As filed with the Securities and Exchange Commission on February 25, 1999
File No. 333-25900
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement Under the Securities Act of 1933
DONNEBROOKE CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
State of Delaware 75-2228820
(State or Other Jurisdiction of (IRS Employer ID No.)
Incorporation or Organization)
16910 Dallas Parkway, Suite 100, Dallas, Texas 75248
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(Address of Principal Executive Offices)
AGREEMENTS FOR SERVICES
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(Full Title of the Plan)
Kevin B. Halter, Jr., 16910 Dallas Parkway, Suite100, Dallas, Texas 75248
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(Name and Address of Agent For Service)
(972) 248-1922
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(Telephone Number, Including Area Code, of Agent For Service)
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following line: _____
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities to Offering Price Per Aggregate Offering
be Registered Amount to be Share (1) Price Amount of
Registered Registration Fee
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Common Stock 3,602,300 shares $0.01 $36,023.00 $0.04
par value $.00001
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</TABLE>
(1) Estimated pursuant to Rule 457(c) of the Securities Act of 1933 solely for
the purpose of calculating the registration fee.
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<PAGE>
PART I THE PLANS AND THE ISSUANCE OF SHARES TO PAY FOR SERVICES PREVIOUSLY
RENDERED
Item 1. Plan Information
For many years Donnebrooke Corporation (the "Company") has used the services of
Securities Transfer Corporation, Dallas, Texas (herein "STC") as its stock
transfer agent and registrar with regard to its Common Stock. Because the
Company has not conducted any business and has not had any income for many
years, it has not been able to pay for the services rendered over the years by
STC. As of the date of filing this Registration Statement, the Company is
indebted to STC in the total amount of $22,893.00. The Company has obligated
itself to pay that indebtedness by the issuance of shares of its Common Stock
(which currently has no market value since there is currently no active market
for its shares of Common Stock) and STC has agreed to accept 2,289,300 shares of
the Company's Common Stock in satisfaction of this indebtedness for services
previously rendered.
During 1998 Donnebrooke Corporation (the "Company") used the various consulting
services of Halter Capital Corporation, Dallas, Texas (herein "HCC") in assist
it with its efforts to revive the Corporation's legal status and charter under
Delaware law, to cause its various reporting obligations to the SEC to be made
current, to seek merger or acquisitions partners, and to find methods by which
its shareholders might some day in the future see the value of their investment
in the Company be enhanced. Because the Company has not conducted any business
and has not had any income for many years, it has not been able to pay for the
services rendered by HCC. As of the date of filing this Registration Statement,
the Company is indebted to HCC in the total amount of $13,130.00. The Company
has obligated itself to pay that indebtedness by the issuance of shares of its
Common Stock (which currently has no market value since there is currently no
active market for its shares of Common Stock) and HCC has agreed to accept
1,313,000 shares of the Company's Common Stock in satisfaction of this
indebtedness for services previously rendered.
2
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents are incorporated by reference into this Registration
Statement:
1. The Company's Annual Report on Form 10-KSB for the year ended December 31,
1998 filed by the Company under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), with the Commission.
2. All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by said Annual Report.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, subsequent to the date hereof and prior to the filing
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which de-registers all securities covered hereby then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of filing of such documents. Any statement
contained in the documents incorporated, or deemed to be incorporated, by
reference herein or therein shall be deemed to be modified or superseded for
purposes of this Registration Statement and the prospectus which is a part
hereof (the "Prospectus") to the extent that a statement contained herein or
therein or in any other subsequently filed document which also is, or is deemed
to be, incorporated by reference herein or therein modified or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or supersede, to constitute a part of this Registration
Statement and the Prospectus.
The description of the Company's common stock which is contained in the
Company's registration statement filed under Section 12 of the Securities
Exchange Act of 1934, including any amendments or reports filed for the purpose
of updating such description.
Item 4. Description of Securities.
The Company's Common Stock is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The General Corporation Law of Delaware permits provisions in the articles,
bylaws or resolutions approved by shareholders which limit liability of
directors for breach of fiduciary duty to certain specified circumstances. The
Company's bylaws provide for the indemnification of officers, directors, agents
and employees of the Company to the fullest extent permitted by the Delaware
General Corporation Law. Pursuant to Section 145 of the Delaware General
Corporation Law, the Company generally has the power to indemnify its present
and former directors, officers, employees and agents against expenses incurred
by them in connection with any suit to which they are, or are threatened to be
made, a party by reason of their serving in such positions so long as they acted
in good faith and in a manner they reasonably believed to be in, or not opposed
to, the best interests of the Company, and with respect to any criminal action,
they had no reasonable cause to believe their conduct was unlawful. The Company
has the power to purchase and maintain insurance for such persons. The Delaware
General Corporation Law also expressly provides that the power to indemnify
authorized thereby is not exclusive of any rights granted under any certificate
of incorporation, bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise.
3
<PAGE>
The above discussion of the Company's bylaws and of Section 145 of the Delaware
Code is not intended to be exhaustive and is qualified in its entirety by such
bylaws and the Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers, and controlling persons of the Company
pursuant to the foregoing provisions or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
3.1 Amended and Restated Certificate of Incorporation of Donnebrooke
Corporation
3.2 Bylaws of Donnebrooke Corporation
5.1 Opinion of Richard Braucher, Esq. regarding legality (including
consent)
23.1 Consent of S. W. Hatfield, Certified Public Accountant
Item 9. Undertakings.
