SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB/A-2
(Mark One)
Annual Report Pursuant to Section 13
X or 15(d) of the Securities Exchange
Act of 1934 for the fiscal year
ended December 31, 1997
or
Transition Report Pursuant to
Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Transition Period from __________ to __________
Commission File Number 33-32341-D
WORLDPORT COMMUNICATIONS, INC.
(Name of Small Business Registrant as Specified in its Charter)
Delaware 84-1127336
(State or other jurisdiction of (IRS Employer ID Number)
incorporation of organization)
1825 Kennesaw North Industrial Parkway, 30144
Suite 100, Kennesaw, Georgia (Zip Code)
(Address of principal executive offices)
Registrant's telephone number: (770) 792-8735
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: None
Name of each exchange on which registered
N/A
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
past 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation S-B is not contained in this form, and no disclosure
will be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of
this Form 10-KSB or any amendment to this Form 10-KSB [ X ]
The Registrant's revenues for its most recent fiscal year were
$2,777,575.
The approximate aggregate market value of common stock of the Registrant
held by non-affiliates of the Registrant is $68,459,181, computed on the
basis of $6 7/8 per share, average bid/ask price of the common stock on
the OTC Bulletin Board on March 30, 1998.
The number of shares of the Registrant's common stock, $0.0001 par value
per share, outstanding as of March 30, 1998 was 17,383,333.
Documents incorporated by reference: None.
Transitional Small Business Disclosure Format
(Check one):
Yes _______ No __X___
PART IV
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibit No. Description
2.1 Agreement and Plan of Merger by and
among the Company, WorldPort
Acquisitions, Inc., The Wallace Wade
Company, and John W. Dalton, dated
April 20, 1997, previously filed with
Form 8-K dated July 7, 1997, and
incorporated herein by reference.
2.2 Asset Purchase Agreement by and
between the Company and Telenational
Communications Limited Partnership
dated April 23, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended March 31, 1997, and
incorporated herein by reference.
2.3 Amendment No. 1 to the Asset Purchase
Agreement by and between the Company
and Telenational Communications
Limited Partnership, dated June 20,
1997, previously filed with Form 8-K
dated July 7, 1997, and incorporated
herein by reference.
3.1** Certificate of Incorporation for the
Company, as amended.
3.2** Bylaws of the Company, as amended.
10.1 Financial Advisory Agreement between
the Company and Dinton Trader S.A.
dated October 31, 1996, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1996, and
incorporated herein by reference.
10.2 Loan Agreement between Com Tech
International Corporation and the
Company dated June 27, 1996,
previously filed with Form 10-QSB for
the fiscal quarter ended September
30, 1996, and incorporated herein by
reference.
10.3 Assignment, Pledge & Security
Agreement between Com Tech
International Corporation and the
Company dated June 27, 1996,
previously filed with Form 10-QSB for
the fiscal quarter ended September
30, 1996, and incorporated herein by
reference.
10.4 Convertible Secured Promissory Note
between the Company and Maroon Bells
Capital Partners, Inc. dated July 1,
1996, previously filed with Form 10-
QSB for the fiscal quarter ended
September 30, 1996, and incorporated
herein by reference.
Exhibit No. Description
10.5 Loan Agreement between the Company
and Maroon Bells Capital Partners,
Inc. dated July 1, 1996, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1996, and
incorporated herein by reference.
10.6 Assignment, Pledge & Security
Agreement between the Company and
Maroon Bells Capital Partners, Inc.
dated July 1, 1996, previously filed
with Form 10-QSB for the fiscal
quarter ended September 30, 1996, and
incorporated herein by reference.
10.7 Secured Promissory Note between the
Company and Com Tech International
Corporation dated June 27, 1996,
previously filed with Form 10-QSB for
the fiscal quarter ended September
30, 1996, and incorporated herein by
reference.
10.8 Maroon Bells Capital Partners, Inc.
Advisory Agreement for WorldPort
Communications, Inc. dated March 7,
1997, previously filed with Form 10-
KSB for the fiscal year ended
December 31, 1996, and incorporated
herein by reference.
10.9 Stock Issuance and Indemnification
Agreement by and between Maroon Bells
Capital Partners, Inc. and WorldPort
Communications, Inc. dated March 7,
1997, previously filed with Form 10-
KSB for the fiscal year ended
December 31, 1996, and incorporated
herein by reference.
10.10 Pledge Agreement, Secured Promissory
Note, and Guaranty between Edmund
Blankenau and the Company dated April
4, 1997, previously filed with Form
10-KSB for the fiscal year ended
December 31, 1996, and incorporated
herein by reference.
10.11 Employment Agreement by and between
John W. Dalton and the Company dated
April 8, 1997, previously filed with
Form 10-KSB for the fiscal year ended
December 31, 1996, and incorporated
herein by reference.
10.12 Lease by and between the Company and
Mission Life Insurance Company, dated
April 15, 1997, previously filed with
Form 10-QSB for the fiscal quarter
ended March 31, 1997, and
incorporated herein by reference.
10.13 Settlement Agreement by and between
Com Tech International Corporation
and WorldPort Communications, Inc.,
dated April 14, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended March 31, 1997, and
incorporated herein by reference.
Exhibit No. Description
10.14 Management Services Agreement by and
between WorldPort Communications,
Inc. and Telenational Communications
Limited Partnership, dated April 29,
1997, previously filed with Form 10-
QSB for the fiscal quarter ended
March 31, 1997, and incorporated
herein by reference.
10.15 Employment Agreement by and between
W. Dean Spies and the Company
effective April 7, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended March 31, 1997, and
incorporated herein by reference.
10.16 First Amended Loan Modification
Agreement by and between the Company,
Telenational Communications, Inc.,
Telenational Communications Limited
Partnership and Value Partners, Ltd.
dated June 20, 1997, previously filed
with Form 10-QSB for the fiscal
quarter ended June 30, 1997, and
incorporated herein by reference.
10.17 Second Amended and Restated Senior
Secured Promissory Note by and
between the Company, Telenational
Communications, Inc. and Value
Partners, Ltd. Dated June 20, 1997,
previously filed with Form 10-QSB for
the fiscal quarter ended June 30,
1997, and incorporated herein by
reference.
10.18 First Amended Pledge and Security
Agreement by and between Telenational
Communications, Inc. and Value
Partners, Ltd. dated June 20, 1997,
previously filed with Form 10-QSB for
the fiscal quarter ended June 30,
1997, and incorporated herein by
reference.
10.19 Notice and Certification of No Oral
Agreements by and between the
Company, Telenational Communications,
Inc., Telenational Communications
Limited Partnership and Value
Partners, Ltd. dated June 20, 1997,
previously filed with Form 10-QSB for
the fiscal quarter ended June 30,
1997, and incorporated herein by
reference.
10.20 Consulting Agreement by and between
Edmund Blankenau and the Company
dated June 20, 1997, previously filed
with Form 10-QSB for the fiscal
quarter ended June 30, 1997, and
incorporated herein by reference.
10.21 Employment Agreement by and between
Bruce Burton and the Company dated
June 20, 1997, previously filed with
Form 10-QSB for the fiscal quarter
ended June 30, 1997, and incorporated
herein by reference.
10.22 Lease by and between Telenational
Communications, Inc. and 7300
Woolworth Partnership dated July 1,
1997, previously filed with Form 10-
QSB for the fiscal quarter ended June
30, 1997, and incorporated herein by
reference.
10.23 Promissory Note by and between the
Company and Cablex Electronique, Ltd.
dated September 11, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
Exhibit No. Description
10.24 Promissory Note by and between the
Company and Le Chevalier Noir, Ltd.
dated September 11, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
10.25 Promissory Note by and between the
Company and Woodlands, Ltd. dated
October 1, 1997, previously filed
with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
10.26 Promissory Note by and between the
Company and Maroon Bells Capital
Partners, Inc. dated October 9, 1997,
previously filed with Form 10-QSB for
the fiscal quarter ended September
30, 1997, and incorporated herein by
reference.
10.27 Agreement for the Provision of
Corporate Voice Communication
Services between EQUANT Network
Services, Inc. and the Company dated
September 4, 1997, previously filed
with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
10.28 Master Equipment Lease Agreement by
and between the Company and
Forsythe/McArthur Associates, Inc.
dated October 31, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
10.29 Lease Schedule A by and between the
Company and Forsythe/McArthur
Associates, Inc. dated October 30,
1997, previously filed with Form 10-
QSB for the fiscal quarter ended
September 30, 1997, and incorporated
herein by reference.
10.30 Carrier Agreement (800 Origination)
dated October 23, 1997 between
Operador Protel, S.A. de C.V. and
WorldPort Communications, Inc., as
previously filed.
10.31 Service Contract dated November 12,
1997 between All American Cables and
Radio, Inc. and WorldPort
Communications, Inc., previously
filed.
10.32 Commission Agreement dated November 12,
1997 between ARBITEL and WorldPort
Communications, Inc., previously filed.
10.33 Carrier Service Agreement, effective as
of January 1, 1997, between Telenational
Communications Limited Partnership (the
predecessor to Telenational
Communications, Inc., a wholly-owned
subsidiary of WorldPort Communications,
Inc.) and Telenational Communications
Dutschland Limited Partnership,
previously filed.
16.1 Letter of Schumacher & Associates,
Inc., Independent Certified Public
Accountant, previously filed with
Form 8-K dated July 7, 1997, and
incorporated herein by reference.
22.1 Notice of Annual and Special Meeting
of Shareholders and Proxy Statement
dated September 18, 1996, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1996, and
incorporated herein by reference.
23.1 Consent of Arthur Andersen LLP,
Independent Public Accountants previously
filed with Form 10-KSB for the fiscal year
ended December 31, 1997, and incorporated
herein by reference.
