SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Act of 1934
Date of Report (Date of earliest event reported) July 29, 1996
_______________________________
TOUCAN GOLD CORPORATION
_______________________________________________________________________________
(Exact name of registrant as specified in charter)
Delaware 33-28562 75-2661571
_______________________________________________________________________________
(State of incorporation)(Commission File Number)(IRS Employer Identification No)
8201 Preston Road, Suite 600, Dallas, Texas 75225
___________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (214) 890-8065
___________________________
STARLIGHT ACQUISITIONS, INC.
_______________________________________________________________________________
1328 Starwood Lane
Evergreen, Colorado 80439
(Former name or former address, if changed since last report)
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Item 4. Changes in Registrant's Certifying Accountant
Engagement of New Certifying Accountant
On August 1, 1996, Grant Thornton L.L.P. was engaged as the certifying
accountants of Toucan Gold Corporation ("Toucan Gold" or the "Company"). This
appointment was unanimously approved by the Board of Directors of the Company
during a meeting of the Board of Directors held that same day.
During the Company's two most recent fiscal years and the subsequent
interim period prior to its engagement, Grant Thornton L.L.P. was not consulted
regarding any of the items, events or circumstances listed in Item 4(b) of Form
8-K and Item 304(a)(2) of Regulation S-B, except that Starlight Acquisitions,
Inc. ("Starlight"), a Colorado corporation, the predecessor corporation to the
Company, consulted with Grant Thornton L.L.P. as to the accounting treatment of
the Merger as defined and discussed in Item 5 hereof. Grant Thornton L.L.P.
advised Starlight that accounting treatment similar to a pooling would be
available with respect to the Merger and that, except to reflect the changes in
par value, the Company's financial statements would be substantially similar to
Starlight's financial statements immediately prior to the Merger.
Neither Starlight's former accountant nor Toucan Mining's former
accountant was consulted by the Company regarding any such issues.
Pursuant to Item 4(b) of Form 8-K and Item 304(a)(2)(D) of Regulation
S-B, the Company has requested Grant Thornton L.L.P. to review the disclosure
concerning Grant Thornton L.L.P. in this Item 4 and has provided Grant Thornton
L.L.P. the opportunity to furnish the Company a letter addressed to the
Securities and Exchange Commission containing any new information, clarification
of the Company's expression of its views, or the respects in which it does not
agree with the statements by the Company made in this Item 4 response to Item
304(a)(2)(D) of Regulation S-B. Grant Thornton reviewed the information provided
in response to this Item 4 and has advised the Company that it does not have any
new information or clarification of the Company's views and it agrees with the
statements made by the Company under this Item 4.
Resignation of Former Certifying Accountant of Toucan Mining
On July 21, 1996, the Board of Directors of Toucan Mining, a subsidiary
of Toucan Gold, accepted the resignation of Deloitte & Touche as the certifying
accountants of Toucan Mining. Deloitte & Touche has never been the certifying
accountants of the Company or its predecessor Starlight Acquisitions, Inc.
Toucan Mining is a significant subsidiary of Toucan Gold; however,
neither the Company's nor Starlight's certifying accountants ever expressed
reliance on Deloitte & Touche's report with respect to Toucan Mining in their
reports. Accordingly, the Company does not believe it is required to report the
resignation of Deloitte & Touche as the certifying accountant of Toucan Mining.