(A) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (1) (i) and (1) (ii), above, are
inapplicable if the information required to be included thereunder is contained
in periodic reports filed by the Company pursuant to the Exchange Act with the
Commission that are incorporated by reference into the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
4
<PAGE>
(B) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
(C) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act ) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(D) The Company hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Exchange Act; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that is has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on the 24th day of February, 1999, in the City of Dallas, State of
Texas.
DONNEBROOKE CORPORATION
BY: /s/ Kevin B. Halter, Jr.
----------------------------------
Kevin B. Halter, Jr. President
(Chief Executive Officer)
Pursuant to the requirements on the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
/s/ Kevin B. Halter, Jr. President, Secretary February 24, 1999
-------------------- and Director
Kevin B. Halter, Jr.
/s/ Kevin B. Halter Director February 24, 1999
--------------------
Kevin B. Halter
5
EXHIBIT 3.1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
FOR DONNEBROOKE CORPORATION
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ARTICLE I
NAME
The name of this CORPORATION is DONNEBROOKE CORPORATION.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of this CORPORATION'S registered office in the State of Delaware is
in care of CT CORPORATION, in the City of Wilmington, and County of New Castle.
The name of the registered agent is the CT CORPORATION.
ARTICLE III
PURPOSES
The purposes for which this CORPORATION is organized are to conduct any type of
business endeavor which is legal pursuant to the laws of the State of Delaware.
ARTICLE IV
SHARES OF STOCK
The total number of shares of stock which this CORPORATION is authorized to
issue is fifty million (50,000,000) shares of Common Stock. The par value of
each share of Common Stock shall be $0.00001, amounting in the aggregate to Five
Hundred Dollars ($500.00)
ARTICLE V
DURATION
The period of duration for this CORPORATION shall be perpetual.
ARTICLE VI
SHAREHOLDERS' MEETINGS
Meetings of shareholders of this CORPORATION may be held within or without the
State of Delaware, as provided in the Bylaws.
ARTICLE VII
AMENDMENTS
The CORPORATION reserves the right to amend, alter or change or repeal any
provision contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by the Delaware statutes, and all rights conferred upon
shareholders are granted subject to this reservation.
EXHIBIT 3.2 BYLAWS OF DONNEBROOKE CORPORATION
ARTICLE l.
GENERAL
1.1 PRINCIPAL OFFICE. Unless otherwise determined by resolution of the
Board of Directors, the principal office of the Corporation shall be located in
the City of Dallas, County of Dallas, State of Texas. The Corporation may have
such other offices, either within or without the State of Texas, as the Board of
Directors may determine or as the affairs of the Corporation may require from
time to time.
1.2 REGISTERED OFFICE. The Corporation shall have and continuously maintain
in the State of Delaware a registered of5ce. The address of the registered
office may be changed from time to time by the Board of Directors. The present
registered office of the Corporation is in care of CT Corporation in Wilmington,
Delaware.
1.3 REGISTERED AGENT. The Corporation shall have and continuously maintain
in the State of Delaware a registered agent, which agent may be either an
individual resident of the State of Delaware whose business office is identical
with the Corporation's registered office, or a domestic corporation, or a
foreign corporation authorized to transact business in the State of Delaware
which has a business office identical with the Corporation's registered office.
The registered agent may be changed from time to time by the Board of Directors.
The present registered agent of the Corporation is CT Corporation.
ARTICLE II.
SHAREHOLDERS
2.1 ANNUAL SHAREHOLDERS' MEETINGS. An annual meeting of the Shareholders
shall be held each year on a day and hour to be selected by the President or the
Board of Directors within six months after the end of the Corporation's fiscal
year, for the purpose of electing Directors and for the transaction of such
other business as may come before the meeting. The annual meeting shall not be
held on a date declared a legal holiday by the State of Delaware. If the
election of the Directors shall not be held on the date selected for any annual
meeting of Shareholders, or at any adjournment thereof, the Board of Directors
shall cause the election to be held at a special meeting of the Shareholders as
soon thereafter as conveniently may be held.
2.2 SPECIAL MEETINGS. Special meetings of the Shareholders, for any purpose
or purposes, unless otherwise prescribed by statute or these Bylaws, may be
called by the President, the Board of Directors, or the holders of not less than
one tenth of all the outstanding shares of the Corporation entitled to vote at
the meeting. Business translated at a special meeting shall be limited to the
purposes stated in the notice of the meeting.
2.3 PLACE OF MEETINGS, The Board of Directors or the President may
designate any place, either within or without the State of Delaware, unless
otherwise prescribed by statute, as the place of meeting for any annual meeting
or for any special meeting of Shareholders.. If no designation is made, or if a
special meeting be otherwise called, the place of meeting shall be the principal
office of the Corporation in the State of Texas.
<PAGE>
2.4 NOTICES OF MEETING. Written or printed notice stating the place, day
and hour of the meeting and, in the 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, by or at the direction of the President, the 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 stock transfer books of the Corporation,
with postage thereon prepaid.
2.5 FIXING RECORD DATES. 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 of the Corporation shall fix in advance a date as the record date
for such determination of Shareholders, such date in any case to be not more
than fifty (50) days and, in case of a meeting of Shareholders, not less than
ten (10) days prior to the date on which the particular action, requiring such
determination of Shareholders, is to be taken. If no record date is fixed for
the determination of Shareholders entitled to notice of or to vote at a meeting
of Shareholders, or Shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is 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.
