<CAPTION>
Deficit
Common Common Additional accumulated during
Date Stock Stock paid in capital development stage Total
- ---- ------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Balance December 31, 1997 469,427 $ 5 $ 1,285,279 $(1,291,867) $ 417
Net loss (72) (72)
----------- -----------
Balance December 31, 1998 469,427 5 1,285,279 (1,291,939) 6,655
Net loss (12,843) (12,843)
----------- -----------
Balance December 31, 1999 469,427 $ 5 $ 1,285,279 $(1,304,782) $ (19,498)
======= =========== =========== =========== ===========
</TABLE>
21
<PAGE> 22
CATHEL PARTNERS, LTD.
STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
For the period
For the For the from inception,
year ended year ended June 7, 1985, to
December 31, December 31, December 31,
1998 1999 1999
----------- ----------- -----------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) $ (72) $ (12,843) $(1,304,782)
Adjustments to reconcile net loss to cash used in
operating activities
Depreciation -0- -0- -0-
Accounts payable and accrued expenses -0- 12,771 19,771
----------- ----------- -----------
TOTAL CASH FLOWS FROM OPERATIONS (72) (72) (1,285,011)
CASH FLOWS FROM FINANCING ACTIVITIES
Sale of common stock 1,285,284
-----------
TOTAL CASH FLOWS FROM FINANCING ACTIVITIES -0- -0- 1,285,284
TOTAL CASH FLOWS FROM INVESTING ACTIVITIES -0- -0-
NET INCREASE (DECREASE) IN CASH (72) (72) 273
CASH BALANCE BEGINNING OF PERIOD 417 345 -0-
----------- ----------- -----------
CASH BALANCE END OF PERIOD $ 345 $ 273 $ 273
=========== =========== ===========
</TABLE>
22
<PAGE> 23
NOTE 1 - FORMATION OF COMPANY AND ISSUANCE OF COMMON STOCK
a. Formation and Description of the Company
Cathel Partners, Ltd. (the "Company"), was formed under the laws of the
State of Delaware on June 7, 1985 with the name B C Communications, Inc. and was
authorized to issue up to 10,000,000 shares of common stock, $0.001 par value.
On September 4, 1985, the certificate of incorporation was amended to increase
the authorized number of shares to 200,000,000 shares of common stock, $0.00001
par value each share. On April 16, 1987, the Company amended its certificate of
incorporation to increase the authorized number of shares to 500,000,000 shares
of common stock, $0.00001 par value each share. On November 13, 1994, the
Company amended its certificate of incorporation to change the name of the
corporation to Cathel Partners, Ltd.
b. Description of Company
The Company is a development stage company that is without a business
purposes since 1993 and is in the process of seeking a viable business
opportunity.
Note 2-Summary of Significant Accounting Policies
a. Basis of Financial Statement Presentation
The accompanying unaudited financial statements have been prepared on a
going concern basis, which contemplates the realization of assets and the
satisfaction of liabilities in the normal course of business. The Company has
had no business activities and has incurred net losses of $1,304,782 from
inception to December 31, 1999. These factors indicate that the Company's
continuation as a going concern is dependent upon its ability to obtain adequate
financing. The Company will be relying upon the resources of management to
provide the necessary working capital to sustain the Company's existence until a
viable business opportunity can be located. The Company will require substantial
additional funds to finance its business activities on an ongoing basis and will
have a continuing long-term need to obtain additional financing once a viable
business opportunity is found.
The financial statements presented at December 31, 1999 consist of the
balance sheet as at December 31, 1999 and the statements of operations, cash
flows and stockholders equity for the years ended December 31, 1998 and 1999.
23
<PAGE> 24
b. Cash and Cash Equivalents
Cash and Cash Equivalents - Temporary investments with maturity of less
than three months when purchased are treated as cash
c. Loss Per Share:
Basic loss per common share is computed by dividing the loss by the
weighted average number of common shares outstanding during the period. During
the period from reorganization 469,423 through December 31, 1999, there were no
dilutive securities outstanding.
d. Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that effect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Note 3 - Related Party transactions
a. Office Space
The Company occupies office space at 68 Schraalenburg Road, Harrington
Park, New Jersey for a monthly rental of $250. The Company has accrued rent
expense for the years ended December 31, 1999 of $3,000.
b. Officer Salaries
No officer has received a salary in excess of $100,000.
For the years ended December 31, 1999, the Company has accrued a
minimal compensation of $250 per month each as compensation to the President and
the Vice President/Secretary--
24
<PAGE> 25
Treasurer as consideration for services to be performed while the Company is in
the development stage of an aggregate of $6,000 respectively.
Note 6 - Income Taxes
The Company provides for the tax effects of transactions reported in
the financial statements. The provision if any, consists of taxes currently due
plus deferred taxes related primarily to differences between the basis of assets
and liabilities for financial and income tax reporting. The deferred tax assets
and liabilities, if any, represent the future tax return consequences of those
differences, which will either be taxable or deductible when the assets and
liabilities are recovered or settled. As of December 31, 1999, the Company had
no material current tax liability, deferred tax assets, or liabilities to impact
on the Company's financial position because the deferred tax asset related to
the Company's net operating loss carry forward and was fully offset by a
valuation allowance.
At December 31, 1999, the Company has net operating loss carry
forwards for income tax purposes of $1,304,782. These carry forward losses are
available to offset future taxable income, if any, and expire in the year 2010.
The Company's utilization of this carry forward against future taxable income
may become subject to an annual limitation due to a cumulative change in
ownership of the Company of more than 50 percent.
The components of the net deferred tax asset as of December 31, 1999
are as follows:
<TABLE>
<S> <C>
Deferred tax asset:
Net operating loss carry forward $ 443,626
Valuation allowance $(443,626)
Net deferred tax asset $ -0-
</TABLE>
The Company recognized no income tax benefit from the loss generated
for the period from the date of inception to December 31, 1999. SFAS No. 109
requires that a valuation allowance be provided if it is more likely than not
that some portion or all of a deferred tax asset will not be realized. The
Company's ability to realize benefit of its deferred tax asset will depend on
the generation of future taxable income. Because the Company has yet to
recognize significant revenue from the sale of its products, the Company
believes that a full valuation allowance should be provided.
25
<PAGE> 26
Note 7 - Commitments and Contingencies
As of December 31, 1999, the Company is not a party to any outstanding
contractual agreements.
