SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB/A
(Mark One)
[X] Quarterly report under Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the quarterly period ended June 30, 2002.
[ ] Transition report under Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from ______ to ______ .
Commission file number: 001-07894
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TORCHMAIL COMMUNICATIONS, INC.
--------------------------------
(Exact name of small business issuer as specified in its charter)
Delaware 95-2312900
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
268 West 400 South, Suite 300, Salt Lake City, Utah 84101
----------------------------------------------------------------------
(Address of principal executive office) (Zip Code)
(801) 575-8073
(Issuer's telephone number)
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act 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
----- ------
The number of outstanding shares of the issuer's common stock, $0.001 par value
(the only class of voting stock), as of August 9, 2002 was 3,773,375.
TABLE OF CONTENTS
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS................................................3
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION...........4
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K....................................4
SIGNATURES...................................................................5
INDEX TO EXHIBITS............................................................6
[THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK]
2
ITEM 1. FINANCIAL STATEMENTS
As used herein, the term "Company" refers to Torchmail Communications, Inc., a
Delaware corporation, its consolidated entities, and predecessors unless
otherwise indicated. Unaudited, condensed interim financial statements including
a balance sheet for the Company as of the quarter ended June 30, 2002, and
statements of operations, and statements of cash flows for the interim period up
to the date of such balance sheet and the period from inception, August 21,
1999, through June 30, 2002, are attached hereto as Pages F-1 through F-5 and
are incorporated herein by this reference.
[THIS SPACE HAS BEEN LEFT BLANK INTENTIONALLY.]
3
INDEX TO FINANCIAL STATEMENTS
PAGE
Condensed Unaudited Balance Sheet...........................................F-2
Statements of Unaudited Condensed Operations................................F-3
Statements of Unaudited Condensed Cash Flows................................F-4
Notes to Unaudited Financial Statements.....................................F-5
F-1
TORCHMAIL COMMUNICATIONS, INC.
(A Development Stage Company)
UNAUDITED CONDENSED BALANCE SHEET
June 30, 2002
Unaudited
June 30, 2002
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ASSETS
CURRENT ASSETS
Investments, available for sale $ 12,500
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Total Current Assets 12,500
TOTAL ASSETS $ 12,500
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LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts Payable 17,614
Related party payable 21,332
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Total Current Liabilities 38,946
TOTAL LIABILITIES $ 38,946
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SHAREHOLDERS' EQUITY
Preferred stock, $.001 par value, 10,000,000 shares authorized;
issued and outstanding -0- shares -
Common stock, $0.001 par value, 200,000,000 shares authorized,
3,773,375 shares issued and outstanding 3,773
Additional Paid in Capital 181,922
Deficit accumulated during the development stage (212,141)
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Total Stockholders' Deficit (26,446)
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TOTAL LIABILITIES AND STOCKHOLDERS' DEFICIT $ 12,500
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See Notes To Financial Statements.
F-2
TORCHMAIL COMMUNICATIONS, INC.
(A Development Stage Company)
UNAUDITED STATEMENTS OF OPERATIONS
From inception
(August 21,
For the three months ended 1999)
June 30, to
June 30,
2002 2001 2002
---------- ---------- -----------
Sales $ - $ - $ -
General and Administrative 2,330 33,728 505,083
---------- ---------- -----------
Loss From Operations (2,330) (33,728) (505,083)
---------- ---------- -----------
Other Income
Refund of funds previously expended - - 194,382
Interest income - - 7,329
---------- ---------- -----------
Total Other Income - - 201,711
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Loss before taxes and extraordinary items (2,330) (33,728) (303,372)
Provision for income taxes - - -
---------- ---------- -----------
Loss before extraordinary items (2,330) (33,728) (303,372)
Extraordinary items - gain on forgiveness of
debt, net of $0 taxes - - 91,231
Net Loss $ (2,330) $ (33,728) $ (212,141)
Loss per share $ - $ (0.22)
Weighted average shares outstanding* 3,773,000 153,000
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* adjusted for 5 for 1 forward split
See Notes to Financial Statements.
F-3
TORCHMAIL COMMUNICATIONS, INC.
