UNITED STATES
SECURITY AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K SB
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
(Mark One)
(X) ANNUAL REPORT PURSUANT TO SECTION 12 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the year ended January 31, 1997
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period
Commission File Number 000-18257
HOLMES MICROSYSTEMS, INC.
(Exact name of registrant as specified in its charter)
TEXAS 91-1939829
(State of Incorporation or Organization) (IRS Employer ID Number)
57 West 200 South, Suite 310, Salt Lake City, Utah 84101
(Address of Principal Executive Offices)
(801) 269-9500
(Registrant's Telephone Number)
Securities Registered Under Section 12 (b) of the Act:
None
(Title of Class)
Securities Registered Under Section 12 (g) of the Act:
Common Stock, $.001 par value
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section `3 or `5(d) of the Securities Exchange act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
Indicate by check mark if disclosure of delinquent filers in response to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III or any amendment to this Form
10-K. ( )
Issuer's revenues for the year ended January 31, 1997 were $-0-.
The aggregate market value based on the average bid and asked prices of
the registrant's Common Stock held by non-affiliates of the registrant at
March 22, 1999, was approximately $34,547. As of March 22, 1999, there were
48,051,547 shares of the registrant's Common Stock outstanding.<PAGE>PART I
Item 1 - BUSINESS
On April 4, 1989, Blackwing Corporation, a publicly held corporation, acquired
all of the issued and outstanding shares of a company known as Surface Tech,
Inc., which was originally known as Holmes Microsystems, Inc. The transaction
had been accounted for as a recapitalization of Holmes Microsystems, Inc. in a
manner similar to a reverse purchase. Accordingly, Holmes Microsystems, Inc.
has been treated as the surviving entity. As part of this transaction,
Blackwing Corporation changed its name to Holmes Microsystems Inc. and the
original Holmes Microsystems Inc., which was then a wholly owned subsidiary,
was liquidated.
Until the fiscal year ended January 31, 1994, the company had been engaged in
the sale of modems which provide data and facsimile capabilities for portable
computers. The company had used the trade name "FAX EM" as an overall
description of its products. As of the year ended January 31, 1994, the
company ceased all sales and operations and became totally inactive.
Item 2 - PROPERTIES
The registrant abandoned all leased facilities in 1993.
Item 3 - LEGAL PROCEEDINGS
There are twelve judgments against the registrant for a total of
$526,710.60
Item 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the security holders during the fiscal
year ended January 31, 1997.
PART II
Item 5 - MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The registrant's common stock is quoted on the OTC - Bulletin Board (HOMM).
There is no established trading market for the stock. The following table
sets forth the high and low bid prices for the stock for the year ended
January 31, 1997 as reported by the market maker each quarter. These
quotations reflect inter-dealer prices, without retail markup, markdown or
commission, and may not represent actual transactions.
Item 5 - MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS (Continued)
FISCAL YEAR JANUARY 31, 1997
QUARTER LOW BID HIGH BID
February 1, 1996 to April 30, 1996 $ .01 $ .01
May 1, 1996 to July 31, 1996 $ .01 $ .01
August 1, 1996 to October 31, 1996 $ .01 $ .01
November 1, 1996 to January 31, 1997 $ .01 $ .01
As of January 31, 1997 there were 587 shareholders of the company's common
stock. No cash dividends were declared during the year ended January 31,
1997,
Item 6 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The company has been inactive since the fiscal year ended January 31, 1994.
As of January 31, 1997, the company had no assets. Total liabilities were
$610,711 as of January 31, 1997, of which $526,711 were in the form of
judgments and $84,000 were notes payable.
Item 7 - FINANCIAL STATEMENTS
The financial statements of the Company are set forth immediately following
the signature page of this annual report.
Item 8 - CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
None
PART III
Item 9 - DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Kip Eardley, 37, the sole director of the company, has been president and
director of the company since December 18, 1996. Mr. Eardley has been
self-employed as a consultant to various public and private companies since
1989. He performs these services as president and owner of Capital Consulting
of Utah, Inc. There are no other officers of the registrant.
Section 16(a) Beneficial Ownership Reporting Compliance
For the fiscal year ended January 31,1997, the following are persons, who
were directors, officers, or beneficial owners of more than 10% of the Common
Stock during such fiscal year, and who failed to file on a timely basis
reports required by Section 16(a) of the Securities Exchange Act of 1934
during such fiscal year or any prior fiscal year:
Number of
Transactions Not
Number of Reported on
Name Position Late Reports Timely Basis
Kip Eardley Director & Officer Two (Forms 3 & 5)* One
*Neither of the referenced Form 3 or 5 has been filed.
Item 10 - EXECUTIVE COMPENSATION
None
Item 11 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth certain information furnished by current
management concerning the ownership of common stock of the Company as of June
3, 1999, of (i) each person who is known to the Company to be the beneficial
owner of more than 5 percent of the Common Stock; (ii) all directors and
executive officers; and (iii) directors and executive officers of the Company
as a group:
Amount and Nature
Name and Address of Beneficial Percent
of Beneficial Owner Ownership(1) of Class
Kip Eardley -0- -0-
5814 South 900 East
Salt Lake City, Utah 84117
Howard M. Oveson 30,778,149(2) 64.06%
57 West 200 South
Suite 310
Salt Lake City, Utah 84101
Marilyn Welch 3,147,100 6.55%
Las Vegas, Nevada
Executive Officers and
Directors as a Group
(1 Person) -0- -0-
(1)Unless otherwise indicated, this column reflects amounts as to which the
beneficial owner has sole voting power and sole investment power.
(2) These shares are held directly by Milagro Holdings, Inc., a Delaware
corporation controlled by Mr. Oveson, and therefore Mr. Oveson is deemed to
share beneficial ownership of such shares with such entity.
Item 12 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None
Item 13 - EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K
(a)(1) Financial Statements. The following unaudited financial statements
are provided pursuant to Rule 3-11 of Regulation S-X.
Statement of Financial Position as of January 31, 1997 and 1996
Statement of Operations for the Years Ended January 31, 1997 and 1996
Statement of Changes in Stockholders' Equity for the Years Ended
January 31, 1997 and 1996
Statement of Cash Flows for the Years Ended January 31, 1997 and 1996
Notes to Financial Statements
(a)(2) Exhibits. The following exhibits are included as part of this
report:
Exhibit No. Description of Exhibit Page
3.1 Articles of Incorporation filed January 20, 1988 12
3.2 Articles of Amendment filed May 3, 1989 14
3.3 Articles of Amendment filed January 16, 1990 15
3.4 Statement of Resolution Establishing series of
Shares filed January 16, 1990 17
3.5 Statement of Resolution Establishing series of
Shares filed October 29, 1990 21
3.6 Statement of Resolution Establishing series of
Shares filed May 10, 1991 25
3.7 By-Laws of the Company currently in effect 29
4.1 Form of certificate evidencing shares of Common Stock 44
Pursuant to the requirements of Section 13 of the Securities and Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
Holmes Microsystems, Inc. (Registrant)
Dated: By
Kip Eardley, President and CFO
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following person on behalf of the
registrant and in the capacity and on the date indicated.
Dated: By
Kip Eardley, Director
<PAGE>
HOLMES MICROSYSTEMS, INC.
Statement of Financial Position as of (Unaudited) January 31, 1997 and 1996
ASSETS
January 31, January 31,
1997 1996
CURRENT ASSETS $ -0- $ -0-
TOTAL ASSETS $ -0- $ -0-
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Judgements payable (Note 2) $ 526,711 $ 526,711
Notes payable (Note 3) 84,000 84,000
Total current liabilities 610,711 610,711
STOCKHOLDERS' EQUITY
Preferred stock - series A;
$.001 par value; 100,000
shares authorized; 7,500 shares
issued and outstanding;
8 % noncumlative convertible 8 8
Preferred stock - series B;
$.001 par value; 5,000 shares
authorized; 840 shares issued and
outstanding; 10 % cumlative
convertible 1 1
Common stock; $.001 par value;
49,000,000 shares authorized
48,051,547 shares issued and
outstanding 48,051 48,051
Additional paid-in capital 4,342,333 4,342,333
Accumulated deficit (5,001,104) (5,001,104)
Total stockholders' equity (610,711) (610,711)
TOTAL LIABILITIES AND STOCKHOLDERS'
EQUITY $ -0- $ -0-
<PAGE>
HOLMES MICROSYSTEMS, INC.
Statement of Operations for the Years (Unaudited) Ended January 31, 1997 and
1996
January 31, January 31,
1997 1996
REVENUES $ -0- $ -0-
OPERATING EXPENSES -0- -0-
NET INCOME $ -0- $ -0-
NET INCOME PER SHARE $ -0- $ -0-
<PAGE>
HOLMES MICROSYSTEMS, INC.
Statement of Changes in Stockholders' Equity (Unaudited)
For the Years Ended January 31, 1997 and 1996
Preferred Stock Preferred Stock Additional
Series A Series B Common Stock Paid-in Accum.