27.1 Financial Data Schedule previously filed with
Form 10-KSB for the fiscal year ended December
31, 1997, and incorporated herein by
reference.
**Filed herewith.
(b) No Current Reports on Form 8-K were filed during the last quarter of the
period covered by this Report.
SIGNATURES
Pursuant to the requirements of Section 13 of 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dated this __th day of September, 1998
WORLDPORT COMMUNICATIONS, INC.
By /s/ Phillip S. Magiera
Phillip S. Magiera
Chief Financial Officer and Secretary
CERTIFICATE OF INCORPORATION
OF
WORLDPORT COMMUNICATIONS, INC.
ARTICLE ONE
The name of the corporation is WorldPort Communications, Inc.
ARTICLE TWO
The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, Delaware 19801. The name of its registered agent at such
address is Corporation Trust Company.
ARTICLE THREE
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE FOUR
The corporation shall have authority to issue shares as follows:
A. Common Stock. Sixty-Five Million (65,000,000) shares of common
stock, with par value at $.0001 per share, to be issued as and when the Board of
Directors shall determine.
B. Preferred Stock. Ten Million (10,000,000) shares of Preferred Stock,
with par value of $.0001 per share. The Board of Directors is expressly
authorized to provide for the issuance of all or any shares of Preferred Stock
in one or more classes or series, and to fix for each such class or series such
voting powers, full or limited, or not voting powers, and such distinctive
designations, preferences and relative, participating, optional or other special
rights and such qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the resolutions adopted by the Board of Directors
providing for the issuance of such class or series and as may be permitted by
Delaware General Corporation Law, including, without limitation, the authority
to provide that any such class or series may be (i) subject to redemption of
such time or times and at such price or prices; (ii) entitled to receive
dividends (which may be cumulative or non-cumulative) at such rates, on such
conditions, and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or any other series; or
(iii) entitled to such rights upon the dissolution of, or upon any distribution
of the assets of, the Corporation, all as may be stated in such resolution or
resolutions.
ARTICLE FIVE
The Board of Directors of the corporation shall have the power to
adopt, amend, and repeal any or all of the Bylaws of the corporation.
ARTICLE SIX
Meetings of the stockholders of the corporation may be held within or
without the State of Delaware, as the Bylaws may provide. The books of the
corporation may be kept (subject to any provision contained in the Delaware
General Corporation Law) outside the State of Delaware at such place or places
as may be designated from time to time by the Board of Directors or in the
Bylaws of the corporation.
ARTICLE SEVEN
To the fullest extent permitted by Delaware General Corporation Law as
the same exists or may hereafter be amended: (i) a director shall not be liable
to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, (ii) the corporation shall indemnify, defend and
hold harmless any and all of its existing and former directors, advisory
directors, officers, employees and agents from and against any and all losses,
claims, damages, expenses, fees, or liabilities, whether joint or several,
incurred by each of them, including but not limited to all legal fees,
judgments, penalties or amounts paid in defense, settlement or compromise, all
of which may arise or be incurred, rendered, or levied in any legal action, or
administrative proceeding brought or threatened against any of them by reason of
the fact that such person is or was a director, advisory director, officer,
employee or agent of the corporation.
ARTICLE EIGHT
The name and mailing address of the incorporator is as follows:
Edward P. Mooney
100 California Street, Suite 1400
San Francisco, CA 94111
ARTICLE NINE
The initial Board of Directors of the corporation shall consist of
three (3) person(s). The names and mailing address(es) of the person(s) to serve
as the initial director(s) are:
Edward P. Mooney
Maroon Bells Capital Partners, Inc.
100 California Street, Suite 1400
San Francisco, CA 94111
Jonathan Y. Hicks
Maroon Bells Capital Partners, Inc.
101 North Waukegan, Suite 930
Lake Bluff, IL 60044
Daniel P. McGinnis
14403 Fair Knoll Way
Houston, TX 77062
ARTICLE TEN
The corporation reserves the right to amend, alter, change, or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the Delaware General Corporation Law.
I, THE UNDERSIGNED, for the purposes of forming a corporation under the
laws of the State of Delaware, do make, file and record this Certificate, and do
certify that the facts herein stated are true.
DATED this 19th day of September, 1996.
/s/ Edward P. Mooney
Edward P. Mooney,
Incorporator
WORLDPORT COMMUNICATIONS, INC.
CERTIFICATE OF DESIGNATION
OF
SERIES A PREFERRED STOCK
By Resolution of
the Board of Directors
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
The undersigned, being the duly elected, qualified and acting Secretary,
WorldPort Communications, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of the Corporation, (the "Certificate of
Incorporation") and under the provisions of Section 151 of the General
Corporation Law of the State of Delaware, on May 8, 1997 and July 24, 1997, the
Board of Directors adopted the following resolution fixing and determining the
rights, preferences, privileges and restrictions of a series of 750,000 shares
of Preferred Stock, $0.0001 par value ("Preferred Stock"), designated as Series
A Preferred Stock:
"RESOLVED that, pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of the
Corporation's Certificate of Incorporation, a series of Preferred Stock of
the Corporation be, and it hereby is, authorized and created, and that the
designation and amount thereof and the voting powers, preferences and
relative, participating, optional or other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof
are as follows:
I. Designation: Series, Amount and Ranking. The shares of the series of
Preferred Stock established hereby shall be designated "Series A Preferred
Stock" (such shares being hereafter called the "Series A Preferred Stock"),
and the number of shares constituting such series shall be 750,000 which
shares shall have a par value of $0.0001 and a stated value of $2.25 per
share (the "Stated Value"). The Series A Preferred Stock shall rank prior
to the Corporation's Common Stock (the "Common Stock") as to the payment of
dividends and distribution of assets upon liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary.
II. Dividends and Distributions.
(a) The holders of shares of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available therefor, dividends in an
amount equal to 8% of the Stated Value per annum ("Series A Preferred
Dividends"). Series A Preferred Dividends may be paid in either cash
or shares of Common Stock and shall be payable in arrears on such date
established by the Board of Directors (each, a "Series A Dividend
Payment Date").
(b) Series A Preferred Dividends shall:
(i)be payable to holders of record as they appear on the books of
the Corporation or any transfer agent on a Series A Dividend
Payment Date;
(ii)be cumulative up to and including each Series A Dividend
Payment Date and shall be deemed to have accrued on shares of
Series A Preferred Stock from and after the date such shares are
issued (the "Original Issue Date");
(iii)accrue on a daily basis whether or not the Corporation shall
have earnings or surplus at the time;
(iv)be computed on the basis of a 360-day year comprised of
twelve 30-day months
(c) Series A Preferred Dividends, whether or not declared, will
cumulate (up to and including the date of payment thereof) until
declared and paid, which declaration and payment may be for all or
part of the then accumulated Series A Preferred Dividends. Accrued
but unpaid Series A Preferred Dividends shall not bear interest.
Series A Preferred Dividends shall cease to accrue in respect of
Series A Preferred Stock on the date the Series A Preferred Stock is
converted and upon the occurrence of a Liquidation (as defined
herein).
(d) So long as any shares of Series A Preferred Stock shall be
outstanding, no cash dividend shall be declared or paid or set apart
for payment on any other series of stock ranking on a parity with the
Series A Preferred Stock as to dividends ("Parity Stock"), unless
there shall also be or have been declared and paid or set apart for
payment on the Series A Preferred Stock, full cumulative Series A
Preferred Dividends for all the Series A Preferred Stock.
(e) In the event that full cumulative Series A Preferred Dividends
have not been declared and paid or set apart for payment, the
Corporation shall not declare or pay or set apart for payment any
dividends or make any other distributions on, or make any payment on
account of the purchase, redemption or other retirement of any other
class of stock or series thereof of the Corporation ranking, as to
dividends or as to distributions in the event of a liquidation,
dissolution or winding up of the Corporation, junior to the Series A
Preferred Stock ("Junior Stock") until full cumulative Series A
Preferred Dividends shall have been paid or declared and set apart for
payment; provided, however, that the foregoing shall not apply to (i)
any dividend payable solely in any shares of any Junior Stock; or (ii)
the acquisition of shares of any Junior Stock either (A) pursuant to
any employee incentive or benefit plan or arrangement (including any
employment agreement) of the Corporation or of any subsidiary of the
Corporation heretofore or hereafter adopted or (B) in exchange solely
for shares of any other Junior Stock. The Corporation shall not
permit any subsidiary of the Corporation to purchase or otherwise
acquire any shares of capital stock of the Corporation unless the
Corporation could, pursuant to this paragraph, purchase such shares at
such time and in such manner. The Series A Preferred Stock shall
share ratably (on an as-if-converted basis as of the record date for
such dividends) in any dividends or other distributions declared or
set aside on any Junior Stock.
III. Voting Rights.
(a) Each holder of record of Series A Preferred Stock shall be
entitled to vote on all matters submitted to a vote of the
stockholders of the Corporation, voting together with the holders of
Common Stock as a single class. Each holder of record of each share
of Series A Preferred Stock shall be entitled to that number of votes
as is equal to the number of shares of Common Stock into which such
share of Series A Preferred Stock could be converted on the record
date for determining the stockholders entitled to vote.
