SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 6, 1997
---------------------------
TROPIC COMMUNICATIONS, INC.
(Exact Name of Registrant as specified in its Charter)
Delaware
(State or other jurisdiction of incorporation)
0-14361 31-1166419
(Commission File Number) (IRS Employer I.D. Number)
3021 Bethel Road, Suite 208, Columbus, Ohio 43220
(Address of Principal Executive Offices, incl. Zip Code)
Registrant's telephone number, incl. Area code: 614-538-0660
<PAGE>
Item 5. Other Events.
On October 6, 1997, Tropic Communications, Inc., a Delaware corporation
(the "Company"), filed an amendment to its articles of incorporation with the
following changes:
(i) change the name of the corporation from Tropic Communications, Inc.
to Tropic Air Cargo, Inc.;
(ii) change of par value of common stock from fifteen cents ($.15)
per share to ($.90) per share, 50,000,000 shares authorized; and
(iii) amend Article Ninth to comport to the U.S. citizen ownership and
management requirements of the Federal aviation laws, as the same
may be amended from time to time.
As a result of the change in par value of the Company's common stock
the 33,478,566 shares $.15 par value common stock issued and outstanding prior
to the amendment were changed into 5,579,761 shares of $.90 par value common
stock ( a 1-for-6 reverse split). This amendment does not require a mandatory
surrender and exchange of certificates, and certificates evidencing the
pre-amendment shares remain as validly issued and outstanding shares of the
common stock of the Company. The post-amendment shares will have the same
character and bear the same restrictions (if any) as the pre-amendment shares.
New ninety cent ($.90) par value shares will be issuable as a result of the
amendment and when issued in exchange for fifteen cent ($.15) par value shares
will be rounded down to the nearest whole share, thus no fractional common
shares will be issuable as a result of the amendment.
The board of directors of the Company approved an amendment to the
By-Laws of the Company as follows:
(i) to change the fiscal year of the Company from beginning on May 1
of each calendar year to beginning on January 1, of each calendar
year.
(ii) to change the date of the annual meeting of shareholders from the
last Thursday of October of each calendar year to the last Thursday
of June of each calendar year.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements. N/A
(b) Pro Forma Financial Information. N/A
<PAGE>
(c) Exhibits. The following exhibits are filed as exhibits to the Form 8-K.
3.8 Certificate of Amendment to Articles of Incorporation of the Tropic
Communications, Inc. filed with the Secretary of State of the State
of Delaware on October 6, 1997.
3.9 Certificate of Incorporation for Tropic Air Cargo, Inc. dated Oct-
ober 6, 1997.
3.10 Amended and Restated By-Laws of the Tropic Air Cargo, Inc. dated
October 6, 1997.
Item 8. Change in Fiscal Year.
On October 6, 1997 the Company determined it would change its fiscal
year from beginning on May 1 of each calendar year to beginning on January 1, of
each calendar year. The Company will file its reports during the transition
period as follows:
(i) file Form 10-Q on the basis of old fiscal year for the quarter
ended October 31, 1997 within 45 days of the end of the fiscal
quarter;
(ii) file Form 10-K covering the transition period from May 1, 1997
through December 31,1997 within 90 days from the date of the close
of the transition period; and,
(iii) file quarterly and annual reports on the basis of the new fiscal
year commencing with the quarter ending March 31, 1998.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report on Form 8-K to be signed on its behalf by
the undersigned hereunto duly authorized.
DATED: October 17, 1997 TROPIC COMMUNICATIONS, INC.
By: /s/ Scott Villanueva
Scott Villanueva, Secretary
EXHIBIT 3.8
CERTIFICATE OF AMENDMENT
OF
TROPIC COMMUNICATIONS, INC.
(pursuant to Section 242)
Pursuant to Title 8, Section 228 of the General Corporation Law of the
State of Delaware, the undersigned being a majority of the shareholders of
Tropic Communications, Inc. (the "Corporation"), do hereby consent to the
adoption of the following action by written consent effective as of September
19, 1997.
WHEREAS, the Corporation wishes to amend the Certificate of Incorporation
pursuant to Title 8, Section 228(a) of the General Corporation Law of the State
of Delaware, be it
RESOLVED, the Corporation's Certificate of Incorporation shall be amended
to read as follows:
A. "Article First" shall be amended to read in its entirety as follows:
Article First
The name of the Corporation is TROPIC AIR CARGO, INC.
B. "Article Fourth - Capital Stock Classes" shall be amended to read as
follows:
Capital Stock Classes
The total number of shares of all classes of capital stock which the
Corporation has the authority to issue is 51,000,000 shares. The shares are
divided into two classes as follows:
1. 1,000,000 shares of preferred stock, One Cent ($.01) per share
(Preferred stock), and
2. 50,000,000 shares of common stock, par value Ninety Cents ($.90)
per share (Common Stock).
