SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Quarterly Report under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For Quarterly Period Ended Commission File Number
December 31, 1996 1-55520
- -------------------------- ----------------------
Industrial Imaging Corporation.
------------------------------------------------------
(Exact name of Registrant as specified in its Charter)
Delaware 05-0396504
- ------------------------------- -----------------------
(State of Other Jurisdiction (I.R.S. Employer
Incorporation of Organization) Identification Number)
847 Rogers Street, Lowell, Massachusetts 01842
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(508) 937-5400
----------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- ---
As of December 31, 1996, there were issued and outstanding 525,000 shares of
Common Stock, $.01 par value.
INDUSTRIAL IMAGING CORPORATION
INDEX
PART I - FINANCIAL INFORMATION PAGE NO.
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ITEM 1. Financial Statements (Unaudited)
Balance Sheets - December 31, 1996 and March 31, 1996......... 1
Statements of Operations - Three Months Ended
December 31, 1996 and December 31, 1995..................... 2
Statements of Operations - Nine Months Ended
December 31, 1996 and December 31, 1995..................... 3
Statements of Cash Flows - Nine Months Ended
December 31, 1996 and December 31, 1995...................... 4
Notes to Financial Statements - December 31, 1996............. 4
ITEM 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations....................... 6
PART II - OTHER INFORMATION
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ITEM 1. Legal Proceedings............................................. 7
ITEM 2. Changes in Securities......................................... 7
ITEM 3. Defaults Upon Senior Securities............................... 7
ITEM 4. Submission of Matters to a Vote of Security-Holders........... 7
ITEM 5. Other Information............................................. 8
ITEM 6. Exhibits and Reports on Form 8-K.............................. 8
SIGNATURES.................................................................. 10
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PART I
ITEM 1. FINANCIAL STATEMENTS (UNAUDITED)
INDUSTRIAL IMAGING CORPORATION
BALANCE SHEETS
at December 31, 1996 and March 31, 1996
<TABLE>
<CAPTION>
Dec. 31 March 31
------- --------
1996 1996
---- ----
(unaudited) (audited)
<S> <C> <C>
ASSETS
Current Assets:
Cash $ 125 $ 303
Receivables 126,466 126,466
Allowance for doubtful accounts (126,466) (126,466)
Prepaid expenses 100 100
---------------- ----------------
Total current assets $ 225 $ 403
Equipment and fixtures, at cost (Net of accumulated
depreciation of $585,031 in December 1996, and $585,031 in
December 1996, and $585,031 in March 1996) 0 0
Other assets 0 0
---------------- ----------------
Total Assets $ 225 $ 225
================ ================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt $ 0 $ 0
Other current liabilities 10,656 0
---------------- ----------------
Total current liabilities $ 10,656 $ 0
Long-term debt 0 0
Total Liabilities $ 10,656 $ 0
---------------- ----------------
Stockholders' Equity
Common stock and additional paid-in capital $ 3,339,634 $ 3,339,634
Preferred Stock 0 0
Retained earnings (deficit) (3,295,773) (3,264,939)
Treasury stock (54,292) (54,292)
---------------- ----------------
Net stockholders' equity $ (10,431) $ 403
---------------- ----------------
Total Liabilities and Stockholders' Equity $ 225 $ 403
================ ================
</TABLE>
1
INDUSTRIAL IMAGING CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
------------- -----------------
December 31 December 31
1996 1995 1996 1995
------ ------ ------ ------
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Professional Services $ 0 $ 0 $ 0 $ 0
Licenses, facilities management,
packages and VAR sales 0 0 0 0
--------------- --------------- --------------- ---------------
Gross Income 0 0 0 0
Cost of Goods Sold 0 0 0
--------------- --------------- --------------- ---------------
Gross Profit 0 0 0 0
Operating Expenses 8,555 32,958 10,834 38,864
--------------- --------------- --------------- ---------------
Income (Loss) From Operations (8,555) (32,958) (10,834) (38,864)
--------------- --------------- --------------- ---------------
Other Income (Expense)
Net gain (loss) on disposition of assets 0 0 0 0
Interest Income 0 0 0 0
Interest Expense 0 0 0 0
Miscellaneous income (expense) 0 0 0 0
--------------- --------------- --------------- ---------------
Total other income (expense) net 0 0 0 0
Net Income (loss) (8,555) (32,958) (10,834) (38,884)
=============== =============== =============== ===============
Earnings (loss) per share ($0.016) ($0.063) ($0.021) ($0.074)
Shares used in computing net income
(loss) per share (1) 525,000 525,000 525,000 525,000
</TABLE>
2
INDUSTRIAL IMAGING CORPORATION
STATEMENT OF CASH FLOWS
FOR THE NINE MONTHS ENDED DECEMBER 31, 1996 AND 1995
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net gain (loss) $ (10,834) $ (38,884)
----------- -----------
Adjustments to reconcile net income to cash used for operating
activities:
Depreciation and amortization 0 0
(Gain) loss on disposition of assets 0 0
Provision for uncollectible accounts 0 0
Changes in assets and liabilities:
Accounts receivable 0 0
Investments
Prepaid expenses and deposits 1,615
Trade notes receivable
Accounts payable 10,656 37,877
Accrued expenses (500)
----------- -----------
Total adjustments 10,656 38,992
----------- -----------
NET CASH USED FOR OPERATING ACTIVITIES (178) 108
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of assets 0 0
----------- -----------
NET CASH PROVIDED BY INVESTING ACTIVITIES 0 0
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Reduction of long-term debt (368,006)
Conversion of long-term debt to equity 368,006
Proceeds from long-term debt
Repayment of line-of-credit borrowings
NET CASH PROVIDED BY (USED FOR) FINANCING
ACTIVITIES 0 0
----------- -----------
NET INCREASE (DECREASE) IN CASH (178) 108
CASH AND CASH EQUIVALENTS, APRIL 1 303 96
----------- -----------
CASH AND CASH EQUIVALENTS, DECEMBER 31 $ 125 $ 204
=========== ===========
</TABLE>
See supplemental disclosures to statements of cash flows.
