Exhibit 3.1 to Form 8-K dated January 27, 1997
CERTIFICATE OF AMENDMENT
to
CERTIFICATE OF INCORPORATION
of
CHELSEA ATWATER, INC.
(A Nevada Corporation)
CHELSEA ATWATER, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of Nevada, DOES HEREBY CERTIFY THAT:
A. The Board of Directors of this corporation by the unanimous written
consent of its members, filed with the minutes of the Board, duly adopted
resolutions setting forth a proposed amendment to the Certificate of
Incorporation of the corporation to change the name of the corporation from
CHELSEA ATWATER, INC. to CEREX ENTERTAINMENT CORPORATION, declaring such
amendment to be advisable and directing that the proposal be placed before the
shareholders of the corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that Article I (Name and Duration) of the Certificate of
Incorporation of this corporation be amended to provide as follows:
"Article I
NAME AND DURATION
The name of this corporation is CEREX ENTERTAINMENT CORPORATION (the
"Company"). It shall have perpetual existence."
B. Other than the change of the corporation's name, there are no amendments
to the Certificate of Incorporation.
C. Pursuant to resolution of the corporation's Board of Directors, the
foregoing Certificate of Amendment was duly approved by affirmative vote of the
holders of a majority of the Corporation's 3,113,245 shares of capital stock
outstanding and entitled to vote on the proposed amendment, and therefore
sufficient for approval, all in accordance with the General Corporation Law of
Nevada and the existing Certificate of Incorporation and bylaws of the
Corporation.
D. This amendment was duly adopted in accordance with the provisions of
Section 78.390 of the General Corporation Law of Nevada.
IN WITNESS WHEREOF, CHELSEA ATWATER, INC. has caused this Certificate of
Amendment to be signed by its President, and attested by its Assistant
Secretary, as of the date below.
DATED: January 24, 1997 CHELSEA ATWATER, INC.
By: /s/ John D. Brasher Jr.
---------------------------
ATTEST: John D. Brasher Jr., President,
Chief Exec. Officer
By: /s/ Mark T. Cooper
- ----------------------
Mark T. Cooper, Assistant Secretary (SEAL)
Exhibit 3.2 to Form 8-K dated January 17, 1997
CERTIFICATE OF AMENDMENT
to
CERTIFICATE OF INCORPORATION
of
CEREX ENTERTAINMENT CORPORATION
(A Nevada Corporation)
CEREX ENTERTAINMENT CORPORATION, a corporation organized on April 4, 1989,
under the name Chelsea Atwater, Inc. and existing under and by virtue of the
General Corporation Law of Nevada, DOES HEREBY CERTIFY THAT:
A. The shareholders of this corporation by written consent duly adopted a
resolution setting forth amendments to the Certificate of Incorporation of the
corporation which amend the Certificate of Incorporation in its entirety. The
resolution setting forth the amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation shall
be amended in its entirety to provide as follows, and such amendment shall
supercede the Certificate of Incorporation as in existence on this date:
"FIRST. The name of this corporation is CEREX ENTERTAINMENT CORPORATION.
SECOND. The Corporation's Registered Office in the State of Nevada is
located at 2533 N. Carson Street, Carson City, Nevada 89706. The Corporation's
Resident Agent at this address is Laughlin Associates, Inc.
THIRD. 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 Nevada. The Corporation may conduct all or any part of its business, and
may hold, purchase, mortgage, lease and convey real and personal property,
anywhere in the world. The Corporation shall have perpetual duration.
FOURTH. The names and addresses of the members of the Board of Directors
are:
Name Mailing Address
John D. Brasher, Jr. 90 Madison Street, Suite 707
Denver, Colorado 80206
Johnny D. Brasher P.O. Box 1686
Ferriday, Louisiana 71334
{CAPITAL STOCK}
FIFTH. The aggregate number of shares of capital stock of all classes which
the Corporation shall have authority to issue is SIXTY-FIVE MILLION
(65,000,000), of which FIFTY MILLION (50,000,000) shares having a par value of
$.001 per share shall be of a class designated "Common Stock" (or "Common
Shares") and FIFTEEN MILLION (15,000,000) shares having a par value of $.001 per
share shall be of a class designated "Preferred Stock" (or "Preferred Shares").
All shares of the Corporation shall be issued for such consideration or
considerations as the Board of Directors may from time to time determine. The
designations, voting powers, preferences, optional or other special rights and
qualifications, limitations, or restrictions of the above classes of stock shall
be as follows:
I. PREFERRED STOCK
(a) Issuance in Class and Series. Shares of Preferred Stock may be issued
in one or more classes or series at such time or times as the Board of Directors
may determine. All shares of any one series shall be of equal rank and identical
in all respects.
(b) Authority of Board for Issuance. Authority is hereby expressly granted
to the Board of Directors to fix from time to time, by resolution or resolutions
providing for the issuance of any class or series of Preferred Stock, the
designation of such classes and series and the powers, preferences and rights of
the shares of such classes and series, and the qualifications, limitations or
restrictions thereof, including the following:
1. The distinctive designation and number of shares comprising such
class or series, which number may (except where otherwise provided by the
Board of Directors in creating such class or series) be increased or
decreased (but not below the number of shares then outstanding) from time
to time by action of the Board of Directors;
2. The rate of dividend, if any, on the shares of that class or
series, whether dividends shall be cumulative and, if so, from which date
or dates, the relative rights of priority, if any, of payment of dividends
on shares of that class or series over shares of any other class or series;
3. Whether the shares of that class or series shall be redeemable at
the option of the Corporation or of the holder of the shares or of another
person or upon the occurrence of a designated event and, if so, the terms
and conditions of such redemption, including the date or dates upon or
after which they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different conditions and
different redemption dates;
4. Whether that class or series shall have a sinking fund for the
redemption or purchase of shares of that class or series and, if so, the
terms and amounts payable into such sinking fund;
5. The rights to which the holders of the shares of that series shall
be entitled in the event of voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation,
relative rights of priority; if any, of payment of shares of that class or
series;
6. Whether the shares of that class or series shall be convertible
into or exchangeable for shares of stock of any class or any other series
of Preferred Stock and, if so, the terms and conditions of such conversion
or exchange, including the method of adjusting the rates of conversion or
exchange in the event of a stock split, stock dividend, combination of
shares or similar event;
7. Whether the issuance of any additional shares of such class or
series, or of any shares of any other class or series, shall be subject to
restrictions as to issuance, or as to the powers, preferences or rights of
any such other class or series;
8. Any other preferences, privileges and powers, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of such class or series, as the Board of
Directors may deem advisable and as shall not be inconsistent with the
provisions of the Corporation's Charter, as from time to time amended, and
to the full extent now or hereinafter permitted by the laws of Nevada.
(c) Dividends. Payment of dividends shall be as follows:
1. The holders of Preferred Stock of each class or series, in
preference to the holders of Common Stock, shall be entitled to receive, as
and when declared by the Board of Directors out of funds legally available
therefor, all dividends, at the rate for such class or series fixed in
accordance with the provisions of this Article FIFTH and no more;
2. Dividends may be paid upon, or declared or set aside for, any class
or series of Preferred Stock in preference to the holders of any other
class or series of Preferred Stock in the manner determined by the
resolutions of the Board of Directors authorizing and creating such class
or series;
3. So long as any shares of Preferred Stock shall be outstanding, in
no event shall any dividend, whether in cash or in property, be paid or
declared nor shall any distribution be made, on the Common Stock, nor shall
any shares of Common Stock be purchased, redeemed or otherwise acquired for
value by the Corporation, unless all dividends on all cumulative classes
and series Preferred Stock with respect to all past dividend periods, and
unless all dividends on all classes and series of Preferred Stock for the
then current dividend period shall have been paid or declared, and provided
for, and unless the Corporation shall not be in default with respect to any
of its obligations with respect to any sinking fund for any class or series
of Preferred Stock. The foregoing provisions of this subparagraph (3) shall
not, however, apply to any dividend payable in Common Stock;
4. No dividend shall be deemed to have accrued on any share of
Preferred Stock of any class or series with respect to any period prior to
the date of the original issue of such share or the dividend payment date
immediately preceding or following such date of original issue, as may be
provided in the resolutions of the Board of Directors creating such class
or series. Preferred Stock shall not be entitled to participate in any
dividends declared and paid on Common Stock, whether payable in cash, stock
or otherwise. Accruals of dividends shall not pay interest.
(d) Dissolution or Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution of assets or winding-up of the Corporation,
the holders of the shares of each class or series of Preferred Stock then
outstanding shall be entitled to receive out of the net assets of the
Corporation, but only in accordance with the preferences, if any, provided for
such series, before any distribution or payment shall be made to the holders of
Common Stock, the amount per share fixed by the resolution or resolutions of the
Board of Directors to be received by the holder of each such share on such
voluntary or involuntary liquidation, dissolution, distribution of assets or
winding-up, as the case may be. If such payment shall have been made in full to
the holders of all outstanding Preferred Stock of all classes and series, or
duly provided for, the remaining assets of the Corporation shall be available
for distribution among the holders of Common Stock as provided in this Article
FIFTH. If upon any such liquidation, dissolution, distribution of assets or
winding-up, the net assets of the Corporation available for distribution among
the holders of any one or more classes or series of Preferred Stock which (i)
are entitled to a preference over the holders of Common Stock upon such
liquidation, dissolution, distribution of assets or winding-up, and (ii) rank
equally in connection therewith, shall be insufficient to make payment for the
preferential amount to which the holders of such shares shall be entitled, then
such assets shall be distributed among the holders of each such series of
Preferred Stock ratably according to the respective amounts to which they would
be entitled in respect of the shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full. Neither the
consolidation nor merger of the Corporation, nor the exchange, sale, lease or
conveyance (whether for cash, securities or other property) of all,
substantially all or any part of its assets, shall be deemed a liquidation,
dissolution, distribution of assets or winding-up of the Corporation within the
meaning of this provision.
(e) Voting Rights. Except to the extent otherwise required by law or
provided in the resolution of the Board of Directors adopted pursuant to
authority granted in this Article FIFTH, the shares of Preferred Stock shall
have no voting power with respect to any matter whatsoever. The Board of
Directors may determine whether the shares of any class or series shall have
limited, contingent, full or no voting rights, in addition to the voting rights
provided by law and, if so, the terms of such voting rights. Whenever holders of
Preferred Stock are entitled to vote on a matter, each holder of record of
Preferred Stock shall be entitled to one vote for each share standing in his
name on the books of the Corporation and entitled to vote.
II. COMMON STOCK
(a) Issuance. The Common Stock may be issued from time to time in one or
more classes or series in any manner permitted by law, as determined by the
Board of Directors and stated in the resolution or resolutions providing for
issuance thereof. Each class or series shall be appropriately designated, prior
to issuance of any shares thereof, by some distinguishing letter, number or
title. All shares of each class or series of Common Stock shall be alike in
every particular and shall be of equal rank and have the same power, preferences
and rights, and shall be subject to the same qualifications, limitations and
restrictions, if any.
