SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Pursuant to Sections 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 19, 1997
PROQUEST CAPITAL CORPORATION
(Exact name of registrant as specified in charter)
Nevada
(State or other jurisdiction of incorporation or organization)
33-14125-D 84-1055272
(Commission File Number) (I.R.S. Employer Identification Number)
90 Madison Street, Suite 707, Denver, Colorado 80206
(Address of Principal Executive Offices and Zip Code)
(303) 355-3000
(Registrant's telephone number, including area code)
(Former name or former address, if changed since last report)
Item 5. Other Events.
On September 18, 1997, Pro Quest, Inc., a Colorado corporation,
held a special meeting of its shareholders in Denver, Colorado. The
meeting was called to seek shareholder approval of certain actions
adopted by the Board of Directors. The meeting agenda included
proposals to redomicile the Company from Colorado to Nevada, adopt
a 1997 Compensatory Stock Option Plan, adopt a 1997 Employee
Stock Compensation Plan, and to elect directors. All proposals were
approved by the shareholders. The redomiciliation was effective
September 19, 1997, which the Company has determined to be the
event date for purposes of filing this report.
REDOMICILIATION OF THE COMPANY
Effective September 19, 1997, Pro Quest, Inc. was redomiciled
(reincorporated) from the State of Colorado to the State of Nevada,
which was accomplished by merging the Company into PROQUEST
CAPITAL CORPORATION, a Nevada corporation formed and wholly
owned by Pro Quest, Inc. for the purpose of the redomiciliation.
Proquest Capital Corporation ("Company") is now the name of the
corporation. The redomiciliation was made for the sole purpose of
changing the Company's domicile solely within the United States.
Under Rule 145(a)(2) of the Securities Act of 1933, the redomiciliation
did not involve any offer or sale of a security. The Board of Directors
adopted a Merger Agreement on September 18, 1997, setting forth the
terms of the redomiciliation, which was approved by the shareholders
at the special meeting. Articles and Certificate of Merger (with the
Merger Agreement attached thereto as Exhibit A) were filed with the
Nevada Secretary of State on September 19, 1997, which issued a
Certificate of Fact of Merger therefor, and filed with the Colorado
Secretary of State on September 23, 1997.
The Company has obtained a new CUSIP number for the
common stock of Proquest Capital Corporation, which is 743468 10 0.
The Company will soon apply for quotation on the OTC Electronic
Bulletin Board.
REVERSE SPLIT
In connection with the redomiciliation, the shareholders
approved a 1-for-100 reverse split of the common stock. The effect of
the combination was to reduce the number of common shares of Pro
Quest, Inc. from 144,547,500 to approximately 1,445,475 shares of the
Company. Certificates evidencing stock of Pro Quest, Inc. will, as they
are received by the Company's transfer agent, be exchanged for
certificates evidencing the appropriate amount of stock of Proquest
Capital Corporation. The Company will not bear any expenses
associated with any exchange of certificates.
ADOPTION OF 1997 COMPENSATORY STOCK OPTION PLAN.
On September 18, 1997, the Company's shareholders approved
the 1997 Compensatory Stock Option Plan for officers, key employees,
non-employee directors and advisors (the "CSO Plan"). The Company
has reserved a maximum of 1,000,000 common shares to be issued
upon the exercise of options granted under the CSO Plan. The CSO
Plan will not qualify as an "incentive stock option" plan under Section
422 of the Internal Revenue Code of 1986, as amended. Options will
be granted under the CSO Plan at exercise prices to be determined by
the Board of Directors or other CSO Plan administrator. With respect
to options granted pursuant to the CSO Plan, optionees will not
recognize taxable income upon the grant of options, but will realize
income (or capital loss) at the time the options are exercised to
purchase common stock. The amount of income will be equal to the
difference between the exercise price and the fair market value of the
common stock on the date of exercise. The Company will be entitled
to a compensating deduction in an amount equal to the taxable income
realized by an optionee as a result of exercising the option. The CSO
Plan will be administered by the Board of Directors or a committee of
directors. No options have been granted under the CSO Plan to date.
The CSO Plan is attached as an exhibit to this report.
ADOPTION OF 1997 EMPLOYEE STOCK COMPENSATION PLAN.
On September 18, 1997, the Company's shareholders approved
the 1997 Employee Stock Compensation Plan for employees, officers,
directors of the Company and advisors to the Company (the "ESC
Plan"). The Company has reserved a maximum of 1,000,000 common
shares to be issued upon the grant of awards under the ESC Plan.
Employees will recognize taxable income upon the grant of common
stock equal to the fair market value of the common stock on the date
of the grant and the Company will recognize a compensating deduction
at such time. The ESC Plan will be administered by the Board of
Directors. No stock has been awarded under the ESC Plan to date. The
ESC Plan is attached as an exhibit to this report.
ELECTION OF DIRECTORS
The shareholders on September 18, 1997, elected Randy J.
Sasaki and Mark Rahe as directors of the Company, both of whom
were incumbent directors.
Item 7. Financial Statements and Exhibits.
(c) Exhibits. The following documents are filed as exhibits
to this report on Form 8-K, or have been incorporated by reference to
another registration statement or report.
2.1 Articles and Certificate of Merger dated September 18, 1997,
between Pro Quest, Inc., a Colorado corporation, and Proquest
Capital Corporation, a Nevada corporation, with Merger
Agreement attached thereto as Exhibit A...................... *
3.1 Certificate of Incorporation of Proquest Capital Corporation
............................................................. *
3.2 Bylaws of Proquest Capital Corporation....................... *
10.1 1997 Compensatory Stock Option Plan of Proquest Capital
Corporation ................................................. *
10.2 1997 Employee Stock Compensation Plan of Proquest Capital
Corporation ................................................. *
* included as an exhibit to this report.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this current report on Form 8-K to be
signed on its behalf by the undersigned, thereunto duly authorized.
DATED: October 2, 1997
PROQUEST CAPITAL CORPORATION
/s/ Randy Sasaki
By..................................
Randy Sasaki, President and CEO
Exhibit 2.1 to Form 8-K dated September 19, 1997
ARTICLES AND CERTIFICATE OF MERGER
of
PRO QUEST, INC.
(A Colorado Corporation)
into
PROQUEST CAPITAL CORPORATION
(A Nevada Corporation)
Pursuant to Section 92A.190 of the Nevada General
Corporation Law and Section 7-111-107 of the Colorado
Business Corporation Act, the two undersigned corporations
(the "Constituent Corporations") adopt the following Articles and
Certificate of Merger for the purpose of merging them into one
corporation (the "Merger"), and each corporation hereby certifies
to the information below with respect to the Merger:
FIRST: The names and state of incorporation of the
two Constituent Corporations effecting the Merger are:
Name Domicile Status
---- -------- ------
PROQUEST CAPITAL CORPORATION......Nevada...........Surviving Corporation
PRO QUEST, INC. ..................Colorado.........Assimilated Corporation
SECOND: The name of the Surviving Corporation in the
Merger shall be PROQUEST CAPITAL CORPORATION Section
7-111-107 of the Colorado Business Corporation Act and
Section 92A.190 of the Nevada General Corporation Law
permits this Merger. The Surviving Corporation has authorized
50,000,000 common shares, $.001 par value, of which 100
shares (all owned by Assimilated Corporation) are issued and
outstanding, and 5,000,000 preferred shares, $.001 par value,
none of which have been issued or are outstanding. The
Assimilated Corporation has authorized 800,000,000 common
shares, $.0001 par value, 144,547,500 of which are issued and
outstanding, and 20,000,000 preferred shares, $.10 par value,
none of which have been issued or are outstanding.
THIRD: The Merger shall not effect any change in the
Certificate of Incorporation of the Surviving Corporation as in
effect on the date these Articles and Certificate of Merger are
duly filed with the respective Secretaries of State of the States
of Nevada and Colorado.
FOURTH: A copy of the Merger Agreement dated
September 18, 1997, setting forth the terms and conditions of
the Merger and of the manner of converting the outstanding
securities of the Assimilated Corporation into securities of the
Surviving Corporation, is appended in the form executed to
these Articles and Certificate of Merger as Exhibit A and is
herein fully incorporated by reference, and will be furnished to
any shareholder of a Constituent Corporation, without charge,
who so requests.
FIFTH: The Merger Agreement has been approved
and adopted by the respective boards of directors of the
Constituent Corporations and certified, executed and
acknowledged by each of the Constituent Corporations in the
manner prescribed by the respectively applicable laws of
Nevada and Colorado.
SIXTH: The Merger Agreement was duly approved,
as follows:
(a) by the shareholders of the Assimilated
Corporation on September 18, 1997, voting 103,934,625
shares FOR and -0- AGAINST, out of a total of
144,547,500 voting shares issued and outstanding entitled
to vote thereon, all of a class, a number sufficient for
approval; and
(b) by the shareholders of the Surviving
Corporation on September 18, 1997, voting 100 shares
FOR and -0- AGAINST, out of a total of 100 voting shares
issued and outstanding entitled to vote thereon, all of a
class, a number sufficient for approval.
SEVENTH: An executed Merger Agreement is on file at
the principal place of business of the Surviving Corporation,
which is located at 90 Madison Street, Suite 707, Denver,
Colorado 80206, and a copy thereof will be furnished without
charge to any shareholder of a Constituent Corporation who so
requests.
EIGHTH: The Registered Office of the Surviving
Corporation in the State of Nevada is located at 2533 North
Carson Street, Carson City, Nevada 89706, and the Registered
Agent at such address is Laughlin Associates, Inc.
NINTH: The Surviving Corporation in this Merger by
execution and the due filing of these Articles of Merger hereby
agrees that it:
(a) may be served with process in the State of Colorado
in any proceeding for the enforcement of any obligation of
the Assimilated Corporation and in any proceeding for the
enforcement of the rights of any dissenting shareholder of
the Assimilated Corporation against the Surviving
Corporation;
(b) irrevocably appoints the Secretary of the Department
of State of the State of Colorado as its agent to accept
service of process in any such proceeding brought against
the Assimilated Corporation in the State of Colorado,
which should be served on the Surviving Corporation at
the address set forth in Article SEVENTH above; and
(c) will promptly pay to the dissenting shareholders, if any,
of the Assimilated Corporation the amount, if any, to which
they are entitled under the provisions of the Colorado
Business Corporation Act with respect to the rights of
dissenting shareholders.
TENTH: The Merger shall be effective when these
Articles of Merger are duly filed for recordation with the office of
the Secretary of State of the State of Nevada.
IN WITNESS WHEREOF, these Articles and Certificate of
Merger have been duly executed as of the date set forth below
by the authorized officers of the Constituent Corporations.
Dated: September 18, 1997
PROQUEST CAPITAL CORPORATION
A Nevada Corporation
/s/ Randy J. Sasaki
ATTEST: By..................................
Randy J. Sasaki, President
/s/ Elisabeth M. Crosse
By....................................
Secretary or Assistant Secretary
PRO QUEST, INC.
A Colorado Corporation
(SEAL)
/s/ Randy J. Sasaki
ATTEST: By.................................
Randy J. Sasaki, President
/s/ Elisabeth M. Crosse
By...................................
Secretary or Assistant Secretary
(SEAL)
VERIFICATION
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
On this 18th day of September, 1997, before me, a Notary
Public duly commissioned and qualified in and for the above
stated jurisdiction, personally came and appeared Randy J.
Sasaki, who being duly sworn, declared that he is the President
of PROQUEST CAPITAL CORPORATION a Nevada corporation,
that he executed the foregoing Articles and Certificate of Merger
as the free act and deed of such corporation, and that he has
signed his name thereto by order of the Board of Directors of
such corporation.
/s/ John D. Brasher Jr.
X................................... Commission Expires:
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
On this 18th day of September, 1997, before me, a Notary
Public duly commissioned and qualified in and for the above
stated jurisdiction, personally came and appeared Randy J.
Sasaki, who being duly sworn, declared that he is the President
of PRO QUEST, INC. a Colorado corporation, that he executed
the foregoing Articles and Certificate of Merger as the free act
and deed of such corporation, and that he has signed his name
thereto by order of the Board of Directors of such corporation.
/s/ John D. Brasher Jr.
X.................................... Commission Expires:
Notary Public
(SEAL)
VERIFICATION
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
On this 18th day of September, 1997, before me, a Notary
Public duly commissioned and qualified in and for the above
stated jurisdiction, personally came and appeared Elisabeth M.
Crosse, who being duly sworn, declared that she is the Secretary
of PROQUEST CAPITAL CORPORATION a Nevada corporation,
that she executed the foregoing Articles and Certificate of Merger
as the free act and deed of such corporation, and that she has
signed her name thereto by order of the Board of Directors of
such corporation.
/s/ John D. Brasher Jr.
X.................................... Commission Expires:
Notary Public
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
On this 18th day of September, 1997, before me, a Notary
Public duly commissioned and qualified in and for the above
stated jurisdiction, personally came and appeared Elisabeth M.
Crosse, who being duly sworn, declared that she is the Secretary
of PRO QUEST, INC. a Colorado corporation, that she executed
the foregoing Articles and Certificate of Merger as the free act
and deed of such corporation, and that she has signed her name
thereto by order of the Board of Directors of such corporation.
/s/ John D. Brasher Jr.
X..................................... Commission Expires:
Notary Public
(SEAL)
Exhibit A
MERGER AGREEMENT
of
PROQUEST CAPITAL CORPORATION
(A Nevada Corporation)
and
PRO QUEST, INC.
(A Colorado Corporation)
This Merger Agreement, dated as of September 18, 1997, is
entered into pursuant to the provisions of Section 92A.190 of the
General Corporation Law of Nevada and of Section 7-111-107 of the
Colorado Business Corporation Act, by and between PROQUEST
CAPITAL CORPORATION, a Nevada corporation (the "Survivor"), and
PRO QUEST, INC., a Colorado corporation (the "Assimilated"), both
corporations being sometimes referred to herein as the "Constituent
Corporations."
RECITALS:
A. Survivor is a corporation duly organized and existing
under the laws of the State of Nevada and has an authorized capital of
55,000,000 shares, of which 50,000,000 shares are designated as
common stock, par value $.001, of which 100 shares are outstanding,
and of which 5,000,000 shares are designated as preferred shares, $.001
par value, none of which have been issued or are outstanding.
B. Assimilated is a corporation duly organized and existing
under the laws of the State of Colorado and has an authorized capital of
820,000,000 shares without par value, of which 800,000,000 shares are
designated as Common Stock and of which 20,000,000 shares are
designated as Preferred Stock. A total of 111,437,450 shares of Common
Stock are issued and outstanding. No preferred shares have been issued
or are outstanding.
C. The respective Boards of directors of Survivor and
Assimilated have approved this Agreement and have directed that this
Agreement be submitted to a vote of their respective shareholders.
Now, therefore, in consideration of the premises and of the
mutual representations, warranties and covenants herein contained,
Survivor and Assimilated hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
ARTICLE I. MERGER.
1.1 Merger and Name Change. In accordance with the
provisions of this Agreement, the General Corporation Law of Nevada,
and the Colorado Business Corporation Act, Assimilated shall be
merged with and into Survivor (the "Merger"), and the name of the
surviving corporation shall be PROQUEST CAPITAL
CORPORATION.
1.2 Filing and Effectiveness. The Merger shall become
effective when the following actions shall have been completed:
(a) This Agreement and the Merger shall have been
adopted and approved by the shareholders of each Constituent
Corporation in accordance with the respective requirements of the
General Corporation Law of Nevada and the Colorado Business
Corporation Act.
(b) An executed counterpart of this Agreement shall
have been filed with the Secretary of State of the State of Nevada; and
(c) Executed Articles of Merger or other documents
meeting the requirements of the Colorado Business Corporation Act
shall have been filed with the Secretary of State of the State of Colorado.
The date and time when the Merger shall become effective, as
aforesaid, is herein called the "Effective Date."
1.3 Certificate of Incorporation. The Certificate of
Incorporation of Survivor as in effect immediately prior to the Effective
Date shall continue in full force and effect as the Certificate of
Incorporation of the Survivor until duly amended in accordance with the
provisions thereof and applicable law.
