<PAGE>
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[X] Preliminary Proxy Statement
[_] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
CREATIVE MASTER INTERNATIONAL, INC.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified in its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[_] $125 per Exchange Act Rules 0-11(c)(l)(ii), 14a-6(i)(l), or 14a-6(j)(2) or
Item 22(a)(2) of Schedule 14A.
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
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4) Proposed maximum aggregate value of transaction:
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5) Total fee paid:
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[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
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2) Form, Schedule or Registration Statement No.:
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3) Filing Party:
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4) Date Filed:
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<PAGE>
CREATIVE MASTER INTERNATIONAL, INC.
CASEY IND. BLDG., 8TH FLOOR
18 BEDFORD RD., TAIKOKTSUI
KOWLOON, HONG KONG
-----------------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
-----------------------
Notice is hereby given that a Special Meeting of Stockholders of Creative
Master International, Inc., a Delaware corporation (the "Company"), will be held
at the Company's offices at Casey Ind. Bldg., 8th Floor, 18 Bedford Rd.,
Taikoktsui, Hong Kong on Friday, December 11, 1998, at 10:00 A.M., local time,
for the purpose of amending and restating the Company's Certificate of
Incorporation to:
(a) reduce the authorized capital stock of the Company from
60,000,000 shares to 30,000,000 shares, consisting of 25,000,000
shares of common stock, $.0001 per value per share, and 5,000,000
newly authorized shares of preferred stock, par value $.0001 per
share; and
(b) effect a 3-for-4 reverse stock split of the Company's outstanding
common stock.
Your attention is directed to the accompanying Proxy Statement.
Stockholders of record at the close of business on November 30, 1998 will be
entitled to notice of and to vote at the meeting and any adjournment thereof.
Please sign, date and complete the enclosed proxy and return it promptly in
the accompanying pre-addressed envelope, whether or not you expect to attend the
Special Meeting. Your promptness in returning the enclosed proxy will help to
ensure the broadest possible representation of stockholders at the meeting. A
stockholder who executes and returns the accompanying proxy may revoke it at any
time before it is voted at the Special Meeting by following the procedures set
forth in the attached Proxy Statement.
By Order of the Board of Directors
Paul Mo
Secretary
Kowloon, Hong Kong
_______________, 1998
------------------------------------
PLEASE SIGN AND DATE THE ENCLOSED FORM OF PROXY AND MAIL
IT PROMPTLY IN THE ENCLOSED RETURN ENVELOPE, IN
ORDER TO ENSURE THAT YOUR SHARES ARE REPRESENTED.
-----------------------------------
<PAGE>
CREATIVE MASTER INTERNATIONAL, INC.
CASEY IND. BLDG., 8TH FLOOR
18 BEDFORD RD., TAIKOKTSUI
KOWLOON, HONG KONG
PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
DECEMBER 11, 1998
INTRODUCTION
PERSONS MAKING THE SOLICITATION
This Proxy Statement is furnished in connection with the solicitation by
the Board of Directors of Creative Master International, Inc. (the "Company") of
proxies for use at the Special Meeting of Stockholders (the "Special Meeting")
to be held on December 11, 1998, and at any adjournment or postponement thereof.
This Proxy Statement is first being mailed to stockholders on or about December
1, 1998. You are requested to sign, date and return the enclosed proxy card in
order to ensure that your shares are represented at the Special Meeting.
A form of proxy is enclosed for your use. The shares represented by each
properly executed proxy will be voted as directed by the stockholder executing
the proxy. If no direction is made, the shares represented by each properly
executed unrevoked proxy will be voted "FOR" the proposal to adopt the Amended
and Restated Certificate of Incorporation of the Company described herein. With
respect to any other item of business that may properly come before the Special
Meeting, the proxy holders will vote the proxy in accordance with the
recommendation of management of the Company.
The cost of this solicitation, including the cost of preparing and mailing
the Notice of Special Meeting, this Proxy Statement and the enclosed proxy, will
be borne by the Company. It is anticipated that brokerage houses, fiduciaries,
nominees, and others will be reimbursed for their out-of-pocket expenses in
forwarding proxy material to beneficial owners of stock held in their names.