(b) Voting Powers. The Common Stock may have such voting powers (full,
limited, contingent or no voting powers), such designations, preferences and
relative, participating, optional or other special rights, and be subject to
such qualifications, limitations and restrictions, as the Board of Directors
shall determine by resolution or resolutions. Unless otherwise resolved by the
Board of Directors at the time of issuing Common Shares, (i) each Common Stock
share shall be of the same class, without any designation, preference or
relative, participating, optional or other special rights, and subject to no
qualification, limitation or restriction, and (ii) Common Shares shall have
unlimited voting rights, including but not limited to the right to vote in
elections for directors, and each holder of record of Common Shares entitled to
vote shall have one vote for each share of stock standing in his name on the
books of the Corporation and entitled to vote, except that in the election of
directors each holder shall have as many votes for each share held by him as
there are directors.
(c) Dividends. After the requirements with respect to preferential
dividends, if any, on Preferred Stock, and after the Corporation shall have
complied with all requirements, if any, with respect to the setting aside of
sums in a sinking fund for the purchase or redemption of shares of any class or
series of Preferred Stock, then and not otherwise, the holders of Common Stock
shall receive, to the extent permitted by law, such dividends as may be declared
from time to time by the Board of Directors.
(d) Dissolution or Liquidation. After distribution in full of the
preferential amount, if any, to be distributed to the holders of Preferred
Stock, in the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding-up of the Corporation, the holders of Common
Stock shall be entitled to receive all the remaining assets of the Corporation
of whatever kind available for distribution to shareholders ratably in
proportion to the number of shares of Common Stock respectively held by them.
III. GENERAL MATTERS
(a) Capital. The portion of the consideration received by the Corporation
upon issuance of any of its shares that shall constitute "capital" within the
meaning of the General Corporation Law of Nevada shall be (1) in the case of
par-value shares, the par value thereof, and (2) in the case of shares without
par value, the stated value of such shares as determined by the Board of
Directors at the time of issuance; provided, that if no stated value is
determined at the time that shares without par value are issued, the entire
consideration to be received for the shares shall constitute capital.
(b) Fully Paid and Nonassessable. Any and all shares of Common or Preferred
Stock issued by the Corporation for which not less than the portion of the
consideration to be received determined to be "capital" has been paid to the
Corporation, provided the Corporation has received a promissory note or other
binding legal obligation of the purchaser to pay the balance thereof, shall be
deemed fully paid and nonassessable shares.
(c) Amendment of Shareholder Rights. So long as no shares of any class or
series established by resolution of the Board of Directors have been issued, the
voting rights, designations, preferences and relative, optional, participating
or other rights of these shares may be amended by resolution of the Board of
Directors.
(d) Status of Certain Shares. Shares of Preferred or Common Stock which
have redeemed, converted, exchanged, purchased, retired or surrendered to the
Corporation, or which have been reacquired in any other manner, shall have the
status of authorized and unissued shares and may be reissued by the Board of
Directors as shares of the same or any other series, unless otherwise provided
herein or in the resolution authorizing and establishing the shares.
(e) Denial of Preemptive Rights. No holder of any shares of the Corporation
shall be entitled as a matter of right to subscribe for or purchase any part of
any new or additional issue of stock of any class or of securities convertible
into or exchangeable for stock of any class, whether now or hereafter authorized
or whether issued for money, for a consideration other than money, or by way of
dividend.
(f) Convertibility. Common Shares or other shares of any class or series,
and notes, debentures, bonds and other debt instruments issued by the Company or
any affiliated company, may be made convertible into or exchangeable for, at the
option of the Corporation or the holder or upon the occurrence of a specified
event, shares of any other class or classes or any other series of the same or
any other class or classes of shares of the Corporation, at such price or prices
or at such rate or rates of exchange and with such adjustments as shall be set
forth in the resolution or resolutions providing for the issuance of such
convertible or exchangeable shares adopted by the Board of Directors.
(g) Redeemability. Common Shares may be made redeemable at the option of
the Corporation or upon the occurrence of a designated event, if and to the
extent now or subsequently allowed by the General Corporation Law of Nevada, as
such law may subsequently be amended, and the terms and conditions of
redemption, including the date or dates upon or after which they shall be
redeemable, the amount per share payable in case of redemption and any variance
in the amount or amounts payable, among other terms, conditions and limitations
which may be imposed, may be fixed and established by the Board of Directors in
the resolution or resolutions authorizing the issuance of redeemable Common
Shares.
{VOTING OF SHAREHOLDERS}
SIXTH. The following provisions are hereby adopted for the purpose of
regulating certain matters relating to the voting of shareholders of the
Corporation:
(a) Definitions. Whenever the term "total voting power" appears in this
Charter, it shall mean all shares of the Corporation entitled to vote at a
meeting or on a question presented for shareholder approval, and of every class
or series of shares entitled to vote by class or series. Whenever the term
"votes cast" appears in this Charter, it shall mean the total number of voting
shares out of the total voting power which were unequivocally voted in favor of
or against a director standing for election or a matter presented for
shareholder approval at a legal meeting which commenced with a quorum.
(b) Quorum. A majority of the total voting power, or where a separate vote
by class or series is required, a majority of the voting shares of each such
class or series, represented in person or by proxy, shall constitute a quorum at
any meeting of the Corporation's shareholders.
(c) Vote Required. Any action to be taken by the Corporation's shareholders
at any valid meeting which commenced with a quorum shall require the affirmative
vote only of a majority of the votes cast, except where this Charter or the
Corporation's Bylaws then in effect requires the affirmative vote of a higher
proportion of the votes cast or requires the affirmative vote of a proportion of
the total voting power, and except where the Nevada General Corporation Law
specifically requires the affirmative vote of a majority of all the votes
entitled to be cast. Directors shall be elected by plurality vote. Abstentions
from voting shall not be considered in the tallying of votes. Nothing contained
in this Article SIXTH shall affect the voting rights of holders of any class or
series of shares entitled to vote as a class or by series. The Bylaws may
provide for the vote necessary at any adjournment of a duly called meeting for
which a quorum was not obtained. Cumulative voting shall not be allowed in
voting for directors.
(d) Manner of Voting; Etc. The vote of shareholders may be taken at a
meeting by a show of hands or other method authorized by the Board of Directors.
Written ballots shall be used only upon authorization of the Board of Directors
or as provided in the Corporation's Bylaws. Cumulative voting shall not be
allowed in the election of directors.
(e) Action Without Meeting. Any action required or permitted to be taken at
a meeting of the 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 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.
(f) Shareholder Ratification. Any contract, transaction, or act of the
Corporation or of the directors which shall be ratified by vote of the
shareholders at any annual meeting, or at any special meeting called for such
purpose, or by means of a written consent of shareholders in lieu of a meeting,
shall so far as permitted by law be as valid and as binding as though ratified
by every shareholder of the Corporation.
{CONCERNING SHAREHOLDERS, DIRECTORS AND OFFICERS}
SEVENTH. The following provisions are hereby adopted for the purpose of
defining, limiting, and regulating the powers of the Corporation and of the
directors, officers and shareholders:
(a) Number of Directors. The number of Directors shall be as fixed in the
Bylaws. In the absence of such provision in the Bylaws, the Corporation shall
have one (1) Director. Directors shall be elected by plurality vote and need not
be elected by written ballot, except as provided in the Bylaws.
(b) Removal of Directors. A director of the Corporation, or the entire
Board of Directors of the Corporation, may be removed by the shareholders, with
or without cause, in the manner provided by applicable law, without considering
the vote of the director or directors sought to be removed. As used herein,
"cause" for the removal of a director shall be deemed to exist if (A) there has
been a finding by not less than a majority of the entire Board of Directors that
cause exists and the directors have recommended removal to the shareholders, or
(B) any other cause defined by law exists.
(c) Removal of Officers and Employees. Unless the Bylaws otherwise provide,
any officer or employee of the Corporation may be removed at any time with or
without cause by the Board of Directors or by any committee or superior officer
upon whom such power of removal may be conferred by the Bylaws or by authority
of the Board of Directors, without prejudice, however, to existing contractual
rights.
{BYLAWS}
EIGHTH. The initial Bylaws of the Corporation shall be adopted by its Board
of Directors. The power to alter, amend or repeal the Bylaws or adopt new Bylaws
shall be vested in the Board of Directors, subject to the right of the
shareholders to alter, amend or repeal such Bylaws or adopt new Bylaws by the
affirmative vote of at least a majority of the total voting power. The Bylaws
may contain any provisions for the regulation and management of the affairs of
the Corporation not inconsistent with law or this Charter.
{INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS}
NINTH. The following provisions are hereby adopted for the purpose of
defining and regulating certain rights of directors, officers and others in
respect of indemnification and related matters.
(a) Actions, Suits or Proceedings Other than by or in the Right of the
Corporation. The Corporation may indemnify any person 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 that he is or was or has agreed to become a director, officer, employee or
agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
costs, charges, expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he 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 his
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 he reasonably believed to be in or
not opposed to the best interests of the Corporation or that, with respect to
any criminal proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(b) Actions or Suits by or in the Right of the Corporation. The Corporation
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding by or
in the right of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was or has agreed to become a director, officer, employee
or agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
costs, charges and expenses (including amounts paid in settlement and attorney's
fees) actually and reasonably incurred by him or on his behalf in connection
with the defense or settlement of such action or suit and any appeal therefrom,
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation. No indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged by a court of competent jurisdiction after exhaustion of all
appeals therefrom to be liable to the Corporation or for amounts paid in
settlement to the Corporation unless and only to the extent that the court in
which such action or suit was brought or other court of competent jurisdiction
shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the court shall deem proper.
(c) Indemnification for Costs, Charges and Expenses of Successful Party.
Notwithstanding the other provisions of this Article NINTH, to the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any action, suit or proceeding referred
to in Sections (a) and (b) of this Article NINTH, or in defense of any claim,
issue or matter therein, he shall be indemnified against all costs, charges and
expenses (including attorney's fees) actually and reasonably incurred by him or
on his behalf in connection therewith.
(d) Determination of Right to Indemnification. Any indemnification under
Sections (a) and (b) of this Article NINTH (unless ordered by a court) shall be
paid by the Corporation unless a determination is made (i) by a disinterested
majority of the Board of Directors who were not parties to such action, suit or
proceeding, or (ii) if such disinterested majority of the Board of Directors so
directs or cannot be obtained, by independent legal counsel in a written
opinion, or (iii) by the shareholders, that indemnification of the director or
officer is not proper in the circumstances because he has not met the applicable
standard of conduct set forth in Sections (a) and (b) of this Article NINTH.
(e) Advances of Costs, Charges and Expenses. Costs, charges and expenses
(including attorney's fees) incurred by a person referred to in Sections (a) or
(b) of this Article NINTH 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; provided, however, that the payment of such
costs, charges and expenses incurred by a director or officer in his capacity as
a director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only upon receipt
of an undertaking by or on behalf of the director or officer to repay all
amounts so advanced in the event that it shall ultimately be determined that
such director or officer is not entitled to be indemnified by the Corporation as
authorized in this Article, accompanied by evidence satisfactory to the Board of
Directors of ability to make such repayment. Such costs, charges and expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the majority of the Directors deems appropriate. The
majority of the Directors may, in the manner set forth above, and upon approval
of such director, officer, employee or agent of the Corporation, authorize the
Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit or
proceeding.