Note 8 - Business and Credit Concentrations
The amount reported in the financial statements for cash approximates
fair market value. Because the difference between cost and the lower of cost or
market is immaterial, no adjustment has been recognized and investments are
recorded at cost.
Note 9 - Development Stage Company
The Company is considered to be a development stage company with little
operating history. The Company is dependent upon the financial resources of the
Company's management and from the net proceeds of any private placement for its
continued existence. The Company will also be dependent upon its ability to
raise additional capital to complete its search for a new viable business
opportunity, management talent, and working capital to engage in any profitable
business activity. Since its reorganization, the Company's activities have been
limited to the search for a new viable business opportunity and office space.
Note 10 - Subsequent Events
Subsequent to the date of the financial statements, the Company sold an
aggregate of 3,000,000 shares of common stock for an aggregate consideration of
$15,000 or $.005 per share.
The Company issued 120,000 shares of common stock each to Robert
Schuck, President of the Company and John Gitlin, Vice
President/Secretary/Treasurer of the Company in consideration of payment for
past services aggregating $1,200 in salaries.
26
<PAGE> 27
PART III
ITEM 1. INDEX TO EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
3.1 Certificate of Incorporation of Registrant
3.2 Certificates of Amendment to Certificate of
Incorporation of Registrant
3.3 By-laws of Registrant
</TABLE>
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934,
the registrant caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized.
CATHEL PARTNERS LTD.
Date: March 21, 2000 By: /s/Robert N. Schuck
------------------------------
Robert N. Schuck
President
27
<PAGE> 1
CERTIFICATE OF INCORPORATION
OF
B C COMMUNICATIONS 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 provial and subject to the requirements of the Laws of the
State of Delaware (particularly Chapter 1 Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the "Corporation")
is B C Communications Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, and
the name of the registered agent of the Corporation in the State of Delaware at
such address is The Corporation Trust Company.
THIRD: The nature of the business and the purposes to be conducted and
promoted by the Corporation, which shall be in addition to the authority of the
Corporation to conduct any lawful business, to promote any lawful purpose, and
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware, is as follows:
(a) To engage generally in any and all branches of the development and/or
production and distribution of radio, television and cable programming and
to transmit, reproduce, exploit, exhibit, present, perform, develop,
produce, distribute and broadcast television, cable, radio and motion
picture productions and publications of every kind, both copyrighted and
uncopyrighted, for public and private performance in any state or
possession of the United States of America or any foreign state, country,
or territory throughout the world, by radio, mechanical recordings,
televisions, and all scientific processes of a like or similar nature now
in being or which shall hereafter be made in conjunction therewith, either
with or without sound effects or talking contrivances therewith
synchronized, or otherwise adapted or related thereto, and to lease,
license, and grant rights, licenses, and privileges therein to other
persons, firms, or corporations throughout the world; to manufacture,
produce, adapt, prepare, buy, sell, distribute, license, and otherwise
deal in any materials, articles, devices, processes or things required in
connection therewith or incidental thereto, and to employ actors, artists,
performers and other persons in connection therewith.
<PAGE> 2
to apply for, register, obtain, purchase, lease, take licenses in respect
of or otherwise acquire, and to hold, own, use, operate, develop, enjoy, turn
to account, grant licenses and immunities in respect of, manufacture under and
introduce, sell, assign, mortgage, pledge or otherwise dispose of, and, in any
manner deal with and contract with reference to:
(i) inventions, devices, formula, processes or any improvements,
and modifications thereof;
(ii) letters patent, patent rights, patented processes,
copyrights, designs, and similar rights, trademarks, trade symbols and
other indications of origin and ownership granted by or recognized
under the laws of the United States of America or of any state or
subdivision thereof, or of any foreign country or subdivision thereof,
and all rights connected therewith or appertaining thereunto;
(iii) franchises, licenses, grants and concessions.
(b) To purchase, own, and hold the stock of other corporations, and to do every
act and thing covered generally by the denomination "holding corporation", and
especially to direct the operations of other corporations through the ownership
of stock therein; to purchase, subscribe for, acquire, own, hold, sell,
exchange, assign, transfer, create security interest in, pledge, or otherwise
dispose of shares or voting trust certificates for shares of the capital stock,
or any bonds, notes, debentures, mortgages, securities or evidences of
indebtedness created by any other corporation or corporations organized under
the laws of this state or any other state or district or county, nation, or
government and also bonds or evidences of indebtedness of the United States or
of any state, district, territory, dependency or county or subdivision or
municipality thereof; to issue in exchange therefor shares of the capital
stock, bonds, notes, debentures, mortgages, or other obligations of the
Corporation and while the owner thereof to exercise all the rights, powers and
privileges of ownership including the right to vote on any shares of stock or
voting trust certificates so owned; to promote, lend money to, and guarantee
the dividends, stocks, bonds, notes, debentures, mortgages, evidences of
indebtedness, contracts, or other obligations of, and otherwise aid in any
manner which shall be lawful, any corporation or association of which any
bonds, stocks, voting trust certificates, or other securities or evidences of
indebtedness shall be held by or for this Corporation, or in which, or in the
welfare of which, this Corporation shall have any interest, and to do any acts
and things permitted by law and designed to protect, preserve, improve, or
enhance the value of any such bonds, stocks, or other securities or evidences
of indebtedness or the property of this Corporation.
(c) To purchase, receive, take by grant, gift, devise, bequest or otherwise,
lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal
in and with real or personal property, or any interest therein, wherever
situated, and to sell, convey, lease, exchange, transfer or otherwise dispose
of, or mortgage or pledge, all or any of its property and assets, or any
interest therein, wherever situated.
<PAGE> 3
(d) To borrow money without limit as to amount and at such rates of
interest as it may determine; from time to time to issue and sell its
own securities, including its shares of stock, notes, bonds,
debentures and other obligations, in such amounts, on such terms and
conditions, for such purposes and for such prices, now or hereafter
permitted by the laws of the State of Delaware and by this Certificate
of Incorporation, as the Board of Directors of the Corporation may
determine; and to secure any of its obligations by mortgage, pledge,
or other encumbrance of all or any of its property, franchises and
income.