Directors, officers, or employees of the Company may solicit proxies by
telephone or in person without additional compensation.
REVOCABILITY OF PROXY
Any proxy given by a stockholder may be revoked at any time before it is
voted at the Special Meeting by a subsequent written notice to the Secretary of
the Company, or upon request if the stockholder is present at the Special
Meeting.
VOTING SECURITIES
Holders of record of the Company's common stock, $.0001 par value (the
"Common Stock"), at the close of business on November 27, 1998 are entitled to
notice of and to vote at the Special Meeting and any adjournment thereof. The
outstanding voting securities of the Company on November 27, 1998 consisted of
4,999,746 shares of Common Stock. The presence, in person or by proxy, of
stockholders entitled to cast at least a majority of the votes entitled to be
cast by all stockholders will constitute a quorum for the transaction of
business at the Special Meeting.
<PAGE>
Holders of Common Stock are entitled to cast one vote per share with
respect to the proposal to amend and restate the Company's Certificate of
Incorporation. Stockholders may specify in the proxy that they wish to abstain
from voting on the proposal. Votes cast by proxy or in person at the Special
Meeting will be tabulated by the inspectors of election appointed for the
meeting, who will determine whether or not a quorum is present. The inspectors
of election will treat abstentions as shares that are present and entitled to
vote for purposes of determining the presence of a quorum, but as unvoted for
purposes of determining the approval of the matter submitted to the stockholders
for a vote.
Approval of the proposal to amend and restate the Company's Certificate of
Incorporation will require the affirmative vote of at least a majority of the
shares entitled to vote at the Special Meeting. Consequently, abstentions and
so-called broker non-votes (i.e., where a broker indicates on its proxy that it
----
does not have discretionary authority as to vote certain shares on the
proposal), will have the same effect as a vote against the proposal.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the beneficial ownership of Common Stock as
of November 17, 1998 by (i) each person known by the Company to beneficially own
5% or more of the outstanding shares of Common Stock, (ii) each director of the
Company, (iii) each person who served as Chief Executive Officer of the Company
during the year ended December 31, 1997 and up to four other executive officers
who received $100,000 or more in compensation during the year ended December 31,
1997, and (iv) all directors and executive officers of the Company as a group.
The information set forth in the table and accompanying footnotes has been
furnished by the named beneficial owners. An asterisk denotes less than 1%.
<TABLE>
<CAPTION>
AMOUNT AND NATURE
OF BENEFICIAL OWNERSHIP
------------------------
NAME AND ADDRESS OF NUMBER OF PERCENT OF
BENEFICIAL OWNER(1) SHARES CLASS
- ------------------- ---------- -----------
<S> <C> <C>
Carl Ka Wing Tong(2)........................ 344,195 6.9%
Casey Ind. Bldg., 8th Floor
18 Bedford Rd., Taikoktsui
Kowloon, Hong Kong
Leo Sheck Pui Kwok(3)....................... 753,250 15.1
Casey Ind. Bldg., 8th Floor
18 Bedford Rd., Taikoktsui
Kowloon, Hong Kong
Arthur Seidenfeld(4)........................ 44,000 *
Acma Ltd. (5)............................... 3,402,573 68.0
17 Jurong Port Road
Singapore 619092
All directors and executive officers as a
group (10 persons)......................... 1,097,445 22.0
</TABLE>
- ------------
(1) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or
investment power with respect to the shares shown. Except as indicated by
footnote and subject to community property laws where applicable, to the
Company's knowledge the persons named in the table have sole voting and
investment power with respect to all shares of Common Stock shown as
beneficially owned by them.
2.
<PAGE>
(2) Mr. Tong is a Managing Director and 10% shareholder of Acma Strategic
Holdings Limited. As such, Mr. Tong shares investment and voting power with
respect to the shares shown as beneficially owned by Acma Strategic Holdings
Limited. Mr. Tong disclaims beneficial ownership of such shares, however.
(3) The shares shown are held of record by Superego, Inc., a British Virgin
Islands company beneficially owned by Mr. Kwok.