3
INDUSTRIAL IMAGING CORPORATION
SUPPLEMENTAL DISCLOSURES - STATEMENTS OF CASH FLOWS
FOR THE PERIODS ENDED DECEMBER 31, 1996 AND 1995
1996 1995
---- ----
CASH PAID DURING THE PERIOD FOR:
Interest $ 0 $ 0
Income taxes 0 0
NOTES TO FINANCIAL STATEMENTS
NOTE 1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements
of Industrial Imaging Corporation (the "Company") have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions to Form 10-QSB and Item 310(b) of
Regulation S-B. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
consolidated financial statements.
In the opinion of management, all adjustments (consisting solely of
normal recurring adjustments) considered necessary for a fair statement of the
interim financial data have been included. Results from operations for the three
and nine month period ended December 28, 1996 and December 30, 1995 are not
necessarily indicative of the results that may be expected for the fiscal year
ending March 31, 1997.
For further information, refer to the consolidated financial statements
and the footnotes thereto for the year ended March 31, 1996, filed with the
Securities and Exchange Commission in accordance with Rule 15(d)-2 of the
Exchange Act of 1934.
Net income (loss) per share is computed based upon the weighted average
number of common and dilutive common equivalent shares outstanding during the
period and includes the 18:1 reverse stock split effected as part of the
Company's reincorporation to a Delaware corporation on December 9, 1996.
NOTE 2. SUBSEQUENT EVENTS
On November 14, 1995, the Company filed an Information Statement with
the Securities and Exchange Commission that disclosed a transaction pursuant to
which 100% of Triple I's outstanding Common Stock, $.01 par value per share
("Triple I Common Stock"), would be exchanged for 90% of the outstanding Common
Stock, $.01 par value per share (the "Company's Common Stock"), of the Company
(the "Transaction"). Prior to the Transaction, the Company was a publicly held
Rhode
4
Island corporation, whose only activity during the fiscal year had been expenses
relating to filing fees and minimal overhead. The Transaction was approved by
the Company's stockholders on December 5, 1996 at a Special Meeting of
Stockholders. As part of the Transaction, the Company reincorporated to the
state of Delaware, changed its name to Industrial Imaging Corporation (from
Orbis, Inc.) and effected an 18:1 reverse stock split, all of which were
completed on December 9, 1996. The exchange of shares was completed on February
1, 1997. The Transaction will be accounted for as a capital stock transaction
and will be treated as a recapitalization of Triple I with Triple I as the
acquirer (reverse acquisition). Management will record the Transaction as the
issuance of stock and any costs of the Transaction will be charged to
stockholders' equity, with no goodwill recorded.
In December 1996, Dr. Harry Hsuan Yeh, a director and stockholder of
the Company, loaned $150,000 to Triple I Corporation, in return for a
twelve-month promissory note. On January 15, 1997, this note was converted to a
two year subordinated promissory note, bearing an interest rate of 10% per
annum. In addition, Dr. Yeh was issued 44,100 shares of Common Stock. On January
22, 1997, Dr. Yeh loaned another $50,000 to the Company in exchange for a
subordinated promissory note and 14,700 shares of Common Stock. Both
subordinated promissory notes contain the same terms as the Bridge Notes
(defined below).
In February 1997, the Company commenced the 1997 Bridge Financing to
raise up to $600,000 through the sale of twelve (12) units ("Units"), each Unit
consisting of a $50,000 subordinated promissory note bearing an annual interest
rate of 10% ("Bridge Notes") and 10,714 shares of Common Stock. Aggregate
proceeds to the Company were $250,000 as of February 14, 1997. The Bridge Notes
are due two years after their issuance and payment is accelerated in the event
the Company raises a certain amount of equity financing. The Bridge Notes will
be repaid from the proceeds of the Offering and may be prepaid without penalty
or premium. The Bridge Notes are unsecured and not guaranteed.
In January, 1997, Centennial Technologies, Inc. ("Centennial")
exercised warrants to purchase 230,000 shares of common stock, at $.01 par value
per share. The funds were used to pay two promissory notes due to Centennial;
(i) a $100,000 loan which was due on September 21, 1996 plus accrued interest;
and (ii) a $130,000 loan which was due on February 21, 1996 plus accrued
interest.
5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
RESULTS OF OPERATIONS
The net loss was $18,555 for the three month period ending December 31,
1996 as compared to $32,958 for the corresponding period one year ago. The net
loss before taxes was $10,834 for the nine months ended December 31, 1996 as
compared to $38,884 for the corresponding period one year ago.