1.4 Bylaws. The Bylaws of Survivor as in effect
immediately prior to the Effective Date shall continue in full force and
effect as the Bylaws of the Survivor without any change as a result of the
Merger.
1.5 Directors and Officers. The directors and officers of
Survivor in office immediately prior to the Effective Date shall continue
in office and shall constitute the directors and officers of Survivor until
their respective successors shall have been elected and duly qualified or
until otherwise provided by law, the Certificate of Incorporation of
Survivor and the Bylaws of Survivor.
1.6 Effect of Merger. Upon the Effective Date, the separate
existence of Assimilated shall cease and the Survivor (i) shall continue
to possess all of the assets, rights, powers and property of Survivor as
constituted immediately prior to the Effective Date, shall be subject to
all actions previously taken by the Board of Directors of Assimilated and
shall succeed, without other transfer, to all of the assets, rights, powers
and property of Assimilated, (ii) shall continue to be subject to all of the
debts, liabilities and obligations of Assimilated as constituted
immediately prior to the Effective Date and shall succeed, without other
transfer, to all of the debts, liabilities and obligations of Assimilated in
the same manner as if Survivor had itself incurred them, all as more fully
provided under the applicable provisions of the General Corporation
Law of Nevada and the Colorado Business Corporation Act.
ARTICLE II. MANNER OF CONVERSION OF COMMON STOCK.
2.1 Assimilated Common Stock. Upon the Effective Date,
each share of common stock, $.0001 par value, of Assimilated issued
and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by any holder of such shares or any other person,
be converted into and exchanged for one-hundredth (1/100th) of a fully
paid and nonassessable share of Common Stock, $.001 par value, of
Survivor (the "Merger Shares"); that is, each 100 shares of Assimilated
common stock shall be converted into one (1) Merger Share.
2.2 Outstanding Common Stock of Survivor. Upon the
Effective Date, each share of the 100 shares of Common Stock of
Survivor issued and outstanding immediately prior thereto shall, by
virtue of the Merger and without any action by the holder of such shares
or any other person, be cancelled and returned to the status of authorized
but unissued shares.
2.3 Exchange of Certificates. On or after the Effective Date
of the Merger:
(a) All of the outstanding certificates which prior to
that time represented the outstanding Common Shares of Assimilated
shall be deemed for all purposes to evidence ownership of and to
represent the Merger Shares into which the shares of Assimilated
represented by such certificates have been converted as herein provided.
The registered owner on the books and records of Assimilated or its
transfer agent of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to Survivor or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the Merger Shares
evidenced by such outstanding certificate as above provided.
(b) Each certificate evidencing Merger Shares issued
in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of Assimilated so
converted and given in exchange therefor, unless otherwise determined
by the Board of Directors of Survivor in compliance with applicable
laws.
(c) If any certificate for Merger Shares is to be issued
in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer, that such transfer otherwise be
proper and that the person requesting such transfer pay any transfer or
other taxes payable by reason of the issuance of such new certificate in
a name other than that of the registered holder of the certificate
surrendered or establish to the satisfaction of Survivor that such tax has
been paid or is not payable.
2.4 Assumption of Benefit Plans. Upon the Effective Date,
Survivor shall assume and continue both the 1997 Compensatory Stock
Option Plan and the 1997 Employee Stock Compensation Plan of
Assimilated, without change other than conforming changes in the
corporate name, par value of common stock, governing law and similar
non-substantive changes. Survivor and its Board of Directors shall have
the same rights and powers in regard to such plans as Assimilated and
its Board of Directors.
ARTICLE III. GENERAL MATTERS.
3.1 Covenants of Survivor. Survivor covenants and agrees
that it will, on or before the Effective Date:
(a) Qualify to do business as a foreign corporation in
all states wherein its operations require it to qualify under applicable
state laws.
(b) File all documents with the franchise tax
authorities of the State of Colorado necessary to the assumption by
Survivor of all of the franchise tax liabilities of Assimilated.
(c) Take such other actions as may be required by the
Colorado Business Corporation Act or other applicable law.
3.2 Abandonment. At any time before the Effective Date,
this Agreement may be terminated and the Merger abandoned for any
reason whatever by the Board of Directors of Survivor or Assimilated,
or both, notwithstanding the approval of this Agreement and Merger by
the shareholders of Assimilated or Survivor or both.
3.3 Amendment. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing
of this Agreement (or a certificate in lieu thereof) with the Secretary of
State of the State of Nevada, provided that an amendment made
subsequent to the adoption of this Agreement by the shareholders of
either Constituent Corporation shall not (i) alter or change the amount
or kind of Merger Shares to be received in exchange for or on conversion
of all or any of the shares of any class or series thereof of such
Constituent Corporation, (ii) alter or change any term of the Certificate
of Incorporation of the Survivor to be effected by the Merger, or (iii)
alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or
series thereof of such Constituent Corporation.
3.4 Expenses. Survivor shall pay all costs related to the
Merger and necessary filings and actions in connection therewith.
3.5 Mutual Covenants of Constituent Corporations.
Survivor and Assimilated each agree that, between the date hereof and
the Effective Date, it will not (i) enter into any employment contracts,
(ii) grant any options, warrants or similar rights (nor any instrument or
security containing such an option, warrant or similar right) exercisable
for, exchangeable for or convertible into its common shares or other
securities, (iii) issue any stock or other securities, including debt
instruments, or (iv) declare or pay any dividends in stock or cash or
make any other distribution on or with respect to its outstanding
common stock. Either party may but need not abandon the Merger if the
holders of more than 5% of the outstanding shares of Assimilated should
dissent from the Merger.
3.6 Registered Office. The Registered Office of the Survivor
in the State of Nevada is located at 2533 North Carson Street, Carson
City, Nevada 89706, and Laughlin Associates, Inc. is the Resident Agent
of the Survivor at such address.
3.7 Further Actions. If at any time Survivor shall consider
or be advised that any further assignment or assurances in law are
necessary or desirable to vest or to perfect or confirm of record in
Survivor the title to any property or rights of Assimilated, or to
otherwise carry out the provisions of this Agreement, then the proper
officers and directors of Assimilated as of the Effective Date shall
execute and deliver to Survivor any and all proper deeds, assignments
and assurances in law, and do all things necessary or proper to vest,
perfect or confirm title to such property or rights in Survivor.
3.8 Governing Law. This Agreement shall in all respects be
interpreted and enforced in accordance with and governed by the laws
of the State of Colorado.
3.9 Counterparts. In order to facilitate the filing and
recording of this Agreement, it may be executed in any number of
counterparts, each of which shall be deemed to be an original.
3.10 Agreement. Executed copies of this Agreement will be
on file at the principal place of business of Survivor located at 90
Madison Street, Suite 707, Denver, Colorado 80206, and copies thereof
will be furnished to any shareholder of any Constituent Corporation
upon request and without cost.
IN WITNESS WHEREOF, this Agreement, having first been
approved by resolution of the Boards of Directors Assimilated and
survivor, is hereby executed on behalf of each of such corporations and
attested by their respective officers thereto duly authorized.
PROQUEST CAPITAL CORPORATION
A Nevada Corporation
/s/ Randy J. Sasaki
ATTEST: By................................
Randy J. Sasaki, President
/s/ Elisabeth M. Crosse
By......................................
Secretary or Assistant Secretary
PRO QUEST, INC.
A Colorado Corporation
/s/ Randy J. Sasaki
ATTEST: By..................................
Randy J. Sasaki, President
/s/ Elisabeth M. Crosse
By...................................
Secretary or Assistant Secretary
Exhibit 3.1 to Form 8-K dated September 19, 1997
CERTIFICATE OF INCORPORATION
of
PROQUEST CAPITAL CORPORATION
(A Nevada Corporation)
FIRST. The name of this corporation is PROQUEST
CAPITAL CORPORATION.
SECOND. The Corporation's Registered Office in the State of
Nevada is located at 2533 N. Carson Street, Carson City, Nevada
89706. The Corporation's Resident Agent at this address is Laughlin
Associates, Inc.
THIRD. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Nevada. The Corporation may conduct all
or any part of its business, and may hold, purchase, mortgage, lease and
convey real and personal property, anywhere in the world. The
Corporation shall have perpetual duration.
FOURTH. The name and mailing address of the Incorporator
is:
Name Mailing Address
---- ---------------
John D. Brasher, Jr. 90 Madison Street, Suite 707
Denver, Colorado 80206
Upon the filing of this Certificate of Incorporation the powers of
the Incorporator shall terminate. The names and addresses of the person
or persons who are to serve as directors until the first annual meeting of
shareholders or until their successors are duly elected and have qualified
are:
Name Mailing Address
---- ---------------
Randy J. Sasaki 2439 West Coast Highway, Suite 202
Newport Beach, California 92663
Mark A. Rahe 12122 Juniper
Overland Park, Kansas 66209
{CAPITAL STOCK}
FIFTH. The aggregate number of shares of capital stock of all
classes which the Corporation shall have authority to issue is FIFTY
FIVE MILLION (55,000,000), of which FIFTY MILLION (50,000,000)
shares having a par value of $.001 per share shall be of a class
designated "Common Stock" (or "Common Shares") and FIVE
MILLION (5,000,000) shares having a par value of $.001 per share shall
be of a class designated "Preferred Stock" (or "Preferred Shares"). All
shares of the Corporation shall be issued for such consideration or
considerations as the Board of Directors may from time to time
determine. The designations, voting powers, preferences, optional or
other special rights and qualifications, limitations, or restrictions of the
above classes of stock shall be as follows:
I. PREFERRED STOCK
(a) Issuance in Class and Series. Shares of Preferred Stock
may be issued in one or more classes or series at such time or times as
the Board of Directors may determine. All shares of any one series shall
be of equal rank and identical in all respects.
(b) Authority of Board for Issuance. Authority is hereby
expressly granted to the Board of Directors to fix from time to time, by
resolution or resolutions providing for the issuance of any class or series
of Preferred Stock, the designation of such classes and series and the
powers, preferences and rights of the shares of such classes and series,
and the qualifications, limitations or restrictions thereof, including the
following:
1. The distinctive designation and number of shares
comprising such class or series, which number may (except
where otherwise provided by the Board of Directors in creating
such class or series) be increased or decreased (but not below the
number of shares then outstanding) from time to time by action
of the Board of Directors;
2. The rate of dividend, if any, on the shares of that class
or series, whether dividends shall be cumulative and, if so, from
which date or dates, the relative rights of priority, if any, of
payment of dividends on shares of that class or series over shares
of any other class or series;
3. Whether the shares of that class or series shall be
redeemable at the option of the Corporation or of the holder of
the shares or of another person or upon the occurrence of a
designated event and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they
shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions
and different redemption dates;
4. Whether that class or series shall have a sinking fund
for the redemption or purchase of shares of that class or series
and, if so, the terms and amounts payable into such sinking fund;
5. The rights to which the holders of the shares of that
series shall be entitled in the event of voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of
the Corporation, relative rights of priority; if any, of payment of
shares of that class or series;
6. Whether the shares of that class or series shall be
convertible into or exchangeable for shares of stock of any class
or any other series of Preferred Stock and, if so, the terms and
conditions of such conversion or exchange, including the method
of adjusting the rates of conversion or exchange in the event of
a stock split, stock dividend, combination of shares or similar
event;
7. Whether the issuance of any additional shares of such
class or series, or of any shares of any other class or series, shall
be subject to restrictions as to issuance, or as to the powers,
preferences or rights of any such other class or series;
8. Any other preferences, privileges and powers, and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions of such class or series,
as the Board of Directors may deem advisable and as shall not be
inconsistent with the provisions of the Corporation's Charter, as
from time to time amended, and to the full extent now or
hereinafter permitted by the laws of Nevada.
(c) Dividends. Payment of dividends shall be as follows:
1. The holders of Preferred Stock of each class or series,
in preference to the holders of Common Stock, shall be entitled
to receive, as and when declared by the Board of Directors out of
funds legally available therefor, all dividends, at the rate for such
class or series fixed in accordance with the provisions of this
Article FIFTH and no more;
2. Dividends may be paid upon, or declared or set aside
for, any class or series of Preferred Stock in preference to the
holders of any other class or series of Preferred Stock in the
manner determined by the resolutions of the Board of Directors
authorizing and creating such class or series;
3. So long as any shares of Preferred Stock shall be
outstanding, in no event shall any dividend, whether in cash or
in property, be paid or declared nor shall any distribution be
made, on the Common Stock, nor shall any shares of Common
Stock be purchased, redeemed or otherwise acquired for value by
the Corporation, unless all dividends on all cumulative classes
and series Preferred Stock with respect to all past dividend
periods, and unless all dividends on all classes and series of
Preferred Stock for the then current dividend period shall have
been paid or declared, and provided for, and unless the
Corporation shall not be in default with respect to any of its
obligations with respect to any sinking fund for any class or
series of Preferred Stock. The foregoing provisions of this
subparagraph (3) shall not, however, apply to any dividend
payable in Common Stock;
4. No dividend shall be deemed to have accrued on any
share of Preferred Stock of any class or series with respect to any
period prior to the date of the original issue of such share or the
dividend payment date immediately preceding or following such
date of original issue, as may be provided in the resolutions of
the Board of Directors creating such class or series. Preferred
Stock shall not be entitled to participate in any dividends
declared and paid on Common Stock, whether payable in cash,
stock or otherwise. Accruals of dividends shall not pay interest.
(d) Dissolution or Liquidation. In the event of any voluntary
or involuntary liquidation, dissolution of assets or winding-up of the
Corporation, the holders of the shares of each class or series of Preferred
Stock then outstanding shall be entitled to receive out of the net assets
of the Corporation, but only in accordance with the preferences, if any,
provided for such series, before any distribution or payment shall be
made to the holders of Common Stock, the amount per share fixed by the
resolution or resolutions of the Board of Directors to be received by the
holder of each such share on such voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up, as the case may be. If
such payment shall have been made in full to the holders of all
outstanding Preferred Stock of all classes and series, or duly provided
for, the remaining assets of the Corporation shall be available for
distribution among the holders of Common Stock as provided in this
Article FIFTH. If upon any such liquidation, dissolution, distribution of
assets or winding-up, the net assets of the Corporation available for
distribution among the holders of any one or more classes or series of
Preferred Stock which (i) are entitled to a preference over the holders of
Common Stock upon such liquidation, dissolution, distribution of assets
or winding-up, and (ii) rank equally in connection therewith, shall be
insufficient to make payment for the preferential amount to which the
holders of such shares shall be entitled, then such assets shall be
distributed among the holders of each such series of Preferred Stock
ratably according to the respective amounts to which they would be
entitled in respect of the shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full.
Neither the consolidation nor merger of the Corporation, nor the
exchange, sale, lease or conveyance (whether for cash, securities or other
property) of all, substantially all or any part of its assets, shall be deemed
a liquidation, dissolution, distribution of assets or winding-up of the
Corporation within the meaning of this provision.
(e) Voting Rights. Except to the extent otherwise required
by law or provided in the resolution of the Board of Directors adopted
pursuant to authority granted in this Article FIFTH, the shares of
Preferred Stock shall have no voting power with respect to any matter
whatsoever. The Board of Directors may determine whether the shares
of any class or series shall have limited, contingent, full or no voting
rights, in addition to the voting rights provided by law and, if so, the
terms of such voting rights. Whenever holders of Preferred Stock are
entitled to vote on a matter, each holder of record of Preferred Stock
shall be entitled to one vote for each share standing in his name on the
books of the Corporation and entitled to vote.
II. COMMON STOCK
(a) Issuance. The Common Stock may be issued from time to
time in one or more classes or series in any manner permitted by law, as
determined by the Board of Directors and stated in the resolution or
resolutions providing for issuance thereof. Each class or series shall be
appropriately designated, prior to issuance of any shares thereof, by
some distinguishing letter, number or title. All shares of each class or
series of Common Stock shall be alike in every particular and shall be
of equal rank and have the same power, preferences and rights, and shall
be subject to the same qualifications, limitations and restrictions, if any.