(f) Procedure for Indemnification. Any indemnification under Sections (a),
(b) and (c), or advance of costs, charges and expenses under Section (e) of this
Article NINTH, shall be made promptly, and in any event within 60 days, upon the
written request of the director or officer. The right to indemnification or
advances as granted by this Article shall be enforceable by the director or
officer in any court of competent jurisdiction if the Corporation denies such
request, in whole or in part, or if no disposition thereof is made within 60
days. Such person's costs and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation. It shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses under Section (e) of this Article NINTH where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections (a) or (b) of
this Article NINTH, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and 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 he has met the applicable
standard of conduct set forth in Sections (a) or (b) of this Article NINTH, nor
the fact that there has been an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel and 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 the claimant has
not met the applicable standard of conduct.
(g) Settlement. If in any action, suit or proceeding, including any appeal,
within the scope of Sections (a) or (b) of this Article NINTH, the person to be
indemnified shall have unreasonably failed to enter into a settlement thereof,
then, notwithstanding any other provision hereof, the indemnification obligation
of the Corporation to such person in connection with such action, suit or
proceeding shall not exceed the total of the amount at which settlement could
have been made and the expenses by such person prior to the time such settlement
could reasonably have been effected.
(h) Other Rights; Continuation of Right to Indemnification. The
indemnification provided by this Article shall not be deemed exclusive of any
other rights to which any director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of shareholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
office or while employed by or acting as agent for the Corporation, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent, and shall inure to the benefit of the estate, heirs, executors and
administrators of such person. All rights to indemnification under this Article
shall be deemed to be a contract between the Corporation and each director or
officer of the Corporation who serves or served in such capacity at any time
while this Article NINTH is in effect. Any repeal or modification of this
Article NINTH or any repeal or modification of relevant provisions of the
General Corporation Law of Nevada or any other applicable laws shall not in any
way diminish any rights to indemnification of such director, officer, employee
or agent or the obligations of the Corporation arising hereunder. This Article
NINTH shall be binding upon any successor corporation to this Corporation,
whether by way of acquisition, merger, consolidation or otherwise.
(i) Exceptions to Indemnification Right. Notwithstanding any other language
in this Charter, the Company shall not be obligated pursuant to the terms of
this Charter:
(1) Claims Initiated by Indemnitee. To indemnify or advance expenses
to any person with respect to proceedings or claims initiated or brought
voluntarily by him or her and not by way of defense, expect with respect to
proceedings brought to establish or enforce a right to indemnification
under this Charter or any other statue or law or otherwise as required
under the General Corporation Law of Nevada, but such indemnification or
advancement of expenses may be provided by the Corporation in specific
cases if the Board of Directors finds it to be appropriate; or
(2) Lack of Good Faith. To indemnify any person for any expenses
incurred by him or her with respect to any proceeding instituted by him or
her to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by him or
her in such proceeding was not made in good faith or was frivolous;
(3) Insured Claims. To indemnify any person for expenses or
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to him or her by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the Corporation.
(4) Claims Under Section 16(b). To indemnify any person for expenses
or the payment of profits arising from the purchase and sale by him or her
of securities in violation of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or any similar or successor statute.
(j) Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was or has agreed to become a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him or on his behalf in any such capacity,
or arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such liability under the provisions of this
Article NINTH; provided, however, that such insurance is available on acceptable
terms, which determination shall be made by a vote of a majority of the
Directors.
(k) Savings Clause. If this Article NINTH or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation (i) shall nevertheless indemnify each director and officer of the
Corporation and (ii) may nevertheless indemnify each employee and agent of the
Corporation, as to any cost, charge and expense (including attorney's fees),
judgment, fine and amount paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
an action by or in the right of the Corporation, to the full extent permitted by
any applicable portion of this Article NINTH that shall not have been
invalidated and to the full extent permitted by applicable law.
(l) Amendment. The affirmative vote of at least a majority of the total
voting power shall be required to amend, repeal, or adopt any provision
inconsistent with, this Article NINTH. No amendment, termination or repeal of
this Article NINTH shall affect or impair in any way the rights of any director
or officer of the Corporation to indemnification under the provisions hereof
with respect to any action, suit or proceeding arising out of, or relating to,
any actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or appeal.
(m) Subsequent Legislation. If the General Corporation Law of Nevada is
amended after adoption of this Charter to further expand the indemnification
permitted to directors, officers, employees or agents of the Corporation, then
the Corporation shall indemnify such persons to the fullest extent permitted by
the General Corporation Law of Nevada, as so amended.
(n) Restriction. Notwithstanding any other provision hereof whatsoever, no
person shall be indemnified under this Article NINTH who is adjudged liable for
(i) a breach of duty to the Company or its shareholders that resulted in
personal enrichment to which he was not legally entitled, (ii) intentional fraud
or dishonesty or illegal conduct, or (iii) for any other cause prohibited by
applicable state or federal law, unless a court determines otherwise.
{EXCLUSION OF DIRECTOR LIABILITY}
TENTH. As authorized by Section 78.037(1) of the General Corporation Law of
Nevada, no director or officer of the Company shall be personally liable to the
Company or any shareholder thereof for monetary damages for breach of his
fiduciary duty as a director or officer, except for liability for (a) any acts
or omissions which involve intentional misconduct, fraud or a knowing violation
of law, or (b) any payment of dividends in violation of Section 78.300 of the
General Corporation Law of Nevada, as it now exists or may hereafter be amended.
This Article TENTH shall apply to a person who has ceased to be a director or
officer of the Company with respect to any breach of fiduciary duty which
occurred when such person was serving as a director or officer. This Article
TENTH shall not be construed to limit or modify in any way any director's or
officer's right to indemnification or other right whatsoever under this Charter,
the Company's ByLaws or the General Corporation Law of Nevada.
If the General Corporation Law of Nevada hereafter is amended to authorize
the further elimination or limitation of the liability of directors or officers
generally, then the liability of the Company's directors and officers, in
addition to the limitation on personal liability provided herein, shall be
limited to the fullest extent permitted by the General Corporation Law of Nevada
as so amended. Any repeal or modification of this Article TENTH by the
shareholders shall be prospective only and shall not adversely affect any
limitation on the personal liability of any director or officer existing at the
time of such repeal or modification. The affirmative vote of at least a majority
of the total voting power shall be required to amend or repeal, or adopt any
provision inconsistent with, this Article TENTH.
{AMENDMENT}
ELEVENTH. The Corporation reserves the right to amend, restate or repeal
any provision contained in this Charter, in the manner now or hereafter
prescribed by statute, and all rights conferred on shareholders are granted
subject to this reservation. The affirmative vote of a majority of the votes
cast is necessary to amend or restate provisions of this Charter, except such
provisions which expressly require a higher proportion of the votes cast or
require a proportion of the total voting power. The affirmative vote of a
majority of the total voting power is necessary to repeal this Charter in its
entirety and adopt a new charter in its stead.
{CERTAIN POWERS RESERVED TO DIRECTORS}
TWELFTH. The Corporation hereby reserves solely to the Board of Directors
the power and authority to borrow from time to time on behalf and in the name of
the Corporation and to determine the amount, terms, provisions and conditions of
any such borrowing; and in connection therewith to create, issue and deliver
instruments of indebtedness, including but not limited to promissory notes,
bonds, debentures and similar instruments containing such terms, provisions and
conditions as the Board of Directors deems necessary or advisable in its sole
discretion. In connection with the creation, issuance or delivery of any such
form or evidence of indebtedness, there is also reserved solely to the Board of
Directors the power and authority to create, enter into and execute indentures
of trust, conveyances, mortgages and similar instruments containing such terms,
provisions and conditions as the Board of Directors deems necessary or advisable
in its sole discretion; and, without need of prior or subsequent shareholder
approval, to pledge, mortgage or convey any or all property, assets, rights,
privileges or franchises now or hereafter belonging to the Corporation in order
to secure the payment when due of the principal, interest and other charges due
upon any such promissory notes, bonds or debentures or other obligations or
evidences of indebtedness of the Corporation; and to create, issue and deliver
additional amounts or series of obligations under the terms of any such
indenture, conveyance or mortgage after creation and issuance of the original
obligations thereunder. Any form of indebtedness authorized by the Board of
Directors may be made convertible into Common Stock or other securities of the
Corporation and may be made redeemable at such time and on such terms (including
the use of a sinking fund or similar arrangement) as the Board of Directors
deems necessary or advisable in its sole discretion. The affirmative vote of a
majority of the total voting power shall be required to amend, repeal or adopt
any provision inconsistent with this Article TWELFTH.
[INAPPLICABILITY OF CONTROL SHARE ACQUISITION STATUTE}
THIRTEENTH. The Corporation expressly elects not to be governed by Sections
78.378 through 78.3793 of the General Corporation Law of Nevada (concerning
acquisitions of controlling interest in corporations), as it now exists or may
hereafter be amended, or any successor statute. The affirmative vote of at least
a majority of the total voting power shall be required to amend, repeal or adopt
any provision inconsistent with this Article THIRTEENTH."
B. The foregoing Certificate of Amendment was duly approved by affirmative
vote of the holders of 1,562,929 shares of the Corporation's 3,113,245 shares of
capital stock outstanding and entitled to vote on the amendment, constituting a
majority of such shares and therefore sufficient for approval, all in accordance
with the General Corporation Law of Nevada and the existing Certificate of
Incorporation and bylaws of the Corporation.
D. This amendment was duly adopted in accordance with the provisions of
Section 78.390 of the General Corporation Law of Nevada.
IN WITNESS WHEREOF, CEREX ENTERTAINMENT CORPORATION has caused this
Certificate of Amendment to be signed by its President, and attested by its
Assistant Secretary, as of the date below.
DATED: February 25, 1997
CEREX ENTERTAINMENT CORPORATION
By: /s/ John D. Brasher Jr.
---------------------------
John D. Brasher Jr., President,
Chief Exec. Officer
By: /s/ Mark T. Cooper
- ----------------------
Mark T. Cooper, Assistant Secretary
Exhibit 3.3 to Form 8-K dated January 27, 1997
CEREX ENTERTAINMENT CORPORATION
CERTIFICATE OF AMENDMENT
to
ARTICLES OF INCORPORATION
of
CEREX ENTERTAINMENT CORPORATION
CEREX ENTERTAINMENT CORPORATION, a corporation organized on April 4, 1989,
and existing under and by virtue of the Nevada General Corporation Law, does
hereby certify that:
A. The name of the corporation is CEREX ENTERTAINMENT CORPORATION.
B. Under authority of Section 78.195 of the Nevada General Corporation Law,
Article FIFTH, Part I of the Certificate of Amendment to the Corporation's
Certificate of Incorporation expressly vests authority in the Board of Directors
to prescribe the series, number of each series, voting powers, designations,
preferences, limitations, restrictions and relative rights of the Corporation's
preferred shares, without shareholder approval.
C. The Board of Directors of the Corporation has, by the unanimous written
consent of its members taken on February 20, 1997, pursuant to Section 78.315 of
the Nevada General Corporation Law, duly adopted a resolution setting forth an
amendment to the Certificate of Incorporation of the Corporation designating and
establishing a series of preferred stock consisting of 4,000,000 preferred
shares known as the:
"SERIES A, 6.75% NON-VOTING CONVERTIBLE PREFERRED STOCK"
D. The Corporation submits this Certificate of Amendment to its Certificate
of Incorporation for the purpose of establishing and designating such series of
preferred stock as required by Section 78.1955 of the Nevada General Corporation
Law.