2.6 VOTING LISTS.
A. The officer or agent having charge of the stock transfer books for
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 at
the principal of5ce of the Corporation and shall be subject to inspection
by any Shareholder at any time during the Corporation's usual business
hours. Such list shall also be produced at the time and place of the
meeting and shall be subject to the inspection by any Shareholder during
the meeting. The original stock 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.
B. Failure to comply with the requirements of this Section shall not
affect the validity of any action taken at such meeting.
C. An of6cer or agent having charge of the stock transfer books who
shall fail to prepare the list of Shareholders or shall fail to have the
same available for a period of ten (10) days prior to the meeting, or fail
to produce and keep the same available for inspection at the meeting, as
provided in this Section, shall be liable to any Shareholder suffering
damage on account of such failure, to the extent of such damage. In the
event that such officer or agent does not receive notice of a meeting of
Shareholders suf5ciently in advance of the date of such meeting reasonable
to enable him or her to comply with the duties prescribed by this Section,
the Corporation, but not such of6cer or agent, shall be liable to any
Shareholder suffering damage on account of such failure, to the extent of
such damage.
2.7 QUORUM OF SHAREHOLDERS. The holders of a majority of the shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of Shareholders. 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.
<PAGE>
2.8 VOTING OF SHARES.
A. Each outstanding share, regardless of class, shall be entitled to one
vote on each matter submitted to a vote of a meeting of Shareholders, except to
the extent that the Articles of Incorporation provide for more or less than one
vote per share or limit or deny voting rights to the holders of the shares of
any class or series, and except as otherwise provided by the General Corporation
Law of Delaware.
B. Treasury shares, shares of this Corporation's stock owned by another
corporation, the majority of the voting stock of which is owned or controlled by
this Corporation, and shares of this Corporation's 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 for the purpose of determining a quorum.
C. A Shareholder may vote either in person or by a proxy executed in
writing by the Shareholder or by the Shareholder's 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 or unless otherwise made
irrevocable by law.
D. 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 the Shareholder for as many persons as there are Directors to be
elected and for whose election the Shareholder has a right to vote.
E. Shares standing in the name of another corporation, domestic or foreign,
may be voted by such of6cer, agent, or proxy as the Bylaws of such corporation
may authorize or, in the absence of such authorization, as the Board of
Directors of such corporation may determine; provided, however, that when any
foreign corporation without a permit to do business in this State lawfully owns
or acquires stock in the Corporation, it shall not be unlawful for such foreign
corporation to vote said stock and participate in the management and control of
the business and affairs of the Corporation, to the same extent as other
Shareholders, subject to all laws, rules and regulations governing Delaware
corporations and especially subject to the provisions of the antitrust laws of
the State of Delaware.
F. Shares held by an administrator, executor, guardian, or conservator may
be voted by him or her so long as such shares form a part of the estate being
served by him or her, either in person or by proxy, without a transfer of such
shares into his or her name. Shares standing in the name of a trustee may be
voted by that trustee, either in person or by proxy, but no trustee shall be
entitled to vote shares held by him or her without a transfer of such shares
into his or her name as trustee.
G. Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority so to do be
contained in an appropriate order of the court by which such receiver was
appointed.
H. A Shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter, the pledgee shall be entitled to vote the shares so transferred.
<PAGE>
2.9. WAIVER BY UNANIMOUS CONSENT IN WRITING. Any action required by the
General Corporation Law of Delaware to be taken at a meeting of the
Shareholders, or any action which may be taken at a meeting of the Shareholders,
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 entitled to vote with
respect to the subject matter thereof, and then delivered to the Secretary of
the Corporation for inclusion in the minute book of the Corporation. Such
consent shall have the same force and effect as any unanimous vote of
Shareholders, and may be stated as such in any articles or documents filed with
the Secretary of State.
2.10. CUMULATIVE VOTING. Cumulative voting is expressly prohibited.
2.11. PRE-EMPTIVE RIGHTS. No holder of any stock of the Corporation shall
be entitled as a matter of right to purchase or subscribe for any part of any
stock of the Corporation authorized by the Articles of Incorporation or of any
additional stock of any class to be issued by reason of any increase of the
authorized stock of the Corporation, or of any bonds, certificates of
indebtedness, debentures, warrants, options or other securities convertible into
any class of stock of the Corporation, but any stock authorized by the Articles
of Incorporation or any such additional authorized issue of any stock or
securities convertible into any stock may be issued and disposed of by the Board
of Directors to such persons, firms, corporations or associations for such
consideration and upon such terms and in such manner as the Board of Directors
may in its discretion determine without offering any thereof on the same terms
or on any terms to the Shareholders then of record or to any class of
Shareholders, provided only that such issuance may not be inconsistent with any
provision of law or with any of the provisions of the Articles of Incorporation.
ARTICLE III.
DIRECTORS
3. 1 MANAGEMENT. The business and affairs of the Corporation shall be
managed by its Board of Directors. Directors need not be residents of Delaware
or Shareholders of the Corporation in order to qualify as a Director.
3.2 NUMBER. The number of directors of the Corporation shall consist of
from one to nine members as shall be elected by the Shareholders from time to
time. The number of Directors may be increased or decreased from time to time by
amendment to this section of the Bylaws, but no decrease in the number of
Directors shall have the effect of shortening the term of any incumbent
Director.
3.3 ELECTION. At each annual meeting of Shareholders, the Shareholders
shall elect Directors to hold of6ce until the next succeeding annual meeting.