(b) Voting Powers. The Common Stock may have such
voting powers (full, limited, contingent or no voting powers), such
designations, preferences and relative, participating, optional or other
special rights, and be subject to such qualifications, limitations and re-
strictions, as the Board of Directors shall determine by resolution or
resolutions. Unless otherwise resolved by the Board of Directors at the
time of issuing Common Shares, (i) each Common Share shall be of the
same class, without any designation, preference or relative, participating,
optional or other special rights, and subject to no qualification, limitation
or restriction, and (ii) Common Shares shall have unlimited voting
rights, including but not limited to the right to vote in elections for
directors, and each holder of record of Common Shares entitled to vote
shall have one vote for each share of stock standing in his name on the
books of the Corporation and entitled to vote.
(c) Dividends. After the requirements with respect to
preferential dividends, if any, on Preferred Stock, and after the
Corporation shall have complied with all requirements, if any, with
respect to the setting aside of sums in a sinking fund for the purchase or
redemption of shares of any class or series of Preferred Stock, then and
not otherwise, the holders of Common Stock shall receive, to the extent
permitted by law, such dividends as may be declared from time to time
by the Board of Directors.
(d) Dissolution or Liquidation. After distribution in full of the
preferential amount, if any, to be distributed to the holders of Preferred
Stock, in the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation, the
holders of Common Stock shall be entitled to receive all the remaining
assets of the Corporation of whatever kind available for distribution to
shareholders ratably in proportion to the number of shares of Common
Stock respectively held by them.
III. GENERAL MATTERS
(a) Capital. The portion of the consideration received by the
Corporation upon issuance of any of its shares that shall constitute
"capital" within the meaning of the General Corporation Law of Nevada
shall be (1) in the case of par-value shares, the par value thereof, and (2)
in the case of shares without par value, the stated value of such shares
as determined by the Board of Directors at the time of issuance;
provided, that if no stated value is determined at the time that shares
without par value are issued, the entire consideration to be received for
the shares shall constitute capital.
(b) Fully Paid and Nonassessable. Any and all shares of
Common or Preferred Stock issued by the Corporation for which not less
than the portion of the consideration to be received determined to be
"capital" has been paid to the Corporation, provided the Corporation has
received a promissory note or other binding legal obligation of the
purchaser to pay the balance thereof, shall be deemed fully paid and
nonassessable shares.
(c) Amendment of Shareholder Rights. So long as no shares
of any class or series established by resolution of the Board of Directors
have been issued, the voting rights, designations, preferences and
relative, optional, participating or other rights of these shares may be
amended by resolution of the Board of Directors.
(d) Status of Certain Shares. Shares of Preferred or Common
Stock which have redeemed, converted, exchanged, purchased, retired
or surrendered to the Corporation, or which have been reacquired in any
other manner, shall have the status of authorized and unissued shares and
may be reissued by the Board of Directors as shares of the same or any
other series, unless otherwise provided herein or in the resolution
authorizing and establishing the shares.
(e) Denial of Preemptive Rights. No holder of any shares of
the Corporation shall be entitled as a matter of right to subscribe for or
purchase any part of any new or additional issue of stock of any class or
of securities convertible into or exchangeable for stock of any class,
whether now or hereafter authorized or whether issued for money, for a
consideration other than money, or by way of dividend.
(f) Convertibility. Common Shares or other shares of any class
or series, and notes, debentures, bonds and other debt instruments issued
by the Corporation or any affiliated company, may be made convertible
into or exchangeable for, at the option of the Corporation or the holder
or upon the occurrence of a specified event, shares of any other class or
classes or any other series of the same or any other class or classes of
shares of the Corporation, at such price or prices or at such rate or rates
of exchange and with such adjustments as shall be set forth in the
resolution or resolutions providing for the issuance of such convertible
or exchangeable shares adopted by the Board of Directors.
(g) Redeemability. Common Shares may be made redeemable
at the option of the Corporation or upon the occurrence of a designated
event, if and to the extent now or subsequently allowed by the General
Corporation Law of Nevada, as such law may subsequently be amended,
and the terms and conditions of redemption, including the date or dates
upon or after which they shall be redeemable, the amount per share
payable in case of redemption and any variance in the amount or
amounts payable, among other terms, conditions and limitations which
may be imposed, may be fixed and established by the Board of Directors
in the resolution or resolutions authorizing the issuance of redeemable
Common Shares.
{VOTING OF SHAREHOLDERS}
SIXTH. The following provisions are hereby adopted for
the purpose of regulating certain matters relating to the voting of
shareholders of the Corporation:
(a) Definitions. Whenever the term "total voting power"
appears in this Charter, it shall mean all shares of the Corporation
entitled to vote at a meeting or on a question presented for shareholder
approval, and of every class or series of shares entitled to vote by class
or series. Whenever the term "votes cast" appears in this Charter, it shall
mean the total number of voting shares out of the total voting power
which were unequivocally voted in favor of or against a director standing
for election or a matter presented for shareholder approval at a legal
meeting which commenced with a quorum.
(b) Quorum. A majority of the total voting power, or where
a separate vote by class or series is required, a majority of the voting
shares of each such class or series, represented in person or by proxy,
shall constitute a quorum at any meeting of the Corporation's
shareholders.
(c) Vote Required. Any action to be taken by the
Corporation's shareholders at any valid meeting which commenced with
a quorum shall require the affirmative vote only of a majority of the
votes cast, except where this Charter or the Corporation's Bylaws then
in effect requires the affirmative vote of a higher proportion of the votes
cast or requires the affirmative vote of a proportion of the total voting
power, and except where the Nevada General Corporation Law
specifically requires the affirmative vote of a majority of all the votes
entitled to be cast. Directors shall be elected by plurality vote.
Abstentions from voting shall not be considered in the tallying of votes.
Nothing contained in this Article SIXTH shall affect the voting rights of
holders of any class or series of shares entitled to vote as a class or by
series. The Bylaws may provide for the vote necessary at any
adjournment of a duly called meeting for which a quorum was not
obtained.
(d) Manner of Voting; Etc. The vote of shareholders may be
taken at a meeting by a show of hands or other method authorized by the
Board of Directors. Written ballots shall be used only upon
authorization of the Board of Directors or as provided in the
Corporation's Bylaws. Cumulative voting shall not be allowed in the
election of directors.
(e) Action Without Meeting. Any action required or permitted
to be taken at a meeting of the shareholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by shareholders holding
at least a majority of the voting power, except that if a different
proportion of voting power is required for such an action at a meeting,
then that proportion of written consents is required.
(f) Shareholder Ratification. Any contract, transaction, or act
of the Corporation or of the directors which shall be ratified by vote of
the shareholders at any annual meeting, or at any special meeting called
for such purpose, or by means of a written consent of shareholders in
lieu of a meeting, shall so far as permitted by law be as valid and as
binding as though ratified by every shareholder of the Corporation.
{CONCERNING SHAREHOLDERS, DIRECTORS AND OFFICERS}
SEVENTH. The following provisions are hereby adopted for
the purpose of defining, limiting, and regulating the powers of the
Corporation and of the directors, officers and shareholders:
(a) Number of Directors. The number of Directors shall be as
fixed in the Bylaws. In the absence of such provision in the Bylaws, the
Corporation shall have two (2) Directors. Directors shall be elected by
plurality vote and need not be elected by written ballot, except as
provided in the Bylaws.
(b) Removal of Directors. A director of the Corporation, or the
entire Board of Directors of the Corporation, may be removed by the
shareholders, with or without cause, only upon the affirmative vote of
the holders of not less than two-thirds (2/3) of the total voting power,
without considering the vote of the director or directors sought to be
removed.
(c) Removal of Officers and Employees. Unless the Bylaws
otherwise provide, any officer or employee of the Corporation may be
removed at any time with or without cause by the Board of Directors or
by any committee or superior officer upon whom such power of removal
may be conferred by the Bylaws or by authority of the Board of
Directors, without prejudice, however, to existing contractual rights.
(d) Corporate Opportunities. The officers, directors and
other members of management of the Corporation shall be subject to the
doctrine of "corporate opportunities" only insofar as it applies to any
business opportunity (i) of a type falling within the regular business or
operations of the Corporation, or (ii) in which the Corporation has
expressed an interest as determined from time to time by the
Corporation's Board of Directors as evidenced by resolutions appearing
in the Corporation's minutes. All such business opportunities which
come to the attention of the officers, directors, and other members of
management of the Corporation shall be disclosed promptly to the
Corporation and made available to it. The Board of Directors may reject
any business opportunity presented to it, and only thereafter may any
officer, director or other member of management avail himself of such
opportunity. The provisions of this paragraph shall not be construed to
release any employee of the Corporation from any fiduciary duties which
he may have to the Corporation.
{BYLAWS}
EIGHTH. The initial Bylaws of the Corporation shall be
adopted by its Board of Directors. The power to alter, amend or repeal
the Bylaws or adopt new Bylaws shall be vested in the Board of Direc-
tors, subject to the right of the shareholders to alter, amend or repeal
such Bylaws or adopt new Bylaws. The Bylaws may contain any
provisions for the regulation and management of the affairs of the
Corporation not inconsistent with law or this Charter.
{INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS}
NINTH. The following provisions are hereby adopted for the
purpose of defining and regulating certain rights of directors, officers
and others in respect of indemnification and related matters.
(a) Actions, Suits or Proceedings Other than by or in the
Right of the Corporation. The Corporation may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by
or in the right of the Corporation), by reason of the fact that he is or was
or has agreed to become a director, officer, employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by
reason of any action alleged to have been taken or omitted in such
capacity, against costs, charges, expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation
or that, with respect to any criminal proceeding, he had reasonable cause
to believe that his conduct was unlawful.
(b) Actions or Suits by or in the Right of the Corporation.
The Corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding by or in the right of the Corporation to procure
a judgment in its favor by reason of the fact that he is or was or has
agreed to become a director, officer, employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by
reason of any action alleged to have been taken or omitted in such
capacity, against costs, charges and expenses (including amounts paid in
settlement and attorney's fees) actually and reasonably incurred by him
or on his behalf in connection with the defense or settlement of such
action or suit and any appeal therefrom, if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation. No indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been
adjudged by a court of competent jurisdiction after exhaustion of all
appeals therefrom to be liable to the Corporation or for amounts paid in
settlement to the Corporation unless and only to the extent that the court
in which such action or suit was brought or other court of competent
jurisdiction shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
costs, charges and expenses which the court shall deem proper.
(c) Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of this Article
NINTH, to the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in de-
fense of any action, suit or proceeding referred to in Sections (a) and (b)
of this Article NINTH, or in defense of any claim, issue or matter
therein, he shall be indemnified against all costs, charges and expenses
(including attorney's fees) actually and reasonably incurred by him or on
his behalf in connection therewith.
(d) Determination of Right to Indemnification. Any
indemnification under Sections (a) and (b) of this Article NINTH (unless
ordered by a court) shall be paid by the Corporation unless a
determination is made (i) by a disinterested majority of the Board of
Directors who were not parties to such action, suit or proceeding, or (ii)
if such disinterested majority of the Board of Directors so directs or
cannot be obtained, by independent legal counsel in a written opinion,
or (iii) by the shareholders, that indemnification of the director or officer
is not proper in the circumstances because he has not met the applicable
standard of conduct set forth in Sections (a) and (b) of this Article
NINTH.
(e) Advances of Costs, Charges and Expenses. Costs, charges
and expenses (including attorney's fees) incurred by a person referred to
in Sections (a) or (b) of this Article NINTH in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding;
provided, however, that the payment of such costs, charges and expenses
incurred by a director or officer in his capacity as a director or officer
(and not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by or on behalf of the director or officer to
repay all amounts so advanced in the event that it shall ultimately be
determined that such director or officer is not entitled to be indemnified
by the Corporation as authorized in this Article, accompanied by
evidence satisfactory to the Board of Directors of ability to make such
repayment. Such costs, charges and expenses incurred by other
employees and agents may be so paid upon such terms and conditions,
if any, as the majority of the Directors deems appropriate. The majority
of the Directors may, in the manner set forth above, and upon approval
of such director, officer, employee or agent of the Corporation, authorize
the Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit
or proceeding.
(f) Procedure for Indemnification. Any indemnification under
Sections (a), (b) and (c), or advance of costs, charges and expenses under
Section (e) of this Article NINTH, shall be made promptly, and in any
event within 60 days, upon the written request of the director or officer.
The right to indemnification or advances as granted by this Article shall
be enforceable by the director or officer in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part,
or if no disposition thereof is made within 60 days. Such person's costs
and expenses incurred in connection with successfully establishing his
right to indemnification, in whole or in part, in any such action shall also
be indemnified by the Corporation. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses under Section (e) of this Article NINTH
where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set
forth in Sections (a) or (b) of this Article NINTH, but the burden of
proving such defense shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors, its independent legal
counsel and its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard
of conduct set forth in Sections (a) or (b) of this Article NINTH, nor the
fact that there has been an actual determination by the Corporation (in-
cluding its Board of Directors, its independent legal counsel and its
shareholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(g) Settlement. If in any action, suit or proceeding, including
any appeal, within the scope of Sections (a) or (b) of this Article NINTH,
the person to be indemnified shall have unreasonably failed to enter into
a settlement thereof, then, notwithstanding any other provision hereof,
the indemnification obligation of the Corporation to such person in
connection with such action, suit or proceeding shall not exceed the total
of the amount at which settlement could have been made and the
expenses by such person prior to the time such settlement could
reasonably have been effected.
(h) Other Rights; Continuation of Right to Indemnifica-
tion. The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which any director, officer, employee or
agent seeking indemnification may be entitled under any law (common
or statutory), agreement, vote of shareholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding office or while employed by or acting as
agent for the Corporation, and shall continue as to a person who has
ceased to be a director, officer, employee or agent, and shall inure to the
benefit of the estate, heirs, executors and administrators of such person.
All rights to indemnification under this Article shall be deemed to be a
contract between the Corporation and each director or officer of the
Corporation who serves or served in such capacity at any time while this
Article NINTH is in effect. Any repeal or modification of this Article
NINTH or any repeal or modification of relevant provisions of the
General Corporation Law of Nevada or any other applicable laws shall
not in any way diminish any rights to indemnification of such director,
officer, employee or agent or the obligations of the Corporation arising
hereunder. This Article NINTH shall be binding upon any successor
corporation to this Corporation, whether by way of acquisition, merger,
consolidation or otherwise.
(i) Exceptions to Indemnification Right. Notwithstanding any
other language in this Charter, the Corporation shall not be obligated
pursuant to the terms of this Charter:
(1) Claims Initiated by Indemnitee. To indemnify or
advance expenses to any person with respect to proceedings or
claims initiated or brought voluntarily by him or her and not by
way of defense, expect with respect to proceedings brought to
establish or enforce a right to indemnification under this Charter
or any other statue or law or otherwise as required under the
General Corporation Law of Nevada, but such indemnification
or advancement of expenses may be provided by the Corporation
in specific cases if the Board of Directors finds it to be
appropriate; or
(2) Lack of Good Faith. To indemnify any person for
any expenses incurred by him or her with respect to any
proceeding instituted by him or her to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that
each of the material assertions made by him or her in such
proceeding was not made in good faith or was frivolous;
(3) Insured Claims. To indemnify any person for
expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties,
and amounts paid in settlement) which have been paid directly
to him or her by an insurance carrier under a policy of officers'
and directors' liability insurance maintained by the Corporation.
(4) Claims Under Section 16(b). To indemnify any
person for expenses or the payment of profits arising from the
purchase and sale by him or her of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as
amended, or any similar or successor statute.
(j) Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was or has agreed to become
a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him
or on his behalf in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article NINTH;
provided, however, that such insurance is available on acceptable terms,
which determination shall be made by a vote of a majority of the
Directors.