Shares Amount Shares Amount Shares Amount Capital Deficit Total
Balances
as of
January
31, 1995 7,500 $8 840 $1 48,051,547 $48,051 $4,342,333 $(5,001,104) $(610,711)
Net
Income -0- -0-
Balances
as of
January
31, 1996 7,500 $8 840 $1 48,051,547 $48,051 $4,342,333 $(5,001,104) $(610,711)
Net
Income -0- -0-
Balances
as of
January
31, 1997 7,500 $8 840 $1 48,051,547 $48,051 $4,342,333 $(5,001,104) $(610,711)
<PAGE>
HOLMES MICROSYSTEMS, INC.
Statement of Cash Flows for the Years (Unaudited) Ended January 31, 1997 and
1996
January 31, January 31,
1997 1996
CASH FLOWS FROM OPERATING
ACTIVITIES
Net Income $ -0- $ -0-
CASH AT BEGINNING OF YEAR -0- -0-
CASH AT END OF YEAR $ -0- $ -0-
<PAGE>
HOLMES MICROSYSTEMS, INC.
(Unaudited) Notes to Financial Statements
NOTE 1 ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES
On April 4, 1989, Blackwing Corporation, a publicly held corporation, acquired
all of the issued and outstanding shares of a company known as Surface Tech,
Inc., which was originally known as Holmes Microsystems, Inc. This
transaction had been accounted for as a recapitalization of Holmes
Microsystems, Inc. as a reverse acquisition. Accordingly, Holmes
Microsystems, Inc. has been treated as the surviving entity. As part of this
transaction, Blackwing changed its name to Holmes Microsystems, Inc., and the
original Holmes Microsystems, Inc., which was then a wholly owned subsidiary,
was liquidated.
Earnings per share are computed on the weighted average number of shares
outstanding.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported assets and liabilities at the date of the financial
statements and the reported amount of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
NOTE 2 JUDGEMENTS PAYABLE
There are twelve judgements against the company (mostly vendors) for a total
of $526,711.
NOTE 3 NOTES PAYABLE
The company has the following outstanding notes payable:
Michael Perog $35,000
Julie Pierce 27,000
Ted Whitehead 22,000
Total $84,000
<PAGE>Exhibit 3.1
ARTICLES OF INCORPORATION OF BLACK WING CORPORATION
The undersigned natural person of the age of eighteen (18) years or more
acting as incorporator of a corporation under the Texas Business Corporation
Act, hereby adopts the following Articles of Incorporation:
ARTICLE ONE
The name of the corporation is Black Wing Corporation.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose for which the corporation is organized is the transaction of
any and all lawful business for which corporations may be incorporated under
the Texas Business Corporation Act.
ARTICLE FOUR
The aggregate number of shares which the corporation shall have authority
to issue is Five Hundred Million (500,000,000) at the par value of Ten
Thousandths of a Cent (.0001).
ARTICLE FIVE
The corporation will not commence business until it has received for the
issuance of shares consideration of the value of One Thousand Dollars
($1,000.00) consisting of money, labor done or property actually received.
ARTICLE SIX
The street address of its initial registered office in 1600 Smith, Suite
4900, Houston, Texas 77002, and the name of its initial registered agent at
such address is Michael W. Sanders.
ARTICLE SEVEN
The number of directors constituting the initial board of directors is
Three (3), and the names and addresses of the persons who are to serve as
directors until the first annual meeting of the shareholders or until their
successors are elected and qualified are:
James S. Clifton J.R. Mullen J. Dan Sifford
5355 Desoto 1600 Smith, Suite 4900 1600 Smith, Suite 4900
Houston, Texas 77091 Houston, Texas 77002 Houston, Texas 77002
ARTICLE EIGHT
The name and address of the incorporator is:
Michael W. Sanders
Groves & Sanders
1600 Smith, Suits 4900
Houston, Texas 77002
ARTICLE NINE
A director of the corporation is not liable to the corporation or its
shareholders or members for monetary damages for an act or omission in the
director's capacity as director, unless the act or omission involves a breach
of a director's duty of loyalty to the corporation or its shareholders or
members; or the act or omission is not in good faith or involves intentional
misconduct or a knowing violation of the law; or the director engages in a
transaction from which he receives an improper benefit, whether or not the
benefit resulted from an action taken within the scope of the director's
office; or the act or omission is one in which the liability of the director
is expressly provided for by statute; or the director engages in an act
related to an unlawful stock repurchase or payment of dividend.
ARTICLE TEN
The shareholders of the corporation shall not have a preemptive right to
acquire additional, unissued or treasury shares of the corporation, or
securities of the corporation convertible into or carrying a right to
subscribe to or acquire shares.
ARTICLE ELEVEN
The shareholders of the corporation by this Article are hereby prohibited
from cumulatively voting their shares at any election for Directors.
Signed this 19th day of January, 1988.
/s/ Michael Sanders, Incorporator
STATE OF TEXAS
COUNTY OF HARRIS
Be f ore me, a notary public, on this day personally appeared Michael W.
Sanders,, known to me to be the person whose name is subscribed to the
foregoing document and being by me first duly sworn, declared that the
statements therein contained are true and correct.
Given under my hand and seal of office this 19th day of January, 1988.
/s/ Janet K. Webb
Notary Public in and for the State of TEXAS
My Commission Expires: 3-28-88
Exhibit 3.2
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF BLACK WING CORPORATION
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
ARTICLE ONE
The name of the corporation is Black Wing Corporation.
ARTICLE TWO
The following amendment to the Articles of Incorporation was adopted by
the shareholders of the corporation April 15, 1989:
The name of the corporation is Holmes Microsystems, Inc.
ARTICLE THREE
The number of shares of Common Stock outstanding at the time of the
adoption was four million one hundred thousand (4,100,000), and number of
shares entitled to vote on the amendment was four million one hundred thousand
(4,100,000).
ARTICLE FOUR
The number of shares that voted for the amendment was 3.366.200, and the
number of shares that voted against the amendment was none (0).
Dated: April 15, 1989
Holmes Microsystems, Inc.
(formerly Black Wing Corporation)
By: /s/ Mark Zobrist, President
/s/ John Douglas, Secretary
Exhibit 3.3
ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION
OF HOLMES MICROSYSTEMS, INC.
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation adopts the following Articles of
Amendment to its Articles of
Incorporation:
ARTICLE ONE
The name of the corporation is Holmes Microsystems, Inc.
ARTICLE TWO
The following amendment to the Articles of Incorporation was adopted by
the shareholders of the corporation on January 12, 1990. The amendment alters
or changes Article Four of the original or amended Articles of Incorporation
and the full text of Article Four is now as follows:
[ARTICLE FOUR]
The total number of shares of all classes of capital stock which the
corporation shall have authority to issue is FIFTY MILLION (50,000,000) shares
of par value stock; ONE MILLION (1,000,000) shares of $0.001 (One Tenth Cent)
par value to be preferred shares and FORTY NINE MILLION (49,000,000) shares of
$0.001 (One Tenth Cent) par value to be common shares. All or any part of the
shares of the preferred or common stock may be issued by the corporation from
time to time and for such consideration as may be determined and fixed by the
Board of Directors, as provided by law, with due regard to the interest of the
existing shareholders; and when such consideration has been received by the
corporation, such shares shall be deemed fully paid and non-assessable.
The Board of Directors is authorized, subject to limitations prescribed
by law and the provisions of this Article, to provide for the issuance of the
shares of preferred stock in series, and by filing a Statement of Resolution
Establishing Series of Shares pursuant to the applicable law of the State of
Texas, to establish from time to time the number of shares to be included in
each such series, and to fix the designations, powers, preferences and rights
of the shares or each such series and the qualifications, limitations or
restrictions thereof.
The authority of the Board with respect to each such series shall
include, but not be limited to, determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate, if any, on the shares of that series,
whether dividends shall be cumulative, and, if so, from which date or dates,
and the relative rights of priority, if any, of payment of dividends on shares
of that series;
(c) Voting rights;
(d) Whether that series shall have conversion privileges, and,
if so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(e) Whether or not the shares of that series shall be
redeemable, 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 send at different redemption dates;
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(g) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up the
corporation, and the relative rights of priority, if any, of payment of shares
of that series;
(h) Any other relative rights, preferences and limitations and
that series.
ARTICLE THREE
The number of shares of the corporation outstanding at the time of such
adoption was 5,221,092; and the number of shares entitled to vote thereon was
5,219,092.
ARTICLE FOUR
The number of shares voted for such amendment was 3,557,778 and the
number of shares voted against such amendment was zero.
ARTICLE FIVE
The manner in which such amendment effects a change in the stated
capital, and the amount of stated capital as changed by such amendment are as
follows. The stated capital is increased by a factor of ten by the increase
in the par value from $0.0001 to $0.001, thereby increasing stated capital
from $522.11 to $5,221.10.
Dated January 12, 1990.
HOLMES MICROSYSTEMS, INC.
By /s/ Mark Zobrist
Its President
And /s/ Leland H. Peters
Its Secretary
STATE OF UTAH )
:ss
COUNTY OF SALT LAKE )
Before me, a notary public, on this day personally appeared E. Mark
Zobrist and Leland H. Peters, known to me to be the persons whose names are
subscribed to the foregoing documents and, being by me first duly sworn,
declared that the statements therein contained are true and correct.
Given under my hand and seal of office this 12th day of January, A.D.,
1990.