3.4 TERM OF OFFICE. Unless removed in accordance with these Bylaws each
Director shall hold of5ce for the term of which the Director is elected and
until the Director's successor has been elected and duly qualified.
3.5 REMOVAL. The entire Board of Directors or any Director may be removed
from of6ce either with or without cause at any special meeting of Shareholders
by the affirmative vote of a majority in number of shares of the shareholders
present in person or by proxy at such meeting and entitled to vote for the
election of such Director or Directors if notice of intention to act upon the
question of removing such Director or Directors shall have been stated as one of
the purposes for the calling of such meeting and such meeting shall have been
called in accordance with these Bylaws.
<PAGE>
3.6 VACANCY
A. Any vacancy occurring in the Board of Directors may be filled in
accordance with paragraph C of this Section or may be filled by the
affirmative vote of a majority of the remaining Directors, though less than
a quorum of the Board of Directors. A Director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in of6ce.
B. A Directorship to be filled by reason of an increase in the number
of Directors may be filled in accordance with paragraph C of this Section
or may be filled by the Board of Directors for a term of office continuing
only until the next election of one or more Directors by the Shareholders;
provided that the Board of Directors may not fill more than two such
Directorships during the period between any two successive annual meetings
of Shareholders.
C. Any vacancy occurring in the Board of Directors or any Directorship
to be filled by reason of an increase in the number of Directors may be
filled by election at an annual or special meeting of Shareholders called
for that purpose.
3.7 QUORUM. A majority of the number of Directors serving as the Board of
Directors at the time in question shall constitute a quorum for the transaction
of business unless a greater number is required by law or these Bylaws. The act
of the majority of the Directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors, unless a greater number is
required by law or these Bylaws.
3.8 ANNUAL MEETING OF DIRECTORS. Immediately after the annual meeting of
the Shareholders and at the place such meeting of the Shareholders has been
held, the Board of Directors shall meet each year for the purpose of election of
of6cers and consideration of any other business that may properly be brought
before the meeting. No notice of any kind to either old or new members of the
Board of Directors for this annual meeting shall be necessary.
3.9 REGULAR MEETINGS. The Board of Directors may provide by resolution the
time and place, either within or without the State of Delaware, for the holding
of regular meetings without other notice than such resolution.
3.10 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by the President or shall be called at the request of any two members of
the Board of Directors and shall be held upon notice by letter or telegram,
delivered for transmission not later than during the third day immediately
preceding the day for the meeting, or by word of mouth, telephone, or telefax
received not later than during the second day immediately preceding the day for
the meeting. Notice of any special meeting of the Board of Directors may be
waived in writing signed by the person or persons entitled to the notice,
whether before or after the time of the meeting. The person or persons
authorized to call special meetings of the Board of Directors may fix any place,
either within or without the State of Delaware, as the place for holding any
special meeting of the Board of Directors called by them.
3.11 NO STATEMENT OF PURPOSE OF MEETING REQUIRED. Neither the business
proposed to be transacted nor the purpose of any regular or special meeting of
the Board of Directors need be specified in the notice or waiver of notice for
such meeting.
3.12 COMPENSATION. By resolution of the Board of Directors, the Directors
may be paid their expenses, if any, for attending meetings of the Board of
Directors, and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as Director. No such payment shall
preclude any Director & from serving the Corporation in any other capacity and
receiving compensation therefor.
<PAGE>
3.13 ATTENDANCE AND PRESUMPTION OF ASSENT. Attendance of a Director at a
meeting shall constitute a waiver of notice of such meeting, except where a
Director attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened. A Director who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless that Director's dissent shall be
entered in the minutes of the meeting unless that Director shall file a written
dissent to such action with the person acting as Secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Director who voted in favor of such
action.
3.14 EXECUTIVE AND OTHER COMMITTEES. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate & from among
its members an executive committee and one or more other committees, each of
which, to the extent provided in such resolution or in these Bylaws, shall have
and may exercise all of the authority of the Board of Directors, except that no
such committee shall have the authority of the Board of Directors with regard to
amending the Articles of Incorporation of the Corporation, approving a plan of
merger or consolidation, recommending to the Shareholders the sale, lease, or
exchange of all or substantially all of the property and assets of the
Corporation other than in the usual and regular course of the Corporation's
business, recommending to the Shareholders a voluntary dissolution of the
Corporation or a revocation thereof, amending, altering, or repealing these
Bylaws or adopting new Bylaws, 6lling vacancies in the Board of Directors or any
such committee, filling any Directorship to be filled by reason of an increase
in the number of Directors, electing or removing officers or members of any such
committee, 6xing the compensation of any member of such committee, or altering
or repealing any resolution of the Board of Directors which by its terms
provides that it shall not be so amendable or repealable; and, unless these
Bylaws expressly so provide, no such committee shall have the power or authority
to declare a dividend or to authorize the issuance of shares of the Corporation.
The designation of such committee and the delegation thereto of authority shall
not operate to relieve the Board of Directors, or any member thereof, of any
responsibility imposed by law.
3.15 REMOVAL OF COMMITTEE MEMBERS. Any member of a committee elected by
the Board of Directors may be removed & from that committee by the Board of
Directors, whenever in its judgment 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. Election or appointment of a member of
a committee shall not of itself create any contract rights.