(k) Savings Clause. If this Article NINTH or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation (i) shall nevertheless indemnify each
director and officer of the Corporation and (ii) may nevertheless
indemnify each employee and agent of the Corporation, as to any cost,
charge and expense (including attorney's fees), judgment, fine and
amount paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an
action by or in the right of the Corporation, to the full extent permitted
by any applicable portion of this Article NINTH that shall not have been
invalidated and to the full extent permitted by applicable law.
(l) Amendment. No amendment, termination or repeal of this
Article NINTH shall affect or impair in any way the rights of any
director or officer of the Corporation to indemnification under the
provisions hereof with respect to any action, suit or proceeding arising
out of, or relating to, any actions, transactions or facts occurring prior to
the final adoption of such amendment, termination or appeal.
(m) Subsequent Legislation. If the General Corporation Law
of Nevada is amended after adoption of this Charter to further expand
the indemnification permitted to directors, officers, employees or agents
of the Corporation, then the Corporation shall indemnify such persons
to the fullest extent permitted by the General Corporation Law of
Nevada, as so amended.
(n) Restriction. Notwithstanding any other provision hereof
whatsoever, no person shall be indemnified under this Article NINTH
who is adjudged liable for (i) a breach of duty to the Corporation or its
shareholders that resulted in personal enrichment to which he was not
legally entitled, (ii) intentional fraud or dishonesty or illegal conduct, or
(iii) for any other cause prohibited by applicable state or federal law,
unless a court determines otherwise.
{EXCLUSION OF DIRECTOR LIABILITY}
TENTH. As authorized by Section 78.037(1) of the General
Corporation Law of Nevada, no director or officer of the Corporation
shall be personally liable to the Corporation or any shareholder thereof
for monetary damages for breach of his fiduciary duty as a director or
officer, except for liability for (a) any acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law, or (b) any
payment of dividends in violation of Section 78.300 of the General
Corporation Law of Nevada, as it now exists or may hereafter be
amended. This Article TENTH shall apply to a person who has ceased
to be a director or officer of the Corporation with respect to any breach
of fiduciary duty which occurred when such person was serving as a
director or officer. This Article TENTH shall not be construed to limit
or modify in any way any director's or officer's right to indemnification
or other right whatsoever under this Charter, the Corporation's Bylaws
or the General Corporation Law of Nevada.
If the General Corporation Law of Nevada hereafter is amended
to authorize the further elimination or limitation of the liability of
directors or officers generally, then the liability of the Corporation's
directors and officers, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the
General Corporation Law of Nevada as so amended. Any repeal or
modification of this Article TENTH by the shareholders shall be
prospective only and shall not adversely affect any limitation on the
personal liability of any director or officer existing at the time of such
repeal or modification.
{AMENDMENT}
ELEVENTH. The Corporation reserves the right to amend,
restate or repeal any provision contained in this Charter, in the manner
now or hereafter prescribed by statute, and all rights conferred on
shareholders are granted subject to this reservation.
{INAPPLICABILITY OF CONTROL SHARE ACQUISITION STATUTE}
TWELFTH. The Corporation expressly elects not to be
governed by Sections 78.378 through 78.3793 of the General
Corporation Law of Nevada (concerning acquisitions of controlling
interest in corporations), as it now exists or may hereafter be amended,
or any successor statute. The affirmative vote of at least a majority of the
total voting power shall be required to amend, repeal or adopt any
provision inconsistent with this Article THIRTEENTH.
IN WITNESS WHEREOF, the undersigned, being the
Incorporator named above, for the purpose of forming a corporation
pursuant to the General Corporation Law of Nevada, does hereby make
and file this Certificate of Incorporation for PROQUEST CAPITAL
CORPORATION.
DATED: September 2, 1997
INCORPORATOR:
/s/ John D. Brasher Jr.
X.................................
John D. Brasher Jr.
Exhibit 3.2 to Form 8-K dated September 19, 1997
BYLAWS
of
PROQUEST CAPITAL CORPORATION
(A Nevada Corporation)
ARTICLE I
General
1.01 Applicability. These Bylaws provide rules for conducting
the business of this corporation (the "Company"). Every shareholder and
person who subsequently becomes a shareholder, the Board of Directors,
Committees and Officers of the Company shall comply with these
Bylaws, as amended from time to time. All bylaws and resolutions
heretofore adopted by the Board of Directors are hereby repealed, to the
extent in conflict with the provisions of these Bylaws.
1.02 Offices. The principal office of the Company shall be
selected by the Board of Directors from time to time and may be within
or without the State of Nevada. The Company may have such other offi-
ces, within or without the State of Nevada, as the Board of Directors
may, from time to time, determine. The registered office of the Company
required by the General Corporation Law of Nevada to be maintained in
Nevada may be, but need not be, identical with the principal office if in
Nevada, and the address of the registered office may be changed from
time to time by the Board of Directors.
1.03 Definition of Terms. Terms defined in the Company's
Certifcate of Incorporation, as amended and restated from time to time
(the "Charter"), shall have the same meanings when used in these
Bylaws.
ARTICLE II
Stock Certificates
2.01 Stock Certificates. The shares of the Company's capital
stock shall be represented by consecutively numbered certificates signed
by the President or a Vice President and the Secretary or Assistant
Secretary of the Company, and sealed with the seal of the Company, or
a facsimile thereof. If certificates are signed by a transfer agent and
registrar other than the Company or an employee thereof, the signatures
of the officers of the Company may be facsimile. In case any officer
who has signed (by real or facsimile signature) a certificate shall have
ceased to hold such office before the certificate is issued, it may be
issued by the Company with the same effect as if he continued to hold
such office on the date of issue. Each certificate representing shares shall
state upon the face thereof: (i) that the Company is organized under the
laws of the State of Nevada; (ii) the name of the person to whom issued;
(iii) the number, class and series (if any) of shares which such certificate
represents; and (iv) the par value, if any, of the shares represented by
such certificate, or a statement that the shares have no par value.
If any class or series of shares is subject to special powers,
designations, preferences or relative, participating or other special rights,
then such (together with all qualifications, limitations or restrictions of
such preferences or rights) shall be set forth in full or summarized on the
certificate representing such class or series. Moreover, each certificate
shall state that the Company will furnish, without charge, to the
registered holder of the shares represented by such certificate who so
requests a statement setting forth such information in full.
Each certificate also shall set forth restrictions upon transfer, if
any, or a reference thereto, as shall be adopted by the Board of Directors
or by the shareholders, or as may be contained in this Article II. Any
shares issued without registration under the Securities Act of 1933, as
amended ("Act"), shall bear a legend restricting transfer unless such
shares are registered under such act or an exemption from registration is
available for a proposed transfer.
2.02 Consideration for Shares. Shares of the Company shall
be issued, and treasury shares may be disposed of, for such consideration
or considerations as shall be fixed from time to time by the Board of
Directors. No shares shall be issued for less than the par value thereof.
The consideration for the issuance of shares may be paid, in whole or in
part, in money, in other property, tangible or intangible, or in labor or
services actually performed for the Company, or as permitted in the
Charter.
2.03 Lost Certificates. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Company alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, and the Board of Directors
when authorizing such issue of a new certificate or certificates may in its
discretion, and as a condition precedent to the issuance thereof, require
the owner of such lost or destroyed certificate or certificates or his legal
representative to advertise the same in such manner as it shall require,
and/or furnish to the Company a bond in such sum as it may direct, as
indemnity against any claim that may be made against the Company.
Except as hereinabove in this section provided, no new certificate or
certificates evidencing shares of stock shall be issued unless and until the
old certificate or certificates, in lieu of which the new certificate or
certificates are issued, shall be surrendered for cancellation.
2.04 Registered Holder as Owner. The Company shall be
entitled to treat the registered holder of any shares of the Company as the
owner of such shares, and shall not be bound to recognize any equitable
or other claim to, or interest in, such shares or rights deriving from such
shares, unless and until such purchaser, assignee, transferee or other
person becomes the registered holder of such shares, whether or not the
Company shall have either actual or constructive notice of the interests
of such purchaser, assignee, or transferee or other person. The
purchaser, assignee, or transferee of any of the shares of the Company
shall not be entitled: to receive notice of the meetings of the
shareholders; to vote at such meetings; to examine a list of the
shareholders; to be paid dividends or other sums payable to shareholders;
or to own, enjoy and exercise any other property or rights deriving from
such shares against the Company, until such purchaser, assignee, or
transferee has become the registered holder of such shares.
2.05 Reversions. Cash, property or share dividends, shares
issuable to shareholders in connection with a reclassification of stock,
and the redemption price of redeemed shares, which are not claimed by
the shareholders entitled thereto within TWO years after the dividend or
redemption price became payable or the shares became issuable, despite
reasonable efforts by the Company to pay the dividend or redemption
price or deliver the certificate(s) for the shares to such shareholders
within such time shall, at the expiration of such time, revert in full
ownership to the Company, and the Company's obligation to pay any
such dividend or redemption price or issue such shares, as the case may
be, shall thereupon cease; provided, that the Board of Directors may at
any time and for any reason satisfactory to it, but need not, authorize (i)
payment of the amount of cash or property dividend or (ii) issuance of
any shares, ownership of which has reverted to the Company pursuant
to this Section of Article II, to the person or entity who or which would
be entitled thereto had such reversion not occurred.
2.06 Returned Certificates. All certificates for shares changed
or returned to the Company for transfer shall be marked by the Secretary
"CANCELLED," with the date of cancellation, and the transaction shall
be immediately recorded in the certificate book opposite the
memorandum of their issue. The returned certificate may be inserted in
the certificate book.
2.07 Transfer of Shares. Upon surrender to the Company or to
a transfer agent of the Company of a certificate of stock endorsed or
accompanied by proper evidence of succession, assignment or authority
to transfer, and such documentary stamps as may be required by law, it
shall be the duty of the Company to issue a new certificate, upon
payment by the transferee of such nominal charge therefor as the
Company or its transfer agent may impose. Each such transfer of stock
shall be entered on the stock book of the Company. Respecting any
securities issued in reliance upon Rule 903 of Regulation S under the Act
at any time when the Company is not a "reporting issuer" as defined in
Rule 902 of Regulation S, no transfer of such securities shall be
registered unless made in accordance with the provisions of Regulation
S.
2.08 Transfer Agent. The Board of Directors shall have power
to appoint one or more transfer agents and registrars for the transfer and
registration of certificates of stock of any class, and may require that
stock certificates shall be countersigned and registered by one or more
of such transfer agents and registrars. Any powers or duties with respect
to the transfer and registration of certificates may be delegated to the
transfer agent and registrar.
ARTICLE III
Meetings of the Shareholders
3.01 Annual Meeting. The annual meeting of the shareholders
shall be held between the 90th and 180th day after the tax year end, at
such date and time and at such place, within or without the State of
Nevada, as is designated from time to time by the Board of Directors and
stated in the notice of the meeting. At each annual meeting the
shareholders shall elect a Board of Directors in accordance with the
Charter and shall transact such other business as may properly be
brought before the meeting.
3.02 Special Meetings. Unless otherwise proscribed by law, the
Charter or these Bylaws, special meetings of the shareholders may be
called by the Chairman of the Board, the President, or a majority of the
Board of Directors, or by persons who as of the date of calling the
meeting are the holders of not less than ten percent (10%) of the total
voting power. Requests for special meetings shall state the purpose or
purposes of the proposed meeting.
3.03 Notice of Meetings. Except as otherwise provided by law,
the Charter or these Bylaws, written notice of any annual or special
meeting of the shareholders shall state the place, date, and time thereof
and, in the case of a special meeting, the purpose or purposes for which
the meeting is called, shall be given to each shareholder of record
entitled to vote at such meeting not fewer than 10 nor more than 60 days
prior to the meeting by any means permitted in Article IX hereof. No
business other than that specified in the notice of a special meeting shall
be transacted at any such special meeting.
3.04 Record Date. In order that the Company may determine
shareholders of record who are entitled (i) to notice of or to vote at any
shareholders meeting or adjournment thereof, (ii) to express written
consent to corporate action in lieu of a meeting, (iii) to receive payment
of any dividend or other distribution, or (iv) to allotment of any rights or
to exercise any rights in respect of any change, conversion or exchange
of stock, or in order that the Company may make a determination of
shareholders of record for any other lawful purpose, the Board of
Directors may fix in advance a date as the record date for any such
determination. Such date shall not be more than 60 days, and in case of
a meeting of shareholders, not less than 10 days prior to the date on
which the particular action, requiring such determination of share-
holders, is to be taken, and in no event may the record date precede the
date upon which the Directors adopt a resolution fixing the record date.
If no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the date on which
notice of the meeting is given (as defined in Article IX hereof) or the
date on which the resolution of the Board of Directors declaring such
dividend is adopted, as the case may be, shall be the record date for such
determination of the shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been
made as provided in this Section such determination shall apply to any
adjournment thereof, unless the Board of Directors fixes a new record
date for the adjournment.
3.05 Voting List. At least 10 days but nor more than 60 days
before any meeting of shareholders, the officer or transfer agent in
charge of the Company's stock transfer books shall prepare a complete
alphabetical list of the shareholders entitled to vote at such meeting,
which list shows the address of each shareholder and the number of
shares registered in his or her name. The list so prepared shall be
maintained at the corporate offices of the Company and shall be open to
inspection by any shareholder, for any purpose germane to the meeting,
at any time during usual business hours during a period of no fewer than
10 days prior to the meeting. The list shall also be produced and kept
open at any shareholders meeting and, except as otherwise provided by
law, may be inspected by any shareholder or proxy of a shareholder who
is present in person at the meeting. The original stock transfer books
shall be prima facie evidence as to who are the shareholders entitled to
examine the list of shareholders and to vote at any meeting of
shareholders.
3.06 Quorum; Adjournments. (a) The holders of a majority
of the total voting power at any shareholders meeting present in person
or by proxy shall be necessary to and shall constitute a quorum for the
transaction of business at all shareholders meetings, except as otherwise
provided by law or by the Articles.
(b) If a quorum is not present in person or by proxy at any
shareholders meeting, a majority of the voting shares present or
represented shall have the power to adjourn the meeting from time to
time to the same or another place within 30 days thereof and no further
notice of such adjourned meeting need be given if the time and place
thereof are announced at the meeting at which the adjournment is taken.
(c) Even if a quorum is present in person or by proxy at any
shareholders meeting, a majority of the voting shares present or
represented shall have the power to adjourn the meeting from time to
time, for good cause, without notice of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjourment
is taken, until a new date which is not more than 30 days after the date
of the original meeting.
(d) Any business which might have been transacted at a
shareholders meeting as originally called may be transacted at any
meeting held after adjournment as provided in this Section 3.06 at which
reconvened meeting a quorum is present in person or by proxy. Anything
in paragraph (b) of this Section to the contrary notwithstanding, if an
adjournment is for more than 30 days, or if after an adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote
thereat.
(e) The shareholders present at a duly called meeting may
continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
3.07 Proxies. At all meetings of shareholders, a shareholder
may vote by proxy, executed in writing by the shareholder or by his duly
authorized attorney in fact. Any proxyholder shall be authorized to sign,
on the shareholder's behalf, any written consent for shareholder action
taken in lieu of a meeting. Such proxy shall be filed with the Secretary
of the Company before or at the time of the meeting. No proxy shall be
valid after the expiration of six (6) months from the date of its execution,
unless coupled with an interest, or unless the person executing it
specifies therein the length of time for which it is to continue in force,
which in no case shall exceed three (3) years from the date of its
execution.
3.08 Voting of Shares. At any shareholders meeting every
shareholder having the right to vote shall be entitled to vote in person or
by proxy. Except as otherwise provided by law, by the Articles or in the
Board resolution authorizing the issuance of shares, each shareholder of
record shall be entitled to one vote (on each matter submitted to a vote)
for each share of capital stock registered in his, her or its name on the
Company's books. Except as otherwise provided by law or by the
Articles, all matters submitted to the shareholders for approval shall be
determined by a majority of the votes cast (not counting abstentions) at
a legal meeting commenced with a quorum.