C. "Article Eighth" shall be amended by deleting therefrom the first
paragraph and each of the paragraphs thereafter enumerated as (a), (b),
(c) and (d).
D. "Article Ninth" shall become "Article Tenth" and Article Tenth" shall
become "Article Eleventh " and the following shall be inserted as new
"Article Ninth":
<PAGE>
Article Ninth
U.S. Citizenship
The following provisions are included for the purpose of ensuring that
control and management of the Corporation remains with loyal citizens of
the United States and/or corporations formed under the laws of the United
States or any of the states of the United States, as required by the
Federal aviation laws as the same may be amended from time to time:
(a)No Alien or Aliens (as hereinafter defined) shall be entitled to vote
or direct or control the vote of more than 25% of (i) the total number
of shares of capital stock of the Corporation outstanding and entitled
to vote at any time and from time to time, or (ii) the total voting
power of all shares of capital stock of the Corporation outstanding and
entitled to vote at any time and from time to time.
(b)The President of the corporation and at least two-thirds of the total
number of the Board of Directors and other managing officers of the
Corporation must be citizens of the United States.
(c)An Alien for purposes of this Article Ninth is (i). person who is a
citizen of a country other than the United States; (ii) any entity
organized under the laws of a government other than the government of
the United States or any state, territory, or possession of the United
States; (iii) a government other than the government of the United
States or of any state, territory, or possession of the United States;
or (iv) a representative of, or an individual or entity controlled by,
any of the foregoing (individually, an "Alien"; collectively,
"Aliens").
(d)The Board of Directors of the Corporation shall have all powers
necessary to implement the provisions of this ARTICLE NINTH.
There being no other changes, the Board of Directors of the Corporation
shall have all powers necessary to implement the provisions of this action.
IN WITNES WHEREOF, said TROPIC COMMUNICATIONS, INC. has caused this
certificate to be signed by Angel Munoz, its President, and Scott Villanueva,
its Secretary, this ____ day of September, 1997.
TROPIC COMMUNICATIONS, INC.
By :
Angel Munoz, President
Attest:__________________________________
Scott Villanueva, Secretary
EXHIBIT 3.9
CERTIFICATE OF INCORPORATION
FOR
TROPIC AIR CARGO, INC.
Article First
Name
The name of the Corporation is TROPIC AIR CARGO, INC.
Article Second
Registered Office
The address of the registered office of Tropic Air Cargo, Inc. (the
"Corporation") in the state of Delaware is Corporation Trust Center, 1209 Orange
Street, in the city of Wilmington, county of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
Article Third
Purposes
The nature of the business to be conducted or promoted and the purpose of
the Corporation are to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
Article Fourth
Capital Stock Classes
The total number of shares of all classes of capital stock which the
Corporation has the authority to issue is 51,000,000 shares. The shares are
divided into two classes as follows:
1. 1,000,000 shares of preferred stock, par value One Cent ($.01) per share
(Preferred Stock), and
2. 50,000,000 shares of common stock, par value Ninety Cents ($.90) per share
(Common Stock).
The designations of voting powers, preferences, preemptive rights, options
and other special rights and qualifications, limitations or restrictions of the
above classes of stock are as follows:
<PAGE>
I. Preferred stock
1. Issuance in Series.
Shares of Preferred Stock may be issued in one or more series at such time
or times, and for such consideration or considerations as the Board of Directors
may determine. All shares of any one series of Preferred Stock will be identical
with each other in all respects, except that shares of one series issued at
different times may differ as to dates from which dividends thereon may be
cumulative. All series will rank equally and be identical in all respects,
except as permitted by the following provisions of paragraph 2 of this Division
I.
2. Authority of the Board with Respect to Series.
The Board of Directors is authorized, at any time and from time to time,
to provide for the issuance of shares of Preferred Stock in one or more series
with such designations, preferences and relative, participating, optional or
other special rights and qualifications, limitations or restrictions thereof as
are stated and expressed in the resolution or resolutions providing for the
issue thereof adopted by the Board of Directors, and if not restricted by this
Certificate of Incorporation or any amendment thereto including, but not limited
to, determination of any of the following:
(a) the distinctive serial designation and the number of shares constituting a
series;
(b) the dividend rate or rates, whether dividends are cumulative and, if so,
from which date, the payment date or dates for dividends, and the participating
or other special rights, if any, with respect to dividends;
(c) the voting powers, full or limited, if any, of the shares of the series;
(d) whether the shares are redeemable and, if so, the price or prices at which,
and the terms and conditions under which, the shares may be redeemed;
(e) the amount or amounts payable upon the shares in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation prior to
any payment or distribution of the assets of the Corporation to any class or
classes of stock of the Corporation ranking junior to the Preferred Stock;
(f) whether the shares are entitled to the benefit of a sinking or retirement
fund to be applied to the purchase or redemption of shares of a series and, if
so entitled, the amount of the fund and the manner of its application, including
the price or prices at which the shares may be redeemed or purchased through the
application of the fund;
(g) whether the shares are convertible into, or exchangeable for, shares of any
other class or classes or of any other series of the same or any other class or
classes of stock of the Corporation and, if so convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the adjustments
thereof, if any, at which the conversion or exchange may be made, and any other
terms and conditions of the conversion or exchange; and
(h) any other preferences, privileges and powers and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions of a series, as the Board of Directors may deem advisable and as
are not inconsistent with the provisions of this Certificate of Incorporation.