(4) Mr. Seidenfeld served as Chief Executive Officer of the Company prior to
December 30, 1997, when Mr. Tong was appointed as Chief Executive Officer.
(5) The shares shown as being owned by Acma Ltd. consist of 2,450,876 shares
held of record by Acma Strategic Holdings Limited and an additional 951,697
shares held of record by Acma Investments Pte., Ltd., a wholly-owned
subsidiary of Acma Ltd. Acma Investments Pte., Ltd. is a 90% shareholder of
Acma Strategic Holdings Limited.
PROPOSAL TO AMEND AND RESTATE THE COMPANY'S
CERTIFICATE OF INCORPORATION
The Board of Directors of the Company has concluded that it would be
advisable to amend and restate the Company's Certificate of Incorporation to (a)
reduce the authorized capital stock of the Company from 60,000,000 shares to
30,000,000 shares, consisting of 25,000,000 shares of Common Stock, $.0001 per
value per share, and 5,000,000 newly authorized shares of preferred stock, par
value $.0001 per share ("Preferred Stock"); and (b) effect a 3-for-4 reverse
stock split of the Company's outstanding Common Stock, all as set forth in the
Amended and Restated Certificate of Incorporation attached hereto as Exhibit A.
The Board of Directors unanimously approved the Amended and Restated Certificate
of Incorporation on November 18, 1998 and recommended that it be presented for
approval by the stockholders.
3-FOR-4 REVERSE STOCK SPLIT
If adopted at the Special Meeting, the Amended and Restated Certificate of
Incorporation would effect a 3-for-4 reverse split of the outstanding shares of
Common Stock, so that every four shares of Common Stock outstanding at the
effectiveness of the Amended and Restated Certificate of Incorporation ("Old
Common Stock") would automatically be converted into three shares of Common
Stock ("New Common Stock"). Upon approval of the Amended and Restated
Certificate of Incorporation, each certificate representing shares of Old Common
Stock would thereafter represent the number of shares of New Common Stock into
which the Old Common Stock represented by such certificate is to be converted.
The Company will not issue fractional shares in connection with the reverse
stock split, but will round upward any fractional share to the nearest whole
share of New Common Stock. As a result, the reverse stock split will increase
slightly certain stockholders' proportionate interests in the Company. The
reverse stock split will not, however, affect the aggregate assigned value of
the shares of Common Stock for financial statement purposes. See Exhibit A for a
detailed description of the reverse stock split.
The underwriter of the Company's anticipated public offering has advised the
Company that a reverse stock split of the outstanding shares of Common Stock may
enhance the marketability of the Common Stock and facilitate the public
offering.
There can be no assurance that the Company's anticipated public offering will
be completed. There is also no assurance that the per share price of the
Common Stock in the public offering will be proportionately higher as a result
of the reverse stock split or that the per share price level of the Common Stock
immediately after the reverse stock split will be maintained for any period of
time.
3.
<PAGE>
By reducing the number of shares of Common Stock outstanding and, thus, the
"public float" of the Company, the reverse stock split could adversely effect
the trading market for the Common Stock pending completion of a public offering
or in the event a public offering does not occur.
REDUCTION OF AUTHORIZED CAPITAL STOCK
The Company's Certificate of Incorporation currently authorizes the Company
to issue 60,000,000 shares of Common Stock. The Amended and Restated Certificate
of Incorporation, if adopted at the Special Meeting, would reduce the authorized
capital stock of the Company to 30,000,000 shares, consisting of 25,000,000
shares of Common Stock and 5,000,000 newly authorized shares of Preferred Stock.
As of the date of this Proxy Statement, the Company had issued and
outstanding only 4,999,746 shares of Common Stock. If the Amended and Restated
Certificate of Incorporation is adopted at the Special Meeting, the number of
outstanding shares would be reduced further to approximately 3,749,810 shares by
reason of the 3-for-4 reverse stock split. As a result, management believes
that the current number of shares of authorized capital stock greatly exceeds
the reasonable and foreseeable needs of the Company. Also, since the Company's
franchise taxes payable in Delaware may be based on its authorized capital, a
reduction in the authorized shares may reduce the Company's ongoing franchise
taxes. For these reasons, the Board determined to reduce the authorized capital
of the Company to 30,000,000 shares as provided in the Amended and Restated
Certificate of Incorporation.