The Company did not have any new sales for the period nor does the
Company have any fu11-time employees at the present time. The officers and
directors of the Company continue to work on a part-time basis without
compensation in an effort to curtail expenses.
LIQUIDITY AND CAPITAL RESOURCES
The Company is in the process of completing an acquisition of Triple I
Corporation whereby Triple I wi11 exchange 100% of its shares for Trip1e I will
exchange 100% of its shares for 90% ownership of the Company. The transaction
was approved by the stockholders of the Company at a Special Meeting of
Stockholders on December 5, 1996 and closed on February 1, 1997. The details of
the transaction were more fully described in an Information Statement, sent to
shareholders on November 14, 1996 and an 8-K, and an amendment thereto,
initially filed on December 19, 1996.
6
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS. None.
ITEM 2. CHANGES IN SECURITIES. On December 6, 1996, the stockholders of the
Company approved a proposal to reincorporate the Company from a Rhode Island
corporation to a Delaware corporation. The Delaware corporation has authorized
20,000,000 shares of Common Stock, $.01 par value per share, and 1,000,000
shares of undesignated Preferred Stock, $.01 par value per share. As part of the
reincorporation, the Company completed an 18:1 reverse stock split. Prior to the
reincorporation, the Company had 9,450,000 shares of Common Stock outstanding.
After the reincorporation and the 18:1 reverse split, the Company had 525,000
shares of Common Stock outstanding. The reincorporation was completed on
December 9, 1996.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES. None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS.
On December 7, 1996, the Company held a Special Meeting of Stockholders
(the "Special Meeting"). At the Special Meeting, the stockholders considered the
following proposals:
1. To reincorporate the Company from the State of Rhode Island to
the State of Delaware, under the name Industrial Imaging
Corporation, and exchange one (1) share of Industrial Imaging
Common Stock, $.01 par value per share for every eighteen (18)
shares of the Company's Common Stock, $.01 par value per
share, as per the Agreement of Merger.
2. To complete an exchange of shares between the Company and
Triple I Corporation ("Triple I"), pursuant to which 100% of
Triple I's shares shall be exchanged for 90% ownership of the
Company, as per the Stockholders' Exchange Agreement.
3. To elect all the following nominees as members of the
Company's Board of Directors: Juan J. Amodei, Ph.D., Joseph
Bordogna, Ph.D., Charles G. Broming, Robert Creeden, Joseph A.
Teves, and Harry Hsuan Yeh, Ph.D. to serve until the next
annual meeting of the stockholders of the Company and to hold
office until the election and qualification of their
successors;
4. To approve the Company's 1996 Stock Option Plan under which
600,000 shares of Common Stock have been reserved for issuance
pursuant to the Plan;
5. To ratify the selection of Coopers & Lybrand L.L.P. as
independent auditors for the Company for the fiscal year
ending March 31, 1997.
7
Of the 9,450,000 shares of the Company's Common Stock of record as of
July 26, 1996 able to be voted at the Annual Meeting, a total of 5,896,850
shares were voted, or approximately 62% of the Company's issued and outstanding
shares of Common Stock entitled to vote on these matters.
Each of the proposals was adopted, with the vote totals as follows:
<TABLE>
<CAPTION>
Shares
Shares Voting Shares Broker
Proposal Voting For Against Abstaining Non-Votes
-------- ---------- ------- ---------- ---------
<S> <C> <C> <C> <C>
Proposal No. 1 5,896,850 0 0 0
--------------
Proposal No. 2 5,896,850 0 0 0
--------------
Proposal No. 3 5,896,850 0 0 0
--------------
Proposal No. 4 5,896,850 0 0 0
--------------
Proposal No. 5 5,896,850 0 0 0
--------------
</TABLE>
Juan J. Amodei, Ph.D., Joseph Bordogna, Ph.D., Charles G. Broming,
Joseph A. Teves, and Harry Hsuan Yeh, Ph.D. have continued to serve as a member
of the Board of Directors of the Company since the election. Mr. Creeden
resigned his position as a member of the Board of Directors, effective December
10, 1996.
ITEM 5. OTHER INFORMATION. None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
---------
Exhibit
Number Title
------ -----
3a Industrial Imaging Corporation's Articles of
Incorporation, dated December 9, 1996.
3b Industrial Imaging Corporation's Bylaws.
4a Section of Bylaws and certificate of Incorporation
defining rights of securities-holders in Exhibits 3a and
3b.
27 Financial Data Schedule.
8
(b) Reports on Form 8-K.
The Company filed a current report on Form 8-K on December 11, 1996 and
December 19, 1996. The December 11, 1996 Form 8-K filing disclosed the change of
accountants approved by the stockholders at the Special Meeting. The December
19,1996 Form 8-K disclosed the terms of the acquisition of Triple I, approved by
the stockholders at the Special Meeting.
The following exhibits were filed as part of the December 19, 1996 Form
8-K and are incorporated herein by reference.
2a Agreement of Merger, dated December 5, 1996.
2b Form of the Shareholders Agreement by and among Orbis,
Inc., Triple I Corporation and the Shareholders of
Triple I Corporation.