(e) To conduct its business, promote its purposes, carry on its
operations and exercise all or any part of the foregoing purposes and
powers in any and all parts of the world, and to conduct its business
in all or any of its branches as principal, agent, broker, factor,
contractor, and in any other lawful capacity, either alone or through
or in conjunction with any corporations, associations, partnerships,
firms, trustees, syndicates, individuals, organizations and other
entities in any part of the world, and in conducting its business and
promoting any of its purposes, to maintain offices, branches and
agencies in any part of the world, to make and perform any contracts
and to do any acts and things, and to carry on any business, and to
exercise any powers and privileges suitable, convenient, or proper for
the conduct, promotion, and attainment of any of the business and
purposes herein specified or which at any time may be incidental
thereto or may appear conducive to or expedient for the accomplishment
of any of such business and purposes and which might be engaged in or
carried on by a corporation incorporated or organized under the
General Corporation Law of the State of Delaware, and to have and
exercise all of the powers conferred by the Laws of the State of
Delaware upon corporations incorporated or organized under the General
Corporation Law of the State of Delaware.
The foregoing provisions of this Article THIRD shall be construed both as
purposes and powers and each as an independent purpose and power. The foregoing
enumeration of specific purposes and powers shall not be held to limit or
restrict in any manner the purposes and powers of the Corporation, and the
purposes and powers herein specified shall, except when otherwise provided in
this Article THIRD, be in no wise limited or restricted by reference to, or
inference from, the terms of any provision of this or any other Article of this
Certificate of Incorporation; provided, that the Corporation shall not conduct
any business, promote any purpose, or exercise any power or privilege within or
without the State of Delaware which, under the laws thereof, the Corporation may
not lawfully conduct, promote, or exercise.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is Ten Million (10,000,000). The par value of each of
said shares is $.001. All such shares are of one class and are shares of common
stock without cumulative voting rights and without any preemptive rights.
<PAGE> 4
FIFTH: The name and mailing address of the incorporator is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
- ---- ---------------
<S> <C>
Gary B. Wolff 40 Exchange Place
New York, New York 10005
</TABLE>
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be assumed in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to reorganization of
this Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of
Directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase "whole
Board" and the phrase "total number of Directors" shall be deemed to have
the same meaning, to wit, the total number of Directors which the
Corporation would have if there were no vacancies. No election of
Directors need be by written ballot.
2. After the original or other By-Laws of the Corporation have been
adopted, amended or repealed as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the Corporation has received any
<PAGE> 5
payment for any of its stock, the power to adopt, amend, or repeal the
By-Laws of the Corporation may be exercised by the Board of Directors of
the Corporation; provided, however, that any provision for the
classification of Directors of the Corporation for staggered terms pursuant
to the provisions of subsection (d) of Section 141 of the General
Corporation Law of the State of Delaware shall be set forth in an initial
By-Law or in a By-Law adopted by the stockholders entitled to vote of the
Corporation unless provisions for such classification shall be set forth in
this Certificate of Incorporation.
3. Whenever the Corporation shall be authorized to issue only one class of
stock, each outstanding share shall entitle the holder thereof to notice
of, and the right to vote at, any meeting of stockholders. Whenever the
Corporation shall be authorized to issue more than one class of stock no
outstanding share of any class of stock which is denied voting power under
the provisions of the Certificate of Incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (c)(2) of Section 242 of the General
Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or
decrease in the number of authorized shares of said class.
NINTH: The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have
power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-Law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
TENTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the Laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the Corporation by
this Certificate of Incorporation are granted subject to the provisions of this
Article TENTH.
ELEVENTH: The effective date of the Certificate of Incorporation of the
Corporation, and the date upon which the existence of the Corporation shall
commence, shall be its date of filing.
Signed: New York, New York
June 6, 1985
/s/ Gary B. Wolff
---------------------------------
Gary B. Wolff, Incorporator
<PAGE> 1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
B C Communications Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of B C Communications
Inc. resolutions were duly adopted setting forth a proposed amendment to the
Certificate of Incorporation of said corporation, declaring said amendment to be
advisable and calling a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the "FOURTH" Article thereof so that, as amended said
Article shall be read as follows:
"FOURTH": The total number of shares of stock which the Corporation
shall have authority to issue is Two Hundred Million (200,000,000).
The par value of each of said shares is $.00001. All such shares are
of one class and are shares of common stock without cumulative voting
rights and without any preemptive rights.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
a special meeting of the stockholders of said corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That this Certificate of Amendment of the Certificate of
Incorporation shall be effective on September 4, 1985.
IN WITNESS WHEREOF, said B C Communications Inc. has caused this
certificate to be signed by Toby Lebowitz, its President, and attested by
Marvin B. Seidman, its Secretary, this 3rd day of September, 1985.
B C COMMUNICATIONS INC.
By /s/ Toby Lebowitz
------------------------------
Toby Lebowitz, President
ATTESTED:
By /s/ Marvin B. Seidman
----------------------------
Marvin B. Seidman, Secretary
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
B C COMMUNICATIONS INC.
* * * * *
B C Communications Inc., a corporation and existing under and by virtue of
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting duly
held, adopted a resolution proposing and declaring advisable the following
amendment to the Certificate of Incorporation:
RESOLVED, that the Certificate of
Incorporation of B C Communications Inc.
amended by changing the Fourth
Article thereof so that, as amended,
said Article be and read as follows:
"FOURTH: The total number of shares
which the Corporation shall have
authority to issue is five hundred million
(500,000,000). The par value of each
of said shares is $0.00001. All such
shares are of one class and are
shares of common stock."
SECOND: That in lieu of a meeting and vote of stockholders, The
stockholders have given written consent to said amendment in accordance with the
provisions of section 228 of the General Corporation Law of the State of
Delaware, and written notice of the adoption
<PAGE> 3
of the amendment has given as provided in section 228 of the General
Corporation Law of the State of Delaware to every stockholder entitled to such
notice.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of sections 242 and 228 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, said B C Communications Inc. has caused this
certificate to be signed by Robert N. Schuck, its President and attested by
Harold Reisner, its Secretary this __ day of February 1987.
B C COMMUNICATIONS INC.
By: /s/ Robert N. Schuck
------------------------------------
President Robert N. Schuck
ATTEST:
By /s/ Harold Reisner
----------------------------
Secretary Harold Reisner
<PAGE> 4
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:01 AM 11/30/1994
944231487 - 2063691
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
B C COMMUNICATIONS INC.