E. A copy of the "Resolution of the Board of Directors Establishing a
Series of Shares of Preferred Stock of CEREX ENTERTAINMENT CORPORATION" dated as
of February 20, 1997, setting forth the text of the amendment prescribing the
series, number of each series, voting powers, designations, preferences,
limitations, restrictions and relative rights of the Series A, 6.75% Non-Voting
Convertible Preferred Stock, is attached hereto as EXHIBIT A and is incorporated
by reference in this document as if fully set forth herein.
F. No shares of the Series A, 6.75% Non-Voting Convertible Preferred Stock
have been issued.
G. No approval of the corporation's shareholders is necessary in regard to
this amendment or its filing with the Nevada Secretary of State.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment as of the below date.
DATED: March 6, 1997
CEREX ENTERTAINMENT CORPORATION
(SEAL)
By: /s/ John D. Brasher Jr.
---------------------------
ATTEST: John D. Brasher Jr., President
By: /s/ Elisabeth M. Crosse
- ---------------------------
Elisabeth M. Crosse, Asst. Secretary
Exhibit A
to
Certificate of Amendment
RESOLUTION OF DIRECTORS
ESTABLISHING A SERIES OF SHARES OF PREFERRED STOCK
of
CEREX ENTERTAINMENT CORPORATION
SERIES A, 6.75% NON-VOTING CONVERTIBLE PREFERRED STOCK
The undersigned, constituting the entire board of directors of CEREX
ENTERTAINMENT CORPORATION, a Nevada corporation ("Company"), hereby take the
following actions by unanimous written consent in lieu of a meeting, as
authorized by Sections 78.1955 and 78.315 of the Nevada General Corporation Law:
WHEREAS, the Board of Directors of the Company ("Board") desires to
establish and designate a series of shares of Preferred Stock and to fix and
determine the relative rights and preferences thereof; and
RESOLVED, FIRST, that the Board hereby establishes and designates a series
of Preferred Stock of the Company to consist of 4,000,000 shares, $.001 par
value per share, and hereby affixes the voting powers, designation, rights,
preferences, privileges and restrictions of the shares of such series, as
follows:
1. Designation and Consideration.
The designation of 4,000,000 shares of the series of Preferred Stock
created by this Resolution shall be the "SERIES A, 6.75% NON-VOTING CONVERTIBLE
PREFERRED STOCK", par value US$.001 per share. Shares of this series are herein
referred to as the "Series A Preferred Stock." Each share of Series A Preferred
Stock shall be issued for such consideration as the Board may determine (whether
cash, property or other assets). Once duly issued for the consideration herein
called for, shares of the Series A Preferred Stock shall be deemed fully paid
and nonassessable.
2. Dividends.
The holders of the shares of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board and as permitted by law, an
annual dividend equal to six and three-quarters percent (6.75%) of the number of
shares of Series A Preferred Stock held, payable in cash or common stock of the
Company whose value shall be determined in good faith by the Company's Board of
Directors, as the Company elects in its discretion.
This dividend right shall be cumulative, and if a dividend is declared and
not paid for any year, then the right to receive such dividend shall accrue, and
no cash or share dividend shall be paid on the common shares of the Company or
any preferred shares ranking junior to the Series A Preferred Stock as to
liquidation preference, unless and until all dividends declared on the Series A
Preferred Stock and remaining unpaid have been paid. Dividends shall accrue from
the date declared.
Once the holders of Series A Preferred Stock have received a dividend
declared for a particular year, such holders shall not participate in or receive
any part of any additional dividends declared for such year on any other series
or class of the Company's shares.
3. Redemption.
The shares of Series A Preferred Stock shall not be subject to redemption
by the Company without the consent of the holders thereof, nor at the election
of the holders thereof.
4. Conversion Right.
4.1 Conversion Rate. Each share of Series A Preferred Stock may, subject to
the terms hereof and subject to adjustment as provided below, at any time
commencing one (1) year after the completion of the offering of Series A
Preferred Stock (the "Completion Date"), at the option of the holder thereof be
converted into fully paid, nonassessable shares of common stock of the Company,
$.001 par value per share. The number of Conversion Shares issuable upon
conversion of a share of Series A Preferred Stock shall be: (i) commencing one
(1) year after the Completion Date, 1.1 Conversion Shares; (ii) commencing two
(2) years after the Completion Date, 1.25 Conversion Shares; and (iii)
commencing three (3) years after the Completion Date and thereafter, 1.375
Conversion Shares. The common shares of the Company into which shares of Series
A Preferred Stock are converted ("Conversion Shares") will not be registered
under the Securities Act of 1933, as amended ("Act"), but shall be issued in
reliance upon Rule 903(c)(2) of Regulation S under the Act or other available
exemption from registration under the Act. Conversion shall be deemed to occur
on the date a certificate or certificates evidencing shares of Series A
Preferred Stock being converted is presented to the Company or to the Company's
transfer agent and registrar, properly endorsed and accompanied by the proper
fee payable for issuance of the Conversion Shares.
3
4.2 Other Adjustments to Conversion Rates. The conversion rates set forth
in paragraph 4.1 above will be subject to further adjustment if the Company is
reorganized, merged, consolidated or party to a plan of exchange with another
corporation pursuant to which shareholders of the Company receive any shares of
stock or other securities, or in the event of any sale or other transfer of all
or substantially all of the Company's assets, or in case of any reclassification
of the Common Stock. Holders of shares of the Series A Preferred Stock shall be
entitled, after the occurrence of any such event, to receive on conversion
thereof the kind and amount of shares of stock or other securities, cash or
other property receivable upon such event by a holder of the number of Common
Shares into which the shares of Series A Preferred Stock might have been
converted immediately prior to occurrence of the event. In the event of a split
or combination, the number of Conversion Shares issuable shall be appropriately
adjusted. For purposes of this paragraph, the term "shareholder" means a holder
of Common Stock.
4.3 Common Stock Authorized and Reserved. By adoption of this Resolution,
the Board hereby specifically authorizes the issuance of and reserves for
issuance an aggregate of 5,500,000 Common Shares upon conversion of the Series A
Preferred Stock, giving effect to the conversion rates set forth in paragraph
4.1; provided, however, that if any adjustment to the conversion rates should
require the issuance of a greater number of Common Shares, then the issuance of
such greater number of Common Shares hereby is authorized and reserved.
4.4 No Fractional Shares Issuable. No fractional share of Common Stock, or
scrip or other instrument representing a fractional Common Share, shall be
issued upon conversion of any share of Series A Preferred Stock. If any such
conversion results in a fractional share of Common Stock being issuable, the
Company issue a whole share if the fraction is one half (0.50) or more, and the
converting holder shall forfeit the fraction if less than one half (0.50)
5. Rights on Liquidation, Dissolution, or Winding Up.
5.1 Payment of Liquidation Preference. In the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company, the holders
of shares of Series A Preferred Stock shall be subordinate to all claims of the
Company's creditors and to claims of the holders of every series of the
Company's preferred stock ranking senior upon liquidation to the Series A
Preferred Stock, but otherwise are entitled to share ratably with the holders of
the Company's common stock and series of preferred stock ranking on a parity
with the Series A Preferred Stock in the Company's assets available for
distribution to its shareholders.
5.2 Effective Reorganization. Neither the consolidation or merger of the
Company with or into any other company nor the lease, exchange, sale or transfer
of all or substantially all of the Company's assets shall be deemed to be a
liquidation, dissolution or winding up of the Company's affairs, whether
voluntary or otherwise, within the meaning of this Section 5.
4
6. Voting Rights.
The shares of the Series A Preferred Stock shall not have the right to vote
in the election of directors of the Company or on any other matters upon which
shareholders of the Company may or must vote, except matters specifically,
directly and adversely affecting their rights as holders of Series A Preferred
Stock and shall have only such voting rights as a class as are unequivocally
conferred in this Resolution, by the Nevada General Corporation Law or other
controlling corporation law statute. Any matter which requires the approval of
the holders of the Series A Preferred Stock shall require only the affirmative
vote of a majority of the votes cast by the holders of such shares, voting as a
separate class, at any lawful meeting of such holders which commences with a
quorum. Whenever such shares are entitled to vote, each share of Series A
Preferred Stock shall be entitled to one vote.
7. Certain Corporate Actions.
The Company shall not amend its articles or certificate of incorporation
without the prior approval of the holders of the Series A Preferred Stock,
voting as a separate class, if such amendment would directly or indirectly
effect any adverse change in any of the rights, preferences or privileges of, or
limitations provided for herein for the benefit of, the holders of Series A
Preferred Stock. Without limiting the generality of the foregoing, no such
amendment may be effected without such approval if such amendment would:
(a) Reduce the amount payable to the holders of Series A Preferred
Stock upon the voluntary or involuntary liquidation, dissolution or winding
up of the Company, or change the seniority of the liquidation preferences
of the holders of Series A Preferred Stock relative to the rights upon
liquidation, dissolution or winding up of the holders of any other class or
series of the Company's shares; OR
(b) Cancel or modify the right of holders of Series A Preferred Stock
to convert such shares to Common Shares of the Company, all as set forth in
this Resolution.
8. Rank of Series A Preferred Stock.
The shares of the Series A Preferred Stock shall rank junior to all series
of preferred stock of the Company hereafter created, unless such subsequently
created series expressly ranks on a parity with or subordinate to the Series A
Preferred Stock. The Company may issue other shares of another class or series
of preferred stock after the date of this Resolution which rank on a parity with
or senior to the Series A Preferred Stock.
5
9. Status of Certain Shares.
Shares of Series A Preferred Stock which (i) have been redeemed, converted,
exchanged, purchased, retired or surrendered to the Company, or (ii) have been
reacquired in any other manner, or (iii) have not been sold or issued and which
by determination of the Board of Directors shall not be sold or issued as Series
A Preferred Stock, shall have the status of authorized and unissued preferred
shares and may be reissued by the Board of Directors as shares of Series A
Preferred Stock or any other series of preferred stock. In any such event, the
Board of Directors may but shall not required to file an amendment to the
Company's articles of incorporation with the Nevada Secretary of State to
reflect any such fact.
10. Tax Matters.
The holders of Series A Preferred Stock shall be solely liable for and
shall pay any and all taxes and other governmental charges, of every kind, that
may be imposed in respect of the issue or delivery of Common Shares upon
redemption or conversion of Series A Preferred Stock. The Company may withhold
certain of such Common Shares in order to satisfy the Company's tax withholding
obligations or take similar steps to ensure that such taxes and charges are duly
paid. If the Company becomes liable for or pays any such taxes due to acts of a
Series A Preferred Stock holder, it may, in order to recoup the amount of such
tax or tax liability:
(i) withhold the amount of such tax or tax liability from any funds
whatever in or coming into the Company's possession and belonging to such
holder, including dividends declared on the Series A Preferred Stock and
payable to such holder; and/or
(ii) cancel and reissue in the Company's name such number of shares of
Series A Preferred Stock, based upon the original issue price per share, as
will equal the amount of the tax paid or tax liability incurred.
IN WITNESS WHEREOF, the undersigned directors have duly approved the
foregoing resolution effective as of February 10, 1997.