3.16 WAIVER BY UNANIMOUS CONSENT IN WR1TING. Any action required or
permitted to be taken at a meeting of the Board of Directors, the Executive
Committee or any other committee of the Board of Directors may be taken without
a meeting if a consent in writing, setting forth the action so taken is signed
by all of the members of Board of Directors, any Executive Committee or any
other committee of the Board of Directors, as the case may be, and then
delivered to the Secretary of the Corporation for inclusion in the Minute Book
of the Corporation. Such consent shall have the same force and effect as a
unanimous vote at a meeting, and may be stated as such in any document or
instrument filed with the Secretary of State.
3.17 TELEPHONE MEETINGS. Subject to the provisions required or permitted by
the General Corporation Law of Delaware regarding notice of meetings, members of
the Board of Directors, or members of any committee designated by the Board of
Directors, may participate in and hold a meeting of the Board of Directors, or
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting, except where a person
participates in the 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.
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ARTICLE IV.
OFFICERS
4.1 NUMBER The principal officers of the Corporation shall consist of a
President, one or more Vice President (the number thereof to be determined by
the Board of Directors), a Secretary and a Treasurer, each of whom shall be
elected by the Board of Directors. Such other officers and assistant officers
and agents as may be deemed necessary may be elected or appointed by the Board
of Directors. Any two (2) or more offices may be held by the same person. An
officer does not need to be a Shareholder, a Director, or a resident of
Delaware.
4.2 ELECTION AND TERM OF OFFICE. The officers of the Corporation shall be
elected by the Board of Directors at its annual meeting or as soon thereafter as
is conveniently possible. New or vacated offices may be filled at any meeting of
the Board of Directors. The subordinate officers and agents not elected or
appointed by the Board of Directors shall be appointed by the President or any
other principal officer to whom the President shall delegate the authority. Each
officer shall hold office until that officer's successor shall have been elected
and shall have qualified or until that officer's death or until that officer
shall resign or shall have been removed in the manner hereinafter provided.
Election or appointment of an officer or agent shall not of itself create any
contract rights.
4.3 REMOVAL. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors, whenever in its judgment 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.
Election or appointment of an officer or agent shall not of itself create any
contract rights.
4.4 VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the Board of Directors
for the unexpired portion of the term as herein provided.
4.5 AUTHOR1TY. Officers and agents shall have such authority and perform
such duties in the management of the Corporation as are provided in these Bylaws
or as may be determined by resolution of the Board of Directors not inconsistent
with these Bylaws.
4.6 PRESIDENT. The President shall be the principal executive officer of
the Corporation and shall have general and active management of the business and
affairs of the Corporation. The President shall preside at all meetings of the
Shareholders and of the Board of Directors, and may sign, with the Secretary,
certificates for shares of the Corporation, any deeds, mortgages, bonds,
contracts, or other instruments which the Board of Directors has authorized to
be executed, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some other
of6cer or agent of the Corporation, or shall be required by law to be otherwise
signed or executed. The President shall see that all orders and resolutions of
the Board of Directors are carried into effect, and shall perform all duties
incident to the of5ce of President and such other duties as may be prescribed by
the Board of Directors & from time to time.
4.7 VICE PRESIDENT. In the absence of the President or in the event of the
President's death, inability or refusal to act, the Vice President, or in the
event there be more than one Vice President, the Vice Presidents in the order
designated by the Board of Directors shall perform the duties of the President,
and when so acting shall have all the powers of and be subject to all the
restrictions upon the President. The Vice President shall perform such other
duties as & from time to time may be assigned by the President or by the Board
of Directors.
4.8 SECRETARY. The Secretary shall keep the minutes of the Shareholders'
and Board of Directors' meetings in one or more books provided for that purpose;
see that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; be custodian of the corporate records and of the
seal of the Corporation and see that the seal of the Corporation is affixed
to all certificates for shares prior to the issuance thereof and to all other
<PAGE>
documents the execution of which on behalf of the Corporation under its seal is
required or permitted in accordance with the provisions of these Bylaws; keep or
cause to be kept the stock transfer books containing the mailing address for
each Shareholder as furnished by such Shareholder; sign with the President
certificates for shares of the Corporation, the issuance of which shall have
been authorized by resolution of the Board of Directors; have general charge of
the stock transfer books of the Corporation; and in general perform all duties
incident to the of5ce of Secretary and such other duties as from time to time
may be assigned by the President or by the Board of Directors.
4.9 TREASURER. The Treasurer shall be the principal financial officer of
the Corporation and shall have charge and custody and be responsible for all
funds and securities of the Corporation; receive and give receipts for monies
due and payable to the Corporation from any source whatsoever, and deposit all
such monies in the name of the Corporation in such banks, trust companies or
other depositories as shall be selected by the Board of Directors or the
President; render to the President and the Board of Directors, whenever the same
shall be required, an account of all transactions as Treasurer and of the
6nancial condition of the Corporation; give bond in an appropriate amount, if
required so to do by the Board of Directors for the faithful performance of the
duties of this office and for the restoration to the Corporation, in case of the
Treasurer's death, resignation, retirement, or removal from office, of all
books, papers, vouchers, money, and other property of whatever kind in the
Treasurer's possession or under his or her control belonging to the Corporation;
and in general perform all of the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned by the President or by
the Board of Directors.
ARTICLE V.
CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 CONTRACTS. DEEDS MORTGAGES ETC. Subject always to the specific
direction of the Board of Directors, all deeds and mortgages made by the
Corporation and all other written contracts and agreements to which the
Corporation shall be a party shall be executed in its name by the President and,
when requested, the Secretary shall attest to such signature and affix the
corporate seal to the instruments.