(b) At all times during which at least 76,614 shares of Series A
Preferred Stock are outstanding, the Corporation will not, without the
approval of holders of at least a majority of the shares of Series A
Preferred Stock then outstanding, voting together as a class, (A)
issue any Series A Preferred Stock (except as such may be issued in
payment of dividends on the Series A Preferred Stock) or any other
securities which will, with respect to dividend rights or rights on
liquidation, winding up and dissolution, rank senior to the Series A
Preferred Stock, or any obligation or security convertible into or
evidencing the right to purchase any securities senior to the Series A
Preferred Stock; (B) alter, amend or repeal any provision of the
Articles of Incorporation of the Corporation (including any such
alteration, amendment or repeal effected by any merger or
consolidation), if such amendment, alteration or repeal would alter or
change the powers, preferences or special rights with respect to the
shares of Series A Preferred Stock in a manner adverse to the holders
thereof; (C) merge, consolidate or sell all or substantially all of it
assets; or (D) alter, amend or modify this Section 3.
IV. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary (a "Liquidation"),
before any distribution or payment shall be made to the holders of any
Junior Stock, the holders of Series A Preferred Stock shall be
entitled to be paid out of the assets of the Corporation an amount per
share of Series A Preferred Stock equal to the sum of the Stated Value
plus all accrued but unpaid Series A Preferred Dividends (the
"Liquidation Preference").
(b) After the payment of the full Liquidation Preference as set
forth above, the remaining assets of the Corporation legally available
for distribution, if any, shall be distributed ratably to the holders
of the Series A Preferred Stock (on an as-if-converted basis as of the
date of Liquidation) and the holders of the Junior Stock.
(c) Neither the merger or consolidation of the Corporation with or
into any other corporation, nor the merger or consolidation of any
other corporation with or into the Corporation, nor the sale, lease,
exchange or other transfer of all of or any portion of the assets of
the Corporation, shall be deemed to be a Liquidation for purposes of
this Section 4.
V. Conversion.
(a) Optional Conversion. Subject to and in compliance with the
provisions of this Section 5, at any time, any shares of Series A
Preferred Stock may, at the option of the holder, without any payment
of consideration, be converted at any time into one (1) fully-paid and
nonassessable share of Common Stock, subject to adjustment as provided
in Section 5(d) below.
(b) Mandatory Conversion of Series A Preferred. Upon the earlier
to occur of (i) the closing trade price of the Common Stock having
averaged $7.00 or more for twenty (20) consecutive trading days on a
national exchange of the United States or on the NASDAQ National
Market System, if traded thereon, and (ii) the first date on which
sixty percent (60%) of the Series A Preferred Stock has been converted
into Common Stock, (each a "Conversion Event"), all shares of Series A
Preferred shall be convertible into Common Stock at the Series A
Preferred Stock Conversion Rate. All shares of Series A Preferred
Stock shall be deemed converted effective upon the occurrence of a
Conversion Event, without requirement of any other action on the part
of the Corporation or the holders of Series A Preferred Stock, and
thereafter each certificate for Series A Preferred Stock outstanding
shall be deemed to represent the number of shares of Common Stock into
which it has been converted. Nevertheless, each holder of Series A
Preferred Stock shall thereafter surrender its certificates for shares
of Series A Preferred Stock for conversion in accordance with
Section 5(c) below.
(c) Mechanics of Conversion. Each holder of Series A Preferred
Stock who desires to convert its Series A Preferred Stock into shares
of Common Stock shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or any
transfer agent for the Series A Preferred Stock, and shall give
written notice to the Corporation at such office that such holder
elects to convert the same. Such notice shall state the number of
shares of Series A Preferred Stock being converted. Thereupon, the
Corporation shall promptly issue and deliver at such office to such
holder a certificate or certificates for the number of shares of
Common Stock to which such holder is entitled and shall promptly pay
in cash or, at the option of the Board of Directors in Common Stock
(at the Common Stock's fair market value determined by the Board of
Directors as of the date of such conversion), any accrued but unpaid
Series A Preferred Dividends on the shares of Series A Preferred Stock
being converted. Such conversion shall be deemed to have been made at
the close of business on the date of such surrender of the
certificates representing the shares of Series A Preferred Stock to be
converted, and the person entitled to receive the shares of Common
Stock issuable upon such conversion shall be treated for all purposes
as the record holder of such shares of Common Stock on such date.
(d) Adjustments for Stock Splits and Dividends. In the event the
Corporation shall, at any time or from time to time while any of the
shares of Series A Preferred Stock are outstanding, (i) pay a dividend
or make a distribution with respect to Common Stock in shares of
Common Stock, (ii) subdivide or split its outstanding shares of Common
Stock into a larger number of shares, or (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, in each case
whether by reclassification of shares, recapitalization of the
Corporation or otherwise, the Series A Preferred Stock Conversion
Ratio in effect immediately prior thereto shall be adjusted by
multiplying the Conversion Ratio by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately before
such event, and the denominator of which is the number of shares of
Common Stock outstanding immediately after such event. Such
adjustment shall become effective at the opening of business on the
business day next following the record date for determination of
stockholders entitled to receive such dividend or distribution in the
case of a dividend or distribution, and shall become effective
immediately after the effective date in case of a subdivision, split,
combination or reclassification; and any shares of Common Stock
issuable in payment of a dividend shall be deemed to have been issued
immediately prior to the close of business on the record date for such
dividend.
(e) Adjustments for Merger, etc. If there shall occur a merger or
consolidation of the Corporation with or into another entity, any
merger or consolidation of another entity into the Corporation (other
than a merger or consolidation that does not result in any conversion,
exchange or cancellation of outstanding shares of Common Stock), any
sale or transfer of all or substantially all of the assets of the
Corporation or any compulsory share exchange that results in the
conversion or exchange of the Common Stock into, or the right to
receive, other securities or other property (whether of the
Corporation or any other entity), then the Series A Preferred Stock
will thereafter no longer be convertible into shares of Common Stock,
but instead will be convertible into the kind and amount of securities
or other property which the holder of such shares of Series A
Preferred Stock would have owned immediately after such merger,
consolidation, sale or share exchange if such shares of Series A
Preferred Stock had been converted into shares of Common Stock
immediately before the effective time of such merger, consolidation,
sale or share exchange. If this paragraph (e) applies, then no
adjustment in respect of the same merger, consolidation, sale or share
exchange shall be made pursuant to the other provisions of this
Section 5. In the event that at any time, as a result of an
adjustment made pursuant to this paragraph (e), the Series A Preferred
Stock shall become subject to conversion into any securities other
than shares of Common Stock, thereafter the number of such other
securities so issuable upon conversion of the shares of Series A
Preferred Stock shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions contained in this Section 5.
(f) Fractional Shares. No fractional shares of Common Stock shall
be issued upon conversion of Series A Preferred Stock. All shares of
Common Stock (including fractions thereof) issuable upon conversion of
more than one share of Series A Preferred Stock by a holder thereof
shall be aggregated for purposes of determining whether the conversion
would result in the issuance of any fractional share. If, after the
aforementioned aggregation, the conversion would result in the
issuance of any fractional share, the Corporation shall, in lieu of
issuing any fractional share, pay cash equal to the product of such
fraction multiplied by the Common Stock's fair market value (as
determined by the Board) on the date of conversion.
(g) Reservation of Stock Issuable Upon Conversion. The Corporation
shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of the Series A Preferred
Stock, such number of its shares of Common Stock as shall from time to
time be sufficient to effect the conversion of all outstanding shares
of the Series A Preferred Stock. If at any time the number of
authorized by unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Series
A Preferred Stock, the Corporation will take such corporate action as
may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
(h) Notices. Any notice required by the provisions of this Section
5 shall be in writing and shall be deemed effectively given: (i) upon
personal delivery to the party to be notified, (ii) when sent by
confirmed telex or facsimile, (iii) seven (7) days after having been
sent by registered or certified mail, return receipt requested,
postage prepaid, or (iv) two (2) business day after deposit with a
nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All notices shall be addressed
to the Corporation at its principle office and to each holder of
record at the address of such holder appearing on the books of the
Corporation.
(i) Payment of Taxes. The Corporation will pay all taxes (other
than taxes based upon income) and other governmental charges that may
be imposed with respect to the issue or delivery of shares of Common
Stock upon conversion of shares of Series A Preferred Stock, excluding
any tax or other charge imposed in connection with any transfer
involved in the issue and delivery of shares of Common Stock in a name
other than that in which the shares of Series A Preferred Stock so
converted were registered.
1.That the number of shares of Series A Preferred Stock shall be 750,000.
2.That none of the shares of Series A Preferred Stock has been issued.
* * *
The undersigned declares under penalty of perjury that the statements
contained in the foregoing certificate are true of his own knowledge and has
executed this certificate under the laws of the State of Delaware.
November 12, 1997
/s/ Jonathan Y. Hicks
Jonathan Y. Hicks
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF
SERIES B CONVERTIBLE PREFERRED STOCK
OF
WORLDPORT COMMUNICATIONS, INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
WorldPort Communications, Inc., a Corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"), in accordance with the provisions of Section 103 thereof, and
pursuant to Section 151 thereof, DOES HEREBY CERTIFY:
1. That pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") and under the provisions of Section 151 of
the General Corporation Law of the State of Delaware, on March 3, 1998, the
Board of Directors adopted the following resolution creating a series of
preferred stock, $0.0001 par value per share ("Preferred Stock"), designated
as Series B Convertible Preferred Stock:
"RESOLVED that, pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of the
Corporation's Certificate of Incorporation, a series of Preferred Stock
of the Corporation be, and it hereby is, authorized and created, and
that the designation and amount thereof and the voting powers,
preferences and relative, participating, optional or other special
rights of the shares of such series, and the qualifications, limitations
or restrictions thereof are as follows:
Section 1. Designation: Series, Amount and Ranking. The shares of
the series of Preferred Stock established hereby shall be designated
"Series B Convertible Preferred Stock" (such shares being hereafter
called the "Series B Preferred Stock"), and the number of shares
constituting such series shall be 3,000,000 which shares shall have a
par value of $0.0001 per share and a stated value of $5.36 per share
(the "Stated Value"). The Series B Preferred Stock shall rank on a
parity with the shares of Series A Preferred Stock and prior to the
Corporation's Common Stock, as to the payment of dividends and
distribution of assets upon liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary.