My Commission Expires: /s/ James E. Gleason
9-16-91 Notary Public
Residing at: Sandy, Utah
Exhibit 3.4
STATEMENT OF
RESOLUTION ESTABLISHING SERIES OF SHARES
To the Secretary of State
of the State of Texas:
Pursuant to the provisions of Article 2.13 of the Texas Business
Corporation Act, the undersigned corporation submits the following statement
for the purpose of establishing and designating a series of shares and fixing
and determining the relative rights and preferences thereof:
1. The name of the corporation is Holmes Microsystems, Inc.
2. The following resolution, establishing and designating a series of
shares and fixing and determining the relative rights and preferences thereof,
was duly adopted by the board of directors of the corporation on January 12,
1990:
Dated January 15, 1990
HOLMES MICROSYSTEMS, INC.
By /s/ Mark Zobrist
Its President
By /s/ Leland H. Peters
Its Secretary
STATE OF UTAH )
:ss
COUNTY OF SALT LAKE )
Before me, a notary public, on this day personally appeared E. Mark
Zobrist and Leland H. Peters, known to me to be the persons whose names are
subscribed to the foregoing document and, being by me first duly sworn,
declared that the statements therein contained are true and correct.
Given under my hand and seal of office this 15th day of January, A.D.,
1990.
My Commission Expires: /s/ James E. Gleason
9-16-91 Notary Public
Residing at: Sandy, Utah
RESOLUTION
RESOLVED that, pursuant to the authority vested in the Board of Directors
of Holmes Microsystems, Inc. (the "Corporation") in accordance with the
provisions of its Articles of Incorporation as amended, a series of preferred
stock of the Corporation be and is hereby created, such series of preferred
stock to consist of the number of shares of the designation and with the
preferences and rights, subject to the qualifications, limitations and
restrictions thereof, as follows:
1. Designation and Number of Shares. One hundred thousand (100,000)
of the one million (1,000,000) authorized shares of preferred stock, par value
$0.001 per share, are hereby designated as the Series A Convertible Preferred
Stock of the Corporation.
2. Dividends. Each share of Series A Convertible Preferred Stock
shall participate in any dividends declared by the Board of Directors of the
Corporation out of funds legally available therefore and shall have a first
preference over the common stock on the payment of any such dividends up to
the amount of $8.00 per share per annum. Said dividend preference shall be
noncumulative from year to year.
3. Voting Rights. Each holder of shares of Series A Convertible
Preferred Stock shall be entitled to vote on all matters which may be brought
before the shareholders and shall be entitled to the number of votes equal to
the largest number of full shares of the common stock of the Corporation into
which such holder's shares of Series A Convertible Preferred Stock are then
convertible pursuant to Section 4 hereof.
4. Conversion. Each holder of Series A Convertible Preferred Stock
shall have the following conversion privileges:
(a) Right to Convert. Each share of Series A Convertible Preferred
Stock shall be convertible, at the option of the holder thereof, at any time
after the issuance thereof, into sixty (60) fully paid and nonassessable
shares of the common stock of the Corporation.
(b) Procedures for conversion. A holder of shares of Series A
Convertible Preferred Stock shall be entitled to convert such shares into
shares of common stock of the Corporation by surrendering his certificates)
evidencing such Series A Convertible Preferred Stock, duly endorsed, al the
registered office of the Corporation or the transfer agent for the
Corporation's stock, together with written notice to the Corporation of his
election to so convert, stating the number of shares of Series A Convertible
Preferred Stock to be so converted. Upon receipt by the Corporation or its
transfer agent of such certificate(s) and such written notice, the Corporation
will promptly cause to be issued and delivered to such holder one or more
certificates (as reasonably requested by the holder in the written notice of
election to convert) evidencing the number of shares of common stock of the
Corporation to which such holder is entitled (and, if appropriate, an
additional certificate evidencing any shares of Series A Convertible Preferred
Stock which are not being converted), without any further action on the part
of such holder. The date of conversion shall be deemed to be the date of
surrender of the certificate(s) evidencing the Series A Convertible Preferred
Stock to be converted and from and after such date the
person(s) entitled to receive the shares of common stock issuable upon such
conversion shall be deemed for all purposes to be the record holder(s) of said
common shares issuable upon conversion.
(c) Adjustments for Stock Splits and Combinations. If the
Corporation shall at any time after the original issue date of the Series A
Convertible Preferred Stock effect a subdivision of the outstanding common
stock, the number of shares into which a share of Series A Convertible
Preferred Stock can be converted shall be proportionately increased, and
conversely, if the Corporation shall at any time after the original issue date
of the Series A Convertible Preferred Stock combine the outstanding shares of
common stock, the number of shares into which a share of Series A Convertible
Preferred Stock can be converted shall be proportionately decreased. Any
adjustment under this paragraph shall be effective at the close of business on
the date the subdivision or combination becomes effective.
(d) Adjustments for Certain Dividends and Distributions. If the
Corporation at any time after the original issue date of the Series A
Convertible Preferred Stock makes or issues a dividend or other distribution
payable in additional shares of common stock, or in other securities of the
Corporation, then and in each such event, provision shall be made so that the
holders of Series A Convertible Preferred Stock shall receive on conversion
thereof, in addition to the number of shares of common stock otherwise then
receivable thereupon, the amount of securities of the Corporation that they
would have received had their Series A Convertible Preferred Stock been
converted to common stock on the date of such event and had they thereafter
(during the period from such event to and including the conversion date)
retained such securities receivable by them as aforesaid during such period,
giving application to all adjustments called for during such period.
(e) Adjustments for Reclassification, Exchange or Substitution.
If the common stock issuable upon conversion of the Series A Convertible
Preferred Stock shall be changed into the same or a different number of shares
of any class or classes of stock, whether by capital reorganization,
reclassification, or otherwise, in such event the holder of each share of
Series A Convertible Preferred Stock shall have the right thereafter to
convert such into the kind and amount of shares of stock and other securities
and property receivable upon such change, by holders of the number of shares
of common stock into which such share of Series A Convertible Preferred Stock
might have been converted immediately prior to such change.
(f) Reorganization, Merger, Consolidation or Sale of Assets. If
at any time there shall be a capital reorganization of the common stock (other
than a subdivision, combination, reclassification or exchange of shares
provided for elsewhere in this section), or a merger or consolidation of the
Corporation with or into another corporation, or the sale of all or
substantially all of the Corporation's properties and assets to any other
person; in such event and as part of such change, provision shall be made so
that the holders of Series A Convertible Preferred Stock are entitled to
receive upon conversion of the Series A Convertible Preferred Stock the number
of shares of stock or other securities or property of the Corporation, or of
the successor corporation resulting from such change, to which a holder of the
common stock deliverable upon conversion would have been entitled on such
change. Upon any such change, this Section 4 shall be appropriately adjusted
with respect to the rights of the holders of the Series A Convertible
Preferred Stock after the reorganization, merger, consolidation or sale so
that this paragraph remains applicable in as closely equivalent a form as may
be practicable.
(g) Reservation of Stock Issuable Upon Conversion. The
Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of common stock, solely for the purpose of
effecting the conversion of the shares of the Series A Convertible Preferred
Stock, such number of its shares of common stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Series A
Convertible Preferred Stock. If at any time the number of authorized but
unissued shares of common stock shall not be sufficient to effect the
conversion of all the outstanding shares of the Series A Convertible Preferred
Stock, the Corporation will take such action as is necessary to increase its
authorized but unissued shares of common stock to such number of shares as
shall be sufficient for such purpose.
(h) Payment of Taxes. The Corporation will pay all taxes and
other governmental charges that may be imposed in respect of the issue or
delivery of shares of common stock upon conversion of shares of Series A
Convertible Preferred Stock.
(i) No Dilution or Impairment. The Corporation shall not amend
its Certificate of Incorporation or participate in any reorganization, asset
transfer, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, for the purpose of avoiding the observance or
performance of any of the terms set forth in this Resolution to be performed
by the Corporation, but will, at all times and in good faith, assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of Series A Convertible
Preferred Stock against dilution or other impairment.
5. Liquidation Rights. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the
holders of Series A Convertible Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its shareholders, and before payment or setting aside for
payment is made as to common stock, an amount equal to $100 per share of
Series A Convertible Preferred Stock. The Series A Convertible Preferred
Stock shall not thereafter participate further in any subsequent distributions
to shareholders upon liquidation.
6. Redemption. The Corporation shall have the right at its option, to
redeem all or any part of the outstanding shares of Series A Convertible
Preferred Stock, at any time following the original issue date of the Series A
Convertible Preferred Stock, upon 30 days' prior written notice, for a
redemption price of $100 per share. Holders of the redeemed shares shall have
the right to exercise the conversion privilege set forth in Section 4 hereof
at any time prior to the expiration of said 30 day notice period. In the
event that the Corporation shall redeem less than all of the outstanding
shares of Series A Convertible Preferred Stock, the shares to be redeemed may
be selected by lot or by redeeming shares from each shareholder in the
proportion which the total number of shares to be redeemed bears to the total
number of such shares outstanding. There shall not be established any sinking
fund for the redemption or purchase of shares of the Series A Convertible
Preferred Stock.