The Company voluntarily reports that the report submitted by Deloitte & Touche
on the financial statements of Toucan Mining for the fiscal period beginning
with
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inception (November 3, 1995) and ending March 31, 1996 (the "Report"), did not
contain an adverse opinion or a disclaimer of opinion, or was qualified or
modified as to uncertainty, audit scope, or accounting principles, as set forth
in Item 304(a)(1)(ii), except that the Report contained the following going
concern qualifications:
The accompanying financial statements have been prepared assuming that
[Toucan Mining Limited] will continue as a going concern. [Toucan
Mining Limited] is a development stage enterprise engaged in the
development of mineral rights in Brazil. As discussed in Note 1 to the
accounts, [Toucan Mining Limited] is in the initial stage of
exploration and it is not possible to ascertain whether future revenues
will be sufficient to allow [Toucan Mining Limited] to continue as a
going concern. The consolidated financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
During such fiscal period of Toucan Mining, there were no disagreements with
Deloitte & Touche on any matter of accounting principles or practices, financial
statement disclosure, or auditing scope or procedure as set forth in Item
304(a)(1)(iv) of Regulation S-B. None of the reportable events listed in Item
304(a)(1)(iv)(B) of 304(b) of Regulation S-B occurred with respect to Toucan
Mining or Toucan Gold and Deloitte & Touche.
Pursuant to Item 4(a) of Form 8-K and Item 304(a)(3) of Regulation S-B,
Toucan Gold and Toucan Mining have provided Deloitte & Touche with a copy of
this Form 8-K, and have requested Deloitte & Touche to provide Toucan Gold and
Toucan Mining with a letter addressed to the Securities and Exchange Commission
stating whether it agrees with the statements made by Toucan Gold in this Item 4
with respect to Deloitte & Touche, so that it can be filed with the Commission
within ten (10) business days after the filing of this report. Deloitte &
Touche's response letter will be filed as an exhibit to a Form 8-K/A, within two
(2) business days of receipt. .
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Item 5. Other Material Information
On July 29, 1996, Toucan Gold announced that it had changed its state
of incorporation from Colorado to Delaware and changed its name to Toucan Gold
Corporation. This change was accomplished by means of a merger of Starlight into
its then wholly owned Delaware subsidiary, Toucan Gold (the "Merger"), pursuant
to an Agreement and Plan of Merger (the "Merger Agreement"). The reincorporation
proposal was approved by stockholders of Starlight at a special meeting held on
July 29, 1996 and the Merger was effective as of 5:00 p.m. (Central Daylight
Time) on July 29, 1996 with the filing of the Articles of Merger and Certificate
of Merger with the Secretary of States of Colorado and Delaware, respectively.
Principal Reasons for Reincorporation
For many years, Delaware has encouraged incorporation in that state. In
furtherance of that policy, Delaware has adopted, construed and implemented
comprehensive and flexible corporate laws that are responsive to the legal and
business needs of corporations. Delaware is the preeminent state of
incorporation for major corporations, and its legislature and courts have
demonstrated an ability and a willingness to act quickly and effectively to meet
changing business needs. Thus, the reincorporation will provide greater
predictability with respect to the Company's corporate legal affairs.
The reincorporation also had the effect of changing the name of the
Company from Starlight Acquisitions, Inc. to Toucan Gold Corporation. The name
Toucan Gold Corporation more closely reflects the actual operations of the
Company. The reincorporation has not resulted in any changes of the Company's
business, management, board members, fiscal year, assets or liabilities or the
location of its mining facilities. The Company's executive offices changed from
Colorado to Texas. In addition, the common stock of the Company ("TUCON Stock"),
common par value $.01 per share, trades on the OTC Bulletin Board under the new
trading symbol "TUGO."
Antitakeover Implications
Certain effects of the reincorporation may be considered to have
anti-takeover implications. Section 203 of the Delaware General Corporation Law
("Section 203") restricts certain "business combinations" with "interested
stockholders" for three years following the date that a person becomes an
interested stockholder, unless the Board of Directors approves the business
combination. While corporations may opt out of the provisions of Section 203,
and thus decline the takeover protection, the Company may not do so.
In addition to the serious disruption to the day-to-day business and
management of the Company that unsolicited takeover attempts may cause, the
Company believes that they may also be unfair or disadvantageous to the Company
and some of its stockholders. The Board believes that it can best ensure that
each stockholder's interests are considered and treated equitably by requiring
that all potential acquirors negotiate with the Board of Directors.
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In addition, the Delaware General Corporation Law provides for certain
changes to the relative rights of stockholders and management that have
anti-takeover implications; however, the Board of Directors does not currently
plan to implement any of these changes.