Section 2. Dividends and Distributions.
(a) The Corporation shall not declare or pay or set apart for
payment any dividends or make any other distributions on, or make
any payment on account of the purchase, redemption or other
retirement of any other class of stock or series thereof of the
Corporation ranking, as to dividends or as to distributions in the
event of a liquidation, dissolution or winding up of the
Corporation, junior to the Series B Preferred Stock, including the
Corporation's Common Stock, (collectively, "Junior Stock") unless,
prior to the payment of such dividends or other payments the
Corporation first declares and pays a dividend equal to 7% of the
Stated Value (the "Series B Preferred Dividends") to the holders of
shares of the Series B Preferred Stock. Notwithstanding anything
to the contrary contained herein, the foregoing shall not apply to
(i) any dividend payable solely in any shares of any Junior Stock;
or (ii) the acquisition of shares of any Junior Stock either (A)
pursuant to any employee incentive or benefit plan or arrangement
(including any employment agreement) of the Corporation or of any
subsidiary of the Corporation heretofore or hereafter adopted or
(B) in exchange solely for shares of any other Junior Stock. The
Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire any shares of capital stock of the
Corporation unless the Corporation could, pursuant to this
paragraph, purchase such shares at such time and in such manner.
(b) Series B Preferred Dividends shall be paid in cash on or
prior to the date dividends are paid on the corporation's Common
Stock (the "Dividend Payment Date"). The Series B Preferred
Dividends are not cumulative and no interest shall accrue with
respect to the Series B Preferred Stock.
(c) Series B Preferred Dividends shall be payable to holders
of record as they appear on the books of the Corporation or any
transfer agent on a Series B Dividend Payment Date.
(d) No Series B Dividends shall be declared or paid or set
apart for payment unless dividends have been or contemporaneously
are declared or paid or set apart for payment on the Series A
Preferred Stock or any other series of stock ranking on a parity
with the Series B Preferred Stock as to dividends (collectively,
"Parity Stock").
Section 3. Voting Rights.
(a) Each holder of record of Series B Preferred Stock shall
be entitled to vote on all matters submitted to a vote of the
stockholders of the corporation, voting together with the holders
of Common Stock as a single class. Each holder of record of each
share of Series B Preferred Stock shall be entitled to that forty
(40) votes per share of Series B Preferred Stock.
(b) At all times during which at least 1,000,000 shares of
Series B Preferred Stock are outstanding, the corporation will not,
without the approval of holders of at least a majority of the
shares of Series B Preferred Stock then outstanding, voting
together as a class, (A) issue any securities which will, with
respect to dividend rights or rights on liquidation, winding up and
dissolution, rank senior to the Series B Preferred Stock, or any
obligation or security convertible into or evidencing the right to
purchase any securities senior to the Series B Preferred Stock; (B)
alter, amend or repeal any provision of the Certificate of
Incorporation of the corporation (including any such alteration,
amendment or repeal effected by any merger or consolidation), if
such amendment, alteration or repeal would alter or change the
powers, preferences or special rights with respect to the shares of
Series B Preferred Stock in a manner adverse to the holders
thereof; or (C) alter, amend or modify this Section 3.
Section 4. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary (a "Liquidation"),
before any distribution or payment shall be made to the holders of
any Junior Stock, the holders of Series B Preferred Stock shall be
entitled to be paid out of the assets of the Corporation an amount
per share of Series B Preferred Stock equal to the sum of $5.36
plus all declared but unpaid Series B Preferred Dividends (the
"Liquidation Preference"). After the payment of the full
Liquidation Preference, the holders of the Series B Preferred Stock
shall not be entitled to any further participation in any
distribution of assets of the Corporation.
(b) Neither the merger or consolidation of the Corporation
with or into any other corporation, nor the merger or consolidation
of any other corporation with or into the Corporation, nor the
sale, lease, exchange or other transfer of all of or any portion of
the assets of the Corporation, shall be deemed to be a Liquidation
for purposes of this Section 4.
(c) If upon any Liquidation the Liquidation Preference is not
paid in full to all holders of Series B Preferred Stock, the
holders of Series B Preferred Stock shall share ratably in any such
distribution with all holders of Series A Preferred Stock or shares
of other preferred stock ranking on a parity with the shares of
Series B Preferred Stock as to the distribution of assets, in
proportion to the full distributable amounts to which holders of
all such parity shares are entitled upon such distribution of
assets.
Section 5. Conversion.
(a) Optional Conversion. Subject to and in compliance with
the provisions of this Section 5, any shares of Series B Preferred
Stock may, at the option of the holder and without any payment of
consideration, be converted at any time into fully-paid and
nonassessable shares of Common Stock.
In the event that a holder of Series B Preferred Stock desires
to convert its Series B Preferred Stock into shares of Common
Stock, such holder shall surrender the certificate of certificates
therefor, duly endorsed, at the office of the Corporation or any
transfer agent for the Series B Preferred Stock, and shall give
written notice to the Corporation at such office that such holder
elects to convert the same. Such notice shall state the number of
shares of Series B Preferred Stock being converted. Thereupon, the
Corporation shall promptly issue and deliver at such office to such
holder a certificate or certificates for the number of shares of
Common Stock to which such holder is entitled and shall promptly
pay in cash or, to the extent sufficient funds are not then legally
available therefor, in Common Stock (at the Common Stock's fair
market value determined by the Board of Directors as of the date of
such conversion), any declared but unpaid Series B Preferred
Dividends on the shares of Series B Preferred Stock being
converted. Such conversion shall be deemed to have been made at
the close of business on the date of such surrender of the
certificates representing the shares of Series B Preferred Stock to
be converted, and the person entitled to receive the shares of
Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder of such shares of Common Stock on
such date.
(b) Mandatory Conversion. Upon the conversion of at least
70% of the Series B Preferred Stock originally issued by the
Corporation, each outstanding share of Series B Preferred Stock
shall, without any action on the part of the Corporation or the
holders of Series B Preferred Stock, be automatically converted
into shares of Common Stock. All such outstanding shares of Series
B Preferred Stock shall be deemed converted effective upon the date
on which at least 70% of the originally issued Series B Preferred
Stock is converted, and thereafter each certificate for Series B
Preferred Stock outstanding shall be deemed to represent the number
of shares of Common Stock into which it has been converted.
Nevertheless, each holder of Series B Preferred Stock shall
thereafter surrender its certificates for shares of Series B
Preferred Stock for conversion in accordance with Section 5(a)
above.
(c) Conversion Rate. The number of shares of Common Stock to
which a holder of Series B Preferred Stock shall be entitled upon
conversion (whether optional or mandatory) shall be the product
obtained by multiplying the "Series B Preferred Stock Conversion
Rate" then in effect (determined as provided in Section 5(d)) by
the number of shares of Series B Preferred Stock being converted.
The conversion rate in effect at any time for conversion of the
Series B Preferred Stock (the "Series B Preferred Stock Conversion
Rate") shall be the quotient obtained by dividing $5.36 by the
"Series B Preferred Stock Conversion Price."
(d) Conversion Price. The conversion price (the "Series B
Preferred Stock Conversion Price") for the Series B Preferred Stock
shall initially be $1.34. The Series B Preferred Stock Conversion
Price shall be adjusted from time to time in accordance with this
Section 5. All references to the Series B Preferred Stock
Conversion Price herein shall mean the such conversion price as so
adjusted from time to time.
(e) Series B Preferred Stock No Longer Outstanding. Upon
conversion, of shares of Series B Preferred Stock, such shares
shall no longer be deemed to be outstanding and all rights of the
holders thereof as Series B Preferred Stockholders of the
Corporation shall cease.
(f) Adjustments for Stock Splits and Dividends. In the event
the Corporation shall, at any time or from time to time while any
of the shares of Series B Preferred Stock are outstanding, (i) pay
a dividend or make a distribution with respect to Common Stock in
shares of Common Stock, (ii) subdivide or split its outstanding
shares of Common Stock into a larger number of shares, or (iii)
combine its outstanding shares of Common Stock into a smaller
number of shares, in each case whether by reclassification of
shares, recapitalization of the Corporation or otherwise, the
Series B Preferred Stock Conversion Price in effect immediately
prior thereto shall be adjusted by multiplying the Series B
Preferred Stock Conversion Price by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately before such event, and the denominator of which is the
number of shares of Common Stock outstanding immediately after such
event. Such adjustment shall become effective at the opening of
business on the Business Day next following the record date for
determination of stockholders entitled to receive such dividend or
distribution in the case of a dividend or distribution, and shall
become effective immediately after the effective date in case of a
subdivision, split, combination or reclassification; and any shares
of Common Stock issuable in payment of a dividend shall be deemed
to have been issued immediately prior to the close of business on
the record date for such dividend.
(g) Adjustments for Merger, etc. If there shall occur a
merger or consolidation of the Corporation with or into another
entity, any merger or consolidation of another entity into the
Corporation (other than a merger or consolidation that does not
result in any conversion, exchange or cancellation of outstanding
shares of Common Stock), any sale or transfer of all or
substantially all of the assets of the Corporation or any
compulsory share exchange that results in the conversion or
exchange of the Common Stock into, or the right to receive, other
securities or other property (whether of the Corporation or any
other entity), then the Series B Preferred Stock will thereafter no
longer be convertible into shares of Common Stock, but instead will
be convertible into the kind and amount of securities or other
property which the holder of such shares of Series B Preferred
Stock would have owned immediately after such merger,
consolidation, sale or share exchange if such shares of Series B
Preferred Stock had been converted into shares of Common Stock
immediately before the effective time of such merger,
consolidation, sale or share exchange. If this paragraph (g)
applies, then no adjustment in respect of the same merger,
consolidation, sale or share exchange shall be made pursuant to the
other provisions of this Section. In the event that at any time,
as a result of an adjustment made pursuant to this paragraph (g),
the Series B Preferred Stock shall become subject to conversion
into any securities other than shares of Common Stock, thereafter
the number of such other securities so issuable upon conversion of
the shares of Series B Preferred Stock shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions contained in this
Section 5.