7. No Other Rights. The Series A Convertible Preferred Stock shall
not have any relative rights, preferences or limitations not expressly
provided for by Texas law or the provisions of this resolution.
Exhibit 3.5
STATEMENT OF
RESOLUTION ESTABLISHING SERIES OF SHARES
To the Secretary of State
of the State of Texas:
Pursuant to the provisions of Article 2.13 of the Texas Business
Corporation Act, the undersigned corporation submits the following statement
for the purpose of establishing and designating a series of shares and fixing
and determining the relative rights and preferences thereof:
1. The name of the corporation is Holmes Microsystems, Inc.
2. The following resolution, establishing and designating a series of
shares and fixing and determining the relative rights and preferences thereof,
was duly adopted by the board of directors of the corporation on October 24,
1990.
Dated October 24, 1990
HOLMES MICROSYSTEMS, INC.
By /s/ Mark Zobrist
Its President
By /s/ G. Clark Johnson
STATE OF UTAH )
:ss
COUNTY OF SALT LAKE )
Before me, a notary public, on this day personally appeared E. Mark Zobrist
and G. Clark Johnson , known to me to as the persons whose names are
subscribed to the foregoing document and, being by me first duly sworn,
declared that the statements therein contained are true and correct.
Given under my hand and seal of office this 24th day of October, A.D., 1990.
My Commission Expires: /s/ Notary Public
11-20-90 Residing at: SLC, UT
RESOLUTION
RESOLVED that, pursuant to the authority vested in the Board of Directors
of Holmes Microsystems, Inc. (the "Corporation") in accordance with the
provisions of its Articles of Incorporation as amended, a series of preferred
stock of the Corporation be and is hereby created, such series of preferred
stock to consist of the number of shares of the designation and with the
references and rights, subject to the qualifications, limitations and
restrictions thereof, as follows:
1. Designation and Number of Shares. Five thousand (5,000) of the
one million (1,000,000) authorized shares of preferred stock, par value $0.001
per share, are hereby designated as the Series B Convertible Preferred Stock
of the Corporation.
2. Dividends. Each share of Series B Convertible Preferred Stock
shall participate in any dividends declared by the Board of Directors of the
Corporation out of funds legally available therefore and shall have a first
preference over the common stock and the Series A Convertible Preferred Stock
on the payment of such dividends up to the amount of $100.00 per share per
annum. Said dividend must be paid and shall be cumulative from year to year.
3. Voting Rights. Each holder of shares of Series B Convertible
Preferred Stock shall be entitled to vote on all matters which may be brought
before the shareholders and shall be entitled to the number of votes equal to
the largest number of full shares of the common stock of the Corporation into
which such holder's shares of Series B Convertible Preferred Stock are then
convertible pursuant to Section 4 hereof.
4. Conversion. Each holder of Series B Convertible Preferred Stock
shall have the following conversion privileges:
(a) Right to Convert. Each share of Series B Convertible
Preferred Stock shall be convertible, at the option of the holder thereof at
any time after the issuance thereof, into thirty-five hundred (3,500) fully
paid and nonassessable shares of the common voting stock of the Corporation.
(b) Procedures for Conversion. A holder of shares of Series B
Convertible Preferred Stock shall be entitled to convert such shares into
shares of common stock of the Corporation by surrendering his certificate(s)
evidencing such Series B Convertible Preferred Stock, duly endorsed, at the
registered office of the Corporation or the transfer agent for the
Corporation's stock, together with written notice to the Corporation of his
election to so convert, stating the number of shares of Series B Convertible
Preferred Stock to be so converted. Upon receipt by the Corporation or its
transfer agent of such certificate(s) and such written notice, the Corporation
will promptly cause to be issued and delivered to such holder one or more
certificates (as reasonably requested by the holder in the written notice of
election to convert) evidencing the number of shares of common stock of the
Corporation to which such holder is entitled (and, if appropriate, an
additional certificate evidencing any shares of Series B Convertible Preferred
Stock which are not being converted), without any further action on the part
of such holder. The date of conversion shall be deemed to be the date of
surrender of the certificates evidencing the Series B Convertible Preferred
Stock to be converted and from and after such date the person(s) entitled to
receive the shares of common stock issuable upon such conversion shall be
deemed for all purposes to be the record holder(s) of said common shares
issuable upon conversion.
(c) Adjustment for Stock Splits and Combinations. If the
Corporation shall at any time after the original issue date of the Series B
Convertible Preferred Stock effect a subdivision of the outstanding common
stock, the number of shares into which a share of Series B Convertible
Preferred Stock can be converted shall be proportionately increased, and
conversely, if the Corporation shall at any time after the original issue date
of the Series B Convertible Preferred Stock combine the outstanding shares of
common stock, the number of shares into which a share of Series B Convertible
Preferred Stock can be converted shall be proportionately decreased. Any
adjustment under this paragraph shall be effective at the close of business on
the date the subdivision or combination becomes effective.
(d) Adjustments for Certain Dividends and Distributions. If the
Corporation at any time after the original issue date of the Series B
Convertible Preferred Stock makes or issues a dividend or other distribution
payable in additional shares of common stock, or in other securities of the
corporation, then and in each such event, provision shall be made so that the
holders of Series B Convertible Preferred Stock shall receive on conversion
thereof, in addition to the number of shares of common stock otherwise then
receivable thereupon, the amount of securities of the Corporation that they
would have received had their Series B Convertible Stock been converted to
common stock on the date of such event and had they thereafter (during the
period from such event to and including the conversion date) retained such
securities receivable by them as aforesaid during such period, giving
application to all adjustments called for during such period.
(e) Adjustments for Reclassification Exchange or Substitution.
If the common stock issuable upon conversion of the Series B Convertible
Preferred Stock shall be changed into the same or a different number of shares
of any class or classes of stock, whether by capital reorganization,
reclassification, or otherwise, in such event the holder of each share of
Series B Convertible Preferred Stock shall have the right thereafter to
convert such into the kind and amount of shares of stock and other securities
and property receivable upon such change, by holders of the number of shares
of common stock into which such share of Series B Convertible Preferred Stock
might have been converted immediately prior to such change.
(f) Reorganization, Merger, Consolidation or Sale of Assets. If
at any time there shall be a capital reorganization of the common stock (other
than a subdivision, combination, reclassification or exchange of shares
provided for elsewhere in this section) , or a merger or consolidation of the
Corporation with or into another corporation, or the sale of all or
substantially all of the corporation's properties and assets to any other
person; in such event and as part of such change, provision shall be made so
that the holders of Series B Convertible Preferred Stock are entitled to
receive upon conversion of the Series B Convertible Preferred Stock the number
of shares of stock or other securities or property of the Corporation, or of
the successor corporation resulting from such change, to which a holder of the
common stock deliverable upon conversion would have been entitled on such
change. Upon any such change, this Section 4 shall be appropriately adjusted
with respect to the rights of the holders of the Series B Convertible
Preferred Stock after the reorganization, merger, consolidation or sale so
that this paragraph remains applicable in as closely equivalent a form as may
be practicable.
(g) Reservation of Stock Issuable upon Conversion. The
Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of common stock, solely for the purpose of
effecting the conversion of the shares of the Series B Convertible Preferred
Stock, such number of its shares of common stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Series B
Convertible Preferred Stock. If at any time the number of authorized but
unissued shares of common stock shall not be sufficient to effect the
conversion of all the outstanding shares of the Series B Convertible Preferred
Stock, the Corporation will take such action as is necessary to increase its
authorized but unissued shares of common stock to such number of shares as
shall be sufficient for such purpose.
(h) Payment of Taxes. The Corporation will pay all taxes and
other governmental charges that may be imposed in respect of the issue or
delivery of shares of common stock upon conversion of shares of Series B
Convertible Preferred Stock.
(i) No Dilution of Impairment. The Corporation shall not amend
its Certificate of Incorporation or participate in any reorganization, asset
transfer, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, for the purpose of avoiding the observance or
performance of any of the terms set forth in this Resolution to be performed
by the Corporation, but will, at all times and in good faith, assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of Series B Convertible
Preferred Stock against dilution or other impairment.
5. Liquidation Rights. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the
holders of Series B Convertible Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its shareholders, and before payment or setting aside for
payment is made as to common stock or the Series A Convertible Preferred
Stock, an amount equal to $1000 per share of Series B Convertible Preferred
Stock. The Series B Convertible Preferred Stock shall not thereafter
participate further in any subsequent distributions to shareholders upon
liquidation.
6. Redemption. The Corporation shall have the right, at its option,
to redeem all or any part of the outstanding shares of Series B Convertible
Preferred Stock, at any time following the original issue date of the Series B
Convertible Preferred Stock, upon 30 days' prior written notice, for a
redemption price of $1,100.00 per share. Holders of the redeemed shares shall
have the right to exercise the conversion privilege set forth in Section 4
hereof at any time prior to the expiration of said 30 day notice period. In
the event that the Corporation shall redeem less than all of the outstanding
shares of Series B Convertible Preferred Stock, the shares to be redeemed may
be selected by lot or by redeeming shares from each shareholder in the
proportion which the total number of shares to be redeemed bears to the total
number of such shares outstanding. There shall not be established any sinking
fund for the redemption or purchase of shares of the Series B Convertible
Preferred Stock.