Authorized and Issued Stock
The Certificate of Incorporation of Toucan Gold authorizes a class of
30,000,000 shares of Toucan Common Stock and a class of 2,000,000 shares of
preferred stock (the "Preferred Stock"), par value $.01 per share.
The Articles of Incorporation of Starlight provided for the same number
of authorized shares of common stock and preferred stock, each with no par
value. Each share of Starlight common stock ("Starlight Common Stock"), no par
value, that was issued and outstanding immediately prior to the Merger, was by
virtue of the Merger automatically converted into one fully paid and
nonassessable share of Toucan Common Stock. Stockholders will receive a Letter
of Transmittal setting forth the procedures relating to the exchange of
certificates (the "Starlight Certificates") representing shares of Starlight
Common Stock for certificates ("Toucan Certificates") representing shares of
Toucan Common Stock. Pending the exchange of Starlight Certificates for Toucan
Certificates, each Starlight Certificate continues to represent the same number
of shares of Toucan Common Stock.
Starlight had outstanding immediately prior to the Merger warrants (the
Starlight "Warrants") to purchase an aggregate of 100,000 shares of Starlight
Common Stock at an exercise price of $4.00 per share. By virtue of the terms of
the Starlight Warrants, the Starlight Warrants have been converted into warrants
to purchase an aggregate of 100,000 shares of Toucan Common Stock at an exercise
price of $4.00 per share.
Each share of Toucan Common Stock is entitled to one vote on all
matters to be voted upon by the stockholders. Subject to preferences that may be
applicable to any outstanding Preferred Stock, the holders of Toucan Common
Stock are entitled to receive ratably such dividends, if any, as may be declared
from time to time by the Board of Directors out of funds legally available
therefor. In the event of a liquidation, dissolution or winding up of the
Company, the holders of Toucan Common Stock are entitled to share ratably in all
assets remaining after payment of liabilities, subject to prior distribution
rights of Preferred Stock, if any, then outstanding. The Toucan Common Stock has
no preemptive or conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to Toucan Common Stock.
The Certificate of Incorporation of the Company authorizes the Board of
Directors to fix the rights, preferences, privileges and restrictions of one or
more series out of the authorized shares of Preferred Stock (which would include
dividend rights, conversion rights, voting rights, terms of redemption and
liquidation preferences) without further vote or action by the stockholders, as
did the Articles of Incorporation of Starlight. Issuance of Preferred Stock with
terms giving it substantial voting power, conversion or other rights could have
the offset of (i) delaying, deferring or preventing a change in control of the
Company or (ii) otherwise
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modifying the rights of holders of Toucan Common Stock. There is no Preferred
Stock outstanding.
Change in Number of Directors
The Bylaws of Starlight authorized the Board of Directors to fix the
number of directors at a number not less than three (3), unless the outstanding
shares of the corporation were held on record by fewer than three shareholders.
The Certificate of Incorporation and Bylaws of Toucan Gold provide that the
number of directors shall not be less than one (1) or more than nine (9), the
exact number to be fixed from time to time by resolution of the Board of
Directors, provided that no director's term shall be shortened by reason of a
resolution reducing the number of directors. Prior to the Merger, there were
three (3) directors of Starlight (the "Incumbent Directors") Robert P. Jeffcock,
L. Clark Arnold and Don D. Box. Jay Lutsky ("Lutsky") was also an Advisory
Director. Following the Merger, the Board of Directors set the number of
directors at three (3) and named the Incumbent Directors as the directors of the
Company and Lutsky as an Advisory Director.
Following reincorporation, the Board of Directors of the Company also
has the authority to amend the Bylaws without stockholder approval to affect a
change in the number of the Board of Directors.
Indemnification and Limitation of Liability
Delaware corporations may adopt provisions in their certificates of
incorporation that reduce or eliminate the liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such liability does not arise from certain
prescribed conduct. Toucan Gold has adopted such a provision in Article 9 of its
Certificate of Incorporation. Article 9 also contains other provisions that
provide for the indemnification of the Company's directors and officers and the
advancement of expenses related thereto to the extent permitted by Delaware law.