(h) Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversion of Series B Preferred Stock. All
shares of Common Stock (including fractions thereof) issuable upon
conversion of more than one share of Series B Preferred Stock by a
holder thereof shall be aggregated for purposes of determining
whether the conversion would result in the issuance of any
fractional share. If, after the aforementioned aggregation, the
conversion would result in the issuance of any fractional share,
the Corporation shall, in lieu of issuing any fractional share, pay
cash equal to the product of such fraction multiplied by the Common
Stock's fair market value (as determined by the Board) on the date
of conversion.
(i) Reservation of Stock Issuable Upon Conversion. The
Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock, solely for the
purpose of effecting the conversion of the shares of the Series B
Preferred Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all
outstanding shares of the Series B Preferred Stock. If at any time
the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of all then outstanding
shares of the Series B Preferred Stock, the Corporation will take
such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such
purpose.
(j) Payment of Taxes. The Corporation will pay all taxes
(other than taxes based upon income) and other governmental charges
that may be imposed with respect to the issue or delivery of shares
of Common Stock upon conversion of shares of Series B Preferred
Stock, excluding any tax or other charge imposed in connection with
any transfer involved in the issue and delivery of shares of Common
Stock in a name other than that in which the shares of Series B
Preferred Stock so converted were registered.
Section 7. Notices.
Any notice required by the provisions hereof shall be in
writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified, (ii) when sent by confirmed
telex or facsimile, (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage
prepaid, or (iv) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with
written verification of receipt. All notices shall be addressed to
the Corporation at its principle office and to each holder of
record at the address of such holder appearing on the books of the
Corporation.
* * *
IN WITNESS WHEREOF, WorldPort Communications, Inc. has caused this
Certificate of Designations, Preferences and Rights to be duly executed by
its Chairman and Chief Executive Officer and attested by its Secretary, this
___ day of March, 1998.
WORLDPORT COMMUNICATIONS, INC.
By:
Paul A. Moore
Chairman and Chief Executive Officer
ATTEST:
Phillip S. Magiera, Secretary
B Y L A W S
O F
WORLDPORT COMMUNICATIONS, INC.
A Delaware Corporation
TABLE OF CONTENTS
ARTICLE I - Offices.......................................................
Section 1.01. Offices............................................... 1
ARTICLE II - Shares....................................................... 1
Section 2.01. Shares................................................ 1
ARTICLE III - Preemptive Rights........................................... 1
Section 3.01. Preemptive Rights..................................... 1
ARTICLE IV - Perpetual Existence.......................................... 2
Section 4.01. Perpetual Existence.................................. 2
ARTICLE V - Non-Liability of Shareholders................................ 2
Section 5.01. Non-Liability of Shareholders........................ 2
ARTICLE VI - Indemnification............................................. 2
Section 6.01. Indemnification...................................... 2
ARTICLE VII - Meeting of Shareholders.................................... 3
Section 7.01. Place of Meeting..................................... 3
Section 7.02. Annual Meeting....................................... 3
Section 7.03. Special Meetings..................................... 3
Section 7.04. Notice of Meetings................................... 3
Section 7.05. Quorum, Manner of Acting and
Adjournment....................................3
Section 7.06. Organization......................................... 4
Section 7.07. Notice of Business................................... 4
Section 7.08. Voting; Proxies...................................... 5
Section 7.09. Voting Lists......................................... 6
Section 7.10. Consent of Shareholders in Lieu of
Meeting..................................... 6
ARTICLE VIII - Board of Directors....................................... 7
Section 8.01. Powers............................................... 7
Section 8.02. Number, Term of Office and
Qualification............................... 7
Section 8.03. Nomination of Directors.............................. 7
Section 8.04. Vacancies............................................ 9
Section 8.05. Resignations......................................... 9
Section 8.06. Organization......................................... 9
Section 8.07. Place of Meeting..................................... 9
Section 8.08. Organization Meeting................................. 10
Section 8.09. Regular Meetings..................................... 10
Section 8.10. Special Meetings..................................... 10
Section 8.11. Quorum, Manner of Acting and
Adjournment................................. 10
Section 8.12. Action by Unanimous Written
Consent..................................... 10
Section 8.13. Interested Directors or Officers..................... 11
Section 8.14. Compensation......................................... 11
Section 8.15. Committees........................................... 11
ARTICLE IX - Notices - Waivers - Meetings............................... 12
Section 9.01. What Constitutes Notice.............................. 12
Section 9.02. Waivers of Notice.................................... 13
Section 9.03. Conference Telephone Meetings........................ 13
ARTICLE X - Officers..................................................... 13
Section 10.01. Number, Qualifications and
Designation................................. 13
Section 10.02. Election and Term of Office......................... 13
Section 10.03. Subordinate Officers, Committees and
Agents............................. 14
Section 10.04. Resignations........................................ 14
Section 10.05. Removal............................................. 14
Section 10.06. Vacancies........................................... 14
Section 10.07. General Powers...................................... 14
Section 10.08. The President....................................... 14
Section 10.09. The Chairman........................................ 15
Section 10.10. The Vice Presidents................................. 15
Section 10.11. The Secretary....................................... 15
Section 10.12. The Treasurer....................................... 15
Section 10.13. Officer's Bonds..................................... 16
Section 10.14. Compensation........................................ 16
ARTICLE XI - Certificates of Stock, Transfer, Etc....................... 16
Section 11.01. Issuance............................................ 16
Section 11.02. Transfer............................................ 16
Section 11.03. Stock Certificates.................................. 17
Section 11.04. Lost, Stolen, Destroyed, or Mutilated
Certificates...................... 17
Section 11.05. Record Holder of Shares............................. 17
Section 11.06. Determination of Shareholders of
Record...................................... 17
ARTICLE XII - Indemnification of Directors, Officers, Etc................ 18
Section 12.01. Directors and Officers; Third Part
Actions.....................................18
Section 12.02. Directors and Officers; Derivative
Actions.................................... 19
Section 12.03. Employees and Agents................................ 19
Section 12.04. Procedure for Effecting
Indemnification.............................. 19
Section 12.05. Advancing Expenses.................................. 20
Section 12.06. Scope of Article.................................... 20
ARTICLE XIII - Insurance.................................................. 21
Section 13.01. Insurance Against Liability Asserted Against Directors,
Officers, Etc.........21
ARTICLE XIV - Miscellaneous............................................... 21
Section 14.01. Corporate Seal...................................... 21
Section 14.02. Checks.............................................. 21
Section 14.03. Contracts........................................... 21
Section 14.04. Inspection.......................................... 22
Section 14.05. Fiscal Year......................................... 22
ARTICLE XV - Amendments................................................... 22
Section 15.01. Amendments.......................................... 22
BYLAWS
OF
WORLDPORT COMMUNICATIONS, INC.
ARTICLE I
Offices
Section 1.01. Offices. The corporation may have offices at such places
within or without the State of Delaware as the Board of Directors may from
time to time determine or the business of the corporation may require,
provided that the corporation maintains a registered office within the State
of Delaware.
ARTICLE II
Shares
Section 2.01. Shares. The Board of Directors shall have authority to
authorize the issuance, from time to time without any vote or other action
by the shareholders, of any or all shares of stock of the corporation of any
class at any time authorized, and any securities convertible into or
exchangeable for any such shares, in each case to such persons and for such
consideration, and on such terms as the Board of Directors from time
to time in its discretion lawfully may determine. Shares so issued, for
which the consideration has been paid to the corporation, shall be fully paid
stock and the holders of such stock shall not be liable for any further call
or assessment thereon.
ARTICLE III
Preemptive Rights
Section 3.01. Preemptive Rights. No common shareholder of this
corporation shall by reason of such shareholder holding common shares of
any class have any preemptive or preferential rights of purchase to subscribe
to any shares of any class of this corporation, now or hereafter to be
authorized, or any notes, debentures, bonds or other securities
convertible into or carrying options or warrants to purchase shares of any
class, now or hereafter to be authorized, whether or not the issuance
of any such shares, or such notes, debentures, bonds or other
securities, would adversely affect the dividend or voting rights of such
shareholder, other than such rights, if any, as the Board of Directors, in
its discretion from time to time, may grant and at such price as the Board
of Directors in its discretion may fix; and the Board of Directors may issue
shares of any class of this corporation, or any notes, debentures, bonds,
or other securities convertible into or carrying options or warrants to
purchase shares of any class, without offering any such shares of any
class, either in whole or in part, to the existing shareholders of any class.
ARTICLE IV
Perpetual Existence
Section 4.01. Perpetual Existence. The corporation is to have
perpetual existence.
ARTICLE V
Non-Liability of Shareholders
Section 5.01. Non-Liability of Shareholders. The private property of
the shareholders shall not be subject to the payment of corporate debts
to any extent whatsoever.
ARTICLE VI
Indemnification
Section 6.01. Indemnification. The corporation shall have power
to indemnify any person, including present or former directors, officers,
trustees, employees or agents of the corporation or any person who 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, to the extent permitted by the General Corporation
Law of Delaware and/or the Bylaws of the corporation. Such
indemnification shall be in addition to all other rights to which those
indemnified may be entitled under any statute, bylaw, agreement, vote of
shareholders or otherwise.