7. No Other Rights. The Series B Convertible Preferred Stock shall
not have any relative rights, preferences or limitations not expressly
provided for by Texas law or the provisions of this resolution.
Agreed to this 24th day of October, 1990.
Holmes Microsystems, Inc.
Board of Directors
Exhibit 3.6
STATEMENT OF
RESOLUTION ESTABLISHING SERIES OF SHARES
To the Secretary of State
of the State of Texas:
Pursuant to the provisions of article 2.13 of the Texas Business
Corporation Act, the undersigned corporation submits the following statement
for the purpose of establishing and designating a series of Preferred D shares
and fixing and determining the relative rights and preferences thereof:
1. The name of the corporation is Holmes Microsystems, Inc.
2. The following resolution, establishing and designating a series of
shares and fixing and determining the relative rights and preferences thereof,
was duly adopted by the board of directors of the corporation on March 17,
1991.
HOLMES MICROSYSTEMS, INC.
By: /s/ G. Clark Johnson
Its President
By: /s/ Darlene Pond
Its Secretary
STATE OF UTAH )
: ss
COUNTY OF SALT LAKE )
Before me, a notary public, on this day personally appeared Darlene Pond
and G. Clark Johnson, known to me to be the persons whose names are subscribed
to the forgoing document and, being by me first duly sworn, declared that the
statements therein are true and correct.
Given under my hand and seal of office this 30th day of April, 1991
/s/ Terry E. Bowns
Notary Public
RESOLUTION
PREFERRED SERIES D
RESOLVED that, pursuant to the authority vested in the Board of Directors of
Holmes Microsystems, Inc. (the "Corporation") in accordance with the
provisions of its Articles of Incorporation as amended, a series of preferred
stock of the Corporation be and is hereby created as of this 17th day of
March, 1991. Such series of preferred stock to consist of the number of
shares of the designation and with the preferences and rights, subject to the
qualifications, limitations and restrictions thereof, as follows:
1. Designation and Number of Shares. Five thousand (5,000) of the
one million (1,000,000) authorized shares of preferred stock, par value $10.00
per share, are hereby designated as the Series D Convertible Preferred Stock
of the Corporation.
2. Dividends. Each share of Series D Convertible Preferred Stock
shall participate in any dividends declared by the Board of Directors of the
Corporation out of funds legally available therefore and shall have a last
preference over other currently authorized preferred and first preference over
the common stock on the payment of such dividends up to the amount of $1.00
per share per annum. Said dividend shall be noncumulative from year to year.
3. Voting Rights. Each holder of shares of Series D Convertible
Preferred Stock shall not be entitled to vote on any matters which may be
brought before the shareholders unless and until such shares shall have been
fully converted pursuant to Section 4 hereof.
4. Conversion. Each holder of Series D Convertible Preferred
Stock shall have the following conversion privileges:
(a) Right to Convert. Each share of Series D Convertible
Preferred Stock shall be convertible, at the option of the holder thereof at
any time after the issuance thereof, into two hundred fifty (250) fully paid
and nonassessable shares of the common voting stock of the Corporation.
(b) Procedures for Conversion. A holder of shares of Series D
Convertible Preferred Stock shall be entitled to convert such shares into
shares of common stock of the Corporation by surrendering his certificate(s)
evidencing such Series D Convertible Preferred Stock, duly endorsed, at the
registered office of the Corporation or the transfer agent for the
Corporation's stock, together with written notice to the Corporation of his
election to so convert, stating the number of shares of Series D Convertible
Preferred Stock to be so converted. Upon receipt by the Corporation or its
transfer agent of such certificate(s) and such written notice, the Corporation
will promptly cause to be issued and delivered to such holder one or more
certificates (as reasonably requested by the holder in the written notice of
election to convert) evidencing the number of shares of common stock of the
Corporation to which such holder is entitled (and, if appropriate, an
additional certificate evidencing any shares of Series D Convertible Preferred
Stock which are not being converted), without any further action on the part
of such holder. The date of conversion shall be deemed to be the date of
surrender of the certificates evidencing the Series D Convertible Preferred
Stock to be converted and from and after such date the person(s) entitled to
receive the shares of common stock issuable upon such conversion shall be
deemed for all purposes to be the record holder(s) of said common shares
issuable upon conversion.
(c) Adjustment for Stock Splits and Combinations. If the
Corporation shall at any time after the original issue date of the Series D
Convertible Preferred Stock effect a subdivision of the outstanding common
stock, the number of shares into which a share of Series D Convertible
Preferred Stock can be converted shall be proportionately increased, and
conversely, if the Corporation shall at any time after the original issue date
of the Series D Convertible Preferred Stock combine the outstanding shares of
common stock, the number of shares into which a share of Series D Convertible
Preferred Stock can be converted shall be proportionately decreased. Any
adjustment under this paragraph shall be effective at the close of business on
the date the subdivision or combination becomes effective.
(d) Adjustments for Certain Dividends and Distributions. If the
Corporation at any time after the original issue date of the Series D
Convertible Preferred Stock makes or issues a dividend or other distribution
payable in additional shares of common stock, or in other securities of the
corporation, then and in each such event, provision shall be made so that the
holders of Series D Convertible Preferred Stock shall receive on conversion
thereof, in addition to the number of shares of common stock otherwise then
receivable thereupon, the amount of securities of the Corporation that they
would have received had their Series D Convertible Stock been converted to
common stock on the date of such event and had they thereafter (during the
period from such event to and including the conversion date) retained such
securities receivable by them as aforesaid during such period, giving
application to all adjustments called for during such period.
(e) Adjustments for Reclassification Exchange or Substitution.
If the common stock issuable upon conversion of the Series D Convertible
Preferred Stock shall be changed into the same or a different number of shares
of any class or classes of stock, whether by capital reorganization,
reclassification, or otherwise, in such event the holder of each share of
Series D Convertible Preferred Stock shall have the right thereafter to
convert such into the kind and amount of shares of stock and other securities
and property receivable upon such change, by holders of the number of shares
of common stock into which such share of Series D Convertible Preferred Stock
might have been converted immediately prior to such change.
(f) Reorganization, Merger, Consolidation or Sale of Assets. If
at any time there shall be a capital reorganization of the common stock (other
than a subdivision, combination, reclassification or exchange of shares
provided for elsewhere in this section) , or a merger or consolidation of the
Corporation with or into another corporation, or the sale of all or
substantially all of the corporation's properties and assets to any other
person; in such event and as part of such change, provision shall be made so
that the holders of Series D Convertible Preferred Stock are entitled to
receive upon conversion of the Series D Convertible Preferred Stock the number
of shares of stock or other securities or property of the Corporation, or of
the successor corporation resulting from such change, to which a holder of the
common stock deliverable upon conversion would have been entitled on such
change. Upon any such change, this Section 4 shall be appropriately adjusted
with respect to the rights of the holders of the Series D Convertible
Preferred Stock after the reorganization, merger, consolidation or sale so
that this paragraph remains applicable in as closely equivalent a form as may
be practicable.
(g) Reservation of Stock Issuable upon Conversion. The
Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of common stock, solely for the purpose of
effecting the conversion of the shares of the Series D Convertible Preferred
Stock, such number of its shares of common stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of Series D
Convertible Preferred Stock. If at any time the number of authorized but
unissued shares of common stock shall not be sufficient to effect the
conversion of all the outstanding shares of the Series D Convertible Preferred
Stock, the Corporation will take such action as is necessary to increase its
authorized but unissued shares of common stock to such number of shares as
shall be sufficient for such purpose.
(h) Payment of Taxes. The Corporation will pay all taxes and
other governmental charges that may be imposed in respect of the issue or
delivery of shares of common stock upon conversion of shares of Series D
Convertible Preferred Stock, other than income taxes.
(i) No Dilution of Impairment. The Corporation shall not amend
its Certificate of Incorporation or participate in any reorganization, asset
transfer, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, for the purpose of avoiding the observance or
performance of any of the terms set forth in this Resolution to be performed
by the Corporation, but will, at all times and in good faith, assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of Series D Convertible
Preferred Stock against dilution or other impairment.
5. Liquidation Rights. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the
holders of Series D Convertible Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its shareholders, and before payment or setting aside for
payment is made as to common stock, an amount equal to $10 per share of Series
D Convertible Preferred Stock. The Series D Convertible Preferred Stock shall
not thereafter participate further in any subsequent distributions to
shareholders upon liquidation.
6. Redemption. The Corporation shall have the right, at its option,
to redeem all or any part of the outstanding shares of Series D Convertible
Preferred Stock, at any time following the original issue date of the Series D
Convertible Preferred Stock, upon 30 days' prior written notice, for a
redemption price of $1.00 U.S. per share. Holders of the redeemed shares
shall have the right to exercise the conversion privilege set forth in Section
4 hereof at any time prior to the expiration of said 30 day notice period. In
the event that the Corporation shall redeem less than all of the outstanding
shares of Series D Convertible Preferred Stock, the shares to be redeemed may
be selected by lot or by redeeming shares from each shareholder in the
proportion which the total number of shares to be redeemed bears to the total
number of such shares outstanding. There shall not be established any sinking
fund for the redemption or purchase of shares of the Series D Convertible
Preferred Stock.