Voting by Ballot
Under Delaware law, a certificate of incorporation may include
provisions obviating the need to vote by written ballot. The Certificate of
Incorporation of Toucan Gold provides that elections of directors need not be by
written ballot unless the Bylaws provide for written ballot. The Bylaws of
Toucan Gold currently provide that elections of directors need not be
effectuated by written ballot.
Actions by Written Consent of Stockholders
Delaware law provides that any action that could be taken by
stockholders at a meeting may be taken without a meeting if a consent in
writing, setting forth the action so taken, is signed by the holders of record
of outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled
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to vote thereon were present and voted. Colorado law, on the other hand,
provides that any action required or permitted to be taken at a shareholders'
meeting may be taken without a meeting if all of the shareholders entitled to
vote thereon consent to such action in writing. Therefore, unlike Colorado law,
Delaware law permits a majority of the stockholders of the Company to take
action without the need for a stockholders' meeting.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Business Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
EXHIBIT NO. DESCRIPTION
_____________ _______________
2.1 Agreement and Plan of Merger dated as of July 29,1996
between Toucan Gold Corporation, a Delaware
Corporation, and Starlight Acquisitions, Inc., a Colorado
Corporation.
4.1 Certificate of Incorporation of Toucan Gold Corporation.
16.1 Statement from Deloitte & Touche regarding change in
certifying accountant for Toucan Mining Limited.
99.1 Press Release, dated July 29, 1996, announcing Starlight's
reincorporation and name change.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Toucan Gold Corporation
_______________________
(Registrant)
Date: August 8, 1996 By:/s/Robert Jeffcock
--------------------
Name:Robert Jeffcock
Title:Chief Executive Officer
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TOUCAN GOLD CORPORATION
EXHIBIT INDEX
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE NUMBER
___________ ___________ ______________
2.1 Agreement and Plan of Merger dated as of July 11
29, 1996 between Toucan Gold Corporation, a
Delaware Corporation, and Starlight
Acquisitions, Inc., a Colorado Corporation.
4.1 Certificate of Incorporation of Toucan Gold 18
Corporation.
16.1 Statement from Deloitte & Touche regarding change in 23
certifying accountant for Toucan Mining Limited.
99.1 Press Release, dated July 29, 1996, announcing 25
Starlight's reincorporation and name change.
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EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
OF TOUCAN GOLD CORPORATION
A DELAWARE CORPORATION
AND
STARLIGHT ACQUISITIONS, INC.
A COLORADO CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of July 29, 1996 (the
"Agreement") is between Toucan Gold Corporation, a Delaware corporation
("Toucan") and Starlight Acquisitions, Inc., a Colorado corporation
("Starlight"). Toucan and Starlight are sometimes referred to herein as the
"Constituent Corporations."
RECITALS
WHEREAS, Toucan is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 32,000,000
shares, 30,000,000 of which are designated "Common Stock," par value $.01 per
share, and 2,000,000 of which are designated "Preferred Stock," par value $.01
per share. As of July 29, 1996, 1,000 shares of Common Stock were issued and
outstanding, all of which were held by Starlight. No shares of Preferred Stock
are outstanding;
WHEREAS, Starlight is a corporation duly organized and existing under
the laws of the State of Colorado and has an authorized capital of 32,000,000
shares, 30,000,000 of which are designated "Common Stock," no par value, and
2,000,000 of which are designated "Preferred Stock," no par value. As of July
29, 1996, 5,664,600 shares of Common Stock were issued and outstanding. No
shares of Preferred Stock are issued and outstanding;
WHEREAS, the Board of Directors of Starlight has determined that for
the purpose of effecting the reincorporation of Starlight in the State of
Delaware, it is advisable and in the best interests of Starlight that Starlight
merge with and into Toucan upon the terms and conditions herein provided; and
WHEREAS, the respective Boards of Directors of Toucan and Starlight
have approved this Agreement and have directed that this Agreement be submitted
to a vote of their respective stockholders and executed by the undersigned
officers;
NOW THEREFORE, in consideration of the mutual agreements and covenants
set forth herein Toucan and Starlight hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
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I. MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the Colorado Business Corporation Act,
Starlight shall be merged with and into Toucan (the "Merger"), the separate
existence of Starlight shall cease and Toucan shall be and is herein sometimes
referred as, the "Surviving Corporation," and the name of the Surviving
Corporation shall be Toucan Gold Corporation.