3.09 Voting of Shares by Certain Holders. Neither treasury
shares, nor shares of its own stock held by the Company in a fiduciary
capacity, nor shares held by another corporation if the majority of the
shares entitled to vote for the election of directors of such other
corporation is held by the Company, shall be voted at any meeting or
counted in determining the total number of outstanding shares at any
given time.
Shares 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, as
the board of directors of such corporation may determine.
Shares held by an administrator, executor, personal re-
presentative, guardian, or conservator may be voted by him, either in
person or by proxy, without a transfer of such shares into his name.
Shares standing in the name of a trustee may be voted by him, either in
person or by proxy, but no trustee shall be entitled to vote shares held by
him without a transfer of such shares into his name.
Shares 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 shareholder 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.
3.10 Chairman. The Chairman of the Board of Directors of the
Company, if there is one, or in his absence, the President, shall act as
chairman at all meetings of shareholders.
3.11 Manner of Shareholder Voting. Voting at any
shareholders' meeting shall be oral or by show of hands; provided,
however, that voting shall be by written ballot if such demand is made
by any shareholder present in person or by proxy and entitled to vote.
3.12 Informal Action by Shareholders; Record Date. Any
action required or permitted to be taken at a meeting of the shareholders
may be taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, shall be signed
by shareholders holding at least a majority of the voting power, except
that if a different proportion of voting power is required for such an
action at a meeting, then that proportion of written consents is required.
Such a consent must be filed with the minutes of the proceedings of
shareholders and shall have the same force and effect as a vote of the
shareholders, and may be stated as such in any document filed with the
Secretary of State of Nevada under the General Corporation Law of
Nevada. Written notice of such action shall be given to all shareholders
who have not consented in writing to the action taken. The record date
for determining shareholders entitled to consent to corporate actions in
writing without a meeting (the "consent record date") shall not precede,
and shall not be more than ten (10) days after, the date upon which the
resolution fixing the record date was adopted. However, if no consent
record date is fixed, the consent record date shall be, respectively, (i) if
prior action by the Board of Directors is required under the General
Corporation Law of Nevada for the consent to be validly taken, the close
of business on the day on which the Board of Directors adopts the
resolution taking such prior action; and (ii) if prior action by the Board
of Directors is not required, the first date on which a properly signed and
dated consent setting forth the action taken or proposed to be taken is
delivered as required above.
3.13 Presiding Officers; Order of Business. (a) Shareholders
meetings shall be presided over by the Chairman of the Board; or if the
Chairman (and Vice Chairman) is not present, by the President; or if the
President is not present, by a Vice President; or if a Vice President is not
present, by such person chosen by the Board of Directors; or if none, by
a chairperson to be chosen at the meeting by shareholders present in
person or by proxy who own a majority of the voting power present. The
Secretary of a shareholders meeting shall be the Secretary of the
Company; or if the Secretary is not present, an Assistant Secretary; or if
an Assistant Secretary is not present, such person as may be chosen by
the Board of Directors; or if none, by such person who is chosen by the
chairperson at the meeting.
(b) The following order of business, unless otherwise ordered
at the shareholders meeting by the chairperson thereof, shall be observed
as far as practicable and consistent with the purposes of the meeting:
1. Calling of the shareholders' meeting to order.
2. Presentation of proof of mailing of the notice of the
meeting and, if a special meeting, the call thereof.
3. Presentation of proxies.
4. Determination and announcement that a quorum is
present.
5. Reading and approval (or waiver thereof) of the minutes
of the previous meeting of shareholders.
6. Reports, if any, of officers.
7. Election of directors, if the meeting is an annual meeting
or a meeting called for such purpose.
8. Consideration of the specific purpose or purposes for
which the meeting has been called, other than election of
directors.
9. Transaction of such other business as may properly come
before the meeting.
10. Adjournment.
3.14 Annual Report. The President of the Company shall
prepare an annual report which will set forth a statement of affairs of the
Company as of the end of its last fiscal year, including a balance sheet,
an income statement and a statement of changes in financial position,
which need not be audited, and present them at the annual meeting of
shareholders. Failure to prepare or present an annual report shall not
affect the validity of any shareholder meeting. No such report need be
prepared or presented for any fiscal year in which the Company was
inactive. This Section shall not apply as to any fiscal year if the
Company (i) was at the year end subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, and
subsequently furnishes to the shareholders an annual report or report on
Form 10-K under such Act covering such fiscal year, or (ii) furnishes to
shareholders an Information Statement which conforms to the
requirements of Rule 15c2-11 of the Securities and Exchange
Commission.
ARTICLE IV
Directors, Powers and Meetings
4.01 General Powers. All corporate powers shall be exercised,
and the Company's business and affairs shall be managed, by or under
the authority of its Board of Directors, except as otherwise provided in
the General Corporation Law of Nevada or the Charter.
4.02 Number, Tenure and Qualifications. The Company's
Board of Directors shall consist of not less than one (1) and not more
than seven (7) Directors, as resolved from time to time by the Board of
Directors. If such number is not so fixed, the Company shall have one
Director. Directors shall be elected at each annual meeting of
shareholders, except as otherwise provided below. Each Director shall
hold office until the next annual meeting of shareholders and thereafter
until his successor shall have been elected and duly qualified. Directors
need not be residents of Nevada or shareholders of the Company.
Directors shall be elected by plurality vote. At least one-fourth in
number of the Directors must be elected annually. No decrease in the
number of Directors shall shorten the term of any incumbent Director.
4.03 Vacancies; Resignation. (a) Any vacancy occurring in
the Board of Directors, except resulting from an increase in the number
of directors, may be filled by the affirmative vote of a majority of the
remaining Directors, though less than a quorum, or by a sole remaining
Director. A Director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office. Any directorship to be filled
by reason of an increase in the number of Directors shall be filled by the
affirmative vote of a majority of the entire board or by a majority of the
total voting power at any annual meeting or at a special meeting of
shareholders called for that purpose, or by means of written shareholder
consents taken in lieu of a meeting. Every director chosen to fill a
vacancy as provided in this Section shall hold office until the next annual
meeting of shareholders or until his successor has been elected and
qualified.
(b) Any Director may resign at any time by giving written
notice to the Board, the Chairman of the Board, the President or the
Secretary of the Company. Unless otherwise specified in such written
notice, a resignation shall take effect upon delivery to the Board or the
designated officer. A resignation need not be accepted in order for it to
be effective.
4.04 Removal of Directors. Any Director may be removed only
by the shareholders in the manner provided in the Company's Charter
and, if no such provision appears therein, then as provided by law. Such
action may be taken at any special meeting called for that purpose or by
means of written shareholder consents. In case any vacancy so created
shall not be filled by the shareholders at such meeting or in the written
consent effecting removal, such vacancy may be filled by a majority of
the Board of Directors.
4.05 Place of Meetings. The Board of Directors may hold both
regular and special meetings either within or without the State of
Nevada, at such place as the Board of Directors from time to time deems
advisable.
4.06 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than these Bylaws
immediately after and at the same place as the annual meeting of
shareholders. The Board of Directors may provide by resolution the
time and place for the holding of additional regular meetings without
other notice than such resolution; provided, that any Director not present
when any such resolution is passed is given notice of the resolution.
4.07 Special Meetings. A special meeting of the Board of
Directors shall be held without other notice than these Bylaws
immediately after and at the same place as every special meeting of
shareholders. Special meetings of the Board of Directors also may be
called by or at the request of the Chairman of the Board, the President,
or any two Directors upon two days' notice to each director if such notice
is delivered personally or sent by telegram, or upon five days' notice if
sent by mail.
4.08 Telephonic Meetings. One or more members of the Board
of Directors or any committee designated by the Board may participate
in a meeting of the Board of Directors or committee by means of con-
ference telephone or similar communications equipment by which all
persons participating in the meeting can hear one another at the same
time. Such participation shall constitute presence in person at the
meeting. All participants in any meeting of Directors, by virtue of their
participation and without further action on their part, shall be deemed to
have consented to the recording of such meeting by electronic device or
otherwise, and to the making of a written transcript thereof, in order that
minutes thereof shall be available for the Company's records.
4.09 Notice. Except as otherwise provided above, notice of the
time, date and place, of every special meeting of Directors or any
committee thereof shall be given. Any Director may waive notice of any
meeting. The attendance of a Director at a meeting shall constitute a
waiver of notice of such meeting, except where a Director attends a
meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
4.10 Quorum; Adjournments. A majority of the number of
directors then in office, present in person or by means of conference
telephone or similar equipment, shall constitute a quorum for the
transaction of business at every Board meeting, and 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 as may
otherwise specifically be provided by law, the Charter or these Bylaws.
If a quorum is not present at any Board meeting, the directors present
may adjourn the meeting, from time to time, without notice other than
announcement of the meeting, until a quorum is present.
4.11 Compensation. Directors shall be entitled to such
compensation for their services as directors as from time to time may be
fixed by the Board and shall be entitled to reimbursement of all
reasonable expenses incurred by them in attending Board meetings. A
director may waive compensation for any Board meeting. No director
who receives compensation as a director shall be barred from serving the
Company in any other capacity or from receiving compensation and
reimbursement of reasonable expenses for any or all such other services.
4.12 Presumption of Assent. A Director of the Company who
is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the
action taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action with the
person acting as the Secretary of the meeting before the adjournment
thereof, or shall forward such dissent by registered or certified mail, first
class, postage prepaid, to the Secretary of the Company, provided such
mailing is postmarked within ten calendar days after the adjournment of
the meeting. Such right to dissent shall not apply to a Director who
voted in favor of such action.
4.13 Action by Directors Without Meeting. Any action re-
quired to be taken at a meeting of the Directors of the Company or of a
committee of Directors or any action which may be taken at such a
meeting, may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the Directors entitled
to vote with respect to the subject matter therof. A consent shall be
sufficient for this Section if it is executed in counterparts, in which event
all of such counterparts, when taken together, shall constitute one and
the same consent.
4.14 Bank Accounts, etc. Anything herein to the contrary
notwithstanding, the Board of Directors may, except as may otherwise
be required by law, authorize any officer or officers, agent or agents, in
the name of and on behalf of the Company, to sign checks, drafts, or
other orders for the payment of money or notes or other evidences of
indebtedness, to endorse for deposit, deposit to the credit of the
Company at any bank or trust company or banking institution in which
the Company may maintain an account or to cash checks, notes, drafts,
or other bankable securities or instruments, and such authority may be
general or confined to specific instances, as the Board of Directors may
elect.
4.15 Inspection of Records. Every Director shall have the
absolute right at any reasonable time to inspect all books, records,
documents of every kind, and the physical properties, of the Company
and of its subsidiaries. Such inspection may be made personally or by
an agent and includes the right to make copies and extracts.
4.16 Executive Committee. (a) The Board of Directors may,
by resolution adopted by a majority of the whole Board, appoint two or
more of its members to constitute an Executive Committee. One of such
directors 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 until his earlier
resignation from the Executive Committee, in either case unless sooner
removed as a director or member of the Executive Committee by any
means authorized by the Charter or herein.
(b) The Executive Committee shall have and may exercise,
to the extent provided in such resolution and except as prohibited by law,
all of the rights, power and authority of the Board of Directors.
(c) 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 its rules. The Chairman of the Executive
Committee, or in the absence of the Chairman, a member of the
Executive Committee chosen by a majority of the members present, shall
preside at all meetings of the Executive Committee, and another member
thereof chosen by the Executive Committee shall act as Secretary. 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 thereof shall be required for any action of the Executive
Committee. The Executive Committee shall keep minutes of its meetings
and deliver such minutes to the Board of Directors.
4.17 Other Committees. The Board of Directors may, by
resolution duly adopted by a majority of directors at a meeting at which
a quorum is present, appoint an audit committee, compensation
committee, and such other committee or committees as it shall deem
advisable and with such limited authority as the Board of Directors shall
from time to time determine.
4.18 Other Provisions Regarding Committees. (a) The Board
of Directors shall have the power at any time to fill vacancies in, change
the membership of, or discharge any committee. The members of any
committee present at any meeting of a committee, whether or not they
constitute a quorum, may appoint a director to act in the place of an
absent member.
(b) Members of any committee shall be entitled to such
compensation for their services as such as from time to time may be
fixed by the Board of Directors and in any event shall be entitled to
reimbursement of all reasonable expenses incurred in attending
committee meetings. Any member of a committee may waive
compensation for any meeting. No member of a committee who receives
compensation as a member of one or more committees shall be barred
from serving the Company in any other capacity or from receiving
compensation and reimbursement of reasonable expenses for any or all
such other services.
(c) Unless otherwise prohibited by law, the provisions above
concerning action by written consent of directors and meetings of
directors by telephonic or similar means shall apply to all committees
from time to time created by the Board of Directors.
ARTICLE V
Officers and Agents
5.01 Positions. The Company's officers generally shall be
chosen by the Board of Directors and shall consist of a Chairman of the
Board, a President, one or more Vice Presidents if desired, a Secretary
and a Treasurer. The Board of Directors may appoint one or more other
officers, assistant officers and agents as it from time to time deems
necessary or appropriate, who shall be chosen in such manner and hold
their offices for such terms and have such authority and duties as from
time to time may be determined by the Board of Directors. The Board
may delegate to the Chairman of the Board the authority to appoint any
officer or agent of the Company and to fill a vacancy other than the
Chairman of the Board or President. Any two or more offices may be
held by the same person, except that no person may simultaneously hold
the offices of President and Secretary and of President and Vice
President. In all cases where the duties of any officer, agent or employee
are not prescribed by these bylaws or by the Board of Directors, such
officer, agent or employee shall follow the orders and instructions of the
President.
5.02 Term of Office; Removal. Each officer of the Company
shall hold office at the pleasure of the Board and any officer may be
removed, with or without cause, at any time by the affirmative vote of
a majority of the directors then in office; provided, that any officer
appointed by the Chairman of the Board pursuant to authority delegated
by the Board may be removed, with or without cause, at any time by the
Chairman whenever the Chairman in his or her absolute discretion shall
consider that the Company's best interests shall be served by such
removal. Removal of an officer by the Board (or the Chairman, as the
case may be) shall not prejudice the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not in
itself create contract rights.
5.03 Vacancies. A vacancy in any office, however occurring,
may be filled by the Board or the Executive Committee, for the
unexpired portion of the term by majority vote of its members, or by the
Chairman of the Board in the case of a vacancy occurring in an office to
which the Chairman has been delegated authority to make appointments.
5.04 Compensation. The salaries of all officers of the Company
shall be fixed from time to time by the Board, and no officer shall be
prevented from receiving a salary by reason of the fact that he also
receives compensation from the Company in any other capacity.
5.05 Chairman of the Board. The Chairman of the Board
("Chairman"), if such officer shall be chosen by the Board of Directors,
shall preside at all meetings of the Board of Directors and meetings of
shareholders at which he is present and shall exercise general
supervision and direction over the implementation of Board policy
affecting the affairs of the Company. Any act which may be performed
by the Chief Executive Officer or President may be performed by the
Chairman.
5.06 Chief Executive Officer; Chief Operating Officer. The
Chairman of the Board shall, unless the Board determines otherwise,
serve as the Chief Executive Officer ("CEO") of the Company. If the
Chairman is not designated the CEO, then the President shall serve as
CEO. The Board may, from time to time, designate from among the
executive officers of the Company an officer to serve as Chief Operating
Officer ("COO") of the Company. If the Chairman serves as the CEO,
then the President shall serve as COO. If the President is designated
CEO, then the Executive Vice President (or if there is none, then the
next most senior Vice President) shall serve as COO. A person
designated to serve in the capacity of CEO or COO shall serve at the
pleasure of the Board.
A person designated Chief Executive Officer (CEO) shall have
primary responsibility for and active charge of the management and
supervision of the Company's business and affairs. The CEO may
execute in the name of the Company authorized corporate obligations
and other instruments, shall perform such other duties as may be
prescribed by the Board (or Chairman, as the case may be) from time to
time and, in the absence or disability of the President, shall exercise all
of the duties and powers of the President. In the event that the President
is not the CEO, then the CEO shall supervise the performance of the
President and shall be responsible for the execution of the policies and
directives of the Board. The CEO shall report directly to the Board. The
CEO shall perform such other duties as may be assigned by the Board
(or Chairman, as the case may be). The CEO may perform any act which
might be performed by the President.