AUTHORIZATION OF PREFERRED STOCK
The Board of Directors also believes it is advisable to authorize the
issuance of up to 5,000,000 shares of Preferred Stock, par value $.0001 per
share, as proposed under the Amended and Restated Certificate of Incorporation.
The Preferred Stock would be available to the Company for issuance in one or
more series as determined in the future by the Board of Directors. The Board
would be empowered to fix, among other things, the designation of and number of
shares to comprise each series and the relative rights, preferences and
privileges of shares of each series, including the dividends payable thereon,
voting rights, conversion rights, the price and terms on which shares may be
redeemed, the amounts payable upon such shares in the event of voluntary of
involuntary liquidation and any sinking fund provisions for redemption or
purchases of such shares. The authorized shares of Preferred Stock would
provide the Company with additional flexibility concerning possible future
acquisitions and financings and enable it to quickly capitalize on Company
opportunities. The Company has no plan or arrangement, however, to issue any
shares of Preferred Stock.
In casting votes on the proposal, stockholders should be aware that the Board
of Directors, without further stockholder approval, may issue Preferred Stock
with voting and/or conversion rights which could adversely affect the voting
power of the holders of the Common Stock, or which could be used as a defensive
measure in connection with an attempted hostile takeover of the Company. Such
shares could be privately placed with purchasers who might align themselves with
the Board of Directors in opposing a hostile takeover bid. In addition, the
Board could authorize holders of a series of Preferred Stock to vote as a class,
either separately or with the holders of Common Stock, or any merger, sale or
exchange of assets by the Company or any other extraordinary corporate
transaction. The Board could also issue Preferred Stock having terms that could
discourage an acquisition attempt or other transaction that some stockholders
might believe to be in their best interest or in which stockholders might
receive a premium for their stock over the then current market price of such
stock.
EFFECTIVE DATE OF AMENDMENT
The foregoing amendments to the Company's Certificate of Incorporation,
including the reverse stock split, will become effective on filing the Amended
and Restated Certificate of Incorporation with the Delaware Secretary of State.
Carl Ka Wing Tong and Leo Sheck Pui Kwok, two of the Company's directors and
executive officers, and Acma Strategic Holdings Limited and Acma Investments
Pte., Ltd., two of its principal stockholders, have indicated their intention to
vote in favor of the foregoing proposal. Since these stockholders together own
approximately 90% of the Company's outstanding shares of Common Stock, the
proposal is expected to be approved without regard to any votes of the other
stockholders of the Company. Mr. Tong is the Managing
4.
<PAGE>
Director and a 10% shareholder of Acma Strategic Holdings Limited. Acma
Investments Pte., Ltd. proposes to offer the underwriters of the Company's
anticipated public offering an option to purchase 300,000 of Acma Investments's
shares of Common Stock to cover over-allotments. As a result, Acma Investments
Pte., Ltd. may be deemed to have an interest in the proposal to amend and
restate the Company's Certificate of Incorporation.
THE BOARD OF DIRECTORS RECOMMENDS VOTING "FOR" ADOPTION OF THE AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION.
STOCKHOLDER PROPOSALS AT THE NEXT SPECIAL MEETING OF STOCKHOLDERS
Stockholders of the Company who intend to submit proposals to the Company's
stockholders at the next annual meeting of stockholders must submit such
proposals to the Company no later than March 31, 1999 in order for such
proposals to be included in the proxy materials. Stockholder proposals should
be submitted to John Rempel, Chief Financial Officer, Creative Master
International, Inc., Casey Ind Bldg., 8th Floor, 18 Bedford Rd., Taikoktsui,
Kowloon, Hong Kong.
OTHER MATTERS
Management is not aware of any other matters that may be presented for action
at the Special Meeting. If, however, any matters not referred to in this Proxy
Statement should properly come before the meeting, the persons named in the
proxies will vote the shares represented thereby in accordance with their
judgment. Matters incident to the conduct of the meeting also may be voted upon
pursuant to the proxies.