(A Development Stage Company)
UNAUDITED CONDENSED STATEMENTS OF CASH FLOWS
From
inception
For the Three Months (August 21,
Ended 1999)
June 30, to
June 30,
2002 2001 2002
--------- --------- -----------
Cash Flows from Operating Activities
Net Loss (2,330) $(33,728) $ (212,141)
Adjustments to reconcile net loss to net cash
used in operating activities:
Increase in accounts payable - - 17,614
Issuance of common stock for services - 33,728 46,228
Increase in related party payable 2,330 - 28,299
--------- --------- -----------
Net Cash Used in Operating Activities - - (120,000)
--------- --------- -----------
Cash flow from Investing Activities - - -
--------- --------- -----------
Cash flow from Financing Activities
Issuance of common stock for cash - - 120,000
--------- --------- -----------
Net Cash Provided by Financing Activities - - 120,000
--------- --------- -----------
Net Increase (Decrease) in Cash - - -
Cash at Beginning of Period - - -
--------- --------- -----------
Cash at End of Period $ - $ - $ -
--------- --------- -----------
Supplemental Disclosures
Interest paid $ - $ - $ -
Income taxes paid - - -
See Notes to Financial Statements.
F-4
TORCHMAIL COMMUNICATIONS, INC.
(A Development Stage Company)
Notes to the Unaudited Financial Statements
June 30, 2002
NOTE 1 - PRELIMINARY NOTE
The accompanying condensed financial statements have been prepared
without audit, pursuant to the rules and regulations of the Securities
and Exchange Commission. Certain information and disclosures normally
included in the financial statements prepared in accordance with
generally accepted accounting principles have been condensed or
omitted. These financial statements reflect all adjustments which, in
the opinion of management, are necessary to present a fair statement
of the results for the periods included. It is suggested that these
financial statements be read in conjunction with the financial
statements and notes thereto included in the Company's Annual Report
on Form 10KSB for the period ended March 31, 2002.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Marketable Securities
The Company classifies its marketable debt and equity securities as
"held to maturity" if it has the positive intent and ability to hold
the securities to maturity. All other marketable debt and equity
securities are classified as "available for sale." Securities
classified as "available for sale" are carried in the financial
statements at fair value. Realized gains and losses, determined using
the specific identification method, are included in operations;
unrealized holding gains and losses are reported as a separate
component of equity. Securities classified as held to maturity are
carried at amortized cost. For both categories of securities, declines
in fair value below amortized cost
NOTE 3 - COMMON STOCK SPLITS
On March 17, 2002, the Company approved a 5-for-1 forward common stock
split and on January 26, 2001, as part of the merger agreement between
Torchmail and Erly, the Company completed a 1-for-100 reverse common
stock split. All common share amounts and per share information have
been retroactively adjusted to reflect these common stock splits in
the accompanying consolidated financial statements.
F-5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
Plan of Operations
As used herein the term "Company" refers to Torchmail Communications, Inc., a
Delaware corporation, its consolidated entities, and its predecessors, unless
the context indicates otherwise. The Company emerged from bankruptcy on August
21, 1999 as Erly Industries, Inc. The Company's business plan is to acquire
operations through an acquisition, merger or to begin its own start-up business.
The Company has no current operations and no significant current cash needs. One
of the Company's major shareholders, Hudson Consulting Group, Inc. has been
funding cash needs due to the lack of assets and is expected to continue funding
needs at least through the end of the coming year. The Company is in the process
of attempting to identify and acquire a favorable business opportunity.
The Company's plan of operation for the coming year is to identify and acquire a
favorable business opportunity. The Company does not plan to limit its options
to any particular industry, but will evaluate each opportunity on its merits.
The Company recently signed a letter of intent to merge with Virtual Interviews,
Inc., a company in California. It is expected that this will be completed within
the 2nd quarter of this fiscal year. Since the Company has no operations at
present, its cash needs are minimal. The Company believes it can meet its cash
needs for the foreseeable future from its current assets or from payments made
in its behalf by Hudson Consulting Group, Inc.
The Company has no plans for the purchase or sale of any plant or equipment
during the coming fiscal year.