3. Dividends.
Before any dividends on any class or classes of stock of the Corporation
ranking junior to the Preferred Stock may be declared or paid or set apart for
payment, the holders of shares of Preferred Stock of each series are entitled to
such cash dividends, but only when and as declared by the Board of Directors out
of funds legally available therefor, as they may be entitled to in accordance
with the resolution or resolutions adopted by the Board of Directors providing
for the issue of the series, payable on such dates in each year as may be fixed
in the resolution or resolutions. The term "class or classes of stock of the
Corporation ranking junior to the Preferred Stock" means the Common Stock and
any other class or classes of stock of the Corporation hereafter authorized
which rank junior to the Preferred Stock as to dividends or upon liquidation.
4. Reacquired Shares.
Shares of Preferred Stock which have been issued and reacquired in any
manner by the Corporation (excluding, until the Corporation elects to retire
them, shares which are held as treasury shares but including shares redeemed,
shares purchased and retired and shares which have been converted into shares of
Common Stock) will have the status of authorized and unissued shares of
Preferred stock and may be reissued.
5. Voting Rights.
Unless and except to the extent otherwise required by law or provided in
the resolution or resolutions of the Board of Directors creating any series of
Preferred Stock pursuant to this Division I, the holders of the Preferred Stock
shall have no voting power with respect to any matter whatsoever. In no event
shall the Preferred Stock be entitled to more than one vote in respect of each
share of stock except as may be required by law or by this Certificate of
Incorporation.
II. Common Stock
1. Dividends.
Subject to the preferential rights of the Preferred Stock, the holders of
the Common Stock are entitled to receive, to the extent permitted by law, such
dividends as may be declared from time to time by the Board of Directors.
2. Liquidation.
In the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up of the Corporation, after distribution in
full of the preferential amounts, if any, to be distributed to the holders of
shares of Preferred Stock, holders of Common Stock shall be entitled to receive
all of the remaining assets of the Corporation of whatever kind available for
distribution to stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively. The Board of Directors may distribute in
kind to the holders of Common Stock such remaining assets of the Corporation or
may sell, transfer or otherwise dispose of all or any part of such remaining
assets to any other Corporation, trust or other entity and receive payment
therefor in cash, stock or obligations of such other Corporation, trust or other
entity, or any combination thereof, and may sell all or any part of the
consideration so received and distribute any balance thereof in kind to holders
of Common Stock. The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or any
purchase or redemption of shares of stock of the Corporation of any class, shall
not be deemed to be a dissolution, liquidation or winding up of the Corporation
for the purpose of this paragraph.
3. Voting Rights.
Except as may be otherwise required by law or this Certificate of
Incorporation, each holder of Common Stock has one vote in respect of each share
of stock held by him of record on the books of the Corporation on all matters
voted upon by the stockholders. The shareholder shall not have cumulative voting
rights.
III. Stock Rights and Options
The Board of Directors, in their discretion and without the approval of
the shareholders, may from time to time create and issue, rights or options
entitling the holders thereof to purchase shares of stock of any class or
classes from the Corporation subject to the limitations set forth below. Such
rights or options are to be evidenced by or in such instrument or instruments as
shall be approved by the Board of Directors.
The Directors shall approve the terms upon which, including the time
(which may be limited or unlimited in duration) within which, and the price at
which any such shares may be purchased from the Corporation upon the exercise of
any such right or option. In no event shall the total rights or options effect
more than 50% of the authorized shares, nor can they be at prices less than 10%
of the sales or bid price averaged over the 30 day period immediately prior to
the sale. Rights or options may be granted at such less favorable terms as shall
be stated in a resolution adopted by the Board of Directors providing for the
creation and issuance of such rights or options. In the absence of actual fraud
in the transaction, the judgment of the Board of Directors shall be conclusive.
In case the shares of stock of the Corporation to be issued upon the
exercise of such rights or options shall be shares having a par value, the price
to be received therefor shall not be less than the par value thereof. In case
the shares of stock to be issued shall be shares of stock without par value, the
consideration therefor shall be determined in the manner provided in Section 153
of the Delaware General Corporation Law.