1.2 Filing and Effectiveness. The Merger shall become effective
when the following actions shall have been completed.
(a) This Agreement and Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the Colorado
Business Corporation Act.
(b) All of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied or duly waived by
the party entitled to satisfaction thereof.
(c) An executed Agreement and Plan of Merger or a Certificate
of Merger with respect thereto meeting the requirements of the Delaware General
Corporation Law shall have been filed with the Secretary of State of the State
of Delaware, and
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date of the Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of Starlight shall cease and Toucan as the Surviving
Corporation, (i) shall continue to possess all of its assets, rights, powers and
property as constituted immediately prior to the Effective Date of the Merger;
(ii) shall be subject to all actions previously taken by its and Starlight's
Board of Directors; (iii) shall succeed without other transfer to all of the
assets, rights, powers and property of Starlight in the manner more fully set
forth in Section 259 of the Delaware General Corporation Law; (iv) shall
continue to be subject to all of the debts, liabilities and obligations of
Toucan as constituted immediately prior to the Effective Date of the Merger; and
(v) shall succeed, without other transfer, to all of the debts, liabilities and
obligation of Starlight in the same manner as if Toucan had itself incurred
them, all as more fully provided under the applicable provisions of the Delaware
General Corporation Law and the Colorado Business Corporation Act.
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II. CHARTER DOCUMENTS DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
Toucan as in effect immediately prior to the Effective Date of the Merger shall
continue in full force and effect as the Certificate of Incorporation of the
Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
2.2 Bylaws. The Bylaws of Toucan as in effect immediately prior to the
Effective Date of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of Starlight
immediately prior to the Effective Date of the Merger shall be elected as the
directors and officers of the Surviving Corporation until their successors shall
have been duly elected and qualified or until as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 Starlight Common Shares. Upon the Effective Date of the Merger,
each share of Starlight Common Stock, no par value, issued and outstanding
immediately prior thereto (other than such shares (the "Dissenters' Shares") as
to which dissenters' rights have been validly perfected and not withdrawn or
otherwise forfeited pursuant to the Colorado Business Corporation Act) shall by
virtue of the Merger and without any action by the Constituent Corporations, the
holder of such shares or any other person be converted into and exchanged for
one fully paid and nonassessable share of Common Stock, no par value, of the
Surviving Corporation.
3.2 Starlight Preferred Shares. There are no shares of Preferred
Stock of Starlight, no par value, issued and outstanding immediately prior to
the Merger, and no shares of Preferred Stock shall be converted to and exchanged
for any securities of Toucan.
3.3 Toucan Common Stock. Upon the Effective Date of the Merger, each
share of Common Stock, no par value, of Toucan issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by Toucan, the holder of such shares or any other person, be canceled and
returned to the status of authorized but unissued shares.
3.4 Exchange of Certificates. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of Starlight
Common Stock (other than any "Dissenters' Shares") may be asked to surrender the
same for cancellation to an exchange agent, whose name will be delivered to
holders prior to any requested exchange (the "Exchange Agent"), and each such
holder shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of the Surviving Corporation's
Common Stock into which the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate theretofore
representing shares of Starlight Common Stock shall be deemed for all
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purposes to represent the number of shares of the Surviving Corporation's Common
Stock into which such shares of Starlight Common were converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common Stock of the Surviving Corporation
so issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of Starlight so converted
and given in exchange therefore, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable laws.