By: /s/ John D. Brasher Jr.
---------------------------
John D. Brasher Jr.
(SEAL)
By: /s/ Johnny D. Brasher
-------------------------
Johnny D. Brasher
6
Exhibit 3.4 to Form 8-K dated January 27, 1997
CERTIFICATE OF AMENDMENT
to
CERTIFICATE OF INCORPORATION
of
CEREX ENTERTAINMENT CORPORATION
(A Nevada Corporation)
CEREX ENTERTAINMENT CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of Nevada, DOES HEREBY CERTIFY
THAT:
A. The Board of Directors of this corporation by the unanimous written
consent of its members, filed with the minutes of the Board, duly adopted a
resolution setting forth a proposed amendment to the Certificate of
Incorporation of the corporation to change the name of the corporation from
CEREX ENTERTAINMENT CORPORATION to CERX ENTERTAINMENT CORPORATION (deleting the
second "e" in Cerex), declaring such amendment to be advisable and directing
that the proposal be placed before the shareholders of the corporation for
consideration thereof. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that Article I (Name and Duration) of the Certificate of
Incorporation of this corporation be amended to provide as follows:
"FIRST. The name of this corporation is CERX ENTERTAINMENT CORPORATION."
B. Other than the change of the corporation's name, there are no amendments
to the Certificate of Incorporation.
C. Pursuant to resolution of the corporation's Board of Directors, the
foregoing Certificate of Amendment was duly approved by affirmative vote of the
holders of a majority of the Corporation's 4,952,838 shares of capital stock
outstanding and entitled to vote on the proposed amendment, and therefore
sufficient for approval, all in accordance with the General Corporation Law of
Nevada and the existing Certificate of Incorporation and bylaws of the
Corporation.
D. This amendment was duly adopted in accordance with the provisions of
Section 78.390 of the General Corporation Law of Nevada.
IN WITNESS WHEREOF, CEREX ENTERTAINMENT CORPORATION has caused this
Certificate of Amendment to be signed by its President, and attested by its
Assistant Secretary, as of the date below.
DATED: March 18, 1997 CEREX ENTERTAINMENT CORPORATION
By: /s/ John D. Brasher Jr.
---------------------------
John D. Brasher Jr., President,
Chief Exec. Officer
By: /s/ Mark T. Cooper
- ----------------------
Mark T. Cooper, Assistant Secretary
Exhibit 3.5 to Form 8-K dated January 27, 1997
BYLAWS
of
CEREX ENTERTAINMENT CORPORATION
(A Nevada Corporation)
ARTICLE I
General
1.01 Applicability. These Bylaws provide rules for conducting the business
of this corporation (the "Company"). Every shareholder and person who
subsequently becomes a shareholder, the Board of Directors, Committees and
Officers of the Company shall comply with these Bylaws, as amended from time to
time. All bylaws and resolutions heretofore adopted by the Board of Directors
are hereby repealed, to the extent in conflict with the provisions of these
Bylaws.
1.02 Offices. The principal office of the Company shall be selected by the
Board of Directors from time to time and may be within or without the State of
Nevada. The Company may have such other offices, within or without the State of
Nevada, as the Board of Directors may, from time to time, determine. The
registered office of the Company required by the General Corporation Law of
Nevada to be maintained in Nevada may be, but need not be, identical with the
principal office if in Nevada, and the address of the registered office may be
changed from time to time by the Board of Directors.
1.03 Definition of Terms. Terms defined in the Company's Certifcate of
Incorporation, as amended and restated from time to time (the "Charter"), shall
have the same meanings when used in these Bylaws.
ARTICLE II
Stock Certificates
2.01 Stock Certificates. The shares of the Company's capital stock shall be
represented by consecutively numbered certificates signed by the President or a
Vice President and the Secretary or Assistant Secretary of the Company, and
sealed with the seal of the Company, or a facsimile thereof. If certificates are
signed by a transfer agent and registrar other than the Company or an employee
thereof, the signatures of the officers of the Company may be facsimile. In case
any officer who has signed (by real or facsimile signature) a certificate shall
have ceased to hold such office before the certificate is issued, it may be
issued by the Company with the same effect as if he continued to hold such
office on the date of issue. Each certificate representing shares shall state
upon the face thereof: (i) that the Company is organized under the laws of the
State of Nevada; (ii) the name of the person to whom issued; (iii) the number,
class and series (if any) of shares which such certificate represents; and (iv)
the par value, if any, of the shares represented by such certificate, or a
statement that the shares have no par value.
If any class or series of shares is subject to special powers,
designations, preferences or relative, participating or other special rights,
then such (together with all qualifications, limitations or restrictions of such
preferences or rights) shall be set forth in full or summarized on the
certificate representing such class or series. Moreover, each certificate shall
state that the Company will furnish, without charge, to the registered holder of
the shares represented by such certificate who so requests a statement setting
forth such information in full.
Each certificate also shall set forth restrictions upon transfer, if any,
or a reference thereto, as shall be adopted by the Board of Directors or by the
shareholders, or as may be contained in this Article II. Any shares issued
without registration under the Securities Act of 1933, as amended ("Act"), shall
bear a legend restricting transfer unless such shares are registered under such
act or an exemption from registration is available for a proposed transfer.
2.02 Consideration for Shares. Shares of the Company shall be issued, and
treasury shares may be disposed of, for such consideration or considerations as
shall be fixed from time to time by the Board of Directors. No shares shall be
issued for less than the par value thereof. The consideration for the issuance
of shares may be paid, in whole or in part, in money, in other property,
tangible or intangible, or in labor or services actually performed for the
Company, or as permitted in the Charter.
1
2.03 Lost 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 Company alleged to have been lost or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, and the Board of Directors when authorizing such issue of a
new certificate or certificates may in its discretion, and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates or his legal representative to advertise the same in
such manner as it shall require, and/or furnish to the Company a bond in such
sum as it may direct, as indemnity against any claim that may be made against
the Company. Except as hereinabove in this section provided, no new certificate
or certificates evidencing shares of stock shall be issued unless and until the
old certificate or certificates, in lieu of which the new certificate or
certificates are issued, shall be surrendered for cancellation.
2.04 Registered Holder as Owner. The Company shall be entitled to treat the
registered holder of any shares of the Company as the owner of such shares, and
shall not be bound to recognize any equitable or other claim to, or interest in,
such shares or rights deriving from such shares, unless and until such
purchaser, assignee, transferee or other person becomes the registered holder of
such shares, whether or not the Company shall have either actual or constructive
notice of the interests of such purchaser, assignee, or transferee or other
person. The purchaser, assignee, or transferee of any of the shares of the
Company shall not be entitled: to receive notice of the meetings of the
shareholders; to vote at such meetings; to examine a list of the shareholders;
to be paid dividends or other sums payable to shareholders; or to own, enjoy and
exercise any other property or rights deriving from such shares against the
Company, until such purchaser, assignee, or transferee has become the registered
holder of such shares.
2.05 Reversions. Cash, property or share dividends, shares issuable to
shareholders in connection with a reclassification of stock, and the redemption
price of redeemed shares, which are not claimed by the shareholders entitled
thereto within TWO years after the dividend or redemption price became payable
or the shares became issuable, despite reasonable efforts by the Company to pay
the dividend or redemption price or deliver the certificate(s) for the shares to
such shareholders within such time shall, at the expiration of such time, revert
in full ownership to the Company, and the Company's obligation to pay any such
dividend or redemption price or issue such shares, as the case may be, shall
thereupon cease; provided, that the Board of Directors may at any time and for
any reason satisfactory to it, but need not, authorize (i) payment of the amount
of cash or property dividend or (ii) issuance of any shares, ownership of which
has reverted to the Company pursuant to this Section of Article II, to the
person or entity who or which would be entitled thereto had such reversion not
occurred.
2.06 Returned Certificates. All certificates for shares changed or returned
to the Company for transfer shall be marked by the Secretary "CANCELLED," with
the date of cancellation, and the transaction shall be immediately recorded in
the certificate book opposite the memorandum of their issue. The returned
certificate may be inserted in the certificate book.
2.07 Transfer of Shares. Upon surrender to the Company or to a transfer
agent of the Company of a certificate of stock endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, and such
documentary stamps as may be required by law, it shall be the duty of the
Company to issue a new certificate, upon payment by the transferee of such
nominal charge therefor as the Company or its transfer agent may impose. Each
such transfer of stock shall be entered on the stock book of the Company.
Respecting any securities issued in reliance upon Rule 903 of Regulation S under
the Act at any time when the Company is not a "reporting issuer" as defined in
Rule 902 of Regulation S, no transfer of such securities shall be registered
unless made in accordance with the provisions of Regulation S.
2.08 Transfer Agent. The Board of Directors shall have power to appoint one
or more transfer agents and registrars for the transfer and registration of
certificates of stock of any class, and may require that stock certificates
shall be countersigned and registered by one or more of such transfer agents and
registrars. Any powers or duties with respect to the transfer and registration
of certificates may be delegated to the transfer agent and registrar.
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ARTICLE III
Meetings of the Shareholders
3.01 Annual Meeting. The annual meeting of the shareholders shall be held
between the 90th and 180th day after the tax year end, at such date and time and
at such place, within or without the State of Nevada, as is designated from time
to time by the Board of Directors and stated in the notice of the meeting. At
each annual meeting the shareholders shall elect a Board of Directors in
accordance with the Charter and shall transact such other business as may
properly be brought before the meeting.
3.02 Special Meetings. Unless otherwise proscribed by law, the Charter or
these Bylaws, special meetings of the shareholders may be called by the Chairman
of the Board, the President, or a majority of the Board of Directors. The
President shall call a special meeting upon the Secretary's receipt of written
demand therefor by the holders of not less than ten percent (10%) of the total
voting power. Requests for special meetings shall state the purpose or purposes
of the proposed meeting.
3.03 Notice of Meetings. Except as otherwise provided by law, the Charter
or these Bylaws, written notice of any annual or special meeting of the
shareholders shall state the place, date, and time thereof and, in the case of a
special meeting, the purpose or purposes for which the meeting is called, shall
be given to each shareholder of record entitled to vote at such meeting not
fewer than 10 nor more than 60 days prior to the meeting by any means permitted
in Section 8.01 hereof. No business other than that specified in the notice of a
special meeting shall be transacted at any such special meeting.
3.04 Record Date. In order that the Company may determine shareholders of
record who are entitled (i) to notice of or to vote at any shareholders meeting
or adjournment thereof, (ii) to express written consent to corporate action in
lieu of a meeting, (iii) to receive payment of any dividend or other
distribution, or (iv) to allotment of any rights or to exercise any rights in
respect of any change, conversion or exchange of stock, or in order that the
Company may make a determination of shareholders of record for any other lawful
purpose, the Board of Directors may fix in advance a date as the record date for
any such determination. Such date shall not be more than 60 days, and in case of
a meeting of shareholders, not less than 10 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken,
and in no event may the record date precede the date upon which the Directors
adopt a resolution fixing the record date.