IV. Other Provisions
1. Preemptive Rights.
No stockholder of either preferred or common shares shall have any
preemptive right to subscribe to an additional issue of stock of any class or
series or to any stock rights, options, warrants, debentures or other securities
of the Corporation convertible into such stock.
2. Changes in Authorized Capital Stock.
Subject to the protective conditions and restriction of any outstanding
Preferred Stock, any amendment to this Certificate of Incorporation which
increases or decreases the authorized capital stock of any class or classes may
be adopted by the affirmative vote of the holders of a majority of the
outstanding shares of the voting stock of the Corporation.
Article Fifth
Board of Directors
1. Powers of the Board.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors by a majority vote of the entire Board is expressly
authorized:
(a) to make, alter or repeal the Bylaws of the Corporation and to revise,
alter, amend or repeal the Certificate of Incorporation subject only to approval
by stockholders, if expressly required by statute;
(b) to authorize and cause to be executed mortgages and liens upon part or all
of the real and personal property of the Corporation;
(c) to set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose as the Board of
Directors, in its sole discretion may determine and to abolish any reserve in
the manner in which it was created;
(d) to designate an Executive Committee of the Corporation;
(e) unless a majority vote of the stockholders is required by law, to sell,
lease or exchange all or substantially all of the property and assets of the
Corporation, including its goodwill and its corporate franchises, upon such
terms and conditions and for such consideration, which may consist in whole or
in part of money or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as the Board of Directors
shall deem expedient and for the best interests of the Corporation;
(f) to authorize and issue bonds and debentures and to determine the terms and
conditions, interest rates, discount rates, conversion rates, redemption
schedules, duration and other matters relating to or arising out of the
issuances of bonds and debentures, whether or not convertible to common stock,
provided that such conversion of bonds or debentures to stock when added to the
issued and outstanding stock and treasury stock does not exceed the authorized
shares of the Corporation.
2. Terms and Number of Board Members.
The number of members of the Board of Directors will be fixed from time to
time by the Board of Directors, but (subject to vacancies) in no event may there
be less than two Directors nor more than eleven. Each director shall serve until
the next annual meeting of stockholders or until his successor is elected.
Election of Directors need not be by written ballot.
If any vacancy occurs in the Board of Directors during a term, the
remaining Directors, by affirmative vote of a majority thereof, may elect a
director to fill the vacancy until the next annual meeting of stockholders.
3. Cumulative Voting.
At all elections of Directors of the Corporation, each stockholder
entitled generally to vote for the election of Directors shall be entitled to
vote one vote for each share owned by the stockholder for each position. The
stockholder shall not have the rights for cumulative voting.
4. Board Action By Consent.
Any Corporate action upon which a vote of Board members is required or
permitted may be taken without a meeting or a formal vote of the Board with the
written consent of the Board members. Such action may be taken by the written
consent of no less than a majority of all the Directors. In no case shall the
written consent be by less than the minimum percent of the Directors vote
required by statute for the proposed corporate action. Prompt notice must be
given to all Board members of the result of the vote on any action taken without
a meeting.
Article Sixth
Records
The books of the Corporation may be kept (subject to any provisions
contained in the statutes of the State of Delaware) outside the state of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
Article Seventh
Certain Contracts
No contract or transaction between the Corporation and one or more of its
Directors or officers, or between the Corporation and any other Corporation,
partnership, association, or other organization in which one or more of its
Directors of officers are Directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in a meeting of the Board or committee
thereof which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose. It is understood that some of the
business conducted by the Corporation and its subsidiaries involves the officers
and others including subsidiaries and affiliates serving as general partners,
limited partners, trustees, or in joint ventures. Such acts or action is
permitted if:
1. The material facts as to the Director's or officer's interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by a vote sufficient for such purpose; or, if
required
2. The material facts as to his interest and as to the contract or transaction
are disclosed or are known to stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in a good faith by vote of the
stockholders; or
3. The contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee
thereof, or the stockholders. Interested Directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
Article Eighth
Indemnification
1. The Corporation, its subsidiaries and affiliates shall jointly and severally
indemnify and hold any person harmless if any person was or is threatened to be
made a party to any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative by reason
of the fact that the person is or was a Director or officer 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. The Corporation shall indemnify and hold the person harmless
and undertakes to pay the current costs until resolved against expenses
(including attorneys' fees) judgments, fines, and amounts paid in settlements
actually incurred by the person in connection with such action, suit, or
proceeding and, with respect to any criminal action or proceeding.
2. The Corporation shall indemnify any person, if the person was or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of or in the name of the Corporation to procure a
judgment in its favor by reason of the fact that the person 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 incurred by the person in
connection with the defense or settlement of such negotiation action or suit.