The Company was briefly a holding company but is now, at the time of this
filing, a development stage company and currently has no employees. The Company
has no current plans to make any changes in the number of employees.
PART II-OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits Exhibits required to be attached by Item 601 of Regulation S-B
are listed in the Index to Exhibits on page 6 of this From 10-QSB, and
are incorporated herein by this reference.
(b) Reports on Form 8-K. The Company filed no reports on Form 8-K during
the quarter covered by this report.
4
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized, this 12th day of August, 2002.
Torchmail Communications, Inc.
/s/ Rowan S. Campbell
-------------------------------
Rowan S. Campbell, President
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Torchmail Communications,
Inc. (the" Company") on Form 10-QSB for the period ending June 30, 2002
as filed with the Securities and Exchange Commission on the date hereof
(the"Report"), I, Rowan Campbell, sole Executive Officer of the
Company, certify, pursuant to 18 U.S.C. S 1350, as adopted pursuant to
S 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report complies with the requirements of section 13
(a) or 15 (d) of the Securities Exchange Act of 1934; and
(2) The financial information contained in the Report fairly
presents, in all material respects, the financial condition
and result of operations of the Company.
/s/ Rowan S. Campbell
---------------------------------
Rowan S. Campbell
Sole Executive Officer
August 12, 2002
5
INDEX TO EXHIBITS
EXHIBIT PAGE
NO. NO. DESCRIPTION
3(i) * Articles of Incorporation of Torchmail
Communications, Inc.(Incorporated by
reference from Form 14C filed 12/19/2000).
3(ii) * Agreement of Merger of Erly Industries, Inc.
into Torchmail Communications, Inc.
(Incorporated by reference from Form 10-QSB
filed August 1, 2001).
3(ii) 7 Bylaws of the Company adopted on August 12,
2002.
* Incorporated by reference from previous filings of the Company.
6
BYLAWS
FOR THE REGULATION, EXCEPT AS OTHERWISE
PROVIDED BY STATUTE OR ITS ARTICLES OF INCORPORATION,
OF
TORCHMAIL COMMUNICATIONS, INC
ARTICLE 1
Offices
Section 1.01 -- Principal And Registered Office.
The principal and registered office for the transaction of the business of the
Corporation is hereby fixed and located at: 268 West 400 South, Salt Lake City,
Utah 84101. Corporation may have such other offices, either within or without
the State of Delaware or the State of Utah as the Corporation's board of
directors (the "Board") may designate or as the business of the Corporation may
require from time to time.
Section 1.02 -- Other Offices.
Branch or subordinate offices may at any time be established by the Board at any
place or places wherein the Corporation is qualified to do business.
ARTICLE 2
Meetings of Shareholders
Section 2.01 -- Meeting Place.
All annual meetings of shareholders and all other meetings of shareholders shall
be held either at the principal office or at any other place within or without
the State of Delaware which may be designated either by the Board, pursuant to
authority hereinafter granted, or by the written consent of all shareholders
entitled to vote thereat, given either before or after the meeting and filed
with the secretary of the Corporation.
Section 2.02 -- Annual Meetings.
A. The annual meetings of shareholders shall be held on the anniversary date of
the date of incorporation at the hour of 2:00 o'clock p.m., commencing with the
year these By-Laws are adopted, provided, however, that should the day of the
annual meeting fall upon a legal holiday, then any such annual meeting of
shareholders shall be held at the same time and place on the next business day
thereafter which is not a legal holiday.
B. Written notice of each annual meeting signed by the president or vice
president, or the secretary, or an assistant secretary, or by such other person
or persons as the Board may designate, shall be given to each shareholder
entitled to vote thereat, either personally or by mail or other means of written
communication, charges prepaid, addressed to such shareholder at his address
appearing on the books of the Corporation or given by him to the Corporation for
the purpose of notice. If a shareholder gives no address, notice shall be deemed
to have been given to him if sent by mail or other means of written
communication addressed to the place where the principal office of the
Corporation is situated, or if published at least once in some newspaper
7
of general circulation in the county in which said office is located. All such
notices shall be sent to each shareholder entitled thereto, or published, not
less than ten (10) nor more than sixty (60) days before each annual meeting, and
shall specify the place, the day and the hour of such meeting, and shall also
state the purpose or purposes for which the meeting is called.