By Order of the Board of Directors
December __, 1998 Paul Mo
Secretary
5.
<PAGE>
CREATIVE MASTER INTERNATIONAL, INC.
PROXY FOR SPECIAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF CREATIVE MASTER INTERNATIONAL, INC.
The undersigned hereby acknowledges receipt of the Notice of Special Meeting
of Stockholders and Proxy Statement, each dated __________, 1998, and hereby
revokes all prior proxies and appoints Carl Ka Wing Tong and Leo Sheck Pui Kwok
(the "Proxies"), and each of them, with full power of substitution, as the proxy
of the undersigned to represent the undersigned and to vote all shares of Common
Stock of Creative Master International, Inc. which the undersigned would be
entitled to vote if personally present at the Special Meeting of Stockholders,
to be held on December 11, 1998, at the Company's executive offices, Casey Ind.
Bldg., 8th Floor, 18 Bedford Rd., Taikoktsui, Kowloon, Hong Kong, and at any
adjournments thereof.
1. AMENDED AND RESTATED CERTIFICATE OF INCORPORATION:
Proposal to amend and restate the Company's Certificate of
Incorporation.
[_] For [_] Against [_] Abstain
2. At their discretion, the Proxies are authorized to vote upon such
other business as may properly come before the Special Meeting.
The shares represented hereby will be voted as directed. WHERE NO DIRECTION
IS MADE, THE SHARES WILL BE VOTED "FOR" PROPOSAL 1.
Dated: _________, 1998 ________________________ ____________________________
(Signature) (Signature, if held jointly)
Please sign exactly as your name or names appear hereon, and when signing as
attorney, executor, administrator, trustee or guardian, give your full title as
such. If the signatory is a corporation, sign the full corporate name by a duly
authorized officer.
PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY CARD
PROMPTLY USING THE ENCLOSED ENVELOPE
<PAGE>
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CREATIVE MASTER INTERNATIONAL, INC.
(FORMERLY DAVIN ENTERPRISES, INC.)
INCORPORATED ON APRIL 8, 1987
The undersigned, Carl Ka Wing Tong, being the President and Chief Executive
Officer, and Paul Mo, being the Secretary of Creative Master International, Inc.
(the "Corporation"), in order to amend and restate the Certificate of
Incorporation pursuant to the laws of the State of Delaware, do hereby set forth
as follows:
FIRST: The name of the Corporation is
CREATIVE MASTER INTERNATIONAL, INC.
SECOND: The address of the registered office and registered agent in this
state is c/o United Corporate Services, Inc., 410 South State Street, in the
City of Dover, County of Kent, State of Delaware 19901 and the name of the
registered agent at said address is United Corporate Services, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the corporation laws of
the State of Delaware.
FOURTH: (1) The total number of shares of stock which the Corporation is
authorized to issue is Thirty Million (30,000,000) shares designated "Common
Stock" and "Preferred Stock." The number of shares of Common Stock authorized to
be issued is Twenty-Five Million (25,000,000) with a par value of $.0001 per
share. The number of shares of Preferred Stock authorized to be issued is Five
Million (5,000,000) with a par value of $.0001 per share. The holders of the
Common Stock or Preferred Stock shall have no preemptive rights to subscribe for
or purchase any shares of any class of stock of the Corporation, whether now or
hereafter authorized.
(2) The Board of Directors of the Corporation is authorized to determine
the number of series into which shares of Preferred Stock may be divided, to
determine the designations, powers, preferences and voting and other rights, and
the qualifications, limitations and restrictions granted to or imposed upon the
Preferred Stock or any series thereof or any holders thereof, to determine and
alter the designations, powers, preferences and rights, and the qualifications,
limitations and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock or the holders thereof, to fix the number of shares of
that series and to increase or decrease, within the limits stated in any
resolution of the Board of Directors originally fixing the number of shares
constituting any series (but not below the number of such shares then
outstanding), the number of shares of any such series subsequent to the issuance
of shares of that series.