3. Expenses incurred by any person in defending a civil or criminal action,
suit or proceeding shall be paid by the Corporation upon request in advance of
the final disposition of such action, suit or proceeding.
4. The indemnification provided hereby shall not be deemed exclusive of all
rights to which any person may be entitled under any Bylaw, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in any
person's official capacity and as to action in another capacity while holding
such office, and shall continue to any person as a person who has ceased to be a
Director, officer or agent as to claims arising during or as a result of the
service to the Corporation and shall inure to the benefit of the person's heirs,
executors and administrators.
5. The Corporation may, purchase and maintain insurance on behalf of each
Director and officer while director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other serving as a Director or
officer of the Corporation or while serving at the request of the Corporation as
a enterprise against any liability asserted against any person and incurred by
any person in any such capacity, or arising out of the status as such.
6. References to the Corporation shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or who is
or was serving at the request of such constituent corporation as a director of
officer, of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position with respect to the resulting or
surviving corporation as the person would have with respect to such constituent
corporation as if its separate existence had continued.
7. References to "fines" shall include any excise taxes and penalties assessed
to any person with respect to any function; and references to "serving at the
request of the Corporation" shall include any service as a director or officer
of the corporation which imposes duties on, or involves services by the person.
This indemnity shall cover each person for all responsibilities for the
Corporation as a Director or officer or as a representative including periods on
or prior to the effective date of this Agreement.
The above right of indemnity shall extend to a person whether or not the
Corporation would have the power to indemnify the person against such liability
under Delaware Corporation law and may not be altered, amended, or rescinded
except by Court order or the advance written consent of the person.
Article Ninth
U.S. Citizenship
The following provisions are included for the purpose of ensuring that control
and management of the Corporation remains with loyal citizens of the United
States and/or corporations formed under the laws of the United State or any of
the states of the United States, as required by the Federal aviation laws as the
same may be amended from time to time:
(a) No Alien or Aliens (as hereinafter defined) shall be entitled to vote or
direct or control the vote of more than 25% of (i) the total number of shares of
capital stock of the Corporation outstanding and entitled to vote at any time
and from time to time, or (ii) the total voting power of all shares of capital
stock of the Corporation outstanding and entitled to vote at any time and from
time to time.
(b) The President of the Corporation and at least two-thirds of the total number
of the Board of Directors and other managing officers of the Corporation must be
citizens of the United States.
c) An Alien for purposes of this Article Ninth is (i) a person who is a citizen
of a country other than the United States; (ii) any entity organized under the
laws of a government other than the government of the United States or any
state, territory, or possession of the United States; (iii) a government other
than the government of the United States; or (iv) a representative of, or an
individual or entity controlled by, any of the foregoing (individually, an
"Alien"; collectively, "Aliens").
(d) The Board of Directors of the Corporation shall have all powers necessary
to implement the provisions of this ARTICLE NINTH.
<PAGE>
Article Tenth
Stockholder Action by Consent
Any action of the Corporation upon which a vote of stockholders is
required or permitted may be taken without a meeting or vote of stockholders
with the written consent of stockholders having not less than one-third of the
shares entitled to vote at a stockholder meeting; provided, that in no case
shall the written consent be by holders having less than the minimum percent of
the vote required by the statute for the proposed corporate action and provided
that prompt notice be given to all stockholders of the result of the vote
authorizing the taking of corporate action without a meeting.
Article Eleventh
Amendment
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, n the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
This Restated Certificate of Incorporation was duly proposed by the Board
of Directors and adopted by the sole stockholder in pursuance with Section 242
and 245 of the General Corporation Law of the state of Delaware.
The capital of said Corporation will not be reduced under or by reason of
this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, said TROPIC AIR CARGO, INC. has caused this certificate
to be signed by Angel Munoz, its President, and Scott Villaneuva, its Secretary,
this ____ day of _______________, 19__.
TROPIC AIR CARGO, INC.
By:
Angel Munoz, President
Attest:
Scott Villaneuva, Secretary
EXHIBIT 3.10
BYLAWS
OF
TROPIC AIR CARGO, INC.
A Delaware Corporation
Article I
The Stockholders
Section 1.1 Annual Meeting. There shall be an annual meeting of the
stockholders of Tropic Air Cargo, Inc. (the "Corporation") on the last Thursday
of June of each fiscal year at 10:00 a.m., or at such other date and time as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting, for the election of directors and for the transaction
of such other business as may come before the meeting.
Section 1.2. Special Meetings. A special meeting of the stockholders may
be called at any time by the Board of Directors or the President, and shall be
called upon request in writing from the holders of at least one-third of the
issued and outstanding shares of capital stock of the Corporation entitled to
vote at such meeting specifying the purpose or purposes for which such meeting
shall be called.