A person designated Chief Operating Officer (COO) shall be
responsible for the day-to-day management of the Company's operations,
subject to the authority of the CEO. The COO shall report directly to the
CEO of the Company and shall consult with the CEO on all matters of
corporate policy and material business activities of the Company. The
COO shall perform such other duties as may be assigned by the Board
or the CEO.
5.07 President. The President shall have general active
management of the business of the Company, subject to the authority of
the Chief Executive Officer if the President is not designated as such,
and general supervision of its officers, agents and employees. In the
absence of the Chairman and Chief Executive Officer, he shall preside
at all meetings of the shareholders and of the Board. In the absence of a
designated Chief Executive Officer he shall see that all policies and
directives of the Board are carried into effect.
He shall, unless otherwise directed by the Board of Directors,
attend in person or by substitute appointed by him, or shall execute in
behalf of the Company written instruments appointing a proxy or proxies
to represent the Company, at all meetings of the stockholders of any
other company in which the Company shall hold any stock. He may, on
behalf of the Company, in person or by substitute or by proxy, execute
written waivers of notice and consents with respect to any such meet-
ings. At all such meetings and otherwise, the President, in person or by
substitute or proxy as aforesaid, may vote the stock so held by the
Company and may execute written consent and other instruments and
power incident to the ownership of said stock, subject however to the
instructions, if any, of the Chairman or the Board of Directors. The
President shall have custody of the Treasurer's bond, if any.
5.08 Executive Vice President. The Executive Vice President
shall assist the President in the discharge of surpervisory, managerial and
executive duties and functions. In the absence of the President or in the
event of his death, or inability or refusal to act, the Executive Vice
President shall perform the duties of the President and when so acting
shall have the duties and powers of the President. He shall perform such
other duties as from time to time may be assigned to him by the
President, Chairman or Board of directors.
5.08 Vice Presidents. The Vice Presidents, if any, shall assist
the President and Executive Vice President and shall perform such duties
as may be prescribed by the Board, the Chairman or the President. Vice
Presidents in the order of their seniority shall, in the absence or disability
of the Chairman and President, exercise all of the duties and powers of
such officers. The Executive Vice President, if any, shall be the most
senior of Vice Presidents, and the Senior Vice President, if any, shall be
the next most senior of Vice Presidents. In regard to other Vice
Presidents, they shall have the respective ranks designated by the Board
of Directors, or if none has been so designated, as designated by the
Chairman, or if none has been so designated by the Chairman, they shall
rank in the order of their respective elections to such office. The
execution of any instrument on the Company's behalf by a Vice
President shall be conclusive evidence, as to third parties, of his
authority to act in the stead of the President and Executive Vice
President.
5.09 Secretary. The Secretary shall: (i) keep the minutes of the
proceedings of the shareholders and the Board of Directors and record
all votes and proceedings thereof in a book kept for that purpose; (ii) see
that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (iii) be custodian of the corporate records
and of the seal of the Company and affix the seal to all documents when
authorized by the Board of Directors; (iv) keep at its registered office or
principal place of business within or outside Delaware a record
containing the names and addresses of all shareholders and the number
and class of shares held by each, unless such a record shall be kept at the
office of the Company's transfer agent or registrar; (v) sign with the
President, or a Vice President, certificates for shares of the Company, the
issuance of which shall have been authorized by resolution of the Board
of Directors; (vi) have general charge of the stock transfer books of the
Company, unless the Company has a transfer agent; and (vii) in general,
perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the President or
the Board of Directors. The Board of Directors may give general
authority to officers other than the Secretary or any Assistant Secretary
to affix the Company's seal and to attest the fixing thereof by his or her
signature.
5.10 Assistant Secretary. The Assistant Secretary, if any (or if
there is more than one, the Assistant Secretaries in the order designated,
or in the absence of any designation, in the order of their appointment),
in the absence or disability of the Secretary, shall perform the duties and
exercise the powers of the Secretary. The Assistant Secretary(ies) shall
perform such other duties and have such other powers as from time to
time may be prescribed by the Board, the Chairman or the Chief
Executive Officer. The Chairman may appoint one or more Assistant
Secretary(ies) to office.
5.11 Treasurer. The Treasurer shall, unless the Board
otherwise resolves, be the principal financial officer and principal
accounting officer of the Company and shall have the care and custody
of all funds, securities, evidence of indebtedness and other valuable
effects of the Company, shall keep full and accurate accounts of receipts
and disburesments in books belonging to the Company and shall deposit
all money and other valuable effects of the Company in the name and to
the credit of the Company in such depositories as from time to time may
be designated by the Board. The Treasurer shall disburse the funds of the
Company in such manner as may be ordered by the Board from time to
time and shall render to the Chairman of the Board, the President and the
Board, at regular Board meetings or whenever any of them may so
require, an account of all transactions and of the Company's financial
condition.
5.12 Assistant Treasurer. The Assistant Treasurer, if any (or
if there is more than one, the Assistant Treasurers in the order
designated, or in the absence of any designation, in the order of their
appointment), in the absence or disability of the Treasurer, shall perform
the duties and exercise the powers of the Treasurer. The Assistant
Treasurer(s) shall perform such other duties and have such other powers
as from time to time may be prescribed by the Board, the Chairman or
the Chief Executive Officer. The Chairman may appoint one or more
Assistant Treasurer(s) to office.
5.13 Resignations. Any officer may resign at any time by
giving written notice to the Board or to the Chairman. Such resignation
shall take effect at the time specified therein and, unless specified
therein, no acceptance of the resignation shall be required for the
resignation to be effective.
5.14 Delegation of Duties. In the event of the absence or
disability of any officer of the Company, or for any other reason the
Board shall deem sufficient, the Board may temporarily designate the
powers and duties, or particular powers and duties, of such officer to any
other officer, or to any director.
5.13 Fidelity Bonds. The Board of Directors shall have the
power, to the extent permitted by law, to require any officer, agent or
employee of the Company to give bond for the faithful discharge of his
duties in such form and with such surety or sureties as the Board deems
advisable.
ARTICLE VI
Indemnification
Every Director, officer, employee and agent of the Company, and
every person serving at the Company's request as a director, officer (or
in a position functionally equivalent to that of officer or director),
employee or agent of another corporation, partnership, joint venture,
trust or other entity, shall be indemnified to the extent and in the manner
provided by the Company's Charter, as it may be amended, and in the
absence of any such provision therein, in accordance with Nevada law.
ARTICLE VII
Execution of Instruments and Deposit of Corporate Funds
7.01 Execution of Instruments Generally. The Chairman of
the Board, the President, any Vice President, the Secretary or the
Treasurer, subject to the approval of the Board of Directors,may enter
into any contract or execute and deliver any instrument in the name and
on behalf of the Company. The Board of Directors may authorize any
officer or officers, or agent or agents, to enter into any contract or
execute and deliver any instrument in the name and on behalf of the
Company, and such authorization may be general or confined to specific
instances.
7.01 Borrowing. Unless and except as authorized by the
Board of Directors, no loans or advances shall be obtained or contracted
for, by or on behalf of the Company, and no negotiable paper shall be
issued in its name. Such authorization may be general or confined to
specific instances. Any officer or agent of the Company thereunto so
authorized may attain loans and advances for the Company and for such
loans and advances may make, execute and deliver any promissory
notes, bonds, or other evidences of indebtedness of the Company. Any
officer or agent of the Company so authorized may pledge, hypothecate
or transfer as security for the payment of any and all loans, advances,
indebtedness and liabilities of the Company, any and all stocks, bonds
other securites and other personal property at any time held by the
Company, and to that end may endorse, assign and deliver the same and
do every act and thing necessary or proper in connection therewith.
7.03 Deposits. All funds of the Company not otherwise
employed shall be deposited from time to time to its credit in such banks
or trust companies or with such bankers or other depositaries as the
Board of Directors may select, or as may be selected by any officer or
officers or agent or agents authorized to do so by the Board of Directors.
Endorsements for deposit to the credit of the Company in any of its duly
authorized depositaries shall be made in such manner as the Board of
Directors from time to time may determine.
7.04 Checks, Drafts, etc. All checks, drafts or other orders
for the payment of money, and all notes or other evidence of
indebtedness issued in the name of the Company, shall be signed by such
officer or officers or agent or agents of the Company and in such manner
as the Board of Directors from time to time may determine.
7.05 Proxies. Proxies to vote with respect to shares of stock
of other corporations owned by, or standing in the name of, the
Company may be executed and delivered from time to time on behalf of
the Company by the Chairman of the Board, the President or any Vice
President or by any other person or persons thereunto authorized by the
Board of Directors.
ARTICLE VIII
Miscellaneous
8.01 Declaration of Dividends. The Board of Directors at any
regular or special meeting may declare dividends payable, whenever in
the exercise of its discretion it may deem such declaration advisable and
such is permitted by law. Such dividends may be paid in cash, property,
or shares of the Company.
8.02 Benefit Plans. Directors shall have the power to install and
authorize any pension, profit sharing, stock option, stock award or stock
bonus, insurance, welfare, educational, bonus, health and accident or
other benefit program which the Board deems to be in the interest of the
Company, at the expense of the Company, and to amend or revoke any
plan so adopted. Any such plan may adopted and have full force and
effect by resolution of the Board of Directors, except where applicable
laws, rules or regulations require prior approval of the Company's
shareholders of such plan in order for the plan to be valid.
8.03 Seal. The corporate seal of the Company shall be circular
in form and shall contain the name of the Company, the year
incorporated and the words "Seal" and "Nevada".
8.04 Fiscal Year. The Board of Directors shall have the power
to fix, and from time to time change, the fiscal year of the Company.
Any such adoption of or change in a fiscal year shall not constitute or
require an amendment to these Bylaws.
8.05 Amendment of Bylaws. These Bylaws may be amended
or repealed in the manner provided for in the Charter, or if none is there
provided: by majority vote of the Board of Directors, taken at any
meeting or by written consent, subject to the shareholders' right to
change or repeal any Bylaws so made or adopt new Bylaws by vote of
at least a majority of the total voting power. Bylaws amendments may
be proposed by any Director or shareholder. Any action duly taken by
the Board or the shareholders which conflicts or is inconsistent with
these Bylaws (as they may be amended) shall constitute an amendment
of the Bylaws, if the action was taken by such number of directors or
shares voting as would be sufficient for amendment of the Bylaws.
8.06 Gender. The masculine gender is used in these Bylaws as
a matter of convenience only and shall be interpreted to include the
feminine and neuter genders as the circumstances indicate.
8.07 Conflicts. In the event of any irreconcilable conflict
between these Bylaws and either the Company's Charter or applicable
law, the latter shall control.
8.08 Definitions. Except as these Bylaws otherwise specifically
provide, all terms used in these Bylaws shall have the definitions given
them in the Company's Charter or the Nevada General Corporation Law.
ARTICLE IX
Notices
9.01 Receipt of Notices by the Company. Notices, shareholder
writings consenting to action, and other documents or writings shall be
deemed to have been received by the Company when they are actually
received: (i) at the registered office of the Company in Nevada; (ii) at the
principal office of the Company (as designated in the most recent
document filed by the Company with the Nevada Secretary of State
designating a principal office) addressed to the attention of the Secretary
of the Company; (iii) by the Secretary of the Company wherever the
Secretary may be found; or (iv) by any other person authorized from
time to time by the Board of Directors or the President to receive such
writings, wherever such person is found.
9.02 Giving of Notice. Exept as otherwise provided by the
General Corporation Law of Nevada, these Bylaws, the Charter or
resolution of the Board of Directors, every meeting notice or other
notice, demand, bill, statement or other communication (collectively,
"Notice") from the Company to a Director, Officer or shareholder shall
be duly given if it is written or printed and is (i) sent by first class or
express mail, postage prepaid, (ii) sent by any commercial overnight air
courier service, such as DHL, Federal Express, Emery, Airborne, UPS
or similar service, (iii) sent by telegraph, cablegram, telex, telecopier,
facsimile or similar transmission, (iv) delivered by any commercial
messenger service which regularly retains its receipts, or (v) personally
delivered, provided a receipt is obtained reflecting the date of delivery.
Notice shall not be duly given unless all delivery or postage charges are
prepaid. Notice shall be given to an addressee's most recent address as
it appears on the Company's records or to such other address as has been
provided in writing to the Secretary. A Notice shall be deemed "given"
when dispatched for delivery, when personally delivered, when
transmitted electronically, or if mailed, on the date postmarked. This
Section shall not have the effect of shortening any notice period
provided for in these Bylaws.
9.03 Waiver of Notice. Any Notice required or permitted by the
General Corporation Law of Nevada, the Charter or these Bylaws may
be waived in writing at any time by the person entitled to the Notice, and
such waiver shall be equivalent to the giving of notice. Notice of any
shareholders' meeting shall be waived by attendance, in person or by
proxy, at the meeting, unless any question of lack of or defect in a Notice
is raised prior to conclusion of the meeting. A waiver of Notice of a
special meeting of shareholders shall state the purpose for which the
meeting was called or the business to be transacted thereat.
APPROVED AND ADOPTED by the Board of Directors as of September 18, 1997.
SECRETARY'S CERTIFICATION
I, the undersigned Secretary of this corporation, hereby certify
that the foregoing Bylaws were duly adopted by its Board of Directors
on the date above indicated and that the foregoing text of the Bylaws are
currently in full force and effect and have not been revoked, suspended
or amended since adoption thereof.
Dated: September 18, 1997
PROQUEST CAPITAL CORPORATION
/s/ Elisabeth M. Crosse
By.....................................
Secretary or Assistant Secretary
(SEAL)
Exhibit 10.1 to Form 8-K dated September 19, 1997
PROQUEST CAPITAL CORPORATION
1997 COMPENSATORY STOCK OPTION PLAN
1. Purpose of this Plan.
This Compensatory Stock Option Plan ("Plan") is intended as an
employment incentive, to aid in attracting and retaining in the employ or
service of PROQUEST CAPITAL CORPORATION ("Company"), a
Nevada corporation, and any Affiliated Company, persons of experience
and ability and whose services are considered valuable, to encourage the
sense of proprietorship in such persons, and to stimulate the active
interest of such persons in the development and success of the Company.
This Plan provides for the issuance of non-statutory stock options
("CSOs" or "Options") which are not intended to qualify as "incentive
stock options" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended ("Code"). Certain other terms also
are defined in Paragraph 17 and elsewhere of this Plan.
2. Administration of this Plan.
The Company's Board of Directors ("Board") may appoint and
maintain as administrator of this Plan the Compensation Committee
("Committee") of the Board which shall consist of at least two members
of the Board who are Non-Employee Directors as defined in Rule 16b-3
under the Securities Exchange Act of 1934, as amended ("Exchange
Act"). At any time that the Committee is not duly constituted, the Board
itself shall have and fulfill the duties herein allocated to the Committee.
The Committee shall have full power and authority to designate Plan
participants, to determine the provisions and terms of respective CSOs
(which need not be identical as to number of shares covered by any
CSO, the method of exercise as related to exercise in whole or in
installments, or otherwise), including the CSO price, and to interpret the
provisions and supervise the administration of this Plan. The Committee
may in its discretion provide that certain CSOs not vest (that is, become
exercisable) until expiration of a certain period after issuance or until
other conditions are satisfied, so long as not contrary to this Plan.
A majority of the members of the Committee shall consititue a
quorum. All decisions and selections made by the Committee pursuant
to this Plan's provisions shall be made by a majority of its members. Any
decision reduced to writing and signed by all of the members shall be
fully effective as if it had been made by a majority at a meeting duly
held. The Committee shall select one of its members as its chairman and
shall hold its meetings at such times and places as it deems advisable.
Each Option shall be evidenced by a written agreement containing terms
and conditions established by the Committee consistent with the
provisions of this Plan.
3. Designation of Participants.
Only Employees shall be eligible for participation in this Plan.