B C Communications Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of B C Communications
Inc., a resolution was duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of said corporation, declaring said amendment to be
advisable and calling a meeting of the shareholders of said corporation for
consideration thereof or obtaining a written consent from a majority of the
shareholders in lieu of a meeting of the shareholders, as provided under Section
228, General Corporation Law of Delaware. The resolutions setting forth the
proposed amendment is as follows:
RESOLVED, that the Corporation's Certificate of Incorporation be amended to
change the name of the Corporation from B C Communications Inc. to Cathel
Partners, Ltd.;
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the above resolution was submitted to the shareholders as provided under Section
228, General Corporation Law of the State of Delaware and the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said B C Communications Inc. has caused this
certificate to be signed by Harold Reisner, its Vice President, and Stewart
Dounn its Assistant Secretary this 22nd day of November, 1994.
BY: /s/ Harold Reisner
-----------------------
Harold Reisner
ITS: Vice President
ATTEST: /s/ Stewart Dounn
-------------------
Stewart Dounn
ITS: Assistant Secretary
<PAGE> 5
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 01/30/1996
950022482 -- 2063691
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION OF
CATHEL PARTNERS, LTD.
Cathel Partners, Ltd. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation, at a meeting duly
called and held, adopted resolutions setting forth a proposed amendment of the
Certificate of Incorporation of the Corporation, declaring said amendment to be
advisable and providing for the submission of said amendment to the
Corporation's stockholders for consideration thereof. The resolution setting
forth the proposed amendment is as follows:
"RESOLVED, that, conditioned upon and subject to the approval thereof
by the stockholders of the Corporation, Article 4 of the Certificate of
Incorporation of this Corporation, as heretofore amended, be amended by
adding a new paragraph to the end of said Article 4, which new paragraph
shall read as follows:
Upon the filing and effectiveness (the "Effective Time") of a
Certificate of Amendment of Certificate of Incorporation pursuant to
the General Corporation Law of the State of Delaware to reflect the
addition of this paragraph to Article 4 of the Corporation's Certificate
of Incorporation, each one thousand (1,000) shares of the Corporation's
common stock, $0.00001 par value per share, issued and outstanding
immediately prior to the Effective Time ("Old Common Stock") shall be
reclassified as and changed into one (1) validly issued, fully paid and
non-assessable share of the Corporation's common stock, $.00001 par
value per share ("New Common Stock"), without any action by the holder
thereof. The Corporation shall not issue fractions of shares of New
Common Stock in connection with such reclassification. Each certificate
that theretofore represented shares of Old Common Stock shall thereafter
represent that number of shares of New Common Stock into which the
shares of Old Common Stock represented by such certificate shall have
been reclassified; provided, however, that each person holding of record
a stock certificate or certificates that represented shares of Old
Common Stock shall receive, upon surrender of such certificate or
certificates, a new certificate or certificates
<PAGE> 6
evidencing and representing the number of shares of New Common Stock to
which such person is entitled under the foregoing reclassification.
SECOND: That the foregoing amendment to the Certificate of Incorporation
of the Corporation has been duly adopted by written consent of stockholders of
the Company given in accordance with Section 228 of the General Corporation Law
of the State of Delaware, and written notice thereof has been given in
accordance with said Section 228 to those stockholders who did not consent in
writing.
THIRD: That the foregoing amendment to the Certificate of Incorporation of
the Corporation has been duly adopted in accordance with the applicable
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Cathel Partners, Ltd. has caused this Certificate to
be signed by Robert N. Schuck, its President, this 27th day of January, 1995.
CATHEL PARTNERS, LTD.
/s/ Robert N. Schuck
------------------------------
Robert N. Schuck
President
ATTEST:
/s/ Harold Reisner
- --------------------------
By: Harold Reisner
Its: Secretary
<PAGE> 1
AMENDED BY-LAWS
OF
CATHEL PARTNERS, LTD.
ARTICLE I. MEETINGS OF STOCKHOLDERS
Section 1.1. Time and Place. All meetings of stockholders shall be held
at such time and place, whether within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 1.2. Annual Meetings. An annual meeting of stockholders,
commencing with the year 2000, shall be held on the second Tuesday in July of
each year, or, if such day be a legal holiday, on the next business day
following; provided, that if advisable or convenient to hold the meeting on such
day, then in such year the annual meeting shall instead be held on such other
day as the board shall prescribe.
Section 1.3. Special Meetings. Special meetings of stockholders, unless
otherwise prescribed by statute, may be called by the Chairman of the Board, the
President or the Board of Directors, and shall be called by the Chairman of the
Board, the President or the Secretary at the request in writing of any one or
more stockholders owning at least sixty-six and two thirds percent (66.23%) of
the shares of the Corporation issued and outstanding and entitled to vote. Any
such request shall state the purpose or purposes of the proposed meeting.
Special meetings may also be called as provided in Section 2.4 of these By-Laws.
Section 1.4. Notice of Meetings. Written notice of each meeting of
stockholders stating the time and place thereof, and, in the case of a special
meeting, specifying the purpose or purposes thereof shall be given, in the
manner prescribed by Section 5.1 of these By-Laws, to each stockholder entitled
to vote thereat, not less than ten (10) nor more than sixty (60) days prior to
the meeting except that where the matter to be acted on is a merger or
consolidation of the Corporation or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than twenty
(20) nor more than sixty (60) days prior to such meeting.
Section 1.5. Quorum. Except as otherwise provided by statute, the
holders of a majority of the shares of the Corporation issued and outstanding
and entitled to vote thereat, present in person or by proxy, shall be necessary
and sufficient to constitute a quorum for the transaction of business at each
meeting of stockholders.
Section 1.6. Vote Required. At any meeting of stockholders at which a
quorum is present, directors shall be elected by a plurality of the votes cast
and any other corporate action shall be authorized by a majority of the votes
cast, unless the action is one on which, by express provision of a statute, a
different vote is required, in which case such express provision shall govern
the determination of such action.
Section 1.7. Voting. At any meeting of stockholders, each stockholder
having the right to vote shall be entitled to vote in person or by proxy; and
each stockholder of record shall be entitled to one vote for each outstanding
share standing in his name on the books of the Corporation as of the record date
for determining the stockholders entitled to notice of and to vote at such
meeting. The order of business at all meetings of stockholders shall be
determined by the presiding officer.
Section 1.8. Proxies. Each proxy shall be in writing executed by the
stockholder giving
Page 1 of 13
<PAGE> 2
the proxy or his duly authorized attorney. No proxy shall be valid after the
expiration of three (3) years from its date, unless a longer period is provided
for in the proxy. Unless voted, every proxy shall be revocable at the pleasure
of the person who executed it or of his legal representatives or assigns, except
in those cases where an irrevocable proxy permitted by statute has been given.