5.2 LOANS. No indebtedness from borrowed money shall be contracted on
behalf of the Corporation and no evidence of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
5.3 CHECKS DRAFT ETC. All checks, drafts, notes, bonds, or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers, agent or
agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
5.4 DEPOSITS. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors or the President
may select.
ARTICLE VI.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 CERTIFICATES FOR SHARES. The Corporation shall deliver certificates
representing all shares to which Shareholders are entitled in such form as may
be determined by the Board of Directors. Each certificate representing shares
shall state upon the face thereof that the Corporation is organized under the
laws of the State of Delaware; the name of the person to whom it is issued; the
number and class of shares and the designation of the series, if any, which such
certificate represents; the par value of each share represented by such
certificate, or a statement that the shares are without par value; and such
other matters as may be required by law. Such certificates shall be signed by
the President and the Secretary or such officer or officers as the Board of
Directors shall designate, and may be sealed with the seal of the Corporation or
a facsimile thereof.
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6.2 FACSIMILE SIGNATURES. The signatures of the President and Secretary, or
such officer or officers as these Bylaws or the Board of Directors of the
Corporation shall prescribe, upon certificates for shares of the Corporation may
be facsimiles, if the certificate is countersigned by a transfer agent or
registered by a registrar, either of which is other than the Corporation itself
or an employee of the Corporation, In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall cease to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she were such officer at the date of its
issuance.
6.3 ISSUANCE. Shares (both treasury and authorized but unissued) may be
issued for such consideration, not less than par value, and to such persons as
the Board of Directors may determine from time to time.
6.4 SUBSCRIPTIONS. Unless otherwise provided in the subscription agreement,
subscriptions for shares, whether made before or after organization of the
Corporation, shall be paid in full at such time or in such installments and at
such times as shall be determined by the Board of Directors. In the event of any
default in the payment of any installment when such payment is due, the
Corporation may proceed to collect the amount due in the same manner as any
other debt owed to the Corporation.
6.5 PAYMENT. The consideration paid for the issuance of shares of the
Corporation shall consist of money actually paid, labor or services actually
performed, or property, tangible or intangible, actually received. Certificates
for shares may not be issued until the full amount of the consideration, fixed
as provided by law, has been paid. When such consideration shall have been paid
to the Corporation, the shares shall be deemed to have been issued and the
subscriber or Shareholder entitled to receive such issue shall be a Shareholder
with respect to such shares, and the shares shall be considered fully paid and
non-assessable. Neither promissory notes nor the promise of future services
shall constitute payment or partial payment for shares of the Corporation. In
the absence of fraud in the transaction, the judgment of the Board of Directors
or the Shareholders, as the case may be, as to the value of the consideration
received for shares shall be conclusive.
6.6 LIEN. The Corporation shall have a first and prior lien on all shares
of its stock and upon all dividends declared upon the same for any indebtedness
of the respective holders thereof to the Corporation.
6.7 REPLACEMENT OF LOST OR DESTROYED CERTIFICATES. The Board of Directors
may direct that 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 that the certificate or certificates representing such shares
has been lost or destroyed. When authorizing issuance of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or the owner's legal representative, to give the
Corporation a bond with a surety or sureties satisfactory to the Corporation
with respect to the certificate or certificates alleged to have been lost or
destroyed.
6.8 TRANSFER OF SHARES. Shares of stock shall be transferable only on the
books of the Corporation by the holder thereof in person or by the holder's duly
authorized attorney. Upon surrender to the Corporation or the transfer agent for
the Corporation of a certificate representing shares, duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation or its transfer agent shall issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
6.9 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 or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by law.
<PAGE>
ARTICLE VII.
DIVIDENDS AND RESERVES
7.1 DECLARATION AND PAYMENT. Subject to provisions of the statutes and the
Articles of Incorporation, dividends may be declared by the Board of Directors
at any regular or special meeting and may be paid in cash, property, or in
shares of the Corporation. Such declaration and payment shall be at the
discretion of the Board of Directors.
7.2 RECORD DATE. The Board of Directors may fix in advance a record date
for the purpose of determining Shareholders entitled to receive payment of any
dividend, such record date to be not more than fifty (50) days prior to the
payment date of such dividend. In the absence of any action by the Board of
Directors, the date upon which the Board of Directors adopts the resolution
declaring such dividend shall be the record date.
7.3 RESERVES. There may be created by resolution of the Board of Directors
out of the earned surplus of the Corporation such reserve or reserves as the
Directors from time to time, in their discretion, think proper to provide for
contingencies, or to equalize or provide for the payment of dividends, or to
repair or maintain any property of the Corporation, or for such other purpose as
the Directors shall think beneficial to the Corporation, and the Directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE VIII.
INDEMNIFICATION
8.1 DEFINITIONS. In this Article:
A. "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 VIII.
B. "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 for another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan, or other
enterprise.
C. "Expenses" include court costs and attorneys' fees.
D. "Official capacity" means:
1. When used with respect to a Director, the of6ce of Director in
the Corporation, and
2. When used with respect to a person other than a Director, the
elective or appointive office in the Corporation held by the of5cer or
the employment or agency relationship undertaken by the employee or
agent in behalf of the Corporation, but
3. In both Paragraphs (1) and (2) 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.
<PAGE>
E. "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.
8.2 POWER TO INDEMNIFY. The 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 8.6 of this Article that the person:
A. Conducted himself in good faith;
B. Reasonably believed:
l. 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
2. In all other cases, that his conduct was at least not opposed
to the Corporation's best interests; and
C. In the case of any criminal proceeding, had no reasonable cause to
believe his conduct was unlawful.