7. No Other Rights. The Series D Convertible Preferred Stock shall
not have any relative rights, preferences or limitations not expressly
provided for by Texas law or the provisions of this resolution.
Agreed to this 17th day of March, 1991.
Holmes Microsystems, Inc.
Board of Directors
Exhibit 3.7
BY-LAWS
OF
BLACK WING CORPORATION
ARTICLE I - OFFICES
1. REGISTERED OFFICE AND AGENT
The registered office of the corporation shall be maintained at:
1600 Smith, Suite 4900, Houston, Texas 77002
in the State of Texas. The registered office or the registered agent, or
both, may be changed by resolution of the board of directors, upon filing the
statement required by law.
2. PRINCIPAL OFFICE
The principal office of the corporation shall be at
1600 Smith, Suite 4900, Houston, Texas 77002
provided that the board of directors shall have power to change the location
of the principal office in its discretion.
3. OTHER OFFICES
The corporation may also maintain other offices at such places within or
without the State of Texas as the board of directors may from time to time
appoint or as the business of the corporation may require.
ARTICLE II - SHAREHOLDERS
1. PLACE OF MEETING
All meetings of shareholders, both regular and special, shall be held
either at the registered office of the corporation in Texas or at such other
places, either within or without the state, as shall be designated in the
notice of the meeting.
2. ANNUAL MEETING
The annual meeting of shareholders for the election of directors and for
the transaction of all other business which may come before the meeting shall
be held on the 15th day of April in each year (if not a legal holiday and, if
a legal holiday, then on the next business day following) at the hour
specified in the notice of meeting.
If the election of directors shall not be held on the day above
designated for the annual meeting, the board of directors shall cause the
election to be held as soon thereafter as conveniently may be at a special
meeting of the shareholders called for the purpose of holding such election.
The annual meeting of shareholders may be held for any other purpose in
addition to the election of directors which may be specified in a notice of
such meeting. The meeting may be called by resolution of the board of
directors or by a writing filed with the secretary signed either by a majority
of the directors or by shareholders owning a majority in amount of the entire
capital stock of the corporation issued and outstanding and entitled to vote
at any such meeting.
3. NOTICE OF SHAREHOLDERS' MEETING
A written or printed notice stating the place, day and hour of the
meeting, and in case of a special meeting, the purpose or purposes for which
the meeting is called, shall be delivered not less than ten (10) nor more than
fifty (50) days before the date of the meeting, either personally or by mail,
bu pr at the direction of the president, secretary or the officer or person
calling the meeting, to each shareholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the shareholder at his
address as it appears on the share transfer books of the corporation, with
postage thereon prepaid.
4. VOTING OF SHARES
Each outstanding share, regardless of class, shall be entitled to one
vote on each matter submitted to a vote at a meeting of shareholders, except
to the extent that the voting rights of the shares of any class or classes are
limited or denied by the Articles of Incorporation or by law.
Treasury shares, shares of its own stock owned by another corporation the
majority of the voting stock of which is owned or controlled by this
corporation, and shares of its own stock held by this corporation in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time.
A shareholder may vote either in person or by proxy executed in writing
by the shareholder or by his duly authorized attorney in-fact. No proxy shall
be valid after eleven (11) months from the date of its execution unless
otherwise provided in the proxy. Each proxy shall be revocable unless
expressly provided therein to be irrevocable, and in no event shall it remain
irrevocable for a period of more than eleven (11) months.
At each election for directors every shareholder entitled to vote at such
election shall have the right to vote, in person or by proxy, the number of
shares owned by him f or as many persons as there are directors to be elected
and for whose election he has a right to vote, or unless prohibited by the
articles of incorporation, to cumulate his votes by giving one candidate as
many votes as the number of such directors multiplied by the number of his
shares shall equal, or by distributing such votes on the same principal among
any number of such candidates. Any shareholder who intends to cumulate his
votes as herein authorized shall gave written notice of such intention to the
secretary of the corporation on or before the day preceding the election at
which such shareholder intends to cumulate his votes.
5. CLOSING TRANSFER BOOKS AND FIXING RECORD DATE
For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the board of directors may provide
that the share transfer books shall be closed for a stated period not
exceeding fifty (50) days. If the stock transfer books shall be closed for
the purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting. In lieu of closing the stock transfer
books, the by-laws or in the absence of an applicable by-law the board of
directors, may fix in advance a date as the record date for any such
determination of shareholders, not later than fifty (50) days and, in case of
a meeting of shareholders, not earlier than ten (10) days prior to the date on
which the particular action, requiring such determination of shareholders is
to be taken. If the share transfer books are not closed and 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 mailed 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 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, except where the
determination has been made through the closing of share transfer books and
the stated period of closing has expires.
6. QUORUM OF SHAREHOLDERS
Unless otherwise provided in the articles of incorporation, the holders
of a majority of the shares entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of shareholders, but in no event
shall a quorum consist of the holder, of less than one-third (1/3) of the
shares entitled to vote and thus represented at such meeting. The vote of the
holders of a majority of the shares entitled to vote and thus represented at a
meeting at which a quorum is present shall be the act of the shareholders'
meeting, unless the vote of a greater number is required by law, the articles
of incorporation or the by-laws.
7. VOTING LISTS
The officer or agent having charge of the share transfer books for the
shares of the corporation shall make, at least ten (10) days before each
meeting of shareholders, a complete list of the shareholders entitled to vote
at such meeting or any adjournment thereof, arranged in alphabetical order,
with the address of and the number of shares held by each, which list, for a
period of ten (10) days prior to such meeting, shall be kept on file at the
registered office of the corporation and shall be subject to inspection by any
shareholder at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any shareholder during the whole time of the
meeting. The original share transfer books shall be prima-facie evidence as
to who are the shareholders entitled to examine such list or transfer books or
to vote at any meeting of shareholders.
8. ACTION BY CONSENT OF SHAREHOLDERS
In lieu of a formal meeting, action may be taken by unanimous consent of
the shareholders.
ARTICLE III - DIRECTORS
1. BOARD OF DIRECTORS
The business and affairs of the corporation shall be managed by a board
of directors. Directors need not be residents of the State of Texas or
shareholders in the corporation.
2. NUMBER AND ELECTION OF DIRECTORS
The number of directors shall be 3 provided that the number may be
increased or decreased from time to time by an amendment to these by-laws, but
no decrease shall have the effect of shortening the term of any incumbent
director. At each annual election the shareholders shall elect directors to
hold office until the next succeeding annual meeting.
3. VACANCIES
Any vacancy occurring in the board of directors may be filled by the
affirmative vote of the remaining directors, though less than a quorum of the
board. 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 election
at an annual meeting or at a special meeting of shareholders called for that
purpose.
4. QUORUM OF DIRECTORS
A majority of the board of directors shall constitute a quorum for the
transaction of business. The act of the directors present at a meeting at
which a quorum present shall be the act of the board of directors.
5. ANNUAL MEETING OF DIRECTORS
Within thirty days after each annual meeting of shareholders the board of
directors elected at such meeting shall hold an annual meeting at which they
shall elect officers and transact such other business as shall come before the
meeting.
6. REGULAR MEETING OF DIRECTORS
A regular meeting of the board of directors may be held at such time as
shall be determined from time to time by resolution of the board of directors.
7. SPECIAL MEETINGS OF DIRECTORS
The secretary shall call a special meeting of the board of directors
whenever requested to do so by the president or by two directors. Such
special meeting shall be held at time specified in the notice of meeting.
8. PLACE OF DIRECTORS' MEETINGS
All meetings of the board of directors (annual, regular or special) shall
be held either at the principal office of the corporation or at such other
place, either within or without the State of Texas, as shall be specified in
the notice of meeting.
9. NOTICE OF DIRECTORS' MEETINGS
All meetings of the board of directors (annual, regular or special) shall
be held upon five (5) days' written notice stating the date, place and hour of
meeting delivered to each director either personally or by mail or at the
direction of the president or the secretary or the officer or person calling
the meeting.
In any case where all of the directors execute a waiver of notice of the
time and place of meeting, no notice thereof shall be required, and any such
meeting (whether annual, regular or special) shall be held at the time and at
the place (either within or without the State of Texas) specified in the
waiver of notice. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where the director attends a meeting
for the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of , any
annual, regular or special meeting of the board of directors need be specified
in the notice or waiver of notice of such meeting.
10. COMPENSATION
Directors, as such, shall not receive any stated salary for their
services, but by resolution of the board of directors a fixed sum and expenses
of attendance, if any, may he allowed for attendance at each annual, regular
or special meeting of the board, provided, that nothing herein contained shall
be construed to preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
11. ACTION BY CONSENT OF DIRECTORS
In lieu of a formal meeting, action may be taken by unanimous written
consent of the directors.
ARTICLE IV - OFFICERS
1. OFFICERS ELECTION
The officers of the corporation shall consist of a president, one or more
vice-presidents, a secretary, and a treasurer. All such officers shall be
elected at the annual meeting of the board of directors provided for in
Article III, Section 5. If any office is not filled at such annual meeting,
it may be filled at any subsequent regular or special meeting of the board.