ARTICLE VII
Meeting of Shareholders
Section 7.01. Place of Meeting. All meetings of the shareholders of the
Corporation shall be held in Wilmington, Delaware, or at such other place
within or without the State of Delaware as shall be designated by the
Board of Directors in the notice of such meeting.
Section 7.02. Annual Meeting. The Board of Directors may fix the date
and time of the annual meeting of the shareholders, but if no such date and
time is fixed by the Board of Directors, the meeting for any calendar year
shall be held on the second Tuesday of June, if not a legal holiday,
and if a legal holiday, then on the next succeeding day which is not a
legal holiday. At the annual meeting, the shareholders then entitled to
vote shall elect by written ballot directors and shall transact such
other business as may properly be brought before the meeting.
Section 7.03. Special Meetings. Except as provided in the corporation's
Certificate of Incorporation, special meetings of the shareholders of
the corporation for any purpose or purposes for which meetings may
lawfully be called, may be called at any time for any purpose or purposes
by the Board of Directors or by any person or committee expressly so
authorized by the Board of Directors and by no other person or persons. At
any time, upon written request of any person or persons who have duly called
a special meeting, which written request shall state the purpose or
purposes of the meeting, it shall be the duty of the Secretary to fix the
date of the meeting to be held at such date and time as the Secretary may
fix, not less than ten (10) nor more than sixty (60) days after the receipt
of the request, and to give due notice thereof. If the Secretary shall
neglect or refuse to fix the time and date of such meeting and give notice
thereof, the person or persons calling the meeting may do so.
Section 7.04. Notice of Meetings. Written notice of the place, date and
hour of every meeting of the shareholders, whether annual or special, shall
be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each shareholder of record entitled to vote at the
meeting. Every notice of a special meeting shall state the purpose or
purposes thereof.
Section 7.05. Quorum, Manner of Acting and Adjournment. The holders of
a majority of the stock issued and outstanding (not including treasury
stock) and entitled to vote at a meeting of the shareholders, present in
person or represented by proxy, shall constitute a quorum at all
meetings of the shareholders for the transaction of business except as
otherwise provided by statute, by the Certificate of Incorporation or by
these Bylaws. If, however, a quorum shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At any such
adjourned meeting, at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty (30) days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting. When a quorum is
present at any meeting, the vote of the holders of the majority of the
stock having voting power present in person or represented by proxy
shall decide any questions brought before such meeting, unless the question
is one upon which, by express provision of the applicable statute, the
Certificate of Incorporation or these Bylaws, a different vote is required,
in which case such express provision shall govern and control the
decision of such question. Except upon those questions governed by the
aforesaid express provisions, the shareholders present in person or by proxy
at a duly organized meeting can continue to do business until adjournment,
notwithstanding withdrawal of enough shareholders to leave less than a
quorum.
Section 7.06. Organization. At every meeting of the shareholders, the
President, or in the case of vacancy in office or absence of the President,
such person as may be designated by the Board of Directors, shall act as
Chairman of such meeting, and the Secretary, or, in the Secretary's
absence, an assistant secretary, or in the absence of both the
Secretary and the assistant secretaries, a person appointed by the
Chairman of the Meeting shall act as Secretary.
Section 7.07. Notice of Business. No business may be transacted at an
annual meeting of shareholders, other than business that is either (a)
specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the annual meeting
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), or (c) otherwise properly brought before the annual
meeting by any shareholder of the Corporation (i) who is a shareholder of
record on the date of the giving of the notice provided for herein, and on
the record date for the determination of shareholders entitled to vote at
such annual meeting, and (ii) who complies with the notice procedures set
forth below.
In addition to any other applicable requirements, for business to
be properly brought before an annual Meeting by a shareholder, such
shareholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation.
To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation not less than sixty (60) days nor more than ninety (90)
days prior to the anniversary date of the immediately preceding annual
meeting of shareholders; provided, however, that in the event that the
annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the shareholder to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs.
To be in proper written form, a shareholder's notice to the
Secretary must set forth as to each matter such shareholder proposes to
bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the Annual Meeting, (ii) the name and record
address of such shareholder, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by such shareholder, (iv) a description of all arrangements or
understandings between such shareholder and any other person or persons
(including their names) in connection with the proposal of such business
by such shareholder and any material interest of such shareholder in such
business, and (v) a representation that such shareholder intends to appear
in person or by proxy at the annual meeting to bring such business before
the meeting.
No business shall be conducted at the annual meeting of
shareholders except business brought before the annual meeting in
accordance with the procedures set forth herein; provided, however, that,
once business has been properly brought before the annual meeting in
accordance with such procedures, nothing in this paragraph shall be
deemed to preclude discussion by any shareholder of any such
business. If the Chairman of an annual meeting determines that
business was not properly brought before the annual meeting in accordance
with the foregoing procedures, the Chairman shall declare to the meeting
that the business was not properly brought before the meeting and such
business shall not be transacted.
Section 7.08. Voting; Proxies. Each shareholder shall at every meeting
of the shareholders be entitled to one vote in person or by proxy for each
share of common stock and the number of votes per share as
designated in the designation of rights adopted with respect to each
share of preferred stock registered in such shareholder's name on the
books of the corporation on the record date for such meeting. All
elections of directors shall be by written ballot, unless waived by the
shareholders present or unless action is taken pursuant to Section 7.09 of
the Bylaws. The vote upon any other matter need not be by ballot. No proxy
shall be voted after three (3) years from its date, unless the proxy
provides for a longer period. Every proxy shall be executed in writing by
the shareholder or by such shareholder's duly authorized attorney-
in-fact and filed with the Secretary of the corporation. A proxy,
unless coupled with an interest, shall be revocable at will, notwithstanding
any other agreement or any provisions in the proxy to the contrary,
but the revocation of a proxy shall not be effective until notice thereof
has been given to the Secretary of the corporation. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally. A proxy shall not be revoked by the
death or incapacity of the maker unless, before the vote is counted or the
authority is exercised, written notice of such death or incapacity is given
to the Secretary of the corporation.
Section 7.09. Voting Lists. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten (10) days
before every meeting of shareholders, a complete list of the shareholders
entitled to vote at the meeting. The list shall be arranged in alphabetical
order showing the address of each shareholder and the number of shares
registered in the name of each shareholder. Such list shall be open
to the examination of any shareholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any
shareholder who is present.
Section 7.10. Consent of Shareholders in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required
by law to be taken at any annual or special meeting of shareholders
of the corporation, or any action which may be taken at any annual or
special meeting of such shareholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by the holders 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 to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those shareholders who have not
consented in writing.
ARTICLE VIII
Board of Directors
Section 8.01. Powers. The management of the corporation shall be under
the direction of the Board of Directors; and all powers of the
corporation, except those specifically reserved or granted to the
shareholders by statute, the Certificate of Incorporation or these
Bylaws, are hereby granted to and vested in the Board of Directors.
Section 8.02. Number, Term of Office and Qualification. The Board of
Directors shall consist of such number of directors, not less than three (3)
or more than nine (9), as may be determined from time to time by the
Board of Directors subject to the provisions of the Certificate of
Incorporation. The term of each director shall be for one year from the
date of such director's election; however, each director shall serve until
such director's successor shall have been duly elected and qualified,
unless such director shall resign, become disqualified, disabled or shall
otherwise be removed. At each annual election, the directors chosen to
succeed those whose terms then expire shall be for the same term as the
directors they succeed.
Section 8.03. Nomination of Directors. Only persons who are nominated
in accordance with the following procedures shall be eligible for election
as directors of the corporation, except as may be otherwise provided
in the Certificate of Incorporation, or otherwise, with respect to the right
of holders of preferred stock to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election
to the Board of Directors, or at any Special Meeting of shareholders called
for the purpose of electing directors, may be made (a) by or at the
direction of the Board of Directors (or any duly authorized committee
thereof), or (b) by any shareholder of the corporation (i) who is a
shareholder of record on the date of the giving of the notice provided for
herein and on the record date for the determination of shareholders entitled
to vote at such meeting, and (ii) who complied with the notice procedures set
forth in this paragraph 8.03.
In addition to any other applicable requirements, for a nomination
to be made by a shareholder, such shareholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation (a) in the case of an annual Meeting, not less than sixty
(60) days nor more than ninety (90) days prior to the anniversary date of the
immediately preceding Annual Meeting of shareholders; provided, however,
that in the event that the Annual Meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice by
the shareholder in order to be timely must be so received not later than the
close of business on the tenth (10th) day following the date on which such
notice of the date of the Annual Meeting was mailed or such public
disclosure of the date of the Annual Meeting was made, whichever first
occurs; and (b) in the case of a Special Meeting of shareholders called for
the purpose of electing directors, not later than the close of business
on the tenth (10th) day following the day on which notice of the date of
the Special Meeting was mailed or public disclosure of the date on the
Special Meeting was made, whichever first occurs.
To be in proper written form, a shareholder's notice to the
Secretary must set forth (a) as to each person whom the shareholder
proposes to nominate for election as a director (i) the name, age, business
address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by the person, and (iv) any other information
relating to the person that would be required to be disclosed in a
proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors pursuant to Section
14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as to
the shareholder giving the notice (i) the name and record address
of such shareholder, (ii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record
by such shareholder, (iii) the description of all arrangements or
understandings between such shareholder and each proposed nominee and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made by such shareholder, (iv) a representation
that such shareholder intends to appear in person or by proxy at the meeting
to nominate the persons named in its notice, and (v) any other
information relating to such shareholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee consenting to being named as a
nominee and to serve as a director if elected.