If any certificate for shares of the Surviving Corporation's stock is
to be issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
the Exchange Agent any transfer or other taxes payable by reason of issuance of
such new certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not payable.
IV. GENERAL
4.1 Covenants of Toucan. Toucan covenants and agrees that it
will, on or before the Effective Date of the Merger:
(a) File any and all documents with the Franchise Tax Board
for the State of Colorado necessary for the assumption by Toucan of all of the
franchise tax liabilities of Starlight.
(b) Take such other actions as may be required by the
Colorado Business Corporation Act.
4.2 Further Assurances. From time to time, as and when required by
Toucan or by its successors or assigns, there shall be executed and delivered on
behalf of Starlight such deeds and other instruments, and there shall be taken
or caused to be taken by it such further and other actions as shall be
appropriate or necessary in order to vest or perfect in or conform of record or
otherwise by Toucan the title to and possession of all the property, interests,
assets, nights, privileges, immunities, powers, franchises and authority of
Starlight and otherwise to carry out the purpose of this Agreement, and the
officers and directors of Toucan are fully authorized in the name and on behalf
of Starlight or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
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4.3 Abandonment. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Starlight or of Toucan, or of
both, notwithstanding the approval of this Agreement by the shareholders of
Starlight or by the sole stockholder of Toucan or by both.
4.4 Amendment. The Board of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of the State of
Delaware, provided than an amendment made subsequent to the adoption of this
Agreement by the stockholders of either Constituent Corporation shall not (i)
alter or change the amounts of kind of shares, securities, cash, property and/or
rights to be received in exchange for or on conversion of all or any of the
shares of any class or series thereof of such Constituent Corporation; (ii)
alter or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger; or (iii) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series of capital stock of any
Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is 1013 Centre Road, in the City of
Wilmington 19805-1297, County of New Castle, and the Prentice-Hall Corporation
System is the registered agent of the Surviving Corporation at such address.
4.6 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at c/o Jenkens &
Gilchrist, 1445 Ross Avenue, Suite 3200, Dallas, Texas 75202-2799, and copies
thereof will be furnished to any stockholder of either Constituent Corporation,
upon request and without cost.
4.7 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
Colorado Business Corporation Act.
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Toucan and Starlight is hereby executed
on behalf of each of such two corporations and attested by their respective
officers thereunto duly authorized.
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TOUCAN GOLD CORPORATION
a Delaware corporation
By: ____________________________
Robert Jeffcock, Chief Executive Officer and
Chief Financial Officer and Secretary
ATTEST
__________________________
Robert Jeffcock, Secretary
STARLIGHT ACQUISITIONS, INC.
a Colorado corporation
By: ____________________________
Robert Jeffcock, Chief Executive Officer and
Chief Financial Officer
ATTEST
__________________________
Robert Jeffcock, Secretary
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EXHIBIT 4.1
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CERTIFICATE OF INCORPORATION
OF
TOUCAN GOLD CORPORATION
-----------------------------------------------------------------
Pursuant to the provisions of Section 102
of the General Corporation Law of
the State of Delaware
-----------------------------------------------------------------
I, the undersigned, for the purpose of creating and organizing a
corporation under the provisions of and subject to the requirements of the
General Corporation Law of the State of Delaware, do HEREBY CERTIFY as follows:
1. The name of the Corporation is Toucan Gold Corporation (the
"Corporation").
2. The address of the registered office of the Corporation in the State
of Delaware is 1013 Centre Road, in the City of Wilmington 19805-1297, County of
New Castle. The name of the registered agent of the Corporation at such address
is The Prentice-Hall Corporation System, Inc.
3. (a) The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful business, act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware (the "DGCL").
(b) The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatsoever.
4. The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is 32,000,000 shares, consisting of
30,000,000 shares of common stock, par value $0.01 per share (the "Common
Stock"), and 2,000,000 shares of preferred stock, par value $.01 per share
("Preferred Stock").