Section 1.9 Notice of Stockholder Business & Nominations
a) Annual Meetings of Stockholders
1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (i) pursuant
to the Corporation's notice of meeting, (ii) by or at the direction of the Board
of Directors or (iii) by a stockholder of the Corporation who was a stockholder
of record at the time of the giving of notice provided for in this By-Law, who
is entitled to vote at the meeting and who complies with the notice procedures
set forth in this By-Law.
2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of paragraph
a) 1) of this By-Law, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business of the
60th day nor earlier than the close of business of the 90th day prior to the
first anniversary of the preceding year's annual meeting' provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder, to be timely, must be so delivered not earlier than the close of
business of the 90th day prior to such annual meeting and not later than the
close of business of the later of the 60th day prior to such annual meeting or
the close of business on the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation. Such
stockholder's notice shall set forth (i) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors or is otherwise required, in each case,
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (including such person's written consent to being named in
the proxy statement as a nominee and to serve as a director if elected); (ii) as
to any other business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner, if any,
on whose behalf the nomination or proposal is made, the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
3) Notwithstanding anything in the second sentence of
paragraph a) 2) of this By-Law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by the By-Law shall also
be considered timely but only
Page 2 of 13
<PAGE> 3
with respect to the nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business of the 10th day following the
date on which such public announcement is first made by the Corporation.
b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (i) by or at the direction of the Board of
Directors, or (ii) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board, any such stockholder may nominate a
person or persons (as the case may be), for election to such position(s) as
specified in the Corporation's notice of meeting, if the stockholder's notice
required by paragraph a) 2) of this By-Law shall be delivered to the Secretary
at the principal executive offices of the Corporation not earlier than the 90th
day prior to such special meeting and not later than the close of business on
the later of the 60th day prior to such special meeting or the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
c) General
1) Notwithstanding any provision of these By-Laws to the
contrary, only such persons who are nominated in accordance with the procedures
set forth in this By-Law shall be eligible to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
By-Law. Except as otherwise provided by law, the Certificate of Incorporation,
as amended, or these By-Laws, the officer of the Corporation or other person
presiding over the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this By-Law and, if any proposed nomination or business is not in compliance
with this By-Law, to declare that such defective proposal or nomination shall be
disregarded.
2) For purpose of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of the By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations promulgated thereunder with respect to the
matters set forth in this By-Law. Nothing in the By-Law shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 1.10 Consents Whenever any action is required or permitted to
be taken at a meeting of the shareholders, such action may be taken without a
meeting if the required
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number of shareholders consent thereto in writing and such written consent or
consents are filed with the Corporation in compliance with Section 228 of the
General Corporation Law of Delaware.
ARTICLE II. DIRECTORS
Section 2.1. Board of Directors. The property and business of the
Corporation shall be managed by its Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things on its
behalf as are not required to be exercised or done by the stockholders.
Section 2.2. Number; Election and Tenure. The first Board of Directors
shall consist of three (3) members and thereafter the number of directors
constituting the whole Board of Directors shall be not less than one (1) nor
more than nine (9) as fixed from time to time by resolution of the whole Board
or by the stockholders at any annual or special meeting; provided, that no
decrease in the number of directors shall shorten the term of any incumbent
director. With the exception of the first Board of Directors, which shall be
elected by the incorporators of the Corporation, and except as otherwise
provided in these By-Laws, directors shall be elected at the annual meeting of
stockholders. Each director shall hold office until the annual meeting of the
stockholders next succeeding his election and until his successor is elected and
has qualified or until his earlier displacement from office by resignation,
removal or otherwise.
Section 2.3. Resignation and Removal. Any director may resign at any
time by written notice to the Corporation. Any director may be removed, for
cause or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 2.4. Vacancies. Any vacancy in the Board of Directors occurring
by reason of the death, resignation or disqualification of any director, the
removal of any director from office for cause or without cause, an increase in
the number of directors, or otherwise, may be filled by vote of the stockholders
or the Board or, if the number of directors then in office is less than a
quorum, by vote of a majority of the directors then in office or by a sole
remaining director. When one or more director shall resign from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in this Section in the filling of other vacancies. If at any time, by
reason of death or resignation or other cause, the Corporation should have no
directors in office, then any officer or any stockholder or an executor,
administrator, trustee or guardian of a stockholder, or other fiduciary
entrusted with like responsibility for the person or estate of a stockholder,
may call a special meeting of stockholders in accordance with the provisions of
these By-Laws. Each director elected to fill a vacancy shall hold office until
the next succeeding annual meeting of stockholders and until his successor is
elected and has qualified or until his earlier displacement from office by
resignation, removal, replacement or otherwise.
Section 2.5. Access to Books and Reliance. Any director shall have the
right to examine the Corporation's stock ledger, a list of its stockholders and
its other books and records for a purpose reasonably related to his position as
a director. A director shall, in the performance of his duties, be fully
protected in relying in good faith upon the books of account or reports made to
the Corporation by any of its officers, or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors, or in relying in good faith
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upon other records of the Corporation.
ARTICLE III. MEETINGS OF THE BOARD
Section 3.1. Time and Place. Meetings of the Board of Directors may be
held at such time and place, within or without the State of Delaware, as shall
be determined in accordance with these By-Laws.
Section 3.2. First Meeting. The directors elected at each annual
meeting of stockholders shall hold their first meeting at the place at which the
annual meeting of stockholders shall have been held and immediately thereafter,
and no notice of such meeting to the newly-elected directors shall be necessary
in order legally to constitute the meeting, provided a quorum shall be present.
Section 3.3. Regular Meetings. Regular meetings of the Board of
Directors may be held, without notice, at such time and place as shall from time
to time be fixed in advance by resolution of the Board.
Section 3.4 Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President, and at
the written request of any two (2) directors shall be called by the Chairman of
the Board, the President or the Secretary. Written notice of each special
meeting of directors stating the time and place thereof shall be served on each
director, in the manner provided in Section 5.1 of these By-Laws, at least two
(2) business days before such meeting, provided, however, that if notice is
served by mail it shall be posted at least five (5) business days before such
meeting. The time and place of any special meeting of directors may also be
fixed by a duly executed waiver of notice thereof.