8.3 DIRECTOR LIM1TATION. A Director may not be indemnified under Section
8.2 of this Article for obligations resulting from a proceeding:
A. 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
B. In which the person is found liable to the Corporation.
8.4 TERMINATION OF A PROCEEDING. 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 8.2 of this Article.
8.5 PROCEEDING BROUGHT BY THE CORPORATION. A person may be indemnified
under Section 8.2 of this Article against judgments, penalties (including
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.
8.6 DETERMINATION OF INDEMNIFICATION. A determination of indemnification
under Section 8.2 of this Article must be made:
A. 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;
or
B. If such a quorum cannot be obtained, by a majority vote of a
committee of the
<PAGE>
Board of Directors, designated to act in the matter by a majority vote of
all Directors, consisting of two or more Directors who at the time of the
vote are not named defendants or respondents in the proceeding; or
C. By special legal counsel selected by the Board of Directors or a
committee of the Board selected by vote as set forth in Subsection A or B
of this Section 8.6, or, if such a quorum cannot be obtained and such a
committee cannot be established, by a majority vote of all Directors; or
D. By the Shareholders in a vote that excludes the shares held by all
Directors who are named defendants or respondents in the proceeding.
8.7 AUTHORIZATION OF INDEMNIFICATION. 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 speci6ed by Subsection C of Section 8.6
of this Article for the selection of special legal counsel. A provision
contained in the Articles of Incorporation, the Bylaws, a resolution of
Shareholders or Directors, or an agreement that makes mandatory the
indemnification permitted under Section 8.2 of this Article shall be deemed to
constitute authorization of indemnification in the manner required by this
Section 8.7 even though such provision may not have been adopted or authorized
in the same manner as the determination that indemnification is permissible.
8.8 INDEMNIFICATION OF A DIRECTOR.
A. The Corporation shall indemnify a Director against reasonable
expenses incurred by him or her in connection with a proceeding in which he
or she is a named defendant or respondent because he or she is or was a
Director if her or she has been wholly successful, on the merits or
otherwise, in the defense of the proceeding.
B. If, in a suit for the indemnification required by Section 8.7 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.
C. 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 or she has met the requirements set forth in Section 8.2 of this Article
or has been adjudged liable in the circumstances described in Section 8.3
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 in behalf of the
Corporation or if the Director is found liable on the basis that personal
bene6t was improperly received by him, whether or not the benefit resulted
from an action taken in the person's official capacity.
D. 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 a6irmation 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
<PAGE>
2. A determination that the facts then known to those making the
determination would not preclude indemnification under this Article.
E. The written undertaking required by Subsection D of this Section
8.8 must be an unlimited general obligation of the Director but need not
be secured. It may be accepted without reference to the Director's
financial ability to make repayment. Determinations and authorizations of
payment under Subsection D of this Section 8. 8 must be made in the manner
specified by Section 8.6 of this Article for determining that
indemnification is permissible.
F. 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 other participation in a proceeding at a time
when he or she is not a named defendant or respondent in the proceeding.
8.9 INDEMNIFICATION OF OTHERS.
A. An officer of the Corporation shall be indemnified as, and to the
same extent, provided by Subsections A, B and C of Section 8. 8 for a
Director and is entitled to seek indemni6cation under those Subsections to
the same extent as a Director. The 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.
B. The 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.
C. The Corporation may indemnify and advance expenses to an officer,
employee, agent, or person identified in Subsection B of this Section 8.9
and who is not a Director to such further extent, consistent with law, as
may be provided by the Corporation's Articles of Incorporation, Bylaws,
general or specific action of its Board of Directors, or contract or as
permitted or required by common law.
8.10 INDEMNITY INSURANCE. 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, of5cer, 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 or her and incurred by
him or her in such a capacity or arising out of his or her status as such a
person, whether or not the Corporation would have the power to indemnify him or
her against that liability under this Article.
8.11 REPORTS TO SHAREHOLDERS. 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 the General Corporation Law of
Delaware and, in any case, within the twelve (12) month period immediately
following the date of the indemnification or advance.
8.12 EMPLOYEE BENEFIT PLANS. For the purposes of this Article, the
Corporation is deemed to have requested a Director to serve an employee benefit
plan whenever the performance by him or her of his or her duties to the
Corporation also imposes duties on or otherwise involves services by him or her
to the plan or participants or
<PAGE>
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 or her with respect to an employee benefit plan in the
performance of his or her duties for a purpose reasonably believed by him or her
to be in the interest of the participants and bene6ciaries of the plan is deemed
to be for a purpose which is not opposed to the best interests of the
Corporation.
ARTICLE IX.
MISCELLANEOUS
9.1 LIMITATION OF LIABILITY. No person shall be liable to the Corporation
for any loss or damage suffered by it on account of any action taken or omitted
to be taken by that person as a director, officer or employee of the Corporation
in good faith, if, in the exercise of ordinary care, this person:
A. Relied upon financial statements of the Corporation represented to
this person to be correct by the President or the officer of the
Corporation having charge of its books of account, or stated in a written
report by an independent public or certified public accountant or firm of
such accountants fairly to reflect the financial condition of the
Corporation; or considered the assets to be of their book value or
B. Relied upon the written opinion of an attorney for the Corporation.
9.2 FISCAL YEAR. The Fiscal Year of the Corporation shall be fixed by
resolution of the Board of Directors.