The Preferred Stock may be issued, from time to time, in one or
more series as authorized by the Board of Directors. The Board of Directors,
by resolution, shall designate that series to distinguish it from other series
and classes of stock of the Corporation, shall specify the number of shares to
be included in the series, and shall fix the terms, rights, restrictions, and
qualifications of, the shares of the series, including any preferences, voting
powers, dividend rights and redemption, sinking fund and conversion rights. The
relative powers, preferences and rights of each series of Preferred Stock in
relation to the powers, preferences and rights of each
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other series of Preferred Stock shall be as fixed from time to time by the Board
of Directors in the resolution or resolutions authorizing the issuance of each
series adopted by the Board of Directors.
5. No holder of shares of stock of the Corporation shall have any
preemptive or other right to receive any securities of the Corporation.
6. (a) The number of directors of the Corporation shall be not less
than One (1) nor more than Nine (9), the exact number to be fixed from time to
time in the manner provided by the Bylaws of the Corporation.
(b) The power of the incorporator shall terminate upon the
filing of this Certificate of Incorporation. The number of directors
constituting the initial Board of Directors of the Corporation is Three (3), and
the name and address of the persons who are to serve as directors until the
first annual meeting of the stockholders or until their successors are elected
and qualified are:
Name Address
--------------------- -----------------------
Robert P. Jeffcock 2 The Promenade
Castletown
Isle of Man
1M91BJ
L. Clark Arnold 201 E. Rudasill Road
Tucson, Arizona 85704-6024
Don D. Box 8201 Preston Road
Suite 600
Dallas, Texas 75225
(c) Election of directors need not be by written ballot unless
the Bylaws shall so provide. Except as otherwise required by law, this
Certificate of Incorporation or the provisions of any resolutions adopted by the
Board of Directors authorizing the issuance of Preferred Stock, each holder of
shares of Common Stock shall be entitled to one vote in respect of each share of
Common Stock held in his name on the books of the Corporation on each matter
voted upon by the stockholders. No holders of Common Stock of the Corporation
shall have any rights to cumulate votes in the election of directors.
7. The business affairs of the Corporation shall be managed by or under
the direction of the Board of Directors, except as otherwise proved by law, this
Certificate of Incorporation or the Bylaws. In furtherance of, and not in
limitation of, the powers conferred by statute, the Board of Directors is
expressly authorized to adopt, amend or repeal the Bylaws of the Corporation or
adopt new Bylaws, without any action on the part of the stockholders; provided,
however, that
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no such adoption, amendment, or repeal shall be valid with respect to Bylaw
provisions that have been adopted, amended, or repealed by the stockholders and
further provided, that Bylaws adopted or amended by the Board of Directors and
any powers thereby conferred may be amended, altered, or repealed by the
stockholders.
8. The Corporation is to have perpetual existence.
9. (a) A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for such liability as is expressly not subject to
limitation under the DGCL, as the same exists or may hereafter be amended to
further limit or eliminate such liability.
(b) The Corporation shall, to the fullest extent permitted by
law, indemnify any and all officers and directors of the Corporation, and may,
to the fullest extent permitted by law or to such lesser extent as is determined
in the discretion of the Board of Directors, indemnify and advance expenses to
any and all other persons whom it shall have power to indemnify, from and
against all expenses, liabilities or other matters arising out of their status
as such or their acts, omissions or services rendered in such capacities.
(c) The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability.
(d) In addition to the powers and authority conferred upon the
Board of Directors by statute or by this Certificate of Incorporation, the Board
of Directors is hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation, subject to the
provisions of the DGCL, this Certificate of Incorporation and any Bylaws adopted
by the stockholders; provided, however, that no Bylaws adopted by the
stockholders shall invalidate any prior act of the Board of Directors that would
have been valid if such Bylaws had not been adopted.
10. The Corporation shall have the right, subject to any express
provisions or restrictions contained in the Certificate of Incorporation or
Bylaws of the Corporation, from time to time, to amend this Certificate of
Incorporation or any provision thereof in any manner now or hereafter provided
by law, and all rights and powers of any kind conferred upon a director or
stockholder of the Corporation by the Certificate of Incorporation or any
amendment thereof are conferred subject to such right.