No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures set forth
in this paragraph 8.03. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
Section 8.04. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the director so chosen shall
hold office until such director's successor shall have been duly elected and
qualified unless such director shall resign, become disqualified,
disabled or shall otherwise be removed. If there are no directors in
office, then an election of directors may be held in the manner provided
by statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a
majority of the whole Board of Directors (as constituted immediately prior
to any such increase), the Court of Chancery may, upon application of
any shareholder or shareholders holding at least ten percent (10%) of the
total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office.
Section 8.05. Resignations. Any director of the corporation may resign
at any time by giving written notice to the Chairman of the Board or
the Secretary of the corporation. Such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein
and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 8.06. Organization. At every meeting of the Board of Directors,
the Chairman of the Board, if there be one, or, in the case of a vacancy in
the office or absence of the Chairman of the Board, one of the following
officers present in the order stated: the President; the Vice President;
or a Chairman chosen by a majority of the directors present, shall preside,
and the Secretary, or, in the Secretary's absence, an Assistant Secretary, or
in the absence of the Secretary and the Assistant Secretaries, any person
appointed by the Chairman of the meeting, shall act as Secretary.
Section 8.07. Place of Meeting. The Board of Directors may hold its
meetings, both regular and special, at such place or places within or
without the State of Delaware as the Chairman of the Board or the Board of
Directors may from time to time determine, or as may be designated in the
notice calling the meeting.
Section 8.08. Organization Meeting. Immediately after each annual
election of directors or other meeting at which the entire Board of Directors
is elected, the newly elected Board of Directors shall meet for the
purpose of organization, election of officers, and the transaction of other
business, at the place where said election of directors was held. Notice of
such meeting need not be given. Such organization meeting may be held at
any other time or place which shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors, or as
shall be specified in a written waiver signed by all of the directors.
Section 8.09. Regular Meetings. Regular meetings of the Board of
Directors shall be held without notice at such time and at such place as
shall be determined from time to time by the Board of Directors. Notice of
any regular meeting shall be given in the manner prescribed for special
meetings of the Board of Directors.
Section 8.10. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board
of Directors, the President or on the written request of three (3) or more
of the directors. Notice of each such meeting shall be given to each
director in writing, or by telephone personally, at least twenty-four (24)
hours before the time at which the meeting is to be held. Each such notice
shall state the time and place of the meeting to be so held.
Section 8.11. Quorum, Manner of Acting and Adjournment. At all meetings
of the Board of Directors a majority of the total number of directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall
be present.
Section 8.12. Action by Unanimous Written Consent. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if
all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes
of proceedings of the Board or committee as the case may be.
Section 8.13. Interested Directors or Officers. No contract or
transaction between the corporation and one or more of its directors
or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one or more of
its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the
meeting of the Board or committee thereof which authorized the contract or
transaction, or solely because such director's or officer's votes are
counted for such purpose, if:
(1) The material facts as to such director's or officer's
relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the
Board or committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or
(2) The material facts as to such director's or officer's
relationship or interest and as to the contract or transaction are
disclosed or are known to the shareholders entitled to vote thereon,
and the contract or transaction is specifically approved in good
faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the shareholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
Section 8.14. Compensation. Each director who is not also an employee
of the corporation or any subsidiary thereof shall be paid such compensation
for such director's services and shall be reimbursed for such expenses as
may be fixed by the Board of Directors.
Section 8.15. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or
more committees, each committee to consist of one or more of the
directors of the corporation. The Board of Directors may designate one
or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting,
whether o r not they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place
of any such absent or disqualified member. Any such committee, to the extent
provided in a resolution of the Board of Directors passed as aforesaid, shall
have and may exercise all the powers and authority of the Board of Directors
in the management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers which may
require it, but no such committee shall have the power or authority in
reference to the following matters: (i) approving or adopting, or
recommending to the stockholders of the corporation, any action or matter
expressly required by the Delaware General Corporation Law to be submitted to
the stockholders for approval or (ii) adopting, amending or repealing any
Bylaw of the corporation. In the absence of a provision by the Board of
Directors or a provision in the rules of such committee to the contrary,
a majority of the entire authorized number of members of such
committee shall constitute a quorum for the transaction of business, the vote
of a majority of the members present at a meeting at the time of such
vote if a quorum is present shall be the act of such committee, and in other
respects each committee shall conduct its business in the same manner
as the Board of Directors conducts its business.
ARTICLE IX
Notices - Waivers - Meetings
Section 9.01. What Constitutes Notice. Whenever, under the provisions
of the statutes or of the Certificate of Incorporation or of these
Bylaws, written notice is required to be given to any director or
shareholder, such notice may be given to such person, either personally
or by sending a copy thereof through the mail, by telegraph, by private
delivery service, or by facsimile transmission, charges prepaid, to such
person's address appearing on the books of the corporation. If the notice is
sent by mail, by telegraph or by private delivery service, it shall be
deemed to have been given to the person entitled thereto when deposited in
the United States mail or with a telegraph office or private delivery
service for transmission to such person. If the notice is sent by
facsimile transmission, it shall be deemed to have been given upon
transmission, if transmission occurs before 12:00 noon at the place of
receipt, and upon the day following transmission, if transmission occurs
after 12:00 noon.
Section 9.02. Waivers of Notice. Whenever any written notice is
required to be given under the provisions of the Certificate of
Incorporation, these Bylaws, or by statute, 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 deemed equivalent to the giving
of such notice. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the shareholders, directors, or
members of a committee of directors need be specified in any written
waiver of notice of such meeting. Attendance of a person, either in person
or by proxy, at any meeting, shall constitute a waiver of notice of such
meeting, except when a person attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting was not lawfully called or convened.
Section 9.03. Conference Telephone Meetings. One or more directors may
participate in a meeting of the Board, or of a committee of the Board, by
means of conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other.
Participation in a meeting pursuant to this Section shall constitute
presence in person at such meeting.
ARTICLE X
Officers
Section 10.01. Number, Qualifications and Designation. The officers of
the corporation shall be chosen by the Board of Directors and shall
be a President, one or more Vice Presidents, a Secretary, a Treasurer, and
such other officers as may be elected in accordance with the provisions of
Section 10.03 of this Article. One person may hold more than one office.
Officers may be, but need not be, directors or shareholders of the
corporation.
Section 10.02. Election and Term of Office. The officers of the
corporation, except those elected by delegated authority pursuant to
Section 10.03 of this Article, shall be elected annually by the Board of
Directors, and each such officer shall hold such officer's office
until such officer's successor shall have been elected and qualified, or
until such officer's earlier resignation or removal.
Section 10.03. Subordinate Officers, Committees and Agents. The Board
of Directors may from time to time, elect such other officers, employees
or other agents as it deems necessary, who shall hold their offices for such
terms and shall exercise such powers and perform such duties as are provided
in these Bylaws, or as the Board of Directors may from time to time
determine. The Board of Directors may delegate to any officer or
committee the power to elect subordinate officers and to retain or appoint
employees or other agents, or committees thereof, and to prescribe
the authority and duties of such subordinate officers, committees,
employees or other agents.
Section 10.04. Resignations. Any officer or agent may resign at any
time by giving written notice to the Board of Directors, or to the President
or the Secretary of the corporation. Any such resignation shall take effect
at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 10.05. Removal. Any officer, committee, employee or other agent
of the corporation may be removed, either for or without cause, by the Board
of Directors or other authority which elected or appointed such officer,
committee or other agent whenever in the judgment of such authority the best
interests of the corporation will be served thereby.
Section 10.06. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause, shall be filled
by the Board of Directors or by the officer or committee to which the power
to fill such officer has been delegated pursuant to Section 10.03 of this
Article, as the case may be, and if the office is one for which these
Bylaws prescribe a term, shall be filled for the unexpired portion of the
term.
Section 10.07. General Powers. All officers of the corporation, as
between themselves and the corporation, shall, respectively, have such
authority and perform such duties in the management of the property and
affairs of the corporation as may be determined by these Bylaws, or in
the absence of controlling provisions in the Bylaws, as may be provided
by resolution of the Board of Directors.
Section 10.08. The President. The President shall, subject to the
control of the Board of Directors, have general and active supervision of
the affairs, business, officers and employees of the corporation. The
President shall have authority to sign, execute, and acknowledge, in
the name of the corporation deeds, mortgages, bonds, contracts or other
instruments, authorized by the Board of Directors, except in cases where
the signing and execution thereof shall be expressly delegated by the
Board of Directors, or these Bylaws, to some other officer or agent of the
corporation. The President shall, from time to time, in the President's
discretion or at the order of the Board, submit to the Board reports of the
operations and affairs of the corporation. The President shall also
perform such other duties and have such other powers as may be assigned to
the President from time to time by the Board of Directors.
Section 10.09. The Chairman. The Chairman of the Board shall preside at
all meetings of the shareholders and of the Board of Directors, and
shall perform such other duties as may from time to time be assigned to the
Chairman by the Board of Directors.
Section 10.10. The Vice Presidents. The corporation may have one or
more Vice Presidents, having such duties as from time to time may be
determined by the Board of Directors or by the President.
Section 10.11. The Secretary. The Secretary shall keep full minutes of
all meetings of the shareholders and of the Board of Directors; shall be
ex officio Secretary of the Board of Directors; shall attend all meetings
of the shareholders and of the Board of Directors; shall record all the
votes of the shareholders and of the directors and the minutes of the
meetings of the shareholders and of the Board of Directors and of
committees of the Board in a book or books to be kept for that purpose. The
Secretary shall give, or cause to be given, notices of all meetings of the
shareholders of the corporation and of the Board of Directors; shall be the
custodian of the seal of the corporation and see that it is affixed to all
documents to be executed on behalf of the company under its seal;
shall have responsibility for the custody and safekeeping of all
permanent records and other documents of the corporation; and, in general,
shall perform all duties incident to the office of Secretary and such other
duties as may be prescribed by the Board of Directors or by the President,
under whose supervision the Secretary shall be. The Board of
Directors may elect one or more Assistant Secretaries to perform such duties
as shall from time to time be assigned to them by the Board of Directors
or the President.