9.3 SEAL. The corporate seal shall be in such form as may be determined by
the Board of Directors. Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
9.4 BOOKS AND RECORDS. The Corporation shall keep correct and complete
books and records of account and shall keep minutes of the proceedings of its
Shareholders and the Board of Directors, and shall keep at its principal place
of business, or at the office of its transfer agent or registrar, a record of
its Shareholders, giving the names and addresses of all Shareholders and the
number and class of the shares held by each. Any books, records and minutes may
be in written form or in any other form capable of being converted into written
form within a reasonable time. Any person who shall have been a holder of record
of shares for at least six (6) months immediately preceding demand, or shall be
the holder of record of at least five percent (5%) of all of the outstanding
shares of a corporation, upon written demand stating the purpose thereof, shall
have the right to examine, in person or by agent, accountant, or attorney, at
any reasonable time or times, for any proper purpose, its relevant books and
records of account, minutes and records of Shareholders, and to make extracts
therefrom.
9.5 RESIGNATIONS. Any Director, officer or agent may resign by giving
written notice to the President or the Secretary. Such resignation shall take
e6ect at the time specified therein, or immediately if no time is specified
therein. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
9.6 AMENDMENT OF THESE BYLAWS, These Bylaws may be altered, amended, or
repealed either by unanimous written consent of the Board of Directors, in the
manner stated in Article 3,16 herein, or at any meeting of the Board of
Directors at which a quorum is present, by the affirmative vote of a majority of
the Directors present at such meeting, provided notice of the proposed
alteration, amendment, or repeal be contained in the notice of such meeting.
9.7 INVALID PROVISIONS, If any part of these Bylaws shall be held invalid
or inoperative for any reason, the remaining parts, so far as possible and
reasonable, shall be valid and operative.
<PAGE>
9.8 HEADINGS. The headings used in these Bylaws have been inserted for
administrative convenience only and used in the interpretation of these Bylaws.
9.9 WAIVER OF NOTICE. Whenever any notice is required to be given to any
Shareholder or Director of the Corporation, a Waiver thereof in writing signed
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be equivalent to the giving of such notice.
9.10 GENDER. Words which import one gender shall be applied to any gender
wherever appropriate and words which import the singular or plural shall be
applied to either the plural or singular wherever appropriate.
EXHIBIT 5.1 LEGAL OPINION AND CONSENT TO ITS INCLUSION
IN THIS REGISTRATION STATEMENT
February 24, 1999
Board of Directors of Donnebrooke Corporation
16919 Dallas Parkway, Suite 100
Dallas, Texas 75248
RE: Form S-8 Registration Statement relating to the registration of 3,602,300
shares of the Common Stock of Donnebrooke Corporation pursuant to Agreements for
Services
Gentlemen: I am acting as counsel for Donnebrooke Corporation, a Delaware
corporation, (the "Company) in connection with the filing under the Securities
Act of 1933, as amended, of a Registration Statement for the Company on Form S-8
with the Securities and Exchange Commission ("SEC") (the "Registration
Statement"), covering an aggregate of 3,602,300 shares (the "Shares") of common
stock par value $.00001 per share (the "Common Stock") of the Company which will
be issued pursuant to the Agreement Appointing Securities Transfer Corporation
as the Company's Transfer Agent and Registrar (2,289,300 shares to Securities
Transfer Corporation) and pursuant the Consulting Agreement with Halter Capital
Corporation (1,313,000 shares to Halter Capital Corporation).
In that connection, I have examined the Form S-8 Registration Statement in the
form to be filed with the SEC. I have also examined and am familiar with the
originals or authenticated copies of all corporate documents, records and
instruments that I have deemed necessary to enable me to render the opinion
expressed below.
I have assumed that all signatures on documents reviewed are genuine, that all
such documents submitted as originals are accurate and complete, that all
document submitted as copies are true and correct copies of the originals, that
all information submitted and reviewed was accurate and complete and that all
persons executing and delivering such documents were competent to do so. In
addition, I have assumed that the Shares will not be issued for consideration
that is equal to less than the par value thereof and that the consideration, in
the form of services, has been fully rendered in the past and thus constitutes
valid and lawful consideration for the Shares.
Based on the foregoing and having due regard for the legal considerations
relevant in the circumstances, I am of the opinion that the Shares, when issued
as described in the Registration Statement, will be validly issued by the
Company and be fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and its use as a part thereof.
/s/ Richard Braucher
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Richard Braucher,
Counsel for Donnebrooke Corporation
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use, by incorporation by reference, in the Form S-8
Registration Statement under The Securities Act of 1933 of Donnebrooke
corporation (a Delaware Corporation) (Registrant) of our report dated January
18, 1999 on the financial statements of Donnebrooke Corporation as of December
31, 1998, 1997 and 1996 and for each of the three years then ended and for the
period April 19, 1988 (date of inception) through December 31, 1998 accompanying
the financial statements contained in the Registrant's Annual report on Form
10-KSB as of and for the period ended December 31, 1998, and to the use of our
name and the statements with respect to us as appearing under the heading
"Experts".
/s/ S.W. HATFIELD
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S.W. HATFIELD, CPA
(formerly S.W. HATFIELD + ASSOCIATES)
Dallas, Texas
February 25, 1999