If no record date is fixed for the determination of shareholders entitled
to notice of or to vote at a meeting of shareholders, or shareholders entitled
to receive payment of a dividend, the date on which notice of the meeting is
given (as defined in Section 8.01 hereof) or the date on which the resolution of
the Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of the shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this Section such determination shall apply to any
adjournment thereof, unless the Board of Directors fixes a new record date for
the adjournment. The record date for determining shareholders entitled to
consent to corporate actions without a meeting shall be fixed as provided in
Section 3.12 hereof.
3.05 Voting List. At least 10 days but nor more than 60 days before any
meeting of shareholders, the officer or transfer agent in charge of the
Company's stock transfer books shall prepare a complete alphabetical list of the
shareholders entitled to vote at such meeting, which list shows the address of
each shareholder and the number of shares registered in his or her name. The
list so prepared shall be maintained at the corporate offices of the Company and
shall be open to inspection by any shareholder, for any purpose germane to the
meeting, at any time during usual business hours during a period of no fewer
than 10 days prior to the meeting. The list shall also be produced and kept open
at any shareholders meeting and, except as otherwise provided by law, may be
inspected by any shareholder or proxy of a shareholder who is present in person
at the meeting. The original stock transfer books shall be prima facie evidence
as to who are the shareholders entitled to examine the list of shareholders and
to vote at any meeting of shareholders.
3.06 Quorum; Adjournments. (a) The holders of a majority of the total
voting power at any shareholders meeting present in person or by proxy shall be
necessary to and shall constitute a quorum for the transaction of business at
all shareholders meetings, except as otherwise provided by law or by the
Articles.
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(b) If a quorum is not present in person or by proxy at any shareholders
meeting, a majority of the voting shares present or represented shall have the
power to adjourn the meeting from time to time to the same or another place
within 30 days thereof and no further notice of such adjourned meeting need be
given if the time and place thereof are announced at the meeting at which the
adjournment is taken.
(c) Even if a quorum is present in person or by proxy at any shareholders
meeting, a majority of the voting shares present or represented shall have the
power to adjourn the meeting from time to time, for good cause, without notice
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjourment is taken, until a new date which is not more
than 30 days after the date of the original meeting.
(d) Any business which might have been transacted at a shareholders meeting
as originally called may be transacted at any meeting held after adjournment as
provided in this Section 3.06 at which reconvened meeting a quorum is present in
person or by proxy. Anything in paragraph (b) of this Section to the contrary
notwithstanding, if an adjournment is for more than 30 days, or if after an
adjournment a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given to each shareholder of record entitled to vote
thereat.
(e) The shareholders present at a duly called meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
3.07 Proxies. At all meetings of shareholders, a shareholder may vote by
proxy, executed in writing by the shareholder or by his duly authorized attorney
in fact. Any proxyholder shall be authorized to sign, on the shareholder's
behalf, any written consent for shareholder action taken in lieu of a meeting.
Such proxy shall be filed with the Secretary of the Company before or at the
time of the meeting. No proxy shall be valid after the expiration of six (6)
months from the date of its execution, unless coupled with an interest, or
unless the person executing it specifies therein the length of time for which it
is to continue in force, which in no case shall exceed three (3) years from the
date of its execution.
3.08 Voting of Shares. At any shareholders meeting every shareholder having
the right to vote shall be entitled to vote in person or by proxy. Except as
otherwise provided by law, by the Articles or in the Board resolution
authorizing the issuance of shares, each shareholder of record shall be entitled
to one vote (on each matter submitted to a vote) for each share of capital stock
registered in his, her or its name on the Company's books. Except as otherwise
provided by law or by the Articles, all matters submitted to the shareholders
for approval shall be determined by a majority of the votes cast (not counting
abstentions) at a legal meeting commenced with a quorum.
3.09 Voting of Shares by Certain Holders. Neither treasury shares, nor
shares of its own stock held by the Company in a fiduciary capacity, nor shares
held by another corporation if the majority of the shares entitled to vote for
the election of directors of such other corporation is held by the Company,
shall be voted at any meeting or counted in determining the total number of
outstanding shares at any given time.
Shares standing in the name of another corporation, domestic or foreign,
may be voted by such officer, agent, or proxy as the bylaws of such corporation
may prescribe, or, in the absence of such provision, as the board of directors
of such corporation may determine.
Shares held by an administrator, executor, personal representative,
guardian, or conservator may be voted by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing in the name of
a trustee may be voted by him, either in person or by proxy, but no trustee
shall be entitled to vote shares held by him without a transfer of such shares
into his name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority to do so be
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
4
3.10 Chairman. The Chairman of the Board of Directors of the Company, if
there is one, or in his absence, the President, shall act as chairman at all
meetings of shareholders.
3.11 Manner of Shareholder Voting. Voting at any shareholders' meeting
shall be oral or by show of hands; provided, however, that voting shall be by
written ballot if such demand is made by any shareholder present in person or by
proxy and entitled to vote.
3.12 Informal Action by Shareholders; Record Date. Any action required or
permitted to be taken at a meeting of the 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 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. Such a consent must be filed with the minutes
of the proceedings of shareholders and shall have the same force and effect as a
vote of the shareholders, and may be stated as such in any document filed with
the Secretary of State of Nevada under the General Corporation Law of Nevada.
Written notice of such action shall be given to all shareholders who have not
consented in writing to the action taken. The record date for determining
shareholders entitled to consent to corporate actions in writing without a
meeting (the "consent record date") shall not precede, and shall not be more
than ten (10) days after, the date upon which the resolution fixing the record
date was adopted. However, if no consent record date is fixed, the consent
record date shall be, respectively, (i) if prior action by the Board of
Directors is required under the General Corporation Law of Nevada for the
consent to be validly taken, the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action; and (ii) if prior
action by the Board of Directors is not required, the first date on which a
properly signed and dated consent setting forth the action taken or proposed to
be taken is delivered as required above.
3.13 Presiding Officers; Order of Business. (a) Shareholders meetings shall
be presided over by the Chairman of the Board; or if the Chairman (and Vice
Chairman) is not present, by the President; or if the President is not present,
by a Vice President; or if a Vice President is not present, by such person
chosen by the Board of Directors; or if none, by a chairperson to be chosen at
the meeting by shareholders present in person or by proxy who own a majority of
the voting power present. The Secretary of a shareholders meeting shall be the
Secretary of the Company; or if the Secretary is not present, an Assistant
Secretary; or if an Assistant Secretary is not present, such person as may be
chosen by the Board of Directors; or if none, by such person who is chosen by
the chairperson at the meeting.
(b) The following order of business, unless otherwise ordered at the
shareholders meeting by the chairperson thereof, shall be observed as far as
practicable and consistent with the purposes of the meeting:
1. Calling of the shareholders' meeting to order.
2. Presentation of proof of mailing of the notice of the meeting and, if
a special meeting, the call thereof.
3. Presentation of proxies.
4. Determination and announcement that a quorum is present.
5. Reading and approval (or waiver thereof) of the minutes of the
previous meeting of shareholders.
6. Reports, if any, of officers.
7. Election of directors, if the meeting is an annual meeting or a
meeting called for such purpose.
8. Consideration of the specific purpose or purposes for which the
meeting has been called, other than election of directors.
9. Transaction of such other business as may properly come before the
meeting.
10. Adjournment.
5
3.14 Annual Report. The President of the Company shall prepare an annual
report which will set forth a statement of affairs of the Company as of the end
of its last fiscal year, including a balance sheet, an income statement and a
statement of changes in financial position, which need not be audited, and
present them at the annual meeting of shareholders. Failure to prepare or
present an annual report shall not affect the validity of any shareholder
meeting. No such report need be prepared or presented for any fiscal year in
which the Company was inactive. This Section shall not apply as to any fiscal
year if the Company (i) was at the year end subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, and
subsequently furnishes to the shareholders an annual report or report on Form
10-K under such Act covering such fiscal year, or (ii) furnishes to shareholders
an Information Statement which conforms to the requirements of Rule 15c2-11 of
the Securities and Exchange Commission.
ARTICLE IV
Directors, Powers and Meetings
4.01 General Powers. All corporate powers shall be exercised, and the
Company's business and affairs shall be managed, by or under the authority of
its Board of Directors, except as otherwise provided in the General Corporation
Law of Nevada or the Charter.
4.02 Number, Tenure and Qualifications. The Company's Board of Directors
shall consist of not less than one (1) and not more than seven (7) Directors, as
resolved from time to time by the Board of Directors. If such number is not so
fixed, the Company shall have one Director. Directors shall be elected at each
annual meeting of shareholders, except as otherwise provided below. Each
Director shall hold office until the next annual meeting of shareholders and
thereafter until his successor shall have been elected and duly qualified.
Directors need not be residents of Nevada or shareholders of the Company.
Directors shall be elected by plurality vote. At least one-fourth in number of
the Directors must be elected annually. No decrease in the number of Directors
shall shorten the term of any incumbent Director.
4.03 Vacancies; Resignation. (a) Any vacancy occurring in the Board of
Directors, except resulting from an increase in the number of directors, may be
filled by the affirmative vote of a majority of the remaining Directors, though
less than a quorum, or by a sole remaining Director. A Director elected to fill
a vacancy shall be elected for the unexpired term of his predecessor in office.
Any directorship to be filled by reason of an increase in the number of
Directors shall be filled by the affirmative vote of a majority of the entire
board or by a majority of the total voting power at any annual meeting or at a
special meeting of shareholders called for that purpose, or by means of written
shareholder consents taken in lieu of a meeting. Every director chosen to fill a
vacancy as provided in this Section shall hold office until the next annual
meeting of shareholders or until his successor has been elected and qualified.
(b) Any Director may resign at any time by giving written notice to the
Board, the Chairman of the Board, the President or the Secretary of the Company.
Unless otherwise specified in such written notice, a resignation shall take
effect upon delivery to the Board or the designated officer. A resignation need
not be accepted in order for it to be effective.
4.04 Removal of Directors. Any Director may be removed only by the
shareholders in the manner provided in the Company's Charter and, if no such
provision appears therein, then as provided by law. Such action may be taken at
any special meeting called for that purpose or by means of written shareholder
consents. In case any vacancy so created shall not be filled by the shareholders
at such meeting or in the written consent effecting removal, such vacancy may be
filled by a majority of the Board of Directors.
4.05 Place of Meetings. The Board of Directors may hold both regular and
special meetings either within or without the State of Nevada, at such place as
the Board of Directors from time to time deems advisable.
4.06 Regular Meetings. A regular meeting of the Board of Directors shall be
held without other notice than these Bylaws immediately after and at the same
place as the annual meeting of shareholders. The Board of Directors may provide
by resolution the time and place for the holding of additional regular meetings
without other notice than such resolution; provided, that any Director not
present when any such resolution is passed is given notice of the resolution.
6
4.07 Special Meetings. A special meeting of the Board of Directors shall be
held without other notice than these Bylaws immediately after and at the same
place as every special meeting of shareholders. Special meetings of the Board of
Directors also may be called by or at the request of the Chairman of the Board,
the President, or any two Directors upon two days' notice to each director if
such notice is delivered personally or sent by telegram, or upon five days'
notice if sent by mail.
4.08 Telephonic Meetings. One or more members of the Board of Directors or
any committee designated by the Board may participate in a meeting of the Board
of Directors or committee by means of conference telephone or similar
communications equipment by which all persons participating in the meeting can
hear one another at the same time. Such participation shall constitute presence
in person at the meeting. All participants in any meeting of Directors, by
virtue of their participation and without further action on their part, shall be
deemed to have consented to the recording of such meeting by electronic device
or otherwise, and to the making of a written transcript thereof, in order that
minutes thereof shall be available for the Company's records.