9
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INDUSTRIAL IMAGING CORPORATION
Date: February 13, 1997 By: /s/ Juan J. Amodei
------------------
President
CERTIFICATE OF INCORPORATION
OF
INDUSTRIAL IMAGING CORPORATION
*****
1. The name of the corporation is Industrial Imaging Corporation.
2. The address of its registered office in the State of Delaware is 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.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation shall have
authority to issue is Twenty-one Million (21,000,000) shares; of which twenty
million (20,000,000) will be Common Stock, of the par value $.01 per share; and
one million (1,000,000) will be Preferred Stock, of the par value $.01 per
share, amounting in the aggregate to Two Hundred Ten Thousand and 00/100 Dollars
($210,000.00).
Additional designations and powers, preferences and rights and
qualifications, limitations or restrictions thereof of the shares of each class
shall be determined by the Board of Directors of the Corporation from time to
time.
5. The name and mailing address of the Corporation's incorporator is Juan J.
Amodei, Ph.D., Industrial Imaging Corporation, One Lowell Research Center, 847
Rogers Street, Lowell, Massachusetts 01852.
6. The name and address of the person who is to serve as the sole director of
the Corporation until the first annual meeting of the stockholders or until his
successors are elected and qualified is:
Juan J. Amodei, Ph.D.
Industrial Imaging Corporation
One Lowell Research Center
847 Rogers Street
Lowell, Massachusetts 01852
7. The Corporation is to have perpetual existence.
8. In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors is expressly authorized:
To make, alter or repeal the bylaws of the Corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole Board, to designate one or more committees,
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. The bylaws may provide that 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 agent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
or in the bylaws of the Corporation, 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 no such committee shall 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 of the Corporation or a revocation of a dissolution, or amending the
bylaws of the Corporation; and, unless the resolution or bylaws expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute,
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 its board of directors
shall deem expedient and for the best interests of the Corporation.
9. To the maximum extent permitted by Section 102(b)(7) of the General
Corporation Law of Delaware, a director of this Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
10. Whenever a compromise or arrangement is proposed between this Corporation
and its
- 2 -
creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court or equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement to any reorganization of this Corporation
as consequences 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.
11. Meetings of the stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) 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. Elections of directors
need not be by written ballot unless the bylaws of the Corporation shall so
provide.
12. The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this certificate of incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 3 -
THE UNDERSIGNED, being the incorporator named hereinbefore, for the
purposes of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is his act and deed and the facts herein stated are true, and
accordingly, has hereunto set his hand this 4th day of December, 1996.
/s/ Juan J. Amodei, Ph. D.
------------------------------
Juan J. Amodei, Ph.D.
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF MIDDLESEX )
BE IT REMEMBERED that on this 4th day of December, 1996, personally
came before me, a Notary Public for the Commonwealth of Massachusetts, Juan J.
Amodei, Ph.D., the party to the foregoing Certificate of Incorporation, known to
me personally to be such, and acknowledged the said Certificate to be his free
act and deed and that the facts stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Mara Robinson
-------------------------------
Notary Public
My commission expires:
- 4 -
BYLAWS
OF
INDUSTRIAL IMAGING CORPORATION
Article I. Offices.
Section 1. Registered Office. The registered office of the Corporation
shall be at The Corporation Trust Company, 1209 Orange Street, in the City of
Wilmington, County of New Castle, State of Delaware 19801.
Section 2. Additional Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine or as the business of the
Corporation may require.
Article II. Meetings of Stockholders.
Section 1. Time and Place. A meeting of stockholders for any purpose
may be held at such time and place 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 2. Annual Meeting. Annual meetings of stockholders, commencing
with the year 1997, shall be held on the first Monday in May at 10:00 a.m., or
at such other date and time as shall, from time to time, be designated by the
Board of Directors and stated in the notice of the meeting. At such annual
meetings, the stockholders shall elect a Board of Directors and transact such
other business as may properly be brought before the meetings.
Section 3. Notice of Annual Meeting. Written notice of the annual
meeting, stating the place, date, and time thereof, shall be given to each
stockholder entitled to vote at such meeting not less than ten (unless a longer
period is required by law) nor more than sixty days prior to the meeting.
Section 4. Special Meetings. Special meetings of the stockholders may
be called for any purpose or purposes, unless otherwise prescribed by statute or
by the Certificate of Incorporation, by the Chairman of the Board, if any, or
the President, and shall be called by the President or Secretary at the request,
in writing, of a majority of the Board of Directors or of the stockholders
owning a majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose of the
proposed meeting.
Section 5. Notice of Special Meeting. Written notice of a special
meeting, stating the place, date, and time thereof and the purpose or purposes
for which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting not less than ten (unless a longer period is required by
law) nor more than sixty days prior to the meeting.
Section 6. List of Stockholders. The transfer agent or the officer in
charge of the stock ledger of the Corporation shall prepare and make, at least
ten 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 ten days prior to the meeting, at a
place within the city where the meeting is to be held, which place, if other
than the place of the meeting, shall be specified in the notice of the meeting.
The list shall also be produced and kept at the place of the meeting during the
whole time thereof and may be inspected by any stockholder who is present in
person thereat.
Section 7. Presiding Officer and Order of Business.