The board of directors at such annual meeting, or at any subsequent regular or
special meeting may also elect or appoint such other officers and assistant
officers and agents as may be deemed necessary. Any two or more offices may
be held by the same person, except the of offices of president and secretary.
All officers and assistant officers shall be elected to serve until the
next annual meeting of directors (following the next annual meeting of
shareholders) or until their successors are elected, provided, that any
officer or assistant officer elected or appointed by the board of directors
may be removed with or without cause at any regular or special meeting of the
board whenever in the judgment of the board of directors the best interests of
the corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Any agent
appointed shall serve for such term, not longer than the next annual meeting
of the board of directors, as shall be specified, subject to like right of
removal by the board of directors.
2. VACANCIES
If any office becomes vacant for any reason, the vacancy may be filled by
the board of directors.
3. POWER OF OFFICERS
Each officer shall have, subject to these by-laws, in addition to the
duties and powers specifically set forth herein, such powers and duties as are
commonly incident to his office and such duties and powers as the board of
directors shall from time to time designate. All officers shall perform their
duties subject to the directions and under the supervision of the board of
directors. The president may secure the fidelity of any and all officers by
bond or otherwise.
4. PRESIDENT
The president shall be the chief executive officer of the corporation.
He shall preside at all meetings of the directors and shareholders. He shall
see that all orders and resolutions of the board are carried out, subject
however, to the right of the directors to delegate specific powers, except
such as may be by statute exclusively conferred on the president, to any other
officers of the corporation.
He or any vice-president shall execute bonds, mortgages and other
instruments requiring a seal, in the name of the corporation, and, when
authorized by the board, he or any vice-president may affix the seal to any
instrument requiring the same, and the seal when so affixed shall be attested
by the signature of either the secretary or an assistant secretary. He or any
vice-president shall sign certificates of stork.
The President shall be ex-officio a member of all standing committees.
He shall submit a report of the operations of the corporation for the
year to the directors at their meeting next preceding the annual meeting of
the shareholders and to the shareholders at their annual meeting.
5. VICE-PRESIDENTS
The vice-president shall, in the absence or disability of the president,
perform the duties and exercise the powers of the president, and they shall
perform such other duties as the board of directors shall prescribe.
6. THE SECRETARY AND ASSISTANT SECRETARIES
The secretary shall attend all meetings of the board and all meetings of
the shareholders and shall record all votes and the minutes of all proceedings
and shall perform like duties
for the standing committees when required. He shall give or cause to be given
notice of all meetings of the shareholders and all meetings of the board of
directors and shall perform such other duties as may be prescribed by the
board. He shall keep in safe custody the seal of the corporation, and when
authorized by the board, affix the same to any instrument requiring it, and
when so affixed, it shall be attested by his signature or by the signature of
an assistant secretary.
The assistant secretary shall, in the absence or disability of the
secretary, perform the duties and exercise the powers of the secretary, and
they shall perform such other duties as the board of directors shall
prescribe.
In the absence of the secretary or an assistant secretary, the minutes of
all meetings of the board and shareholders shall be recorded by such person as
shall be designated by the president or by the board of directors.
7. THE TREASURER AND ASSISTANT TREASURERS
The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate account of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of
directors.
The treasurer shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements. He shall keep and maintain the corporation's books of account
and shall render to the president and directors an account of all of his
transactions as treasurer and of the financial condition of the corporation
and exhibit his books, records and accounts to the president or directors at
any time. He shall disburse funds for capital expenditures as authorized by
the board of directors and in accordance with the orders of the president, and
present to the president for his attention any requests for disbursing funds
if in the judgment of the treasurer any such request is not properly
authorized. He shall perform such other duties as may be directed by the
board of directors or by the president.
If required by the board of directors, he shall give the corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to
the board for the faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to
the corporation.
The assistant treasurers in the order of their seniority shall, in the
absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer, and they shall perform such other duties as the board
of directors shall prescribe.
ARTICLE V - CERTIFICATES OF STOCK TRANSFER, ETC.
1. CERTIFICATES OF STOCK
The certificates for shares of stock of the corporation shall be numbered
and shall be entered in the corporation as they are issued. They shall
exhibit the holder's name and number of shares and shall be signed by the
president or a vice-president and the secretary or an assistant secretary and
shall be sealed with the seal of the corporation or a facsimile thereof. If
the corporation has a transfer agent or a registrar, other than the
corporation itself or an employee of the corporation, the signatures of any
such officer may be facsimile. In case any officer or officers who shall have
signed or whose facsimile signature or signatures shall have been used on any
such certificate or certificates shall cease to be such officer or officers
of the corporation, whether because of death, resignation or otherwise, before
said certificate or certificates shall have been issued, such certificate may
nevertheless be issued by the corporation with the same effect as though the
person or persons who signed such certificates or whose facsimile signature or
signatures shall have been used thereon had been such officer or officers at
the date of its issuance. Certificates shall be in such form as shall in
conformity to law be prescribed from time to time by the board of directors.
The corporation may appoint from time to time transfer agents and
registrars, who shall perform their duties under the supervision of the
secretary.
2. TRANSFERS OF SHARES
Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its
books.
3. REGISTERED SHAREHOLDERS
The corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof and, accordingly shall
not be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
4. LOST CERTIFICATE
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
corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost.
When authorizing such issue of a new certificate or certificates, the board of
directors in its discretion and as a condition precedent to the issuance
thereof, may 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 or to give the corporation a bond with surety and in forms
satisfactory to the corporation (which bond shall also name the corporation's
transfer agents and registrars, if any, as obligees) in such sum as it may
direct as indemnity against any claim that may be made against the corporation
or other obligees with respect to the certificate alleged to have been
ARTICLE VI - DIVIDEND
1. DECLARATION
The board of directors may declare at any annual, regular or special
meeting of the board and the corporation may pay, dividends on the outstanding
shares in cash, property or in the shares of the corporation to the extent
permitted by, and subject to the provisions of, the laws of the State of
Texas.
2. RESERVES
Before payment of any dividend there may be set aside out of any funds of
the corporation available for dividends such sum or sums as the directors from
time to time in their absolute discretion think proper as a reserve fund to
meet contingencies or for equalizing dividends or for repairing or maintaining
any property of the corporation or for such other purpose as the directors
shall think conducive to the interest of the corporation, and the directors
may abolish any such reserve in the manner in which it was created.
ARTICLE VII - MISCELLANEOUS
1. INFORMAL ACTION
Any action required to be taken or which may be taken at a meeting of the
shareholders, directors or members of the executive committee, may be taken
without a meeting if a consent in writing setting forth the action so taken
shall be signed by all of the shareholders, directors, or members of the
executive committee, as the case may be, entitled to vote with respect to the
subject matter thereof, and such consent shall have the same force and effect
as a unanimous vote of the shareholders, directors, or members of the
executive committee, as the case may be, at a meeting of said body.
2. SEAL
The corporate seal shall be circular in form and shall contain the name
of the corporation, the year of its incorporation and the words "TEXAS," and
"CORPORATE SEAL" or an image of the Lone Star. The seal may be used by
causing it or a facsimile to be impressed or affixed or in any other manner
reproduced. The corporate seal may be altered by order of the board of
directors at any time.
3. CHECKS
All checks or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or persons as the
board of directors may from time to time designate.
4. FISCAL YEAR
The fiscal year of the corporation shall begin on the 1st day of January
in each and every year.
5. DIRECTORS' ANNUAL STATEMENT
The board of directors shall present at each annual meeting of
shareholders a full and clear statement of the business and condition of the
corporation.
6. CLOSE CORPORATIONS: MANAGEMENT BY SHAREHOLDERS
If the articles of incorporation of the corporation and each certificate
representing its issued and outstanding shares states that the business and
affairs of the corporation shall be managed by the shareholders of the
corporation rather than by a board of directors, then, whenever the context so
requires the shareholders of the corporation shall be deemed the directors of
the corporation for purposes of applying any provision of these by-laws.
7. AMENDMENTS
These by-laws may be altered, amended or repealed in whole or in part by
the affirmative vote of the holders of a majority of the shares outstanding
and entitled to vote, but such power may be delegated by the shareholders to
the board of directors.
ARTICLE VIII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
The following Article describes and sets out the parameters
indemnification as set out in Article 2.02-l of the Texas Business
Corporations Act.
"Article 2.02-1. of the Texas Business Corporation Act provides the
following with respect to indemnification of officers and directors:
Art. 2.02-1. Power to Indemnify and to Purchase Indemnity Insurance;
Duty to Indemnify
(1) "Corporation" includes any domestic or foreign predecessor entity
of the corporation in a merger, consolidation, or other transaction in which
the liabilities of the predecessor are transferred to the corporation by
operation of law and in any other transaction in which the corporation assumes
the liabilities of the predecessor but does not specifically exclude
liabilities that are the subject matter of this article.
(2) "Director" means any person who is or was a director of the
corporation and any person who, while a director of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise.
(3) "Expenses" include court costs and attorney's fees.
(4) "Official capacity" means
(a) when used with respect to a director, the office of director
in the corporation, and
(b) when used with respect to a person other than a director,
the elective or appointive office in the corporation held by the officer, or
the employment or agency relationship undertaken by the employee or agent in
behalf of the corporation, but
(c) in both Paragraphs (a) and (b) does not include service for
any other foreign or domestic corporation or any partnership, joint venture,
sole proprietorship, trust, employee benefit plan, or other enterprise.