Section 10.12. The Treasurer. The Treasurer shall have or provide for
the custody of all funds, securities and other property of the
corporation; shall collect and receive or provide for the collection or
receipt of money earned by or in any manner due to or received by the
corporation; shall deposit or cause to be deposited all said moneys in such
banks or other depositories as the Board of Directors may from time to time
designate; shall make disbursements of corporate funds upon appropriate
vouchers; shall keep full and accurate accounts of transactions of the
Treasurer's office in books belonging to the corporation; shall, whenever
so required by the Board of Directors, render an accounting showing the
Treasurer's transactions as Treasurer, and the financial condition of the
corporation; and, in general, shall discharge any other duties as may from
time to time be assigned to the Treasurer by the Board of Directors. The
Board of Directors may elect one or more Assistant Treasurers to perform the
duties of the Treasurer as shall from time to time be assigned to them by
the Board of Directors or the Treasurer.
Section 10.13. Officer's Bonds. Any officer shall give a bond for the
faithful discharge of such officer's duties in such sum, if any, and with
such surety or sureties as the Board of Directors shall require. The
corporation may obtain such bonds at its expense as the Board of Directors
shall require.
Section 10.14. Compensation. The compensation of the officers and
agents of the corporation be fixed from time to time by the Board of
Directors or by such committee as may be designated by the Board of
Directors to fix salaries or other compensation of officers.
ARTICLE XI
Certificates of Stock, Transfer, Etc.
Section 11.01. Issuance. The certificate for stock of the corporation
shall be numbered and registered in the stock ledger and transfer books
or equivalent records of the corporation as they are issued. They shall be
signed by the President, or a Vice President, and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer, and
shall bear the corporate seal, which may be a facsimile, engraved or
printed. Any of or all the signatures upon such certificate may be a
facsimile, engraved or printed if such certificate of stock is signed or
countersigned by a transfer agent or by a registrar. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon any share certificate shall have ceased to be such officer,
transfer agent or registrar before the certificate is issued, it may be
issued with the same effect as if such officer, transfer agent or registrar
were such officer, transfer agent or registrar at the date of its issue.
Section 11.02. Transfer. Transfers of shares of stock of the
corporation shall be made on the books of the corporation upon surrender of
the certificates therefor, endorsed by the person named in the certificate
or by attorney lawfully constituted in writing. No transfer shall be made
inconsistent with the provisions of the Uniform Commercial Code, Article 8 of
Title 5A of the Delaware Code, and its amendments and supplements.
Section 11.03. Stock Certificates. Stock certificates of the
corporation shall be in such form as provided by statute and approved by
the Board of Directors. The stock record books and the blank stock
certificate books shall be kept by the Secretary or by any agency
designated by the Board of Directors for that purpose.
Section 11.04. Lost, Stolen, Destroyed, or Mutilated Certificates. The
Board of Directors may direct a new certificate or certificates to be issued
in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of the fact by the person claiming the certificate of stock
to be lost, stolen or destroyed. When authorizing such issue 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, stolen or destroyed certificate or certificates, or such
owner's legal representative, to give the corporation a bond in such sum as
it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 11.05. Record Holder of Shares. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and
to hold liable for calls and assessments a person registered on it books as
the owner of shares, and 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 the laws of Delaware.
Section 11.06. Determination of Shareholders of Record. In order that
the corporation may determine the 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 other distribution or
allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) days prior to any other
action. If no record date is fixed:
(1) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the
close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held.
(2) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Only such shareholders as shall be shareholders on the record date fixed
or determined as aforesaid shall be entitled to notice of or to vote
at such meeting or adjournment, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action. A determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE XII
Indemnification of Directors, Officers, Etc.
Section 12.01. Directors and Officers; Third Party Actions. To the
fullest extent of Delaware law, the corporation shall indemnify any director
or officer of the corporation who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of the fact
such director or officer is or was an authorized representative of the
corporation (which, for the purposes of this Article and Article XIII of
these Bylaws, shall mean a director, officer, employee or agent of the
corporation, or a person who 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) for,
from and against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
director or officer in connection with such action, suit or proceeding if
such director or officer acted in good faith and in a manner such director or
officer reasonably believed to be in, or not opposed to, the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe such director's or officer's conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which such director or
officer reasonably believed to be in, or not opposed to, the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that such director's or officer's conduct was
unlawful.
Section 12.02. Directors and Officers; Derivative Actions. The
corporation shall indemnify any director or officer of the corporation who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that such director
or officer is or was an authorized representative of the corporation,
for, from and against expenses (including attorneys' fees) actually and
reasonably incurred by such director or officer in connection with the
defense or settlement of such action or suit if such director or officer
acted in good faith and in a manner reasonably believed to be in, or
not opposed to, the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable for negligence
or misconduct in the performance of such director's or officer's duty to
the corporation unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other courts shall deem proper.
Section 12.03. Employees and Agents. To the extent that an authorized
representative of the company who neither was nor is a director or officer
of the corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Sections 12.01 and
12.02 of this Article or in defense of any claim, issue or matter
therein, he shall be indemnified by the corporation for, from and
against expenses (including attorneys' fees) actually and reasonably
incurred by such authorized representative in connection therewith. Such
an authorized representative may, at the discretion of the Board of
Directors, be indemnified by the corporation in any other circumstances to
any extent if the corporation would be required by Sections 12.01 and 12.02
of this Article to indemnify such person in such circumstances to such
extent if such authorized representative were or had been a director or
officer of the corporation.
Section 12.04. Procedure for Effecting Indemnification. Indemnification
under Section 12.01, 12.02 or 12.03 of this Article shall be made when
ordered by a court and shall be made in a specific case upon a
determination that indemnification of the authorized representative is
required or proper in the circumstances because such authorized
representative has met the applicable standard of conduct set forth in
Sections 12.01 or 12.02 of this Article. Such determination shall be made:
(1) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or
(2) If such a quorum is not obtainable, or, even if obtainable a
majority vote of a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or
(3) By the shareholders.
If a claim under this Article XII is not paid in full by the corporation
within ninety (90) days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and if
successful in whole or in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any action, suit or proceeding in advance of its
final disposition where the required undertaking has been tendered to
the corporation) that the claimant has not met the standards of conduct
which make it permissible for the corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be on
the corporation. Neither the failure of the corporation (including its
Board of Directors, independent legal counsel or its shareholders) to have
made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances
because such claimant had met the applicable standard of conduct, nor an
actual determination by the corporation (including its Board of Directors,
independent legal counsel, or its shareholders) that the claimant has not
met such applicable standard of conduct shall be a defense to the action or
create a presumption that claimant had not met the applicable standard of
conduct.
Section 12.05. Advancing Expenses. Expenses (including attorneys' fees)
incurred in defending a civil or criminal action, suit or proceeding may be
paid by the corporation in advance of the final disposition of such action,
suit or proceeding, as authorized by the Board of Directors in a specific
case or if requested by the Board of Directors upon a written opinion of
independent legal counsel, upon receipt of an undertaking by or on
behalf of an authorized representative to repay such amount unless it
shall ultimately be determined that such authorized representative is
entitled to be indemnified by the corporation as required in this Article
or authorized by law.
Section 12.06. Scope of Article. Each person who shall act as an
authorized representative of the corporation, shall be deemed to be doing so
in reliance upon such rights of indemnification as are provided in this
Article. The indemnification provided by the Article shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any agreement, vote of shareholders or disinterested
directors, statute or otherwise, both as to action in such authorized
representative's official capacity and as to action in another capacity
while holding such office or position, and shall continue as to a person
who has ceased to be an authorized representative of the corporation and
shall insure to the benefit of the heirs, executors and administrators of
such a person.
ARTICLE XIII
Insurance
Section 13.01. Insurance Against Liability Asserted Against Directors,
Officers, Etc. The corporation, whenever so authorized by the Board
of Directors, may purchase and maintain insurance on behalf of any
authorized representative, as said term is defined in Section 12.01 of
these Bylaws, against any liability asserted against such authorized
representative and incurred by such authorized representative in such
capacity, or arising out of such authorized representative's status as
such, whether or not the corporation would be authorized or required to
indemnify such authorized representative by law or Article XII of these
Bylaws.
ARTICLE XIV
Miscellaneous
Section 14.01. Corporate Seal. The corporate seal of the corporation
shall have inscribed thereon the name of the corporation, the year of
its incorporation and the words "Corporate Seal, Delaware." The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced.
Section 14.02. Checks. All checks, notes, bills of exchange or other
orders in writing shall be signed by such person or persons as the Board
of Directors, or officer or officers authorized by resolution of the
Board of Directors may, from time to time, designate.
Section 14.03. Contracts. Except as otherwise provided in these Bylaws,
the Board of Directors may authorize any officer or officers including
the President and any Vice President, or any agent or agents, to enter
into any contract or to execute or deliver any instrument on behalf of the
corporation and such authority may be general or confined to specific
instances.
Section 14.04. Inspection. The books, accounts and records of the
corporation may be kept (subject to any provision in the Delaware
General Corporation Law) outside the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors
and shall be open for inspection in person by any member of the Board of
Directors at all times.
Section 14.05. Fiscal Year. The fiscal year of the corporation shall
be determined by the Board of Directors.
ARTICLE XV
Amendments
Section 15.01. Amendments. These Bylaws may be amended or repealed,
and new Bylaws adopted, by the Board of Directors.