(a) Meetings of stockholders shall be presided over by the Chairman of
the Board. If he is not present or there is none, they shall be presided over by
the President, or, if he is not present or there is none, by a Vice President,
or, if he is not present or there is none, by a person chosen by the Board of
Directors, or, if no such person is present or has been chosen, by a chairman to
be chosen by the stockholders owning a majority of the shares of capital stock
of the Corporation issued and outstanding and entitled to vote at the meeting
and who are present in person or represented by proxy. The Secretary of the
Corporation, or, if he is not present, an Assistant Secretary, or, if he is not
present, a person chosen by the Board of Directors, shall act as Secretary at
meetings of stockholders; if no such person is present or has been chosen, the
stockholders owning a majority of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote at the meeting who are present in
person or represented by proxy shall choose any person present to act as
secretary of the meeting.
(b) The following order of business, unless otherwise determined at the
meeting, shall be observed as far as practicable and consistent with the
purposes of the meeting:
(1) Call of the meeting to order.
(2) Presentation of proof of mailing of the notice of the
meeting and, if the meeting is a special meeting, the
call thereof.
(3) Presentation of proxies.
(4) Announcement that a quorum is present.
(5) Reading and approval of the minutes of the previous
meeting.
(6) Reports, if any, of officers.
(7) Election of directors, if the meeting is an annual
meeting or a meeting called for that purpose.
(8) Consideration of the specific purpose or purposes,
other than the election of directors, for which the
meeting has been called, if the meeting is a special
meeting.
(9) Transaction of such other business as may properly
come before the meeting.
(10) Adjournment.
-2-
Section 8. Quorum and Adjournments. The presence in person or
representation by proxy of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to vote
shall be necessary to, and shall constitute a quorum for, the transaction of
business at all meetings of the stockholders, except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, a quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat who are present in person or represented by proxy shall
have the power to adjourn the meeting from time to time until a quorum shall be
present or represented. If the time and place of the adjourned meeting are
announced at the meeting at which the adjournment is taken, no further notice of
the adjourned meeting need be given. Even if a quorum shall be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat who are present in person or represented by proxy shall have the
power to adjourn the meeting from time to time for good cause to a date that is
not more than thirty days after the date of the original meeting. Further notice
of the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken. At any adjourned
meeting at which a quorum is present in person or represented by proxy, any
business may be transacted that might have been transacted at the meeting as
originally called. If the adjournment is for more than thirty days, or if, after
the adjournment, a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote thereat.
Section 9. Voting.
(a) At any meeting of the stockholders, every stockholder having the
right to vote shall be entitled to vote in person or by proxy. Except as
otherwise provided by law or the Certificate of Incorporation, each stockholder
of record shall be entitled to one vote for each share of capital stock
registered in his name on the books of the Corporation.
(b) All elections shall be determined by a plurality vote, and, except
as otherwise provided by law or the Certificate of Incorporation, all other
matters shall be determined by a vote of a majority of the shares present in
person or represented by proxy and voting on such other matters.
Section 10. Action by Consent. Any action required or permitted by law
or the Certificate of Incorporation to be taken at any meeting of stockholders
may be taken without a meeting, without prior notice of a written consent,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present or represented by proxy and voted. Such written
consent shall be filed with the minutes of the meetings of stockholders. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing thereto.
Article III. Directors.
Section 1. General Powers, Number, and Tenure. The business of the
Corporation shall
-3-
be managed by its Board of Directors, which may exercise all powers of the
Corporation and perform all lawful acts that are not by law, the Certificate of
Incorporation, or these Bylaws directed or required to be exercised or performed
by the stockholders. The number of directors shall be determined by the Board of
Directors; if no such determination is made, the number of directors shall be
one. The directors shall be elected at the annual meeting of the stockholders,
except as provided in Section 2 of this Article, and each director elected shall
hold office until the next annual meeting and until his successor is elected and
shall qualify. Directors need not be stockholders.
Section 2. Vacancies. If any vacancies occur in the Board of Directors,
or if any new directorships are created, they may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Each director so chosen shall hold office until the next annual
meeting of stockholders and until his successor is duly elected and shall
qualify. If there are no directors in office, any officer or stockholder may
call a special meeting of stockholders in accordance with the provisions of the
Certificate of Incorporation or these Bylaws, at which meeting such vacancies
shall be filled.
Section 3. Removal or Resignation.
(a) Except as otherwise provided by law or the Certificate of
Incorporation, any director or the entire Board of Directors may be removed,
with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
(b) Any director may resign at any time by giving written notice to the
Board of Directors, the Chairman of the Board, if any, or the President or
Secretary of the Corporation. Unless otherwise specified in such written notice,
a resignation shall take effect on delivery thereof to the Board of Directors or
the designated officer. It shall not be necessary for a resignation to be
accepted before it becomes effective.
Section 4. Place of Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. Annual Meeting. The annual meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting shall be necessary to the newly
elected directors in order to constitute the meeting legally, provided a quorum
shall be present.
Section 6. Regular Meetings. Additional regular meetings of the Board
of Directors may be held without notice of such time and place as may be
determined from time to time by the Board of Directors.
Section 7. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President, or by two or more
directors on at least two days' notice to each director, if such notice is
delivered personally or sent by telegram, or on at least three days' notice if
sent by mail. Special meetings shall be called by the Chairman of the Board,
President, Secretary, or two or more directors in like manner and on like notice
on the written request of one-half or more of the number of directors then in
office. Any such notice need not state the purpose or purposes of such meeting,
except as provided in Article XI.