Section 1.3. Notice of Meetings. Unless a different manner of giving
notice is prescribed by statute, written, or printed notice stating the place,
date, and hour of the meeting, and in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than 10
nor more than 60 days before the date of the meeting either personally or by
mail, to each stockholder of record entitled to vote at such meeting. If mailed,
such notice shall be deemed to be delivered when deposited in the United States
mail with postage thereon prepaid addressed to the stockholder at his address as
it appears on the records of the Corporation.
Section 1.4. Fixing Date of Record. (a) In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholder or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 60 or less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. (b) If no record date is fixed: (i) The record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; (ii) The record date for
determining stockholders entitled to express consent to corporate action in
writing 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;
(iii) The record date for determining stockholders for any other purpose shall
be at the close of business on the date on which the Board of Directors adopts
the resolution relating thereto. (c) A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 1.5 Inspection of Election. Inspectors of Election shall be
appointed by the Board of Directors to act at any meeting of stockholders at
which any election is held. The Inspectors of Election shall examine proxies,
pass upon their regularity, receive the votes and act as tellers, or perform any
other duties which the Chairman may require of them at said meeting.
Section 1.6 Quorum. At any meeting of stockholders, the holders of not
less than one-third of the shares entitled to vote at a meeting present in
person or by proxy shall constitute a quorum for the transaction of business. A
majority vote of such quorum shall prevail except as otherwise required by law,
the Certificate of Incorporation, or the Bylaws.
If stockholders necessary for a quorum shall fail to be present at the
time and place fixed for any meeting, the holders of a majority of the shares
entitled to vote who are present in person or by proxy may adjourn the meeting
from time to time, until a quorum is present, and at any such adjourned meeting
at which a quorum is present, any business may be transacted which might have
been transacted at the original meeting.
Section 1.7. Cumulative Voting. At all elections of Directors of the
Corporation, each stockholder entitled generally to vote for the election of
Directors shall be entitled to vote one vote for each share owned by the
stockholder. The stockholder shall not have cumulative voting.
Section 1.8. Proxies. At all meetings of stockholders, a stockholder
entitled to vote may vote either in person or by proxy executed in writing by
the stockholder or by his duly authorized attorney-in-fact. Such proxy shall be
filed with the Secretary of the Corporation before or at the time of the
meeting.
Section 1.9. Voting by Ballot. Voting in any election for
Directors need not be by ballot.
Section 1.10. Voting Lists. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least two days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
two days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 1.11. Place of Meeting. The meeting of stockholders will be held
at the offices of the Corporation, 7500 NW 25th Street, Suite 209, Miami,
Florida 33122 or such other place, either within or without the state of
Delaware, as may be designated by the Board of Directors at the place for any
annual meeting or any special meeting.
Section 1.12. Voting of Shares of Certain Holders. Shares of capital stock
of the Corporation standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent, or proxy as the Bylaws of such
Corporation may prescribe, or in the absence of such provision, by the President
or otherwise as the Board of Directors of such Corporation may determine.
Shares of capital stock of the Corporation standing in the name of a
deceased person, a minor ward or an incompetent person, may be voted by his
administrator, executor, court-appointed guardian or conservator, either in
person or by proxy without a transfer of such shares into the name of such
administrator, executor, court-appointed guardian or conservator. Shares of
capital stock of the Corporation standing in the name of a trustee may be voted
by him, either in person or by proxy.
Shares of capital stock of the Corporation standing in the name of a
receiver may be voted by such receiver, and shares held by or under the control
of a receiver may be voted by such receiver without the transfer thereof into
his name if authority to do so be contained in an appropriate order of the court
by which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own capital stock held by this Corporation in a fiduciary
capacity may be voted by the President on behalf of the Company and shall be
counted in determining the total number of outstanding shares at any given time.
Any action of the Corporation upon which a vote of stockholders is
required or permitted may be taken without a meeting or vote of stockholders
with the written consent of stockholders having not less than one-third of the
shares entitled to vote at a stockholder meeting; provided, that in no case
shall the written consent be by holders having less than the minimum percent of
the vote required by statute for the proposed corporate action and provided that
prompt notice be given to all stockholders of the result of the vote authorizing
the taking of corporate action without a meeting.
Article II
The Board of Directors
Section 2.1. General Powers. The business and affairs of the
Corporation shall be managed by the Board of Directors.
Section 2.2. Number, Tenure, and Qualifications. The Board of Directors of
the Corporation shall consist of such number of Directors, not less than 2 nor
more than 11 as shall be fixed from time to time by the Board of Directors.
There shall be one director seat with a term of three years and one director
seat with a term of two years. All other seats shall be for one year or until
the next annual meeting of stockholders or until his successor is elected.