Section 3.5. Quorum and Voting. At all meetings of the Board of
Directors one-third (1/3) of the total number of directors but not less than (2)
directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the vote of a majority of the directors present at
the time of the vote, if a quorum is present at such time, shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute. If a quorum shall not be present at any meeting of the Board of
Directors, the members of the Board present thereat may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum shall be present. Any director who participates in any meeting of the
Board by means of conference telephone or similar communications equipment by
means of which all persons participating in a meeting can hear each other shall
be deemed to be present in person at such meeting.
Section 3.6. Meetings During Emergency. During any nuclear or atomic
disaster, or during the existence of any catastrophe, or other similar emergency
condition, as a result of which a quorum of the Board of Directors cannot
readily be convened for action, notice of any meeting of the Board during such
an emergency may be given only to such of the directors as it may be feasible to
reach at the time and by such means as may be feasible at the time, including
publication or radio. To the extent required to constitute a quorum at any
meeting of the Board of Directors during such an emergency, the officers of the
Corporation who are present shall be deemed, in order of rank and within the
same rank in order of seniority, directors for such meeting.
Section 3.7. Consents. Whenever any action is required or permitted to
be taken at a meeting of the Board of Directors, such action may be taken
without a meeting if all members
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of the Board consent thereto in writing and such written consent or consents are
filed with the minutes of the Proceedings of the Board.
ARTICLE IV. COMMITTEES
Section 4.1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate directors of the
Corporation in such number as the Board shall see fit, but not less than two
(2), as an Executive Committee which shall have and may exercise, during
intervals between meetings of the Board, the powers of the Board of Directors in
the management of the business and affairs of the Corporation (including, but
without limitation, the powers of the Board of Directors as specified in these
By-Laws, provided, however, that it shall not have power to fill vacancies in
its membership, to authorize the issuance of shares of the capital stock of the
Corporation, or to make or amend these By-Laws), and may authorize the seal of
the Corporation to be affixed to all papers which may require it. The Board of
Directors shall designate one of the members of the Executive Committee to be
the Chairman of said Committee. Each member of the Executive Committee shall
continue to act as such only so long as he/she shall be a director of the
Corporation and only during the pleasure of a majority of the total number of
directors of the Corporation at the time in office. In the absence or
disqualification of a member of the Executive Committee, the member or members
present at any meeting and not disqualified from voting, whether or not he/she
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 4.2. Meetings. Regular meetings of the Executive Committee, of
which no notice shall be necessary, shall be held on such days and at such
places, within or without the State of Delaware, as shall be fixed by resolution
adopted by a majority of, and communicated to all, the members of the Executive
Committee. Special meetings of said Committee may be called at the request of
any member. Notice of each special meeting of said Committee shall be given in
the manner provided in Sections 3.4 and 5.1 of these By-Laws. Subject to the
provisions of this Article IV, the Executive Committee, by resolution of the
majority of all its members, shall fix its own rules of procedure and keep a
record of its proceedings and report them to the Board of Directors at the next
regular meeting thereof after such proceedings shall have been taken.
Section 4.3. Quorum and Manner of Acting. Not less than a majority of
the members of the Executive Committee then in office shall constitute a quorum
for the transaction of business, and the act of a majority of those present at a
meeting thereof at which a quorum is present shall be the act of the Executive
Committee. The directors comprising said Committee shall act only as a
committee, and such directors, individually, shall have no power as such.
Section 4.4. Vacancies. The Board of Directors, by vote of a majority
of the whole Board, shall have power to fill any vacancy in the Executive
Committee due to death, resignation, removal, or any other cause.
Section 4.5. Resignation. Any director may resign from the Executive
Committee at any time by giving written notice of his/her resignation to the
Board of Directors or to the Chairman of the Board, the Chairman of the
Executive Committee, the President, or the Secretary. Such resignation shall
take effect at the date of receipt of such notice or at any later time specified
therein; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
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Section 4.6. Other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, designate one
or more other committees, each such committee to consist of two (2) or more
directors of the Corporation, which shall have any may exercise such powers as
the Board of Directors may determine and specify in such resolution or
resolutions, such committee or committees to have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors. A
majority of all the members of any such committee may fix its rules of
procedure, determine its actions, and fix the time and place (whether within or
without the State of Delaware) of its meetings and specify what notice thereof,
if any, shall be given, unless the Board of Directors shall otherwise by
resolution provide. The Board of Directors shall have the power to change the
members of any such committee at any time, to fill vacancies, and to discharge
any such committee, either with or without cause, at any time. In the absence or
disqualification of a member of any such committee, the member or members
present at any meeting and not disqualified from voting, whether or not he/she
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 4.7. Action by Consent. Any action required or permitted to be
taken at any meeting of any committee authorized hereunder may be taken without
a meeting if prior to such action a written consent thereto is signed by all
members of such committee, and such written consent is filed with the minutes of
the proceedings of the Board or such committee.
ARTICLE V. NOTICES
Section 5.1. Delivery of Notices. Except as otherwise provided in these
By-Laws, notices to directors and stockholders shall be in writing and may be
delivered personally or by mail. Notice by mail shall be deemed to be given at
the time when deposited in the post office or a letter box, with first class
postage prepaid, and addressed to directors or stockholders at their respective
addresses appearing on the books of the Corporation. Notice to directors may
also be given by telegram or facsimile addressed to the directors at their
respective addresses appearing on the books of the Corporation or by leaving the
notice at the residence or usual place of business of a director. Notice by
telegram shall be deemed to be given when received by the communications
carrier. Notice by facsimile shall be deemed to be given when transmitted.
Section 5.2. Waiver of Notice. Whenever the Corporation or the Board of
Directors is authorized to take any action after notice to any person or
persons, such action may be taken without notice, if at any time before or after
such action is completed the person or persons entitled to such notice submit a
signed waiver of notice. Attendance of a person at a meeting of stockholders or
directors, as the case may be, shall constitute a waiver of notice of such
meeting, except where the person is attending for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of
stockholders or directors need be specified in any written waiver or notice.
ARTICLE VI. OFFICERS
Section 6.1. Executive Officers. The executive officers of the
Corporation shall be a Chairman of the Board, a President, one (1) or more
Executive Vice Presidents, a Treasurer and a Secretary. The Chairman of the
Board and the President shall be selected from among the
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directors, but no other executive officer need be a member of the Board. Two (2)
or more officers, except those of President and Vice President and those of
President and Secretary, may be held by the same person, but no officer shall
execute, acknowledge or verify an instrument in more than one capacity. The
executive officers of the Corporation shall be appointed annually by the Board
of Directors at its first meeting following the meeting of stockholders at which
the Board was elected.