11. The name and mailing address of the incorporator of the Corporation
is Lesley Pettengill, Jenkens & Gilchrist, a Professional Corporation, 1445 Ross
Avenue, Suite 3200, Dallas, Texas 75202.
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THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate, hereby acknowledging and
declaring and certifying that the foregoing Certificate of Incorporation is her
act and deed and the facts herein stated are true, and accordingly has hereunto
set her hand this 19th day of July, 1996.
/s/ Lesley Pettingill
--------------------------
Lesley Pettengill
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EXHIBIT 16.1
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[DELOITTE & TOUCHE]
Securities and Exchange Commission
Washington DC 20549
United States of America
Our Ref: LE09TOU6
9 August 1996
Dear Sirs
Re: Toucan Gold Corporation - File 3-28562
As former certifying accountants for Toucan Mining Limited ("Toucan Mining"),
subsidiary of Toucan Gold Corporation ("Toucan Gold"), we have read Toucan
Gold's statements including under Item 4 of Toucan Gold's Form 8-K, dated 8
August 1996, regarding the changes in Toucan Mining's certifying accountant, and
we are in agreement with the statements made regarding our resignation as
auditors of Toucan Mining.
/s/ Deloitte & Touche
DELOITTE & TOUCHE
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EXHIBIT 99.1
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For: Contact:
Toucan Gold Corporation Ron Como & Associates, Inc.
Robert Jeffcock 74 Trinity Place, Suite 1602
Chief Executive Officer New York, NY 10006
Tel: 011 44171 4932843 (London)
July 29, 1996
Immediate Release
STOCKHOLDERS OF STARLIGHT ACQUISITIONS, INC. APPROVE
CHANGE IN NAME OF COMPANY TO TOUCAN GOLD CORPORATION
DALLAS, TEXAS, JULY 29TH -- Stockholders of Starlight Acquisition,
Inc., at a Special Meeting of Stockholders held here today, approved a proposal
for the reincorporation of the Company in the State of Delaware and a change in
the name of the corporation to Toucan Gold Corporation. The Company's shares are
expected to commence trading on the OTC Electronic Bulletin Board under the
symbol TUGO beginning July 30, 1996.
The change in name to Toucan Gold Corporation ("Toucan") more closely
reflects the actual operations of the Company. Through a wholly-owned Brazilian
subsidiary, Mineradora de Bauxita Ltda. (MBL), Toucan owns a total of 1,234,948
hectares (1 hectare = 2.47 acres) of priority mining claims in the Cuiaba Basin
in the State of Mato Grosso, Brazil. MBL's claims represent a mineral resource
holding equivalent to approximately 4,766 square miles.
Toucan's mining claims are on the major trend of a currently identified
mineralized area. Surface mining on these claims by groups of artisan miners
(garimpeiros), particularly in the mid- 1980's, has resulted in the extraction
of substantial quantities of gold from the lateritic nugget fields and easily
worked oxide ores. The accessible, easily mined ores, which could be readily
located with the help of metal detectors and recovered with earthmoving
equipment, have been exhausted, and most of the garimpeiros have now moved out
of the area.
Based on management's geological interpretation of the rock formations
and mineralization of the Cuiaba Basin, management believes that the broad areas
of nugget and visible gold development suggest surface manifestations of deeper,
disseminated and probably very fine grained, primary gold mineralization.
Toucan is actively negotiating to raise additional capital to finance a
program of mineral exploration on selected portions of its Brazilian mining
claims to target areas most likely to contain economic gold mineralization in
order to secure full mining concessions from the Brazilian National Mineral
Production Department ("DNPM"). This program will involve detailed geologic
mapping based on satellite imagery, along with geochemical sampling and drilling
in accordance
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with standard exploration practice. Additionally, joint venture participation of
certain claim holdings with one or more major mining organizations is also being
explored.
# # #
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