C. Failure to hold the annual meeting shall not constitute dissolution or
forfeiture of the Corporation, and a special meeting of the shareholders may
take the place thereof.
Section 2.03 -- Special Meetings.
Special meetings of the shareholders, for any purpose or purposes whatsoever,
may be called at any time by the president or by the Board, or by one or more
shareholders holding not less that ten percent (10%) of the voting power of the
Corporation. Except in special cases where other express provision is made by
statute, notice of such special meetings shall be given in the same manner as
for annual meetings of shareholders. Notices of any special meeting shall
specify in addition to the place, day and hour of such meeting, the purpose or
purposes for which the meeting is called.
Section 2.04 -- Adjourned Meetings And Notice Thereof.
A. Any shareholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of a majority of the
shares, the holders of which are either present in person or represented by
proxy thereat, but in the absence of a quorum, no other business may be
transacted at any such meeting.
B. When any shareholders' meeting, either annual or special, is adjourned for
thirty (30) days or more, notice of the adjourned meeting shall be given as in
the case of an original meeting. Otherwise, it shall not be necessary to give
any notice of an adjournment or of the business to be transacted at an adjourned
meeting, other than by announcement at the meeting at which such adjournment is
taken.
Section 2.05 -- Entry Of Notice.
Whenever any shareholder entitled to vote has been absent from any meeting of
shareholders, whether annual or special, an entry in the minutes to the effect
that notice has been duly given shall be conclusive and incontrovertible
evidence that due notice of such meeting was given to such shareholder, as
required by law and these bylaws.
Section 2.06 -- Voting.
At all annual and special meetings of shareholders, each shareholder entitled to
vote thereat shall have one vote for each share of stock so held and represented
at such meetings, either in person or by written proxy, unless the Corporation's
articles of incorporation ("Articles") provide otherwise, in which event, the
voting rights, powers and privileges prescribed in the Articles shall prevail.
Voting for directors and, upon demand of any shareholder, upon any question at
any meeting, shall be by ballot. If a quorum is present at a meeting of the
shareholders, the vote of a majority of the shares represented at such meeting
shall be sufficient to bind the corporation, unless otherwise provided by law or
the Articles.
Section 2.07 -- Quorum.
8
The presence in person or by proxy of the holders of a majority of the shares
entitled to vote at any meeting shall constitute a quorum for the transaction of
business. The shareholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a quorum.
Section 2.08 -- Consent Of Absentees.
The transactions of any meeting of shareholders, either annual or special,
however called and notice given thereof, shall be as valid as though done at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before of after the meeting, each of the
shareholders entitled to vote, not present in person or by proxy, sign a written
Waiver of Notice, or a consent to the holding of such meeting, or an approval of
the minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of such meeting.
Section 2.09 -- Proxies.
Every person entitled to vote or execute consents shall have the right to do so
either in person or by an agent or agents authorized by a written proxy executed
by such person or his duly authorized agent and filed with the secretary of the
Corporation; provided however, that no such proxy shall be valid after the
expiration of eleven (11) months from the date of its execution, unless the
shareholder executing it specifies therein the length of time for which such
proxy is to continue in force, which in no case shall exceed seven (7) years
from the date of its execution.
Section 2.10 -- Shareholder Action Without A Meeting.
Any action required or permitted to be taken at a meeting of the shareholders
may be taken without a meeting if a written consent thereto is signed by
shareholders holding at least a majority of the voting power, except that if a
different proportion of voting power is required for such an action at a
meeting, then that proportion of written consents is required. In no instance
where action is authorized by this written consent need a meeting of
shareholders be called or notice given. The written consent must be filed with
the proceedings of the shareholders.
ARTICLE 3
Board of Directors
Section 3.01 -- Powers.