-4-
Section 8. Quorum and Adjournments. At all meetings of the Board of
Directors, a majority of the directors then in office shall constitute a quorum
for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board
of Directors, except as may be otherwise specifically provided by law or the
Certificate of Incorporation. If a quorum is not present at any meeting of the
Board of Directors, the directors present may adjourn the meeting from time to
time, without notice other than announcement at the meeting at which the
adjournment is taken, until a quorum shall be present.
Section 9. Compensation. Directors shall be entitled to such
compensation for their services as directors and to such reimbursement for any
reasonable expenses incurred in attending directors' meetings as may from time
to time be fixed by the Board of Directors. The compensation of directors may be
on such basis as is determined by the Board of Directors. Any director may waive
compensation for any meeting. Any director receiving compensation under these
provisions shall not be barred from serving the Corporation in any other
capacity and receiving compensation and reimbursement for reasonable expenses
for such other services.
Section 10. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting,
and without prior notice, if a written consent to such action is signed by all
members of the Board of Directors and such written consent is filed with the
minutes of its proceedings.
Section 11. Meetings by Telephone or Similar Communications Equipment.
The Board of Directors may participate in a meeting by conference telephone or
similar communications equipment by means of which all directors participating
in the meeting can hear each other, and participation in such a meeting shall
constitute presence in person by any such director at such meeting.
Article IV. Committees.
Section 1. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may appoint an Executive Committee
consisting of one or more directors, one of whom shall be designated as Chairman
of the Executive Committee. Each member of the Executive Committee shall
continue as a member thereof until the expiration of his term as a director or
his earlier resignation, unless sooner removed as a member or as a director.
Section 2. Powers. The Executive Committee shall have and may exercise
those rights, powers, and authority of the Board of Directors as may from time
to time be granted to it by the Board of Directors to the extent permitted by
law, and may authorize the seal of the Corporation to be affixed to all papers
that may require it.
Section 3. Procedure and Meetings. The Executive Committee shall fix
its own rules of procedure and shall meet at such times and at such place or
places as may be provided by such rules or as the members of the Executive
Committee shall fix. The Executive Committee shall keep regular minutes of its
meetings, which it shall deliver to the Board of Directors from time to time.
-5-
The Chairman of the Executive Committee or, in his absence, a member of the
Executive Committee chosen by a majority of the members present, shall preside
at meetings of the Executive Committee; and another member chosen by the
Executive Committee shall act as Secretary of the Executive Committee.
Section 4. Quorum. A majority of the Executive Committee shall
constitute a quorum for the transaction of business, and the affirmative vote of
a majority of the members present at any meeting at which there is a quorum
shall be required for any action of the Executive Committee; provided, however,
that when an Executive Committee of one member is authorized under the
provisions of Section 1 of this Article, that one member shall constitute a
quorum.
Section 5. Other Committees. The Board of Directors, by resolutions
adopted by a majority of the whole Board, may appoint such other committee or
committees as it shall deem advisable and with such rights, power, and authority
as it shall prescribe. Each such committee shall consist of one or more
directors.
Section 6. Committee Changes. The Board of Directors shall have the
power at any time to fill vacancies in, to change the membership of, and to
discharge any committee.
Section 7. Compensation. Members of any committee shall be entitled to
such compensation for their services as members of the committee and to such
reimbursement for any reasonable expenses incurred in attending committee
meetings as may from time to time be fixed by the Board of Directors. Any member
may waive compensation for any meeting. Any committee member receiving
compensation under these provisions shall not be barred from serving the
Corporation in any other capacity and from receiving compensation and
reimbursement of reasonable expenses for such other services.
Section 8. Action by Consent. Any action required or permitted to be
taken at any meeting of any committee of the Board of Directors may be taken
without a meeting if a written consent to such action is signed by all members
of the committee and such written consent is filed with the minutes of its
proceedings.
Section 9. Meetings by Telephone or Similar Communications Equipment.
The members of any committee designated by the Board of Directors may
participate in a meeting of such committee by conference telephone or similar
communications equipment by means of which all persons participating in such
meeting can hear each other, and participation in such a meeting shall
constitute presence in person by any such committee member at such meeting.
Article V. Notices.
Section 1. Form and Delivery. Whenever a provision of any law, the
Certificate of Incorporation, or these Bylaws requires that notice be given to
any director or stockholder, it shall not be construed to require personal
notice unless so specifically provided, but such notice may be
-6-
given in writing, by mail addressed to the address of the director or
stockholder as it appears on the records of the Corporation, with postage
prepaid. These notices shall be deemed to be given when they are deposited in
the United States mail. Notice to a director may also be given personally or by
telephone or by telegram sent to his address as it appears on the records of the
Corporation.
Section 2. Waiver. Whenever any notice is required to be given under
the provisions of any law, the Certificate of Incorporation, or these Bylaws, a
written waiver thereof signed by the person entitled to said notice, whether
before or after the time stated therein, shall be deemed to be equivalent to
such notice. In addition, any stockholder who attends a meeting of stockholders
in person or is represented at such meeting by proxy, without protesting at the
commencement of the meeting the lack of notice thereof to him, or any director
who attends a meeting of the Board of Directors without protesting at the
commencement of the meeting of the lack of notice, shall be conclusively deemed
to have waived notice of such meeting.