Section 2.3. Regular Meetings. A regular meeting of the Board of Directors
shall be held at least once each calendar quarter at such place, date, and hour
as the Board may appoint.
Section 2.4. Special Meetings. Special meetings of the Board
of Directors may be called by or at the request of the President or
any two Directors. The person or persons requesting such meeting may
fix the time and place thereof.
Notice of any special meeting shall be mailed to or left for the Directors
at their offices or homes, or delivered or given in person at any time at least
one day prior to the meeting.
Section 2.5. Quorum. A majority of existing Directors shall constitute a
quorum for the transaction of business at any meeting of the Board of Directors.
If less than a quorum of the directors are present, a majority of those present
may adjourn the meeting and set a time for a subsequent meeting from time to
time without further notice.
Section 2.6. Manner of Acting. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, except in those circumstances where a vote of a majority of all
Directors is required by the Certificate of Incorporation or by law.
Section 2.7. Directors' Compensation. The Directors shall receive such
compensation as may be fixed by the Board of attendance at meetings of the Board
or for service on any committee of the Board.
Section 2.8. Vacancies. If vacancies occur in the Board of Directors
caused by death, resignation, retirement, disqualification, or removal from
office of any Director or Directors, or otherwise, or if any new directorship is
created by any increase in the authorized number of Directors, a majority of the
surviving or remaining Directors then in office, though less than a quorum, may
choose a successor or successors, or fill the newly created directorship, and
the Directors so chosen shall hold office until the next annual meeting of
stockholders or until their successors are elected.
Section 2.9. Consent in Lieu of Meeting. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or any committee
thereof may be taken without a meeting if a majority of the members of the Board
of Directors or committee thereof, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors or committee. Such actions become
effective upon the receipt of a number of signatures equal to a majority of the
Directors unless otherwise provided in the action taken.
Article III
Committees
Section 3.1. Names, Appointment, and Vacancies. The Board of Directors by
majority vote may designate an Executive Committee and one or more other
committees, with each committee to consist of one or more of the Directors of
the Corporation. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he 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 3.2. Powers of the Executive Committee. The Executive Committee,
to the extent provided in the resolution of the Board of Directors shall have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize the
seal of the Corporation to be affixed to all papers which may require it, but
the Executive Committee shall not have the power or authority in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation. Recommending to the stockholders the sale, lease, or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution or partial dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws of the Corporation; and,
unless the resolutions expressly so provide, the Executive Committee shall not
have the power or authority to declare a dividend or to authorize the issuance
of stock.
Section 3.3. Powers of Other Committees. Any other committee of the Board
of Directors shall have only those powers and authority expressly granted to it
by the Resolution of the Board of Directors which establishes that committee.
All actions proposed by other committees shall be confirmed, approved, tabled or
rescinded prior to implementation at the next meeting of the Board of Directors.
Article IV
The Officers
Section 4.1. Number and Term of Office. The officers of the Corporation
shall be a President, an Executive Vice President, one or more Vice Presidents
with such designations, if any, as may be determined by the Board of Directors,
a Secretary, a Treasurer, and such other officers as may from time to time be
appointed by the Board of Directors. Any two or more offices may be held by the
same person.
The officers of the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors, held after each annual
meeting of stockholders. Vacancies or new offices may be filled at any time.
Each officer shall hold office until his successor shall have been duly elected
or appointed or until his death or until he shall resign or shall have been
removed by the Board of Directors.
Section 4.2. Removal. Any officer may be removed by the
majority vote of the Board of Directors whenever in its judgment the
best interests of the Corporation would be served thereby.
Section 4.3. President. The President shall be the Chief Executive Officer
of the Corporation and as such have, subject to the supervision and direction of
the Board of Directors or of the Executive Committee, general supervision of the
business, property and affairs of the Corporation and the powers vested in him
by the Board of Directors and by law or which usually attach or pertain to such
office. He shall preside at meetings of the stockholders and of the Board of
Directors and of the Executive Committee, if any.
Section 4.4. The Executive Vice President. The Executive Vice President
shall perform such duties as may be assigned from time to time by the President,
the Board of Directors or the Executive Committee. The Executive Vice President
may sign, with the Secretary, certificates for shares of the Corporation. The
Executive Vice President may sign deposits, checks, contracts, and agreements,
settlements, leases, notes, mortgages or claims on behalf of the Corporation,
and such other documents as the President, the Board of Directors or the
Executive Committee may direct.
Section 4.5. The Vice Presidents. The Vice Presidents shall perform such
duties as may be assigned to them from time to time by the President, the Board
of Directors or the Executive Committee.