Subject to the limitations of the Articles, these bylaws, and the provisions of
Delaware corporate law as to action to be authorized or approved by the
shareholders, and subject to the duties of directors as prescribed by these
bylaws, all corporate powers shall be exercised by or under the authority of,
and the business and affairs of the corporation shall be controlled by, the
Board. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the directors shall have the
following powers:
A. To select and remove all the other officers, agents and employees of the
Corporation, prescribe such powers and duties for them as are not inconsistent
with law, with the Articles, or these bylaws, fix their compensation, and
require from them security for faithful service.
B. To conduct, manage and control the affairs and business of the Corporation,
and to make such rules and regulations therefore not inconsistent with the law,
9
the Articles, or these bylaws, as they may deem best.
C. To change the principal office for the transaction of the business if such
change becomes necessary or useful; to fix and locate from time to time one or
more subsidiary offices of the Corporation within or without the State of
Delaware, as provided in Section 1.02 of Article 1 hereof; to designate any
place within or without the State of Delaware for the holding of any
shareholders' meeting or meetings; and to adopt, make and use a corporate seal,
and to prescribe the forms of certificates of stock, and to alter the form of
such seal and of such certificates from time to time, as in their judgment they
may deem best, provided such seal and such certificates shall at all times
comply with the provisions of law.
D. To authorize the issuance of shares of stock of the Corporation from time to
time, upon such terms as may be lawful, in consideration of money paid, labor
done or services actually rendered, debts or securities canceled, or tangible or
intangible property actually received, or in the case of shares issued as a
dividend, against amounts transferred from surplus to stated capital.
E. To borrow money and incur indebtedness for the purposes of the Corporation,
and to cause to be executed and delivered therefore, in the corporate name,
promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecation or other evidences of debt and securities therefore.
F. To appoint an executive committee and other committees and to delegate to the
executive committee any of the powers and authority of the Board in management
of the business and affairs of the Corporation, except the power to declare
dividends and to adopt, amend or repeal bylaws. The executive committee shall be
composed of one or more directors.
Section 3.02 -- Number And Qualification Of Directors.
The authorized number of directors of the Corporation shall not be less than one
(1) nor more than twelve (12).
Section 3.03 -- Election And Term Of Office.
The directors shall be elected at each annual meeting of shareholders, but if
any such annual meeting is not held, or the directors are not elected thereat,
the directors may be elected at any special meeting of shareholders. All
directors shall hold office until their respective successors are elected.
Section 3.04 -- Vacancies.
A. Vacancies in the Board may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director, and each
director so elected or appointed shall hold office until his successor is
elected at an annual or a special meeting of the shareholders.
B. A vacancy or vacancies in the Board shall be deemed to exist in case of the
death, resignation or removal of any director, or if the authorized number of
directors be increased, or if the shareholders fail at any annual or special
meeting of shareholders at which any director or directors are elected to elect
the full authorized number of directors to be voted for at that meeting.
C. The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors.
10
D. No reduction of the authorized number of directors shall have the effect of
removing any director unless also authorized by a vote of the shareholders.
ARTICLE 4
Meetings of the Board of Directors
Section 4.01 -- Place Of Meetings.
Regular meetings of the Board shall be held at any place within or without the
State of Delaware which has been designated from time to time by resolution of
the Board or by written consent of all members of the Board. In the absence of
such designation, regular meetings shall be held at the principal office of the
Corporation. Special meetings of the Board may be held either at a place so
designated, or at the principal office. Failure to hold an annual meeting of the
Board shall not constitute forfeiture or dissolution of the Corporation.
Section 4.02 -- Organization Meeting.
Immediately following each annual meeting of shareholders, the Board shall hold
a regular meeting for the purpose of organization, election of officers, and the
transaction of other business. Notice of such meeting is hereby dispensed with.
Section 4.03 -- Other Regular Meetings.
Other regular meetings of the Board shall be held, whether monthly or quarterly
or by some other schedule, at a day and time as set by the president; provided
however, that should the day of the meeting fall upon a legal holiday, then such
meeting shall be held at the same time on the next business day thereafter which
is not a legal holiday. Notice of all such regular meetings of the Board is
hereby required.
Section 4.04 -- Special Meetings.
A. Special meetings of the Board may be called at any time for any purpose or
purposes by the president, or, if he is absent or unable or refuses to act, by
any vice president or by any two directors.