Section 6.2. Other Officers and Agents. The Board of Directors may also
appoint one (1) or more Assistant Vice Presidents, Assistant Treasurers and
Assistant Secretaries, and such other officers and agents as the Board may
determine to be advisable.
Section 6.3. Tenure; Resignation; Removal; Vacancies. Each officer of
the Corporation shall hold office until his successor is appointed or until his
earlier displacement from office by resignation, removal or otherwise. Any
officer may resign by written notice to the Corporation and may be removed for
cause or without cause by the Board of Directors, provided, that any such
removal shall be without prejudice to the rights, if any, of the officer so
removed under any employment contract or other agreement with the Corporation.
If the office of any officer becomes vacant for any reason, the vacancy may be
filled by the Board of Directors.
Section 6.4. Authority and Duties. All officers as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-Laws, or, to the
extent not provided, as may be prescribed by the Board of Directors.
Section 6.5. The Chairman of the Board. The Chairman of the Board may
but shall not necessarily be the Chief Executive Officer of the Corporation.
He/She shall preside at all meetings of the stockholders and the directors.
He/She shall have general and active management of the business of the
Corporation, shall see to it that all resolutions and orders of the Board of
Directors are carried into effect, and, in connection therewith, shall be
authorized to delegate to the President and the other executive officers such of
his/her powers and duties as Chairman of the Board at such times and in such
manner as he/she may deem to be advisable. Except where by law or by order of
the Board of Directors the signature of the President is required, the Chairman
of the Board shall have the same power as the President to execute instruments
on behalf of the Corporation.
Section 6.6. The President. The President shall be the Corporation's
executive officer next in authority to the Chairman of the Board. He/She shall
assist the Chairman of the Board in the management of the business of the
Corporation and, in the absence or disability of the Chairman, or in the event
of the explicit refusal of the Chairman to discharge the duties of his office,
he/she shall preside at all meetings of the stockholders and the directors, and
exercise the other powers and perform the other duties of the Chairman or
designate the executive officers of the Corporation by whom such other powers
shall be exercised and other duties performed; and he/she shall have such other
powers and duties as may from time to time be assigned to him/her by the Board
of Directors or the Chairman of the Board. During the vacancy in the office of
Chairman of the Board the President shall serve as Acting Chairman.
Section 6.7. The Vice Presidents. The Vice President or, if there be
more than one, the Vice Presidents, shall assist the Chairman of the Board in
the management of the business of the Corporation and the implementation of
resolutions and orders of the Board of Directors at such times and such manner
as the Chairman of the Board may deem to be advisable. If there be more than one
Vice President, the Board of Directors may grant such titles as shall be
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descriptive of their respective functions or indicative of their relative
seniority. The Vice President, or, if there be more than one, the Vice
Presidents in the order of their seniority as indicated by their titles or as
otherwise determined by the Board of Directors shall in the absence or
disability of the Chairman of the Board and the President, or in the event of
the explicit refusal of the Chairman and the President to discharge the duties
of their offices, exercise the powers and perform the duties of those officers;
and he/she or they shall have such other powers and duties as the Board of
Directors or the Chairman of the Board may from time to time prescribe. Said
Vice President shall serve as Acting President during a vacancy in the office of
President and, in the event the offices of both the Chairman of the Board and
the President are vacant shall serve as Acting Chairman.
Section 6.8. The Assistant Vice Presidents. The Assistant Vice
President, if any, or, if there be more than one, the Assistant Vice Presidents,
shall perform such duties as may from time to time be prescribed by the Board of
Directors or by the Chairman of the Board.
Section 6.9. The Treasurer. The Treasurer shall have the care and
custody of the corporate funds, and other valuable effects, including
securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name of and to the credit of the Corporation
in such depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, shall render
to the Chairman of the Board and the Board of Directors, at meetings or whenever
it may require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation; and he shall perform such other duties
as the Board of Directors or the Chairman of the Board may from time to time
prescribe.
Section 6.10. The Assistant Treasurer. The Assistant Treasurer, if any,
or, if there be more than one, the Assistant Treasurers, in the order determined
by the Board of Directors or by the Chairman of the Board, shall, in the absence
or disability of the Treasurer, or in the event of the explicit refusal of the
Treasurer to discharge the duties of his/her office, exercise the powers and
perform the duties of the Treasurer; and he/she or they shall perform such other
duties as the Board of Directors or the Chairman of the Board may from time to
time prescribe. Said Assistant Treasurer shall serve as Acting Treasurer during
a vacancy in the office of Treasurer.
Section 6.11. The Secretary. The Secretary shall attend all meetings of
the stockholders and of the Board of Directors and shall record the minutes of
all proceedings taken at such meetings, and maintain all documents evidencing
corporate actions taken by written consent of the stockholders or of the Board
of Directors, in a book to be kept for that purpose. He/She shall see to it that
all notices of meetings of the stockholders and of special meetings of the Board
of Directors are duly given in accordance with these By-Laws or as required by
statute; he/she shall be the custodian of the seal of the Corporation, and, when
authorized by the Board of Directors, he shall cause the corporate seal to be
affixed, attested by his signature as Secretary or by the signature of an
Assistant Secretary; he shall also keep or cause to be kept a stock book,
containing the names, alphabetically arranged, of all persons who are
stockholders of the Corporation showing their respective addresses, the number
of shares registered in the name of each, and the dates when they respectively
became the owners of record thereof, and such book shall be open for inspection
as prescribed by the laws of the State of Delaware; and he/she shall perform
such other duties as may from time to time be prescribed by the Board of
Directors or by the Chairman of the Board.
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Section 6.12. The Assistant Secretary. The Assistant Secretary, if any,
or, if there be more than one, the Assistant Secretaries, in the order
determined by the Board of Directors or by the Chairman of the Board shall, in
the absence or disability of the Secretary, or in the event of the explicit
refusal of the Secretary to discharge the duties of his/her office, exercise the
powers and perform the duties of the Secretary; and he/she or they shall perform
such other duties as the Board of Directors or the Chairman of the Board from
time to time prescribe. Said Assistant Secretary shall serve as Acting Secretary
during a vacancy in the office of the Secretary.