The Committee shall have full power to designate, from among eligible
individuals, the persons to whom CSOs may be granted. A person who
has been granted a CSO hereunder may be granted an additional CSO or
CSOs, if the Committee shall so determine. Persons eligible under this
Plan additionally may be granted one or more options under any other
compensation or stock option plan or awarded shares under any other
benefit plan of the Company. No Option shall confer any right upon the
Optionee with respect to the continuation of his employment (or his
position as an officer, director, employee or consultant) with the
Company or any Affiliated Company, and shall not interfere with the
right of the Company or any Affiliated Company to terminate such
relationship(s) at any time in accordance with law and any agreements
then in force.
4. Stock Reserved for this Plan.
Subject to adjustment as provided in Paragraph 9 below, a total
of 1,000,000 shares of Common Stock of the Company ("Option Stock"
or "Option Shares") shall be subject to this Plan. The Option Stock
subject to this Plan shall consist of unissued shares of Common Stock or
previously issued shares of Common Stock reacquired and held by the
Company or any Affiliated Company, and such number of Option Shares
shall be and is hereby reserved for sale for such purpose. Any Option
Shares which may remain unsold and which are not subject to
outstanding CSOs at the termination of this Plan shall cease to be
reserved for the purpose of this Plan, but until termination of this Plan
the Company shall at all times reserve a sufficient number of shares to
meet the requirements of this Plan. Should any CSO expire or be
cancelled prior to its exercise in full, the unexercised Option Shares
theretofore subject to such CSO may again be subjected to a CSO under
this Plan.
5. Option Exercise Price.
The purchase (exercise) price of each share of Option Stock made
subject to an Option shall not be less than eighty-five percent (85%) of
the Fair Market Value of a share of Common Stock on the date the
Option is granted. For purposes of this Plan, the "Fair Market Value"
of a share of the Company's Common Stock as of a given date shall be:
(i) the closing price of a share of the Company's Common Stock on the
principal exchange, NASDAQ system, NASDAQ Small Cap Market, or
other quotation medium, on which shares of the Company's Common
Stock are then trading or quoted, or (ii) if the Company's Common Stock
is not publicly traded, the fair market value established by the
Committee acting in good faith. The cash proceeds from the sale of
Option Stock are to be added to the general funds of the Company.
6. Exercise Period; Vesting. (a) An Option shall have a term of
not more than ten (10) years from the date of grant and shall
automatically terminate:
(i) Upon termination of the Optionee's employment
with the Company for cause;
(ii) At the expiration of a period to be determined by
the Committee at the time of grant which is not to
exceed twelve (12) months following the date of
termination of the Optionee's employment with
the Company without cause for any reason other
than death; provided, that if no such period is
specified in the Option, the Option shall
automatically terminate thirty (30) days
following termination of Optionee's employment;
provided, further, that if the Optionee dies within
such period, subclause (iii) below shall apply; or
(iii) At the expiration of twelve (12) months
after the date of death of the Optionee; provided,
that the Committee may in its discretion provide
that any Option not be exercisable after the
Optionee's death or may be exercised for a period
less than twelve months.
(iv) Unless otherwise specified in the Option, if
termination is due to the Optionee's "permanent
and total disability" within the meaning of
Section 422(c)(6) of the Code, an Option may be
exercised at any time within twelve (12) months
following termination of employment or
relationship as a consultant or director.
(b) "Employment with the Company" as used in this Plan
shall include employment or relationship as a consultant, adviser or
director with the Company or any Affiliated Company in any such
capacity, even if employment or engagement in another capacity ceases.
Options granted under this Plan shall not be affected by an employee's
transfer of employment among the Company and any one or more
Affiliated Companies. An Optionee's employment with the Company
shall not be deemed interrupted or terminated by a bona fide leave of
absence (such as sabbatical leave or employment by the Government)
duly approved, military leave or sick leave.
(c) Each Option may be made exercisable (that is, vest) in
whole or in installments, cumulative or otherwise, during its term, or
subject to other restrictions or limitations. Unless otherwise set forth in
the granting resolution, an Option shall vest immediately upon grant. If
an Option is made to vest over time, any portion not vested at the time
of termination of employment or relationship as a director or consultant
with the Company shall lapse as if never granted. Nothing contained in
this Section shall be construed to extend the term of any Option or to
permit anyone to exercise an Option after expiration of its term, nor shall
it be construed to increase the number of shares as to which any Option
is exercisable from the amount exercisable on the date of termination of
the Optionee's employment or relationship as a consultant or director.
7. Exercise of Options.
(a) The Committee, in granting CSOs, shall have discretion to
determine the terms upon which CSOs shall be exercisable, subject to
applicable provisions of this Plan. Once available for purchase,
unpurchased Option Shares shall remain subject to purchase until the
CSO expires or terminates in accordance with Paragraph 6 above. Unless
otherwise provided in the CSO, a CSO may be exercised in whole or in
part, one or more times, but no CSO may be exercised for a fractional
share. Resulting fractions shall be rounded up or down, as appropriate.
(b) CSOs may be exercised solely by the Optionee or a
permitted transferee during his lifetime or by a spouse or former spouse
pursuant to a qualified domestic relations order, or if the Option permits,
after his death (with respect to the number of shares which the Optionee
could have purchased at the time of death) by the person or persons
entitled thereto under the decedent's will or the laws of descent and
distribution.
(c) The purchase price of the Option Shares as to which a
CSO is exercised shall be paid or delivered in full at the time of exercise
and no Option Shares shall be issued until full payment is made therefor.
Payment shall be made by any one or more of the following means:
(i) in cash, represented by bank or cashier's check, certified
check or money order, or made by bank wire transfer;
(ii) by offsetting against the purchase price a cash obligation
of the Company which is both liquidated (meaning the
dollar amount is fixed and known or easily determinable)
and uncontested;
(iii) with the prior approval of the Committee, by delivering
shares of the Company's Common Stock which have
been beneficially owned by the Optionee, the Optionee's
spouse or both of them, for a period of at least six (6)
months prior to the time of exercise (the "Delivered
Stock"), the Delivered Stock to be valued by the
Committee in good faith at its Fair Market Value on the
date of exercise;
(iv) with the prior approval of the Committee, by delivery of
shares of corporate stock which are freely tradeable
without restriction and which are part of a class of
securities which has been listed for trading on the Nasdaq
National Market System, the Nasdaq Small Cap Market
or a national securities exchange, with an aggregate Fair
Market Value on the date of exercise equal to or greater
than the exercise price of the Option Shares being
purchased under the Option ("Other Shares"); or
(v) with the prior approval of the Committee, by delivering
to the Company the Optionee's personal recourse
promissory note, adequately secured by property other
than the Option Shares thereby purchased, containing
such terms and conditions as the Committe shall
determine.
(d) An Option shall be deemed exercised when written notice
thereof, accompanied by the appropriate payment in full, is received by
the Company. No holder of an Option shall be, or have any of the rights
and privileges of, a shareholder of the Company in respect of any Option
Shares purchasable upon exercise of an Option unless and until
certificates evidencing such shares shall have been issued by the
Company to him, her or it.
(e) An Option may, but need not, provide that the Optionee
may at any time when and to the extent the Option is exercisable, effect
an Option Exchange, provided the then market price of the Common
Stock exceeds the Option's exercise price. To effect an Option Exchange,
the Optionee must surrender the Option at the Company's principal
offices stating the intent to effect the Option Exchange and the number
of Option Shares being exchanged, and the Option Exchange shall be
deemed to take place on the date of the Company's receipt thereof or
such later date as the Optionee specifies in writing. In connection with
any Option Exchange, an Option shall represent the right to subscribe for
and acquire the number of Option Shares equal to [i] the number of
Option Shares specified by the Optionee in its notice of exchange (the
"Total Number") LESS [ii] the number of Option Shares equal to the
quotient obtained by dividing (A) the product of the Total Number and
the exercise price by (B) the current Fair Market Value of a share of the
Common Stock on the date of exchange, or if such date is not a trading
day, on the trading day preceding. One or more certificates for the
Option Shares issuable and, if applicable, a new Option of like tenor
evidencing the balance of the Option Shares remaining subject to the
Option, shall be issued as of the exercise date.
8. Non-Transferability of Options.
No Option shall be assignable or otherwise transferable except
by will or by operation of law, pursuant to a qualified domestic relations
order (as defined in Rule 16b-3 of the Securities and Exchange
Commission, or any successor rule), or pursuant to Title I of the
Employee Retirement Income Security Act of 1974, as amended
(ERISA), or rules thereunder. No CSO shall be pledged or hypothecated
in any manner, whether by operation of law or otherwise, nor be subject
to execution, attachment or similar process. The same restrictions on
transfer or assignment shall apply to any heirs, devisees, beneficiaries,
legal representatives or other persons acquiring this Option or an interest
herein under such an instrument or by operation of law. Any attempt to
transfer or otherwise dispose of an Option in contravention of its terms
shall void the Option.
9. Reorganizations and Recapitalizations of the Company.
(a) No Limit Imposed on Corporate Powers. The existence
of this Plan and Options granted hereunder shall not affect in any way
the right or power of the Company or its shareholders to make or
authorize any and all adjustments, recapitalizations, reorganizations or
other changes in the Company's capital structure or its business, or any
merger or consolidation of the Company, or any issue of bonds,
debentures or other indebtedness, or any preferred or prior preference
stocks senior to or affecting the Common Stock or the rights thereof, or
the dissolution or liquidation of the Company, or any sale, exchange or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
(b) Certain Adjustments to be Made. The Option Shares with
respect to which Options may be granted hereunder are shares of the
Common Stock of the Company as currently constituted. In certain
instances, the number of shares purchasable upon exercise of Options
and the exercise price shall be adjusted as provided herein. All
adjustments and made under this Section shall be made by the
Committee in good faith in its sole discretion. Every adjustment in
outstanding Options shall be made without change in the total price
applicable to the unexercised portion of the Option but with a
corresponding adjustment in the exercise price per share and number
(and if applicable, kind) of shares purchasable.
(c) Stock Splits, Stock Combinations, Etc. If, and whenever,
prior to delivery by the Company of all of the Option Shares which are
subject to Options granted hereunder, the Company shall effect a split or
combination of the Common Stock or other capital readjustment, the
payment of a Common Stock dividend, or recapitalization,
reclassification or other increase or reduction of the number of shares of
the Common Stock outstanding without receiving compensation therefor
in money, services or property, then the number of Option Shares
available under this Plan and the number of Option Shares with respect
to which Options granted hereunder may thereafter be exercised shall (i)
in the event of an increase in the number of outstanding shares of
Common Stock, be proportionately increased, and the cash consideration
payable per share shall be proportionately reduced; and (ii) in the event
of a reduction in the number of outstanding shares of Common Stock, be
proportionately reduced, and the cash consideration payable per share
shall be proportionately increased.
(d) Certain Other Changes In the Common Stock. If the
outstanding Common Stock shall be hereafter increased or decreased, or
changed into or exchanged for a different number or kind of shares or
other securities of the Company or of another corporation, by reason of
reorganization, merger, consolidation, share exchange or other business
combination in which the Company is the surviving parent corporation,
appropriate adjustment shall be made by the Committee in the number
and kind of shares for which Options may be granted under the Plan. In
addition, the Committee shall make appropriate adjustment in the
number and kind of shares as to which outstanding and unexercised
Options shall be exercisable, to the end that the proportionate interest of
the holder of the Option shall, to the extent practicable, be maintained as
before the occurrence of such event.
(e) Certain Defined Reorganizations. For purposes of this
Section, the term "Reorganization" shall mean any reorganization,
merger, consolidation, share exchange, or other business combination
pursuant to which the Company is not the surviving parent corporation
after the effective date of the Reorganization, or any sale or lease of all
or substantially all of the assets of the Company, and the term
"Reorganization Agreement" shall mean a plan or agreement with
respect to a Reorganization. Nothing herein shall require the Company
to adopt a Reorganization Agreement, or to make provision for the
adjustment, change, conversion, or exchange of any Options, or the
shares subject thereto, in any Reorganization Agreement which it does
adopt. In the event of a Reorganization (as hereinafter defined), then,
(i) If there is no Reorganization Agreement, or if the
Reorganization Agreement does not specifically provide for the
adjustment, change, conversion, or exchange of the outstanding
and unexercised options for cash or other property or securities
of another corporation, then any outstanding and unexercised
options shall terminate as of a future date to be fixed by the
Committee; or,
(ii) If there is a Reorganization Agreement, and the
Reorganization Agreement specifically provides for the
adjustment, change, conversion, or exchange of the outstanding
and unexercised options for cash or other property or securities
of another corporation, the Committee shall adjust the shares
under such outstanding and unexercised options, and shall adjust
the shares remaining under the Plan which are then available for
the issuance of options under the Plan if the Reorganization
Agreement for the adjustment, change, conversion, or exchange
of such options and shares.
(iii) The Committee shall provide to each Optionee
then holding an outstanding and unexercised Option not less than
thirty (30) calendar Days' advance written notice of any date
fixed by the Committee pursuant to this Section 13 and of the
terms of any Reorganization Agreement providing for the
adjustment, change, conversion, or exchange of outstanding and
unexercised Options. Except as the Committee may otherwise
provide, each Optionee shall have the right during such period to
exercise his Option only to the extent that the Option was
exercisable on the date such notice was provided to the Optionee.
(f) Dissolution or Liquidation. In the event of the
dissolution or liquidation of the Company, any outstanding and
unexercised options shall terminate as of a future date to be fixed by the
Committee.
(g) No Adjustments to be Made. Except as expressly
provided above, the Company's issuance of shares of its capital stock of
any class, or securities convertible into shares of its capital stock of any
class, for cash or property, or for labor or services, either upon direct sale
or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into or
exchangeable for shares of capital stock or other securities of the
Company, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number of Option Shares subject to CSOs
granted hereunder or the purchase price of such shares.
10. Purchase for Investment.
Unless the Option Shares covered by this Plan have been
registered under the Act prior to issuance, each person exercising a CSO
under this Plan may be required by the Company to give a representation
in writing that he is acquiring such shares for his or her own account for
investment and not with a view to, or for sale in connection with, the
distribution of any part thereof.
11. Effective Date and Expiration of this Plan.
This Plan shall be effective as of September 10, 1997, the date of
its adoption by the Board, and no CSO shall be granted pursuant to this
Plan after its expiration. This Plan shall expire on December 31, 2005
except as to CSOs then outstanding, which shall remain in effect until
they have expired or been exercised.
12. Amendments or Termination.
The Committee or Board may amend, alter or discontinue this
Plan at any time in such respects as it shall deem advisable in order to
conform to any change in any other applicable law, or in order to comply
with the provisions of any rule or regulation of the Securities and
Exchange Commission required to exempt this Plan or any CSOs
granted thereunder from the operation of Section 16(b) of the Exchange
Act, or in any other respect not inconsistent with Section 16(b) of the
Exchange Act; provided, that no amendment or alteration shall be made
which would impair the rights of any participant under any CSO
theretofore granted, without his consent (unless made solely to conform
such CSO to, and necessary because of, changes in the foregoing laws,
rules or regulations), and except that no amendment or alteration shall
be made without the approval of shareholders which would increase the
total number of shares reserved for the purposes of this Plan (except as
provided in Paragraph 9) or extend the expiration date of this Plan as set
forth in Paragraph 11.
13. Government Regulations.
This Plan, and the granting and exercise of CSOs hereunder, and
the obligation of the Company to sell and deliver Option Shares under
such CSOs, shall be subject to all applicable laws, rules and regulations,
and to such approvals by any governmental agencies or national
securities exchanges as may be required.
14. Liability.
No member of the Board of Directors or the Committee, nor any
officers, employees or agents of the Company or any Affiliated
Company shall be personally liable for any action, omission or
determination made in good faith in connection with this Plan.