B. Written notice of the time and place of special meetings shall be delivered
personally to each director or sent to each director by mail (including
overnight delivery services such as Federal Express) or telegraph, charges
prepaid, addressed to him at his address as it is shown upon the records of the
Corporation, or if it is not shown upon such records or is not readily
ascertainable, at the place in which the regular meetings of the directors are
normally held. No such notice is valid unless delivered to the director to whom
it was addressed at least twenty-four (24) hours prior to the time of the
holding of the meeting. However, such mailing, telegraphing, or delivery as
above provided herein shall constitute prima facie evidence that such director
received proper and timely notice.
Section 4.05 -- Notice Of Adjournment.
Notice of the time and place of holding an adjourned meeting need not be given
to absent directors, if the time and place be fixed at the meeting adjourned.
Section 4.06 -- Waiver Of Notice.
11
The transactions of any meeting of the Board, however called and noticed or
wherever held, shall be as valid as though a meeting had been duly held after
regular call and notice, if a quorum be present, and if, either before or after
the meeting, each of the directors not present sign a written waiver of notice
or a consent to holding such meeting or an approval of the minutes thereof. All
such waivers, consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
Section 4.07 -- Quorum.
If the Corporation has only one director, then the presence of that one director
constitutes a quorum. If the Corporation has only two directors, then the
presence of both such directors is necessary to constitute a quorum. If the
Corporation has three or more directors, then a majority of those directors
shall be necessary to constitute a quorum for the transaction of business,
except to adjourn as hereinafter provided. A director may be present at a
meeting either in person or by telephone. Every act or decision done or made by
a majority of the directors present at a meeting duly held at which a quorum is
present, shall be regarded as the act of the Board, unless a greater number be
required by law or by the Articles.
Section 4.08 -- Adjournment.
A quorum of the directors may adjourn any directors' meeting to meet again at a
stated day and hour; provided however, that in the absence of a quorum, a
majority of the directors present at any directors' meeting, either regular or
special, may adjourn such meeting only until the time fixed for the next regular
meeting of the Board.
Section 4.09 -- Fees And Compensation.
Directors shall not receive any stated salary for their services as directors,
but by resolution of the Board, a fixed fee, with or without expenses of
attendance, may be allowed for attendance at each meeting. Nothing stated herein
shall be construed to preclude any director from serving the Corporation in any
other capacity as an officer, agent, employee, or otherwise, and receiving
compensation therefore.
Section 4.10 -- Action Without A Meeting.
Any action required or permitted to be taken at a meeting of the Board, or a
committee thereof, may be taken without a meeting if, before or after the
action, a written consent thereto is signed by all the members of the Board or
of the committee. The written consent must be filed with the proceedings of the
Board or committee.
ARTICLE 5
Officers
Section 5.01 -- Executive Officers.
The executive officers of the Corporation shall be a president, a secretary, and
a treasurer/chief financial officer. The corporation may also have, at the
direction of the Board, a chairman of the Board, one or more vice presidents,
one or more assistant secretaries, one or more assistant treasurers, and such
other officers as may be appointed in accordance with the provisions of Section
5.03 of this Article. Officers other than the president and the chairman of the
board need not be directors. Any one person may hold two or more offices, unless
otherwise prohibited by the Articles or by law.
Section 5.02 -- Appointment.
12
The officers of the corporation, except such officers as may be appointed in
accordance with the provisions of Sections 5.03 and 5.05 of this Article, shall
be appointed by the Board, and each shall hold his office until he resigns or is
removed or otherwise disqualified to serve, or his successor is appointed and
qualified.
Section 5.03 -- Subordinate Officers.
The Board may appoint such other officers as the business of the Corporation may
require, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these bylaws or as the Board may from
time to time determine.
Section 5.04 -- Removal And Resignation.
A. Any officer may be removed, either with or without cause, by a majority of
the directors at the time in office, at any regular or special meeting of the
Board.
B. Any officer may resign at any time by giving written notice to the Board or
to the president or secretary. Any such resignation shall take effect on the
date such notice is received 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 5.05 -- Vacancies.