Article VI. Officers.
Section 1. Designations. The officers of the Corporation shall be
chosen by the Board of Directors. The Board of Directors may choose a Chairman
of the Board, a President, a Vice President or Vice Presidents, a Secretary, a
Treasurer, one or more Assistant Secretaries and/or Assistant Treasurers, and
other officers and agents that it shall deem necessary or appropriate. All
officers of the Corporation shall exercise the powers and perform the duties
that shall from time to time be determined by the Board of Directors. Any number
of offices may be held by the same person, unless the Certificate of
Incorporation or these Bylaws provide otherwise.
Section 2. Term of, and Removal From, Office. At its first regular
meeting after each annual meeting of stockholders, the Board of Directors shall
choose a President, a Secretary, and a Treasurer. It may also choose a Chairman
of the Board, a Vice President or Vice Presidents, one or more Assistant
Secretaries and/or Assistant Treasurers, and such other officers and agents as
it shall deem necessary or appropriate. Each officer of the Corporation shall
hold office until his successor is chosen and shall qualify. Any officer elected
or appointed by the Board of Directors may be removed, with or without cause, at
any time by the affirmative vote of a majority of the directors then in office.
Removal from office, however, shall not prejudice the contract rights, if any,
of the person removed. Any vacancy occurring in any office of the Corporation
may be filled for the unexpired portion of the term by the Board of Directors.
Section 3. Compensation. The salaries of all officers of the
Corporation shall be fixed from time to time by the Board of Directors, and no
officer shall be prevented from receiving a salary because he is also a director
of the Corporation.
Section 4. The Chairman of the Board. The Chairman of the Board, if
any, shall be an officer of the Corporation and, subject to the direction of the
Board of Directors, shall perform such executive, supervisory, and management
functions and duties as may be assigned to him from time to time by the Board of
Directors. He shall, if present, preside at all meetings of stockholders and of
the Board of Directors.
-7-
Section 5. The President.
(a) The President shall be the chief executive officer of the
Corporation and, subject to the direction of the Board of Directors, shall have
general charge of the business, affairs, and property of the Corporation and
general supervision over its other officers and agents. In general, he shall
perform all duties incident to the office of President and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
(b) Unless otherwise prescribed by the Board of Directors, the
President shall have full power and authority to attend, act, and vote on behalf
of the Corporation at any meeting of the security holders of other corporations
in which the Corporation may hold securities. At any such meeting, the President
shall possess and may exercise any and all rights and powers incident to the
ownership of such securities that the Corporation might have possessed and
exercised if it had been present. The Board of Directors may from time to time
confer like powers upon any other person or persons.
Section 6. The Vice President. The Vice President, if any, or in the
event there be more than one, the Vice Presidents in the order designated, or in
the absence of any designation, in the order of their election, shall, in the
absence of the President or in the event of his disability, perform the duties
and exercise the powers of the President and shall generally assist the
President and perform such other duties and have such other powers as may from
time to time be prescribed by the Board of Directors.
Section 7. The Secretary. The Secretary shall attend all meetings of
the Board of Directors and the stockholders and record all votes and the
proceedings of the meetings in a book to be kept for that purpose. He shall
perform like duties for the Executive Committee or other committees, if
required. He shall give, or cause to be given, notice of all meetings of
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board, or the President, under whose supervision
he shall act. He shall have custody of the seal of the Corporation, and he, or
an Assistant Secretary, shall have authority to affix it to any instrument
requiring it, and, when so affixed, the seal may be attested by his signature or
by the signature of the Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing thereof by his signature.
Section 8. The Assistant Secretary. The Assistant Secretary, if any, or
in the event there be more than one, the Assistant Secretaries in the order
designated, or in the absence of any designation, in the order of their
election, shall, in the absence of the Secretary or in the event of his
disability, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
Section 9. The Treasurer. The Treasurer shall have 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 and to the credit of the Corporation in such depositories as may from time
to time
-8-
be designated by the Board of Directors. He shall disburse the funds of the
Corporation in accord with the orders of the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chairman of the Board,
if any, the President, and the Board of Directors, whenever they may require it
or at regular meetings of the Board, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
Section 10. The Assistant Treasurer. The Assistant Treasurer, if any,
or in the event there shall be more than one, the Assistant Treasurers in the
order designated, or in the absence of any designation, in the order of their
election, shall, in the absence of the Treasurer or in the event of his
disability, perform such other duties and have such other powers as may from
time to time be prescribed by the Board of Directors.
Article VII. Indemnification.