(5) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit, or proceeding, and any
inquiry or investigation that could lead to such an action, suit, or
proceeding.
B. A corporation may indemnify a person who was, is or is threatened
to be made a named defendant or respondent in a proceeding because the person
is or was a director only if it is determined in accordance with Section F of
this article that the person:
(1) conducted himself in good faith;
(2) reasonably believed;
(a) in the case of conduct in his official capacity as a
director of the corporation, that his conduct was in the corporation's best
interests, and
(b) in all other cases, that his conduct was at least not
opposed to the corporation's best interests; and
(3) in the case of any criminal proceeding, had no reasonable
cause to believe his conduct was lawful.
C. A director may not be indemnified under Section B of this article
for obligations resulting from a proceeding:
(1) in which the person is found liable on the basis that
personal benefit was improperly received by him, whether or not the benefit
resulted from an action taken in the person's official capacity; or
(2) in which the person is found liable to the corporation.
D. The termination of a proceeding by judgment, order, settlement, or
conviction, or on a plea of nolo contendere or its equivalent is not of itself
determinative that the person did not meet the requirements set forth in
Section B of this article.
E. A person may be indemnified under Section B of this article
against judgments, penalties (including excise and similar taxes), fines,
settlements, and reasonable expenses actually incurred by the person in
connection with the proceeding; but if the proceeding was brought by or in
behalf of the corporation, the indemnification is limited to reasonable
expenses actually incurred by the person in connection with the proceeding.
F. A determination of indemnification under Section B of this article
must be made:
(1) by a majority vote of a quorum consisting of directors who at the
time of the vote are not named defendants or respondents in the proceeding;
(2) if such a quorum cannot be obtained, by a majority vote of a
committee of the board of directors, designated to act in the matter by a
majority vote of all directors, consisting solely of two or more directors who
at the time of the vote are not named defendants or respondents in the
proceeding;
(3) by special legal counsel selected by the board of directors or a
committee of the board by vote as set for in Subsection (1) or (2) of this
section, or, if such a quorum cannot be obtained and such a committee cannot
be established, by a majority vote of all directors; or
(4) by the shareholders in a vote that excludes the shares held by
directors who are named defendants or respondents in the proceeding.
G. Authorization of indemnification and determination as to
reasonableness of expenses must be made in the same manner as the
determination that indemnification is permissible, except that if the
determination that indemnification is permissible is made by special legal
counsel, authorization of indemnification and determination as to
reasonableness of expenses must be made in the manner specified by Subsection
(3) of Section F of this Article for the selection of special legal counsel.
A provision contained in the articles of incorporation, bylaws, a resolution
of shareholders or directors, or an agreement that makes mandatory the
indemnification permitted under Section B of this article shall he deemed to
constitute authorization of indemnification in the manner required by this
section even though such provision may not have been adopted or authorized in
the same manner as the determination that indemnification is permissible.
H. A corporation shall indemnify a director against reasonable
expenses incurred by him in connection with a proceeding in which he is a
named defendant or respondent because he is or was a director if he has been
wholly successful, on the merits or otherwise, in the defense of the
proceeding.
I. If, in a suit for the indemnification required by Section H of
this article, a court of competent jurisdiction determines that the director
is entitled to indemnification under that section, the court shall order
indemnification and shall award to the director the expenses incurred in
securing the indemnification.
J. If, upon application of a director, a court of competent
jurisdiction determines, after giving any notice the court considers
necessary, that the director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not he
has met the requirements set forth in Section B of this article or has been
adjudged liable in the circumstances described by Section C of this article,
the court may order the indemnification that the court determines is proper
and equitable. The court shall limit indemnification to reasonable expenses
if the proceeding is brought by or on behalf of the corporation or if the
director is found liable on the basis that personal benefit was improperly
received by him, whether or not the benefit resulted from an action taken in
the person's official capacity.
K. Reasonable expenses incurred by a director who was, is, or is
threatened to be made a named defendant or respondent in a proceeding may be
paid or reimbursed by the corporation in advance of the final disposition of
the proceeding after:
(1) the corporation receives a written affirmation by the
director of his good faith belief that he has met the standard of conduct
necessary for indemnification under this article and a written undertaking by
or on behalf of the director to repay the amount paid or reimbursed if it is
ultimately determined that he has not met those requirements; and
(2) a determination that the facts then known to those making
the determination would not preclude indemnification under this article.
L. The written undertaking required by Section K of this article must
be an unlimited general obligation of the director but need not be secured.
It may be accepted without reference to financial ability to make repayment.
Determinations ans authorizations of payments under Section K of this Article
must be made in the manner specified by Section F of this article for
determining that indemnification is permissible.
M. A provision for a corporation to indemnify or to advance expenses
to a director who was, is, or is threatened to be made a named defendant or
respondent in a proceeding, whether contained in the articles of
incorporation, the bylaws, a resolution of shareholders or directors, an
agreement, or otherwise, except in accordance with Section R of this article,
is valid only to the extent it is consistent with this article as limited by
the articles of incorporation, if such a limitation exists.
N. Notwithstanding any other provision of this article, a corporation
may pay or reimburse expenses incurred by a director in connection with his
appearance as a witness or the participation in a proceeding at a time when he
is not a named defendant or respondent in the proceeding.
O. An officer of the corporation shall be indemnified as, and to the
same extent, provided by Section H, I, and J of this article for a director
and is entitled to seek indemnification under those sections to the same
extent as a director. A corporation may indemnify and advance expenses to an
officer, employee, or agent of the corporation to the same extent that it may
indemnify and advance expenses to directors under this article.
P. A corporation may indemnify and advance expenses to persons who
are not or were not officers, employees, or agents of the corporation but who
are or were serving at the request of the corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent, or similar
functionary of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan, or other
enterprise to the same extent that it may indemnify and advance expenses to
directors under this article.
Q. A corporation may indemnify and advance expenses to an officer,
employee, agent, or person identified in Section P of this article and who is
not a director to such further extent, consistent with law, as may be provided
by its articles of incorporation, bylaws, general or specific action of its
board of directors, or contract or as permitted or required by common law.
R. A corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, or agent of the
corporation or who is or was serving at the request of the corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent, or
similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan, or other
enterprise, against any liability asserted against him and incurred by him or
in such a capacity or arising out of his status as such a person, whether or
not the corporation would have the power to indemnify him against that
liability under this article.
S. Any indemnification of or advance of expenses to a director in
accordance with this article shall be reported in writing to the shareholders
with or before the notice or waiver of notice of the next shareholders'
meeting or with or before the next submission to shareholders of a consent to
action without a meeting pursuant to Section A, Article 9.10, of this Act and,
in any case, within the 12-month period immediately following the date of the
indemnification or advance.
T. For purposes of this article, the corporation is deemed to have
requested a director to serve an employee benefit plan whenever the
performance by him of his duties to the corporation also imposes duties an or
otherwise involves services by him to the plan or participants or
beneficiaries of the plan. Excise taxes assessed on a director with respect
to an employee benefit plan pursuant to applicable law are deemed fines.
Action taken or omitted by him with respect to an employee benefit plan in the
performance of his duties for a purpose reasonably believed by him to be in
the interest of the participants and beneficiaries of the plan is deemed to be
for a purpose which is not opposed to the best interests of the corporation.
U. The articles of incorporation of a corporation may restrict the
circumstances under which the corporation is required or permitted to
indemnify a person under Sections H, I, J, O, P, or Q of this article.
Exhibit 4.1
[Front of stock certificate]
HOLMES
MICROSYSTEMS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF TEXAS
NUMBER SHARES
THIS CERTIFIES THAT
IS THE OWNER OF
SHARES OF THE FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
$.0001 PAR VALUE OF HOLMES MICROSYSTEMS, INC.
transferable only on the books of the Corporation by the holder hereof in
person or by attorney upon surrender of this Certificate properly endorsed.
This Certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate
to be signed by its duly authorized officers and its Corporate Seal to be
hereunto affixed.
Dated:
Holmes Microsystems, Inc.
/s/ John R. Douglas CORPORATE /s/ Mark Zobrist
Secretary SEAL President
1988
TEXAS
[Back of stock certificate]
Notice:Signature must be guaranteed by a firm which is a member of a
registered national stock exchange, or by a bank (other than a saving bank),
or a trust company. The following abbreviations, when used in the inscription
on the face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act
in common (State)
Additional Abbreviations may also be used though not in the above list
For Value Received, ____________ hereby sell, assign and transfer unto
Please insert social security or other
identifying number of assignee
(Please print or typewrite name and address, including zip code, of assignee)
Shares
of the capital stock represented by the within certificate, and do hereby
irrevocably constitute and appoint Attorney to
transfer the said stock on the books of the within named Corporation with full
power of substitution in the premises.
Dated
NOTICE: The signature of this assignment must correspond with the
name as written upon the face of the certificate in every particular without
alteration or enlargement or any change whatever
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<PERIOD-END> JAN-31-1997
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<INVENTORY> 0
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<CURRENT-LIABILITIES> 610,711
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0
9
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<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 0
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