4.09 Notice. Except as otherwise provided above, notice of the time, date
and place, of every special meeting of Directors or any committee thereof shall
be given. Any Director may waive notice of any meeting. The attendance of a
Director at a meeting shall constitute a waiver of notice of such meeting,
except where a Director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
4.10 Quorum; Adjournments. A majority of the number of directors then in
office, present in person or by means of conference telephone or similar
equipment, shall constitute a quorum for the transaction of business at every
Board meeting, and the act of the majority of the Directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors, except
as may otherwise specifically be provided by law, the Charter or these Bylaws.
If a quorum is not present at any Board meeting, the directors present may
adjourn the meeting, from time to time, without notice other than announcement
of the meeting, until a quorum is present.
4.11 Compensation. Directors shall be entitled to such compensation for
their services as directors as from time to time may be fixed by the Board and
shall be entitled to reimbursement of all reasonable expenses incurred by them
in attending Board meetings. A director may waive compensation for any Board
meeting. No director who receives compensation as a director shall be barred
from serving the Company in any other capacity or from receiving compensation
and reimbursement of reasonable expenses for any or all such other services.
4.12 Presumption of Assent. A Director of the Company who is present at a
meeting of the Board of Directors at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as the Secretary of the
meeting before the adjournment thereof, or shall forward such dissent by
registered or certified mail, first class, postage prepaid, to the Secretary of
the Company, provided such mailing is postmarked within ten calendar days after
the adjournment of the meeting. Such right to dissent shall not apply to a
Director who voted in favor of such action.
4.13 Action by Directors Without Meeting. Any action required to be taken
at a meeting of the Directors of the Company or of a committee of Directors or
any action which may be taken at such a meeting, may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be signed by
all of the Directors entitled to vote with respect to the subject matter therof.
A consent shall be sufficient for this Section if it is executed in
counterparts, in which event all of such counterparts, when taken together,
shall constitute one and the same consent.
4.14 Bank Accounts, etc. Anything herein to the contrary notwithstanding,
the Board of Directors may, except as may otherwise be required by law,
authorize any officer or officers, agent or agents, in the name of and on behalf
of the Company, to sign checks, drafts, or other orders for the payment of money
or notes or other evidences of indebtedness, to endorse for deposit, deposit to
the credit of the Company at any bank or trust company or banking institution in
which the Company may maintain an account or to cash checks, notes, drafts, or
other bankable securities or instruments, and such authority may be general or
confined to specific instances, as the Board of Directors may elect.
7
4.15 Inspection of Records. Every Director shall have the absolute right at
any reasonable time to inspect all books, records, documents of every kind, and
the physical properties, of the Company and of its subsidiaries. Such inspection
may be made personally or by an agent and includes the right to make copies and
extracts.
4.16 Executive Committee. (a) The Board of Directors may, by resolution
adopted by a majority of the whole Board, appoint two or more of its members to
constitute an Executive Committee. One of such directors shall be designated as
Chairman of the Executive Committee. Each member of the Executive Committee
shall continue as a member thereof until the expiration of his term as a
director, or until his earlier resignation from the Executive Committee, in
either case unless sooner removed as a director or member of the Executive
Committee by any means authorized by the Charter or herein.
(b) The Executive Committee shall have and may exercise, to the extent
provided in such resolution and except as prohibited by law, all of the rights,
power and authority of the Board of Directors.
(c) The Executive Committee shall fix its own rules of procedure and shall
meet at such times and at such place or places as may be provided by its rules.
The Chairman of the Executive Committee, or in the absence of the Chairman, a
member of the Executive Committee chosen by a majority of the members present,
shall preside at all meetings of the Executive Committee, and another member
thereof chosen by the Executive Committee shall act as Secretary. A majority of
the Executive Committee shall constitute a quorum for the transaction of
business, and the affirmative vote of a majority of the members thereof shall be
required for any action of the Executive Committee. The Executive Committee
shall keep minutes of its meetings and deliver such minutes to the Board of
Directors.
4.17 Other Committees. The Board of Directors may, by resolution duly
adopted by a majority of directors at a meeting at which a quorum is present,
appoint an audit committee, compensation committee, and such other committee or
committees as it shall deem advisable and with such limited authority as the
Board of Directors shall from time to time determine.
4.18 Other Provisions Regarding Committees. (a) The Board of Directors
shall have the power at any time to fill vacancies in, change the membership of,
or discharge any committee. The members of any committee present at any meeting
of a committee, whether or not they constitute a quorum, may appoint a director
to act in the place of an absent member.
(b) Members of any committee shall be entitled to such compensation for
their services as such as from time to time may be fixed by the Board of
Directors and in any event shall be entitled to reimbursement of all reasonable
expenses incurred in attending committee meetings. Any member of a committee may
waive compensation for any meeting. No member of a committee who receives
compensation as a member of one or more committees shall be barred from serving
the Company in any other capacity or from receiving compensation and
reimbursement of reasonable expenses for any or all such other services.
(c) Unless otherwise prohibited by law, the provisions above concerning
action by written consent of directors and meetings of directors by telephonic
or similar means shall apply to all committees from time to time created by the
Board of Directors.
ARTICLE V
Officers and Agents
5.01 Positions. The Company's officers generally shall be chosen by the
Board of Directors and shall consist of a Chairman of the Board, a President,
one or more Vice Presidents if desired, a Secretary and a Treasurer. The Board
of Directors may appoint one or more other officers, assistant officers and
agents as it from time to time deems necessary or appropriate, who shall be
chosen in such manner and hold their offices for such terms and have such
authority and duties as from time to time may be determined by the Board of
Directors. The Board may delegate to the Chairman of the Board the authority to
appoint any officer or agent of the Company and to fill a vacancy other than the
Chairman of the Board or President. Any two or more offices may be held by the
same person, except that no person may simultaneously hold the offices of
President and Secretary and of President and Vice President. In all cases where
the duties of any officer, agent or employee are not prescribed by these bylaws
or by the Board of Directors, such officer, agent or employee shall follow the
orders and instructions of the President.
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5.02 Term of Office; Removal. Each officer of the Company shall hold office
at the pleasure of the Board and any officer may be removed, with or without
cause, at any time by the affirmative vote of a majority of the directors then
in office; provided, that any officer appointed by the Chairman of the Board
pursuant to authority delegated by the Board may be removed, with or without
cause, at any time by the Chairman whenever the Chairman in his or her absolute
discretion shall consider that the Company's best interests shall be served by
such removal. Removal of an officer by the Board (or the Chairman, as the case
may be) shall not prejudice the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not in itself
create contract rights.
5.03 Vacancies. A vacancy in any office, however occurring, may be filled
by the Board or the Executive Committee, for the unexpired portion of the term
by majority vote of its members, or by the Chairman of the Board in the case of
a vacancy occurring in an office to which the Chairman has been delegated
authority to make appointments.
5.04 Compensation. The salaries of all officers of the Company shall be
fixed from time to time by the Board, and no officer shall be prevented from
receiving a salary by reason of the fact that he also receives compensation from
the Company in any other capacity.
5.05 Chairman of the Board. The Chairman of the Board ("Chairman"), if such
officer shall be chosen by the Board of Directors, shall preside at all meetings
of the Board of Directors and meetings of shareholders at which he is present
and shall exercise general supervision and direction over the implementation of
Board policy affecting the affairs of the Company. Any act which may be
performed by the Chief Executive Officer or President may be performed by the
Chairman.
5.06 Chief Executive Officer; Chief Operating Officer. The Chairman of the
Board shall, unless the Board determines otherwise, serve as the Chief Executive
Officer ("CEO") of the Company. If the Chairman is not designated the CEO, then
the President shall serve as CEO. The Board may, from time to time, designate
from among the executive officers of the Company an officer to serve as Chief
Operating Officer ("COO") of the Company. If the Chairman serves as the CEO,
then the President shall serve as COO. If the President is designated CEO, then
the Executive Vice President (or if there is none, then the next most senior
Vice President) shall serve as COO. A person designated to serve in the capacity
of CEO or COO shall serve at the pleasure of the Board.
A person designated Chief Executive Officer (CEO) shall have primary
responsibility for and active charge of the management and supervision of the
Company's business and affairs. The CEO may execute in the name of the Company
authorized corporate obligations and other instruments, shall perform such other
duties as may be prescribed by the Board (or Chairman, as the case may be) from
time to time and, in the absence or disability of the President, shall exercise
all of the duties and powers of the President. In the event that the President
is not the CEO, then the CEO shall supervise the performance of the President
and shall be responsible for the execution of the policies and directives of the
Board. The CEO shall report directly to the Board. The CEO shall perform such
other duties as may be assigned by the Board (or Chairman, as the case may be).
The CEO may perform any act which might be performed by the President.
A person designated Chief Operating Officer (COO) shall be responsible for
the day-to-day management of the Company's operations, subject to the authority
of the CEO. The COO shall report directly to the CEO of the Company and shall
consult with the CEO on all matters of corporate policy and material business
activities of the Company. The COO shall perform such other duties as may be
assigned by the Board or the CEO.
5.07 President. The President shall have general active management of the
business of the Company, subject to the authority of the Chief Executive Officer
if the President is not designated as such, and general supervision of its
officers, agents and employees. In the absence of the Chairman and Chief
Executive Officer, he shall preside at all meetings of the shareholders and of
the Board. In the absence of a designated Chief Executive Officer he shall see
that all policies and directives of the Board are carried into effect.
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He shall, unless otherwise directed by the Board of Directors, attend in
person or by substitute appointed by him, or shall execute in behalf of the
Company written instruments appointing a proxy or proxies to represent the
Company, at all meetings of the stockholders of any other company in which the
Company shall hold any stock. He may, on behalf of the Company, in person or by
substitute or by proxy, execute written waivers of notice and consents with
respect to any such meetings. At all such meetings and otherwise, the President,
in person or by substitute or proxy as aforesaid, may vote the stock so held by
the Company and may execute written consent and other instruments and power
incident to the ownership of said stock, subject however to the instructions, if
any, of the Chairman or the Board of Directors. The President shall have custody
of the Treasurer's bond, if any.
5.08 Executive Vice President. The Executive Vice President shall assist
the President in the discharge of surpervisory, managerial and executive duties
and functions. In the absence of the President or in the event of his death, or
inability or refusal to act, the Executive Vice President shall perform the
duties of the President and when so acting shall have the duties and powers of
the President. He shall perform such other duties as from time to time may be
assigned to him by the President, Chairman or Board of directors.
5.09 Vice Presidents. The Vice Presidents, if any, shall assist the
President and Executive Vice President and shall perform such duties as may be
prescribed by the Board, the Chairman or the President. Vice Presidents in the
order of their seniority shall, in the absence or disability of the Chairman and
President, exercise all of the duties and powers of such officers. The Executive
Vice President, if any, shall be the most senior of Vice Presidents, and the
Senior Vice President, if any, shall be the next most senior of Vice Presidents.