1
<PAGE>
(3) The Corporation hereby reclassifies its Common Stock pursuant to
Section 242 of the Delaware General Corporation Law in order to effect a three
(3) for four (4) reverse split of its Common Stock, $.0001 par value ("Old
Common Stock"), so that four (4) shares of the Old Common Stock is equal to
three (3) shares of Common Stock, $.0001 par value ("New Common Stock"). Each
certificate which heretofore represented shares of Old Common Stock shall
hereafter represent the number of shares of New Common Stock into which the
shares of Old Common Stock represented by such certificate shall be combined;
provided, however, that each person holding of record a stock certificate or
- --------
certificates which represented shares of Old Common Stock shall receive, upon
surrender of such certificate or certificates, a new certificate or certificates
evidencing and representing the number of shares of New Common Stock to which
such person is entitled, and provided further that the Corporation shall not
issue fractional shares with respect to the combination. In lieu thereof, the
Corporation shall round upward any fractional share to the nearest whole share
of New Common Stock.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The number of directors of the Corporation shall be such as from time
to time shall be fixed by, or in the manner provided in the bylaws. Election of
directors need not be by ballot unless the bylaws so provide.
(2) The Board of Directors shall have power without the assent or vote of
the stockholders:
(a) To make, alter, amend, change, add to or repeal the bylaws of the
Corporation; to fix and vary the amount to be reserved for any proper purpose;
to authorize and cause to be executed mortgages and liens upon all or any part
of the property of the Corporation; to determine the use and disposition of any
surplus or net profits; and to fix the times for the declaration and payment of
dividends.
(b) To determine from time to time whether, and to what times and
places, and under what conditions the accounts and books of the Corporation
(other than the stockledger) or any of them, shall be open to the inspection of
the stockholders.
(3) The directors in their discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
the vote of the holders of a majority of the stock of the Corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid and as binding upon the Corporation and upon all the
stockholders as though it had been approved or ratified by every stockholder of
the Corporation, whether or not the contract or act would otherwise be open to
legal attack because of directors interest, or for any other reason.
2
<PAGE>
(4) In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation; subject, nevertheless, to the provisions of the statutes of
Delaware, of this certificate, and to any bylaws from time to time made by the
stockholders; provided, however, that no bylaws so made shall invalidate any
--------
prior act of the directors which would have been valid if such bylaw had not
been made.
SIXTH: No director of the Corporation shall be liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary duty as
a director, except with respect to (1) a breach of the director's duty of
loyalty to the Corporation or its stockholders, (2) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) liability under Section 174 of the Delaware General Corporation Law or
(4) a transaction from which the director derived an improper personal benefit,
it being the intention of the foregoing provision to eliminate the liability of
the Corporation's directors to the Corporation or its stockholders to the
fullest extent permitted by Section 102(b)(7) of the Delaware General
Corporation Law, as amended from time to time. The Corporation shall indemnify
to the fullest extent permitted by Sections 102(b)(7) and 145 of the Delaware
General Corporation Law, as amended from time to time, each person that such
Sections grant the Corporation to power to indemnify.
SEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be summoned in such manner as the said court directs. If a majority in number
representing three-fourths (3/4) in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be,
and also on the Corporation.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
3
<PAGE>
The foregoing Amended and Restated Certificate of Incorporation was first
authorized by the Board of Directors and subsequently duly adopted by the
consent in writing of the stockholders holding a majority of the Corporation's
outstanding stock entitled to vote thereon in accordance with Section 228 of the
General Corporation Law of the State of Delaware.
In accordance with Section 228 of the General Corporation Law of the Sate
of Delaware, a written notice of the corporate action taken by the majority of
the stockholders has been given to all stockholders of record of the Corporation
who have not consented in writing.
IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated
Certificate of Incorporation as of __________________, 1998 and DO HEREBY
CERTIFY, that the facts stated in this Amended and Restated Certificate of
Incorporation are true and correct.
----------------------------------
Carl Ka Wing Tong, President and
Chief Executive Officer
----------------------------------
Paul Mo, Secretary
4