Section 4.6. The Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall determine. He
shall: (a) have charge and custody of and be responsible for all funds and
securities of the Corporation; receive and give receipts for moneys in the name
of the Corporation in such banks, trust companies, or other depositories as
shall be selected in accordance with the provisions of Article V of these
Bylaws; (b) in general perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him by
the President, the Board of Directors or the Executive Committee.
Section 4.7. The Secretary. The Secretary shall have the custody of the
Corporate Seal and the Secretary or any Assistant Secretary shall affix the same
to all instruments or papers requiring the seal of the Corporation. The
Secretary, or in his absence, any Assistant Secretary, shall see that proper
notices are sent of the meetings of the stockholders, the Board of Directors,
and the Executive Committee, and shall see that all proper notices are given as
required by these Bylaws. The Secretary or any Assistant Secretary shall keep
the minutes of all meetings of the Stockholders and Directors and all committees
which may request their services.
Section 4.8. Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a Director of the
Corporation. The Corporation may enter into employment contracts, compensation
packages, insurance programs, stock option programs, retirement programs,
guarantee agreements with such officers, consultants and employees of the
Company as the Board of Directors, in its sole discretion, shall determine to be
in the best interest of the Corporation.
Article V
Contracts, Loans, Checks, and Deposits
Section 5.1. Contracts. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances. The President and
Executive Vice Presidents shall have general authority to execute contracts,
loans, mortgages, liens, leases, checks and deposits in the ordinary course of
business unless otherwise provided by a resolution of the Board of Directors or
the Executive Committee or these Bylaws.
Section 5.2. Loans. No loans shall be contracted on behalf of
the Corporation and no evidences of indebtedness, shall be issued in
its name unless authorized by a resolution of the Board of
Directors. Such authority may be general or confined to specific
instances.
Section 5.3. Checks, Drafts, etc. All checks, drafts, or other orders for
the payment of money, notes, or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers, agent, or
agents of the Corporation and in such a manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 5.4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies, or other depositories as the Board of Directors may
select.
Article VI
Certificates for Shares and Their Transfer
Section 6.1. Certificates for Shares. Certificates representing shares of
the Corporation shall be in such form as may be determined by the Board of
Directors. Such certificates shall be signed by the President, and by the
Treasurer or such other officers as are authorized by the Board of Directors,
and shall be sealed with the Seal of the Corporation. The seal may be a
facsimile. If a stock certificate is countersigned (i). by a transfer agent
other than the Corporation or its employee, or (ii) by a registrar other than
the Corporation or its employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue. All certificates
for shares and any stock rights, or options or warrants shall be consecutively
numbered or otherwise identified. The name of the person to whom the shares,
rights, warrants or options represented thereby are issued, with the number of
shares or rights and date of issue, shall be entered on the books of the
Corporation. All certificates surrendered to the Corporation for transfer shall
be canceled and no new certificates shall be issued until the former certificate
for a like number of shares shall have been surrendered and canceled, except
that in case of a lost, destroyed, or mutilated certificate a new one may be
issued therefor upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe. In most cases the sworn affidavit of the owner that
certificates have been lost, destroyed, or mutilated, the provision of a
replacement bond satisfactory to Corporation counsel, and a commitment to return
the prior shares to the Corporation should they be found with a personal promise
to indemnify the Corporation from any and all losses arising from or as a result
of the replacement should be satisfactory.
Section 6.2. Transfer of Shares. Transfers of shares of the Corporation
shall be made only on the books of the Corporation by the holder of record
thereof or by his legal representative, who shall furnish proper evidence of
authority to transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the Corporation, and on
surrender for cancellation of the certificate for such shares. The person in
whose name shares stand on the books of the Corporation shall be deemed the
owner thereof for all purposes as regards the Corporation.
Article VII
Fiscal Year
Section 7.1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January in each year and end on the last
day of December in each year.
Article VIII
Seal
Section 8.1. Seal. The Board of Directors shall provide a
corporate seal which shall be in the form of a circle and shall have
inscribed thereon the name of the Corporation.
Article IX
Waiver of Notice
Section 9.1 Waiver of Notice. Whenever any notice whatever is required to
be given under the provisions of these Bylaws or under the provisions of the
Certificate of Incorporation or under the provisions of the General Corporation
Law of Delaware, waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Attendance of any person at a
meeting for which any notice whatever is required to be given under the
provisions of these Bylaws, the Certificate of Incorporation or the General
Corporation Law of Delaware shall constitute a waiver of notice of such meeting,
except when the person attends 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.
Article X
Amendments
Section 10.1. Amendments. These Bylaws may be altered, amended,
or repealed and new Bylaws may be adopted at any meeting of the Board of
Directors of the Corporation by the affirmative vote of a majority of
the members of the Board.
- ----------------------------------
ANGEL MUNOZ, CHAIRMAN OF THE BOARD
- -----------------------------------------
SCOTT VILLANEUVA, SECRETARY