In regard to other Vice Presidents, they shall have the respective ranks
designated by the Board of Directors, or if none has been so designated, as
designated by the Chairman, or if none has been so designated by the Chairman,
they shall rank in the order of their respective elections to such office. The
execution of any instrument on the Company's behalf by a Vice President shall be
conclusive evidence, as to third parties, of his authority to act in the stead
of the President and Executive Vice President.
5.10 Secretary. The Secretary shall: (i) keep the minutes of the
proceedings of the shareholders and the Board of Directors and record all votes
and proceedings thereof in a book kept for that purpose; (ii) see that all
notices are duly given in accordance with the provisions of these Bylaws or as
required by law; (iii) be custodian of the corporate records and of the seal of
the Company and affix the seal to all documents when authorized by the Board of
Directors; (iv) keep at its registered office or principal place of business
within or outside Delaware a record containing the names and addresses of all
shareholders and the number and class of shares held by each, unless such a
record shall be kept at the office of the Company's transfer agent or registrar;
(v) sign with the President, or a Vice President, certificates for shares of the
Company, the issuance of which shall have been authorized by resolution of the
Board of Directors; (vi) have general charge of the stock transfer books of the
Company, unless the Company has a transfer agent; and (vii) in general, perform
all duties incident to the office of Secretary and such other duties as from
time to time may be assigned to him by the President or the Board of Directors.
The Board of Directors may give general authority to officers other than the
Secretary or any Assistant Secretary to affix the Company's seal and to attest
the fixing thereof by his or her signature.
5.11 Assistant Secretary. The Assistant Secretary, if any (or if there is
more than one, the Assistant Secretaries in the order designated, or in the
absence of any designation, in the order of their appointment), in the absence
or disability of the Secretary, shall perform the duties and exercise the powers
of the Secretary. The Assistant Secretary(ies) shall perform such other duties
and have such other powers as from time to time may be prescribed by the Board,
the Chairman or the Chief Executive Officer. The Chairman may appoint one or
more Assistant Secretary(ies) to office.
5.12 Treasurer. The Treasurer shall, unless the Board otherwise resolves,
be the principal financial officer and principal accounting officer of the
Company and shall have the care and custody of all funds, securities, evidence
of indebtedness and other valuable effects of the Company, shall keep full and
accurate accounts of receipts and disburesments in books belonging to the
Company and shall deposit all money and other valuable effects of the Company in
the name and to the credit of the Company in such depositories as from time to
time may be designated by the Board. The Treasurer shall disburse the funds of
the Company in such manner as may be ordered by the Board from time to time and
shall render to the Chairman of the Board, the President and the Board, at
regular Board meetings or whenever any of them may so require, an account of all
transactions and of the Company's financial condition.
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5.13 Assistant Treasurer. The Assistant Treasurer, if any (or if there is
more than one, the Assistant Treasurers in the order designated, or in the
absence of any designation, in the order of their appointment), in the absence
or disability of the Treasurer, shall perform the duties and exercise the powers
of the Treasurer. The Assistant Treasurer(s) shall perform such other duties and
have such other powers as from time to time may be prescribed by the Board, the
Chairman or the Chief Executive Officer. The Chairman may appoint one or more
Assistant Treasurer(s) to office.
5.14 Resignations. Any officer may resign at any time by giving written
notice to the Board or to the Chairman. Such resignation shall take effect at
the time specified therein and, unless specified therein, no acceptance of the
resignation shall be required for the resignation to be effective.
5.15 Delegation of Duties. In the event of the absence or disability of any
officer of the Company, or for any other reason the Board shall deem sufficient,
the Board may temporarily designate the powers and duties, or particular powers
and duties, of such officer to any other officer, or to any director.
5.16 Fidelity Bonds. The Board of Directors shall have the power, to the
extent permitted by law, to require any officer, agent or employee of the
Company to give bond for the faithful discharge of his duties in such form and
with such surety or sureties as the Board deems advisable.
ARTICLE VI
Indemnification
Every Director, officer, employee and agent of the Company, and every
person serving at the Company's request as a director, officer (or in a position
functionally equivalent to that of officer or director), employee or agent of
another corporation, partnership, joint venture, trust or other entity, shall be
indemnified to the extent and in the manner provided by the Company's Charter,
as it may be amended, and in the absence of any such provision therein, in
accordance with Nevada law.
ARTICLE VII
Execution of Instruments and Deposit of Corporate Funds
7.01 Execution of Instruments Generally. The Chairman of the Board, the
President, any Vice President, the Secretary or the Treasurer, subject to the
approval of the Board of Directors,may enter into any contract or execute and
deliver any instrument in the name and on behalf of the Company. The Board of
Directors may authorize any officer or officers, or agent or agents, to enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Company, and such authorization may be general or confined to
specific instances.
7.02 Borrowing. Unless and except as authorized by the Board of Directors,
no loans or advances shall be obtained or contracted for, by or on behalf of the
Company, and no negotiable paper shall be issued in its name. Such authorization
may be general or confined to specific instances. Any officer or agent of the
Company thereunto so authorized may attain loans and advances for the Company
and for such loans and advances may make, execute and deliver any promissory
notes, bonds, or other evidences of indebtedness of the Company. Any officer or
agent of the Company so authorized may pledge, hypothecate or transfer as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Company, any and all stocks, bonds other securites and other
personal property at any time held by the Company, and to that end may endorse,
assign and deliver the same and do every act and thing necessary or proper in
connection therewith.
7.03 Deposits. All funds of the Company not otherwise employed shall be
deposited from time to time to its credit in such banks or trust companies or
with such bankers or other depositaries as the Board of Directors may select, or
as may be selected by any officer or officers or agent or agents authorized to
do so by the Board of Directors. Endorsements for deposit to the credit of the
Company in any of its duly authorized depositaries shall be made in such manner
as the Board of Directors from time to time may determine.
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7.04 Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, and all notes or other evidence of indebtedness issued in the
name of the Company, shall be signed by such officer or officers or agent or
agents of the Company and in such manner as the Board of Directors from time to
time may determine.
7.05 Proxies. Proxies to vote with respect to shares of stock of other
corporations owned by, or standing in the name of, the Company may be executed
and delivered from time to time on behalf of the Company by the Chairman of the
Board, the President or any Vice President or by any other person or persons
thereunto authorized by the Board of Directors.
ARTICLE VIII
Miscellaneous
8.01 Declaration of Dividends. The Board of Directors at any regular or
special meeting may declare dividends payable, whenever in the exercise of its
discretion it may deem such declaration advisable and such is permitted by law.
Such dividends may be paid in cash, property, or shares of the Company.
8.02 Benefit Plans. Directors shall have the power to install and authorize
any pension, profit sharing, stock option, stock award or stock bonus,
insurance, welfare, educational, bonus, health and accident or other benefit
program which the Board deems to be in the interest of the Company, at the
expense of the Company, and to amend or revoke any plan so adopted. Any such
plan may adopted and have full force and effect by resolution of the Board of
Directors, except where applicable laws, rules or regulations require prior
approval of the Company's shareholders of such plan in order for the plan to be
valid.
8.03 Seal. The corporate seal of the Company shall be circular in form and
shall contain the name of the Company, the year incorporated and the words
"Seal" and "Nevada".
8.04 Fiscal Year. The Board of Directors shall have the power to fix, and
from time to time change, the fiscal year of the Company. Any such adoption of
or change in a fiscal year shall not constitute or require an amendment to these
Bylaws.
8.05 Amendment of Bylaws. These Bylaws may be amended or repealed in the
manner provided for in the Charter, or if none is there provided: by majority
vote of the Board of Directors, taken at any meeting or by written consent,
subject to the shareholders' right to change or repeal any Bylaws so made or
adopt new Bylaws by vote of at least a majority of the total voting power.
Bylaws amendments may be proposed by any Director or shareholder. Any action
duly taken by the Board or the shareholders which conflicts or is inconsistent
with these Bylaws (as they may be amended) shall constitute an amendment of the
Bylaws, if the action was taken by such number of directors or shares voting as
would be sufficient for amendment of the Bylaws.
8.06 Gender. The masculine gender is used in these Bylaws as a matter of
convenience only and shall be interpreted to include the feminine and neuter
genders as the circumstances indicate.
8.07 Conflicts. In the event of any irreconcilable conflict between these
Bylaws and either the Company's Charter or applicable law, the latter shall
control.
8.08 Definitions. Except as these Bylaws otherwise specifically provide,
all terms used in these Bylaws shall have the definitions given them in the
Company's Charter or the Nevada General Corporation Law.
ARTICLE IX
Notices
9.01 Receipt of Notices by the Company. Notices, shareholder writings
consenting to action, and other documents or writings shall be deemed to have
been received by the Company when they are actually received: (i) at the
registered office of the Company in Nevada; (ii) at the principal office of the
Company (as designated in the most recent document filed by the Company with the
Nevada Secretary of State designating a principal office) addressed to the
attention of the Secretary of the Company; (iii) by the Secretary of the Company
wherever the Secretary may be found; or (iv) by any other person authorized from
time to time by the Board of Directors or the President to receive such
writings, wherever such person is found.
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9.02 Giving of Notice. Exept as otherwise provided by the General
Corporation Law of Nevada, these Bylaws, the Charter or resolution of the Board
of Directors, every meeting notice or other notice, demand, bill, statement or
other communication (collectively, "Notice") from the Company to a Director,
Officer or shareholder shall be duly given if it is written or printed and is
(i) sent by first class or express mail, postage prepaid, (ii) sent by any
commercial overnight air courier service, such as DHL, Federal Express, Emery,
Airborne, UPS or similar service, (iii) sent by telegraph, cablegram, telex,
telecopier, facsimile or similar transmission, (iv) delivered by any commercial
messenger service which regularly retains its receipts, or (v) personally
delivered, provided a receipt is obtained reflecting the date of delivery.
Notice shall not be duly given unless all delivery or postage charges are
prepaid. Notice shall be given to an addressee's most recent address as it
appears on the Company's records or to such other address as has been provided
in writing to the Secretary. A Notice shall be deemed "given" when dispatched
for delivery, when personally delivered, when transmitted electronically, or if
mailed, on the date postmarked. This Section shall not have the effect of
shortening any notice period provided for in these Bylaws.
9.03 Waiver of Notice. Any Notice required or permitted by the General
Corporation Law of Nevada, the Charter or these Bylaws may be waived in writing
at any time by the person entitled to the Notice, and such waiver shall be
equivalent to the giving of notice. Notice of any shareholders' meeting shall be
waived by attendance, in person or by proxy, at the meeting, unless any question
of lack of or defect in a Notice is raised prior to conclusion of the meeting. A
waiver of Notice of a special meeting of shareholders shall state the purpose
for which the meeting was called or the business to be transacted thereat.
APPROVED AND ADOPTED by the Board of Directors as of February 20, 1997.
SECRETARY'S CERTIFICATION
I, the undersigned Secretary or Assistant Secretary of this corporation,
hereby certify that the foregoing Bylaws were duly adopted by its Board of
Directors on the date above indicated and that the foregoing text of the Bylaws
are currently in full force and effect and have not been revoked, suspended or
amended since adoption thereof.
Dated: February 20, 1997
CEREX ENTERTAINMENT CORPORATION
By: /s/ Elisabeth M. Crosse
---------------------------
Elisabeth M. Crosse, Asst. Secretary
(SEAL)
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