A vacancy in any office because of death, resignation, removal, disqualification
or any other cause shall be filled in the manner prescribed in these bylaws for
regular appointments to such office.
Section 5.06 -- Chairman Of The Board.
The Chairman of the Board, if there be such an officer, shall, if present,
preside at all meetings of the Board, and exercise and perform such other powers
and duties as may be from time to time assigned to him by the Board or
prescribed by these bylaws.
Section 5.07 -- President.
Subject to such supervisory powers, if any, as may be given by the Board to the
Chairman of the Board (if there be such an officer), the president shall be the
chief executive officer of the Corporation and shall, subject to the control of
the Board, have general supervision, direction and control of the business and
officers of the Corporation. He shall preside at all meetings of the
shareholders and, in the absence of the Chairman of the Board, or if there be
none, at all meetings of the Board. He shall be an ex-officio member of all the
standing committees, including the executive committee, if any, and shall have
the general powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as may
be prescribed by the Board or these bylaws.
Section 5.08 -- Vice President.
In the absence or disability of the president, the vice presidents, in order of
their rank as fixed by the Board, or if not ranked, the vice president
designated by the Board, shall perform all the duties of the president and when
so acting shall have all the powers of, and be subject to all the restrictions
upon, the president. The vice presidents shall have such other powers and
perform such other duties as from time to time may be prescribed
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for them respectively by the Board or these bylaws.
Section 5.09 -- Secretary.
A. The secretary shall keep, or cause to be kept, at the principal office or
such other place as the Board may direct, a book of (i) minutes of all meetings
of directors and shareholders, with the time and place of holding, whether
regular or special, and if special, how authorized, the notice thereof given,
the names of those present and absent at directors' meetings, the number of
shares present or represented at shareholders' meetings, and the proceedings
thereof; and (ii) any waivers, consents, or approvals authorized to be given by
law or these bylaws.
B. The secretary shall keep, or cause to be kept, at the principal office, a
share register, or a duplicate share register, showing (i) the name of each
shareholder and his or her address; (ii) the number and class or classes of
shares held by each, and the number and date of certificates issued for the
same; and (iii) the number and date of cancellation of every certificate
surrendered for cancellation.
C. The secretary shall give, or cause to be given, notice of all the meetings of
the shareholders and of the Board required by these bylaws or by law to be
given, and he shall keep the seal of the Corporation, if any, in safe custody,
and shall have such other powers and perform such other duties as may be
prescribed by the Board or these bylaws.
Section 5.10 -- Treasurer/Chief Financial Officer.
A. The treasurer/chief financial officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of stated capital, shall be classified according to
source and shown in a separate account. The books of account shall at all times
be open to inspection by any director.
B. The treasurer/chief financial officer shall deposit all monies and other
valuables in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board. He shall disburse the funds of
the Corporation as may be ordered by the Board, shall render to the president
and directors, whenever they request it, an account of all of his transactions
as treasurer and of the financial condition of the Corporation, and shall have
such other powers and perform such other duties as may be prescribed by the
Board or these bylaws.
ARTICLE 6
Miscellaneous
Section 6.01 -- Record Date And Closing Stock Books.
The Board may fix a time in the future, for the payment of any dividend or
distribution, or for the allotment of rights, or when any change or conversion
or exchange of shares shall go into effect, as a record date for the
determination of the shareholders entitled to notice of and to vote at any such
meeting, or entitled to receive any such dividend or distribution, or any such
allotment of rights, or to exercise the rights in respect to any such change,
conversion or exchange of shares, and in such case only shareholders of record
on the date so fixed shall be entitled to notice of and to vote at such
meetings, or to receive such dividend, distribution or allotment
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of rights, or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after any record date
fixed as herein set forth. The Board may close the books of the Corporation
against transfers of shares during the whole, or any part, of any such period.
Section 6.02 -- Inspection Of Corporate Records.