Reference is made to Section 145 and any other relevant provisions of
the General Corporation Law of the State of Delaware. Particular reference is
made to the class of persons, hereinafter called "Indemnitees", who may be
indemnified by a Delaware corporation pursuant to the provisions of such Section
145, namely, any person, or the heirs, executors, or administrators of such
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, by reason of the fact that such
person is or was a director, officer, employee, or agent of such corporation or
is or was serving at the request of such corporation as a director, officer,
employee, or agent of such corporation or is or was serving at the request of
such corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise. The
Corporation shall, and is hereby obligated to, indemnify the Indemnitees, and
each of them, in each and every situation where the Corporation is obligated to
make such indemnification pursuant to the aforesaid statutory provisions. The
Corporation shall indemnify the Indemnitees, and each of them, in each and every
situation where, under the aforesaid statutory provisions, the Corporation is
not obligated, but is nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making such indemnification
with respect to any situation covered under this sentence, (i) the Corporation
shall promptly make or cause to be made, by any of the methods referred to in
Subsection (d) of such Section 145, a determination as to whether each
Indemnitee acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Corporation, and, in the case of
any criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful, and (ii) that no such indemnification shall be made unless
it is determined that such Indemnitee acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, in the case of any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful.
-9-
Article VIII. Affiliated Transactions and Interested Directors.
Section 1. Affiliated Transactions. 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 or 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 the meeting of the Board of Directors or committee thereof that authorizes
the contract or transaction or solely because his or their votes are counted for
such purpose if:
(a) The material facts as to his relationship or 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 the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or
(b) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by the vote of the stockholders; or
(c) 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.
Section 2. Determining Quorum. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee thereof which authorizes the contract or
transaction.
Article IX. Stock Certificates.
Section 1. Form and Signatures.
(a) Every holder of stock of the Corporation shall be entitled to a
certificate stating the number and class, and series, if any, of shares owned by
him, signed by the Chairman of the Board, if any, or the President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation, and bearing the seal of the Corporation. The signatures and
the seal may be facsimiles. A certificate may be signed, manually or by
facsimile, by a transfer agent or registrar other than the Corporation or its
employee. In case any officer who has signed, or whose facsimile signature was
placed on, a certificate shall have ceased to be such officer before the
certificate is issued, it may nevertheless be issued by the Corporation with the
same effect as if he were such officer at the date of its issue.
(b) All stock certificates representing shares of capital stock that
are subject to restrictions on transfer or to other restrictions may have
imprinted thereon any notation to that effect determined by the Board of
Directors.
-10-
Section 2. Registration of Transfer. Upon surrender to the Corporation
or any transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment, or
authority to transfer, the Corporation or its transfer agent shall issue a new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon the books of the Corporation.
Section 3. Registered Stockholders.
(a) Except as otherwise provided by law, the Corporation shall be
entitled to recognize the exclusive right of a person who is registered on its
books as the owner of shares of its capital stock to receive dividends or other
distributions and to vote or consent as such owner, and to hold liable for calls
and assessments any person who is registered on its books as the owner of shares
of its capital stock. The Corporation shall not be bound to recognize any
equitable or legal claim to, or interest in, such shares on the part of any
other person.
(b) If a stockholder desires that notices and/or dividends shall be
sent to a name or address other than the name or address appearing on the stock
ledger maintained by the Corporation, or its transfer agent or registrar, if
any, the stockholder shall have the duty to notify the Corporation, or its
transfer agent or registrar, if any, in writing of his desire and specify the
alternate name or address to be used.
Section 4. Record Date. In order that the Corporation may determine the
stockholders of record who are entitled to receive notice of, or to vote at, any
meeting of stockholders or any adjournment thereof or to express consent to
corporate action in writing without a meeting, 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 stock or for the
purpose of any lawful action, the Board of Directors may, in advance, fix a date
as the record date for any such determination. Such date shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to the date of any other action. 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 taken pursuant to
Section 8 of Article II; provided, however, that the Board of Directors may fix
a new record date for the adjourned meeting.
Section 5. Lost, Stolen, or Destroyed Certificates. The Board of
Directors may direct that a new certificate be issued to replace any certificate
theretofore issued by the Corporation that, it is claimed, has been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen, or destroyed. When authorizing the
issue of a new certificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of the lost,
stolen, or destroyed certificate, or his legal representative, to advertise the
same in such manner as it shall require, and/or to give the Corporation a bond
in such sum, or other security in such form, as it may direct as indemnity
against any claims that may be made against the Corporation with respect to the
certificate claimed to have been lost, stolen, or destroyed.
-11-
Article X. General Provisions.
Section 1. Dividends. Subject to the provisions of law and the
Certificate of Incorporation, dividends upon the outstanding capital stock of
the Corporation may be declared by the Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the
Corporation`s capital stock.
Section 2. Reserves. The Board of Directors shall have full power,
subject to the provisions of law and the Certificate of Incorporation, to
determine whether any, and, if so, what part, of the funds legally available for
the payment of dividends shall be declared as dividends and paid to the
stockholders of the Corporation. The Board of Directors, in its sole discretion,
may fix a sum that may be set aside or reserved over and above the paid-in
capital of the Corporation as a reserve for any proper purpose, and may, from
time to time, increase, diminish, or vary such amount.
Section 3. Fiscal Year. Except as from time to time otherwise provided
by the Board of Directors, the fiscal year of the Corporation shall end March 31
of each year.
Section 4. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation, and the words "Corporate
Seal" and "Delaware".
Article XI. Amendments.
The Board of Directors shall have the power to alter and repeal these
Bylaws and to adopt new Bylaws by an affirmative vote of a majority of the whole
Board, provided that notice of the proposal to alter or repeal these Bylaws or
to adopt new Bylaws must be included in the notice of the meeting of the Board
of Directors at which such action takes place.
-12-
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