15. Options in Substitution for Other Options.
The Committee may, in its sole discretion, at any time during the
term of this Plan, grant new options to an employee under this Plan or
any other stock option plan of the Company on the condition that such
employee shall surrender for cancellation one or more outstanding
options which represent the right to purchase (after giving effect to any
previous partial exercise thereof) a number of shares, in relation to the
number of shares to be covered by the new conditional grant hereunder,
determined by the Committee. If the Committee shall have so
determined to grant such new options on such a conditional basis ("New
Conditional Options"), no such New Conditional Option shall become
exercisable in the absence of such employee's consent to the condition
and surrender and cancellation as appropriate. New Conditional Options
shall be treated in all respects under this Plan as newly granted options.
Options may be granted under this Plan from time to time in substitution
for similar rights held by employees of other corporations who are about
to become employees of the Company or an Affiliated Company as a
result of a merger or consolidation of the employing corporation with the
Company or an Affiliated Company, or the acquisition by the Company
or an Affiliated Company of the assets of the employing corporation, or
the acquisition by the Company or an Affiliated Company of stock of the
employing corporation as the result of which such other corporation
becomes an Affiliated Company.
16. Withholding Taxes.
Pursuant to applicable federal and state laws, the Company may
be required to collect withholding taxes upon the exercise of a CSO.
The Company may require, as a condition to the exercise of a CSO, that
the Optionee concurrently pay to the Company the entire amount or a
portion of any taxes which the Company is required to withhold by
reason of such exercise, in such amount as the Committee or the
Company in its discretion may determine. In lieu of part or all of any
such payment, the Optionee may elect to have the Company withhold
from the shares to be issued upon exercise of the option that number of
shares having a Fair Market Value equal to the amount which the
Company is required to withhold.
17. Other Definitions.
Whenever used in this Plan, except where the context might
clearly indicate otherwise, the following terms shall have the meanings
set forth below:
a. "Act" means the U.S. Securities Act of 1933, as amended.
b. "Affiliated Company" means any Parent or Subsidiary
of the Company.
c. "Award" or "grant" means any grant of a CSO
(Option) made under this Plan.
d. "Board of Directors" means the Board of Directors of
the Company. The term "Committee" is defined in
Section 2 of this Plan.
e. "Common Stock" or "Common Shares" means the
common stock, $.001 par value per share, of the
Company, or in the event that the outstanding Common
Shares are hereafter changed into or exchanged for
different shares or securities of the Company or any other
issuer, such other shares or securities.
f. "Date of Grant" means the day the Committee
authorizes the grant of a CSO or such later date as may
be specified by the Committee as the date a particular
grant will become effective.
g. "Employee" means and includes the following persons:
(i) executive officers, officers and directors (including
advisory and other special directors) of the Company or
an Affiliated Company; (ii) full-time and part-time
employees of the Company or an Affiliated Company;
(iii) persons engaged by the Company or an Affiliated
Company as a consultant, advisor or agent; and (iv) a
lawyer, law firm, accountant or accounting firm, or other
professional or professional firm engaged by the
Company or an Affiliated Company.
h. "Optionee" means an Employee to whom a CSO is
granted.
i. "Parent" means any corporation owning 50% or more
of the total combined voting stock of all classes of the
Company or of another corporation qualifying as a
Parent within this definition.
j. "Subsidiary" means a corporation more than 50% of
whose total combined capital stock of all classes is held
by the Company or by another corporation qualifying as
a Subsidiary within this definition.
18. Litigation.
In the event that any Optionee or Optionee's successor should
bring any lawsuit or other action or proceeding ("Action") against the
Company or an Affiliated Company based upon or arising in relation to
an Option, an Optionee, or successor, as the case may be, not prevailing
in such Action shall be required to reimburse the Company or Affiliated
Company's costs and expenses, including reasonable attorneys' fees,
incurred in defending such action and appealing any award by a lower
court.
19. Governing Law.
The Plan and all rights and obligations under it shall be construed
and enforced in accordance with the laws of the State of Nevada, or
subsequent state of domicile, should its state of domicile be changed.
* * *
By signature below, the undersigned officers of the Company
hereby certify that the foregoing is a true and correct copy of the 1997
Compensatory Stock Option Plan of the Company.
DATED: September 10, 1997
PROQUEST CAPITAL CORPORATION
(SEAL) /s/ Randy Sasaki
By....................................
Authorized Officer
/s/ Mark Rahe
By .....................................
Secretary or Assistant Secretary
PROQUEST CAPITAL CORPORATION
CERTIFICATION OF PLAN ADOPTION
I, the undersigned Secretary or assistant secretary of this
Corporation, hereby certify that the foregoing Compensatory Stock
Option Plan of this corporation was duly approved by the requisite
number of holders of the issued and outstanding common stock of this
corporation as of the date below.
Date of Approval: September 18, 1997
/s/ Mark Rahe
X...............................
Signature
(SEAL)
Exhibit 10.2 to Form 8-K dated September 19, 1997
PROQUEST CAPITAL CORPORATION
1997 EMPLOYEE STOCK COMPENSATION PLAN
1. Purpose of the Plan.
This 1997 Employee Stock Compensation Plan ("Plan") is
intended to further the growth and advance the best interests of
PROQUEST CAPITAL CORPORATION, a Nevada corporation (the
"Company"), and Affiliated Corporations, by supporting and
increasing the Company's ability to attract, retain and compensate
persons of experience and ability and whose services are considered
valuable, to encourage the sense of proprietorship in such persons,
and to stimulate the active interest of such persons in the development
and success of the Company and Affiliate Corporations. This Plan
provides for stock compensation through the award of the Company's
Common Stock.
2. Definitions.
Whenever used in this Plan, except where the context might
clearly indicate otherwise, the following terms shall have the
meanings set forth in this section:
a. "Act" means the U.S. Securities Act of 1933, as amended.
b. "Affiliated Corporation" means any Parent or Subsidiary of the Company.
c. "Award" or "grant" means any grant or sale of
Common Stock made under this Plan.
d. "Board of Directors" means the Board of Directors of
the Company. The term "Committee" is defined in
Section 4 of this Plan.
e. "Code" means the Internal Revenue Code of 1986, as amended.
f. "Common Stock" or "Common Shares" means the
common stock, $.0001 par value per share, of the
Company, or in the event that the outstanding
Common Shares are hereafter changed into or
exchanged for different shares or securities of the
Company, such other shares or securities.
g. "Date of Grant" means the day the Committee
authorizes the grant of Common Stock or such later
date as may be specified by the Committee as the date
a particular award will become effective.
h. "Employee" means and includes the following persons:
(i) executive officers, officers and directors (including
advisory and other special directors) of the Company
or an Affiliated Corporation; (ii) full-time and part-time
employees of the Company or an Affiliated
Corporation; (iii) natural persons engaged by the
Company or an Affiliated Corporation as a consultant,
advisor or agent; and (iv) a lawyer, law firm,
accountant or accounting firm, or other professional or
professional firm engaged by the Company or an
Affiliated Corporation.
i. "Parent" means any corporation owning 50% or more
of the total combined voting stock of all classes of the
Company or of another corporation qualifying as a
Parent within this definition.
j. "Participant" means an Employee to whom an Award of Plan Shares
has been made.
k. "Plan Shares" means shares of Common Stock from
time to time subject to this Plan.
l. "Subsidiary" means a corporation more than 50% of
whose total combined capital stock of all classes is
held by the Company or by another corporation
qualifying as a Subsidiary within this definition.
3. Effective Date of the Plan.
The effective date of this Plan is September 10, 1997. No Plan
Shares may be issued after December 31, 2002.
4. Administration of the Plan.
The Compensation Committee of the Board of Directors
("Committee"), and in default of the appointment or continued
existence of such Committee the Board of Directors, will be
responsible for the administration of this Plan, and will have sole
power to award Common Shares under this Plan. Subject to the
express provisions of this Plan, the Committee shall have full
authority and sole and absolute discretion to interpret this Plan, to
prescribe, amend and rescind rules and regulations relating to it, and
to make all other determinations which it believes to be necessary or
advisable in administering this Plan. The determination of those
eligible to receive an award of Plan Shares shall rest in the sole
discretion of the Committee, subject to the provisions of this Plan.
Awards of Plan Shares may be made as compensation for services
rendered, directly or in lieu of other compensation payable, as a bonus
in recognition of past service or performance or may be sold to an
Employee as herein provided. The Committee may correct any defect,
supply any omission or reconcile any inconsistency in this Plan in
such manner and to such extent it shall deem necessary to carry it into
effect. Any decision made, or action taken, by the Committee arising
out of or in connection with the interpretation and administration of
this Plan shall be final and conclusive.
5. Stock Subject to the Plan.
The maximum number of Plan Shares which may be awarded
under this Plan is 1,000,000 shares.
6. Persons Eligible to Receive Awards.
Awards may be granted only to Employees (as herein
defined).
7. Grants or Awards of Plan Shares.
Except as otherwise provided herein, the Committee shall
have complete discretion to determine when and to which Employees
Plan Shares are to be granted, and the number of Plan Shares to be
awarded to each Employee. A grant to an Employee may be made for
cash, property, services rendered or other form of payment
constituting lawful consideration under applicable law; Plan Shares
awarded other than for services rendered shall be sold at not less than
the fair value thereof on the date of grant. No grant will be made if, in
the judgment of the Committee, such a grant would constitute a public
distribution with the meaning of the Act or the rules and regulations
promulgated thereunder.
8. Delivery of Stock Certificates.
As promptly as practicable after authorizing an award of Plan
Shares, the Company shall deliver to the person who is the recipient
of the award, a certificate or certificates registered in that person's
name, representing the number of Plan Shares that were granted.
Unless the Plan Shares have been registered under the Act, each
certificate evidencing Plan Shares shall bear a legend to indicate that
such shares represented by the certificate were issued in a transaction
which was not registered under the Act, and may only be sold or
transferred in a transaction that is registered under the Act or is
exempt from the registration requirements of the Act. In the absence
of registration under the Act, any person awarded Plan Shares may be
required to execute and deliver to the Company an investment letter,
satisfactory in form and substance to the Company, prior to issuance
and delivery of the shares. An award may be made under this Plan
wherein the Plan Shares may be issued only after registration under
the Act.
9. Assignability.
An award of Plan Shares may not be assigned. Plan Shares
themselves may be assigned only after such shares have been
awarded, issued and delivered, and only in accordance with law and
any transfer restrictions imposed at the time of award.
10. Employment not Conferred.
Nothing in this Plan or in the award of Plan Shares shall
confer upon any Employee the right to continue in the employ of the
Company or Affiliated Corporation nor shall it interfere with or
restrict in any way the lawful rights of the Company or any Affiliated
Corporation to discharge any Employee at any time for any reason
whatsoever, with or without cause.
11. Laws and Regulations.
The obligation of the Company to issue and deliver Plan
Shares following an award under this Plan shall be subject to the
condition that the Company be satisfied that the sale and delivery
thereof will not violate the Act or any other applicable laws, rules or
regulations.
12. Withholding of Taxes.
If subject to withholding tax, the Company or any Affiliated
Corporation may require that the Employee concurrently pay to the
Company the entire amount or a portion of any taxes which the
Company or Affiliated Corporation is required to withhold by reason
of granting Plan Shares, in such amount as the Company or Affiliated
Corporation in its discretion may determine. In lieu of part or all of
any such payment, the Employee may elect to have the Company or
Affiliated Corporation withhold from the Plan Shares issued
hereunder a sufficient number of shares to satisfy withholding
obligations. If the Company or Affiliated Corporation becomes
required to pay withholding taxes to any federal, state or other taxing
authority as a result of the granting of Plan Shares, and the Employee
fails to provide the Company or Affiliated Corporation with the funds
with which to pay that withholding tax, the Company or Affiliated
Corporation may withhold up to 50% of each payment of salary or
bonus to the Employee (which will be in addition to any required or
permitted withholding), until the Company or Affiliated Corporation
has been reimbursed for the entire withholding tax it was required to
pay in respect of the award of Plan Shares.
13. Reservation of Shares.
The stock subject to this Plan shall, at all times, consist of
authorized but unissued Common Shares, or previously issued shares
of Common Stock reacquired or held by the Company or an Affiliated
Corporation equal to the maximum number of shares the Company
may be required to issue as stated in Section 5 of this Plan, and such
number of Common Shares hereby is reserved for such purpose. The
Committee may decrease the number of shares subject to this Plan,
but only the Board of Directors my increase such number, except as a
consequence of a stock split or other reorganization or recapitalization
affecting all Common Shares.
14. Amendment and Termination of the Plan.
The Committee may suspend or terminate this Plan at any
time or from time to time, but no such action shall adversely affect the
rights of a person granted an Award under this Plan prior to that date.
Otherwise, this Plan shall terminate on the earlier of the terminal date
stated in Section 3 of this Plan or the date when all Plan Shares have
been issued. The Committee shall have absolute discretion to amend
this Plan, subject only to those limitations expressly set forth herein;
however, the Committee shall have no authority to extend the term of
this Plan, to increase the number of Plan Shares subject to award
under this Plan or to amend the definition of "Employee" to include
executive officers or directors of the Company or any Affiliated
Corporation.
15. Delivery of Plan.
A copy or synopsis (for which a prospectus registering Plan
Shares will serve) or description of this Plan shall be delivered to
every person to whom an award of Plan Shares is made. The Secretary
of the Company may, but is not required to, also deliver a copy of the
resolution or resolutions of the Committee authorizing the award.
16. Liability.
No member of the Board of Directors, the Committee or any
other committee of directors, or officers, employees or agents of the
Company or any Affiliated Corporation shall be personally liable for
any action, omission or determination made in good faith in
connection with this Plan.
17. Miscellaneous Provisions.
The place of administration of this Plan shall be in the State of
Nevada (or subsequently, wherever the Company's principal executive
offices are located), and the validity, construction, interpretation and
effect of this Plan and of its rules, regulations and rights relating to it,
shall be determined solely in accordance with the laws of the State of
Nevada or subsequent state of domicile, should the Company be
redomiciled. Without amending this Plan, the Committee may issue
Plan Shares to employees of the Company who are foreign nationals
or employed outside the United States, or both, on such terms and
conditions different from those specified in this Plan but consistent
with the purpose of this Plan, as it deems necessary and desirable to
create equitable opportunities given differences in tax laws in other
countries. All expenses of administering this Plan and issuing Plan
Shares shall be borne by the Company.
18. Reorganizations and Recapitalizations of the Company.
(a) The shares of Common Stock subject to this Plan are
shares of the Common Stock of the Company as currently constituted.
If, and whenever, the Company shall effect a subdivision or
consolidation of shares or other capital readjustment, the payment of a
Common Stock dividend, a stock split, combination of shares (reverse
stock split) or recapitalization or other increase or reduction of the
number of shares of the Common Stock outstanding without receiving
compensation therefor in money, services or property, then the
number of shares of Common Stock subject to this Plan shall (i) in the
event of an increase in the number of outstanding shares, be
proportionately increased; and (ii) in the event of a reduction in the
number of outstanding shares, be proportionately reduced.
(b) Except as expressly provided above, the Company's
issuance of shares of Common Stock of any class, or securities
convertible into shares of Common Stock of any class, for cash or
property, or for labor or services, either upon direct sale or upon the
exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into
or exchangeable for shares of Common Stock or other securities, shall
not affect, and no adjustment by reason thereof shall be made with
respect to, the number of shares of Common Stock subject to this
Plan.
By signature below, the undersigned officers of the Company
hereby certify that the foregoing is a true and correct copy of the 1997
Employee Stock Compensation Plan of the Company.
DATED: September 10, 1997
PROQUEST CAPITAL CORPORATION
/s/ Randy Sasaki
(SEAL) By..................................
Authorized Officer
/s/ Mark Rahe
By..................................
Secretary or Assistant Secretary
PROQUEST CAPITAL CORPORATION
CERTIFICATION OF PLAN ADOPTION
I, the undersigned Secretary or assistant secretary of
this Corporation, hereby certify that the foregoing Employee
Stock Compensation Plan of this corporation was duly
approved by the requisite number of holders of the issued and
outstanding common stock of this corporation as of the date
below.
Date of Approval: September 18, 1997
/s/ Mark Rahe
X.................................
Signature
(SEAL)