The share register or duplicate share register, the books of account, and
records of proceedings of the shareholders and directors shall be open to
inspection upon the written demand of any shareholder or the holder of a voting
trust certificate, at any reasonable time, and for a purpose reasonably related
to his interests as a shareholder or as the holder of a voting trust
certificate, and shall be exhibited at any time when required by the demand of
ten percent (10%) of the shares represented at any shareholders' meeting. Such
inspection may be made in person or by an agent or attorney, and shall include
the right to make extracts. Demand of inspection other than at a shareholders'
meeting shall be made in writing upon the president, secretary, or assistant
secretary, and shall state the reason for which inspection is requested.
Section 6.03 -- Checks, Drafts, Etc.
All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness, issued in the name of or payable to the Corporation,
shall be signed or endorsed by such person or persons and in such manner as,
from time to time, shall be determined by resolution of the Board.
Section 6.04 -- Annual Report.
The Board shall cause to be sent to the shareholders not later than one hundred
twenty (120) days after the close of the fiscal or calendar year an annual
report.
Section 6.05 -- Contracts: How Executed.
The Board, except as otherwise provided in these bylaws, may authorize any
officer, officers, agent, or agents, to enter into any contract, deed or lease,
or execute any instrument in the name of and on behalf of the Corporation, and
such authority may be general or confined to specific instances; and unless so
authorized by the Board, no officer, agent, or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge its
credit or render it liable for any purpose or for any amount.
Section 6.06 -- Certificates Of Stock.
A certificate or certificates for shares of the capital stock of the Corporation
shall be issued to each shareholder when any such shares are fully paid up. All
such certificates shall be signed by the president or a vice president and the
secretary or an assistant secretary, or be authenticated by facsimiles of the
signature of the president and secretary or by a facsimile of the signatures of
the president and the written signature of the secretary or an assistant
secretary. Every certificate authenticated by a facsimile of a signature must be
countersigned by a transfer agent or transfer clerk.
Section 6.07 -- Representations Of Shares Of Other Corporations.
The president or any vice president and the secretary or assistant secretary of
this Corporation are authorized to vote, represent, and exercise on behalf of
this Corporation, all rights incident to any and all shares of any other
corporation or corporations standing in the name of this Corporation. The
authority herein granted to said officers to vote or represent on behalf of
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this Corporation or corporations may be exercised either by such officers in
person or by any person authorized so to do by proxy or power of attorney duly
executed by said officers.
Section 6.08 -- Inspection Of Bylaws.
The Corporation shall keep in its principal office for the transaction of
business the original or a copy of these bylaws, as amended or otherwise altered
to date, certified by the secretary, which shall be open to inspection by the
shareholders at all reasonable times during office hours.
Section 6.09 -- Indemnification.
A. The Corporation shall indemnify its officers and directors for any liability
including reasonable costs of defense arising out of any act or omission of any
officer or director on behalf of the Corporation to the full extent allowed by
the laws of the State of Delaware, if the officer or director acted in good
faith and in a manner the officer or director 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 the conduct
was unlawful.
B. Any indemnification under this section (unless ordered by a court) shall be
make by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because the officer or director has met the applicable standard of
conduct. Such determination shall be made 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, regardless of whether or not such a quorum is
obtainable and a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or by the stockholders.
ARTICLE 7
Amendments
Section 7.01 -- Power Of Shareholders.
New bylaws may be adopted, or these bylaws may be amended or repealed, by the
affirmative vote of the shareholders collectively having a majority of the
voting power or by the written assent of such shareholders.
Section 7.02 -- Power Of Directors.
Subject to the rights of the shareholders as provided in Section 7.01 of this
Article, bylaws other than a bylaw, or amendment thereof, changing the
authorized number of directors, may also be adopted, amended, or repealed by the
Board.
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Certificate
The undersigned does hereby certify that the undersigned is the President of the
Corporation as named at the outset in these bylaws, a corporation duly organized
and existing under and by virtue of the laws of the State of Delaware; that the
above and foregoing bylaws of said corporation were duly and regularly adopted
as such by the board of directors of the Corporation at a meeting of said Board,
which was duly held on the 12th day of August, 2002, that the above and
foregoing bylaws are now in full force and effect.
DATED this 12th day of August, 2002.
/s/ Rowan S. Campbell
---------------------------------------------
Rowan S. Campbell, President & Director
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