ARTICLE VII. STOCK CERTIFICATES
Section 7.1. Form and Signature. The stock certificates of the
Corporation shall be in such form as shall be determined by the Board of
Directors, and shall be numbered and entered in the books of the Corporation as
they are issued. Each certificate shall exhibit the registered holder's name and
the number of shares that it evidences, shall set forth such other statements as
may be required by statute, and shall be signed by the Chairman of the Board,
President or Vice President and by the Treasurer or an Assistant Treasurer or by
the Secretary or an Assistant Secretary.
Section 7.2. Lost Certificates. The Board of Directors may direct that
a new stock certificate or certificates which have been mutilated or which are
alleged to have been lost, stolen or destroyed, upon presentation of each such
mutilated certificate or the making by the person claiming any such certificate
to have been lost, stolen or destroyed of an affidavit as to the fact and
circumstances of the loss, theft or destruction thereof. The Board, in its
discretion and as a condition precedent to the issuance of any new certificate,
may require the owner of any certificate alleged to have been lost, stolen or
destroyed, or his legal representative, to furnish the Corporation with a bond,
in such sum and with such surety or sureties as it may direct, as indemnity
against any claim that may be made against the Corporation in respect of such
lost, stolen or destroyed certificate.
Section 7.3. Registration of Transfer. Upon surrender to the
Corporation or any transfer agent of the Corporation of a stock certificate duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation shall issue or cause its transfer agent
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
ARTICLE VIII. GENERAL PROVISIONS
Section 8.1. Record Date.
(a) For the purpose of determining the stockholders entitled to
notice of, or to vote at, any meeting of stockholders or at any adjournment
thereof in respect of which a new record date is not fixed, or to express
written consent to the taking of corporate action without a meeting or to
receive notice that any such corporate action was taken without a meeting or for
the purpose of determining the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights, or to exercise any
rights in respect of any change, conversion or exchange of shares, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a date as the record date for any such determination of stockholders. Such date
shall not be more than sixty (60) nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any other action.
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(b) If no record date is fixed:
(1) The record date for determining the stockholders entitled
to notice of or to vote at a meeting shall be at the close of business on the
day next preceding the day on which notice is given, or, if no notice is given,
the day next preceding the day on which the meeting is held;
(2) The record date for determining stockholders entitled to
express written consent to the taking of any corporate action without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed; and
(3) The record date for determining stockholders for any
purpose other than those specified in subparagraphs (1) and (2) shall be at the
close of business on the day on which the resolution of the Board of Directors
relating thereto is adopted.
Section 8.2. Registered Stockholders. There shall be kept at the office
of the Corporation in the State of Delaware a record containing the names and
addresses of all stockholders, the number of shares held by each and the dates
when they respectively became the owners of record thereof. Except as otherwise
required by law, the Corporation shall be entitled to recognize a sole owner of
such shares for all purposes, and shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any person other
than such registered holder, regardless of whether it shall have knowledge or
notice of any such claim or interest. Without limiting the generality of the
foregoing, the Corporation shall be entitled to recognize the exclusive right of
a person whose holding of shares is so pursuant to Section 7.1 of these By-Laws
to be treated as the sole owner of such shares for the purpose for which such
record date was so fixed or determined.
Section 8.3. Dividends and Distributions; Reserves. Subject to all
applicable requirements of law and any indenture or other agreement to which the
Corporation is a party or by which it is bound, the Board of Directors may
declare to be payable, in cash, in other property or in shares of the
Corporation, such dividends and distributions upon or in respect of outstanding
shares of the Corporation as the Board may deem to be advisable. Before
declaring any such dividend or distribution, the Board may cause to be set
aside, out of any funds or other property or assets of the Corporation legally
available for the payment of dividends or distributions, such sum or sums as the
Board, in its absolute discretion, may consider to be proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose as the
Board may deem conducive to the interest of the Corporation, and the Board may
modify or abolish any such reserve in the manner in which it was created.
Section 8.4. Annual Statement. The Board of Directors shall present at
each annual meeting of the stockholders a full and clear statement of the
business and financial condition of the Corporation.
Section 8.5. Fiscal Year. The fiscal year of the Corporation shall be
fixed and may from time to time be changed by resolution of the Board of
Directors.
Section 8.6. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal Delaware".
Section 8.7 Securities of Other Corporations. The Chairman of the Board
or any other
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officer authorized by the Board of Directors shall have power to vote and
otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders or with respect to any action of stockholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
Section 8.8. Loans to Directors. A loan shall not be made by the
Corporation to any director, provided, however, that the Corporation may lend
money to, or guarantee any obligation of, or otherwise assist any officer or
other employee of the Corporation or of any of its subsidiaries, including any
officer or employee who is a director of the Corporation, whenever in the
judgment of the directors such loan, guarantee or assistance may reasonably be
expected to benefit the Corporation.
Section 8.9. Litigation by Corporation. No court action, suit or
arbitration proceeding shall be commenced by the Corporation against a member of
the Board of Directors unless authorized by a specific resolution of the Board
ARTICLE IX. INDEMNIFICATION
Section 9.1. Indemnification. The Corporation shall (a) indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he/she
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred by him/her in connection with the defense or settlement of such action
or suit, and (b) indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that
he/she is or was a director, officer, employee or agent of the Corporation, or
served at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him/her in
connection with any such action, suit or proceeding; in each case to the fullest
extent permissible under Subsections (a) through (e) of Section 145 of the
General Corporation Law of Delaware or the indemnification provisions of any
successor statute. The foregoing right of indemnification shall in no way be
exclusive of any other rights of indemnification to which any such person may be
entitled, under any by-law, agreement, vote of stockholders or disinterested
directors or direction of any court or otherwise, and shall inure to the benefit
of the heirs, executors and administrators of such a person.
For purposes of the Section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries.
For the purposes of this Section, references to "the Corporation"
include all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving
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corporation so that any person who is or was a director, officer, employee or
agent of such a constituent corporation or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, or other enterprise
shall stand in the same position under the provisions of this Section with
respect to the resulting or surviving corporation as he/she would if he/she
served the resulting or surviving corporation in the same capacity.
ARTICLE X. AMENDMENTS
Section 10.1. Power to Amend. These By-Laws may be amended or repealed,
and new By-Laws may be adopted, in the manner provided in the Certificate of
Incorporation.
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