UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C
AMENDMENT 1
INFORMATION STATEMENT PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
FILED BY THE REGISTRANT [X]
FILED BY PARTY OTHER THAN THE REGISTRANT [ ]
CHECK THE APPROPRIATE BOX:
[X] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
[ ] Definitive Information Statement
OZOLUTIONS INC.
(Name of Registrant as specified in its charter)
PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX):
[X] No fee required.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transactions applies:
(3) Per unit price or other underlying value of transaction computed pursuant
to exchange act rule 0-11:
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by exchange act rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the form or schedule and the date of its filing.
(1) Amount previously paid:
(2) Form, schedule or registration statement no.:
(3) Filing party:
(4) Date filed:
OZOLUTIONS INC.
30 DENVER CRESCENT, SUITE 200
TORONTO, ONTARIO, CANADA M2J 1G8
TELEPHONE (416) 490-0254
November 5, 2004
To Our Stockholders:
The purpose of this information statement is to inform the holders of
record of shares of our common stock as of the close of business on the record
date, September 29, 2004 that our board of directors has recommended, and that a
majority of our stockholders intend to vote in favor of a resolution which will
change our domicile from Delaware to Nevada.
The board of directors will submit a proposal to change the state of
incorporation of Ozolutions Inc. from Delaware to Nevada. If approved by at
least a majority of the votes cast by holders of our outstanding common stock,
the change of domicile will result in a change in our jurisdiction of
incorporation from the State of Delaware to the State of Nevada and will also
result in the adoption of new articles of incorporation and bylaws for
Ozolutions Inc., which will govern us under Nevada law. If approved by the
stockholders and subject to requisite regulatory approval, it is anticipated
that the change of domicile will become effective on or about November 25, 2004
or as soon as practicable after the meeting.
The change of domicile is intended, among other things, to enable us to
take advantage of a more favorable tax structure and the flexibility of
corporate law in Nevada.
Our board of directors has reserved the right to terminate or abandon the
change of domicile at any time prior to its effectiveness, notwithstanding
stockholder approval, if the board determines for any reason that the
consummation of the change of domicile would be inadvisable or not in the best
interests of Ozolutions Inc. or our stockholders.
For a summary of the principal income tax consequences of the change of
domicile to United States stockholders and Ozolutions Inc., see "Federal Income
Tax Considerations" contained in the accompanying information statement.
If the change of domicile is completed, our stockholders will be required
to surrender their current certificates representing common stock in exchange
for certificates representing the appropriate number of shares of International
Development Corp., as a Nevada corporation. Appropriate transmittal forms will
be sent to the stockholders for these purposes.
The information statement provides a detailed description of the change of
domicile and other information to assist you in considering the matters on which
to be voted. We urge you to review this information carefully and, if you
require assistance, to consult with your financial, tax or other professional
advisers.
For the reasons set forth in the information statement, your board of
directors unanimously believes that the proposed change of domicile is in the
best interests of Ozolutions Inc. and all of its stockholders.
We appreciate your continued interest in Ozolutions Inc.
Very truly yours,
/s/ Max Weissengruber
Max Weissengruber
President
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OZOLUTIONS INC.
30 DENVER CRESCENT, SUITE 200
TORONTO, ONTARIO, CANADA M2J 1G8
TELEPHONE (416) 490-0254
INFORMATION STATEMENT
This information statement is furnished at the close of business on
September 29, 2004, the record date, to the holders of record of the outstanding
common stock of Ozolutions Inc., pursuant to Rule 14c-2 promulgated under the
Securities Exchange Act of 1934, as amended, in connection with an action that
the holders of those persons holding a majority of the votes of our stock intend
to take by written consent on November 25, 2004. The holders of a majority of
the votes of our stock intend to vote in favor of a change in our domicile from
the State of Delaware to the State of Nevada.
This information statement will be sent on or about November 5, 2004 to our
stockholders of record who have not signed the majority written consent
described herein.
VOTING SECURITIES
In accordance with our bylaws, our board of directors has fixed the close
of business on September 29, 2004 as the record date for determining the
stockholders entitled to notice of the above noted action. The approval of the
proposed change in domicile requires the affirmative vote of a majority of the
shares of our common stock issued and outstanding as of the record date at the
time the vote is taken. As of the record date, 49,154,430 shares of our common
stock were issued and outstanding. Each share of the common stock outstanding
entitles the holder to one vote on all matters brought before the common
stockholders. The quorum necessary to conduct business of the stockholders
consists of a majority of the shares of the common stock issued and outstanding
as of the record date.
We have consenting stockholders, Betty-Ann Harland, our chairman, chief
executive officer and a director, who holds, directly and by proxy, 21,000,000
shares of our common stock, Patrick Sweeney, who holds 179,705 shares of our
common stock, Mike Borelli, who holds 369,000 shares of our common stock, Brian
Robertson our chief financial officer, who holds 1,052,440 shares of our common
stock, Margaret Robertson, the wife of Brian Robertson, our chief financial
officer, who holds 164,106 shares of our common stock, Liane Robertson, who
holds 475,000 shares of our common stock, Bill Kloepfer, who holds 492,160
shares of our common stock, Elizabeth Hansen, who holds 420,000 shares of our
common stock, Poas Consultores S.A., who holds 412,400 shares of our common
stock, DCL Inversionista S.A., who holds 684,660 shares of our common stock,
Turbo Consultores S.A., who holds 471,200 shares of our common stock, E & L
Consultores S.A., who holds 265,500 shares of our common stock, and Arenal
Holdings S.A., who holds 510,000 shares of our common stock. Together, our
consenting stockholders hold 26,496,171 shares of our common stock which number
exceeds the majority of the issued and outstanding shares of our common stock.
Our consenting stockholders will have the power to pass the proposed
corporate actions without the concurrence of any of our other stockholders.
ACCORDINGLY, WE ARE NOT ASKING OUR STOCKHOLDERS FOR A PROXY AND
STOCKHOLDERS ARE REQUESTED NOT TO SEND A PROXY.
DISTRIBUTION AND COSTS
We will pay all costs associated with the distribution of this information
statement, including the costs of printing and mailing. In addition, we will
only deliver one information statement to multiple security holders sharing an
address, unless we have received contrary instructions from one or more of the
security holders. Also, we will promptly deliver a separate copy of this
information statement and future stockholder communication documents to any
security holder at a shared address to which a single copy of this information
statement was delivered, or deliver a single copy of this information statement
and future stockholder communication documents to
1
any security holder or holders sharing an address to which multiple copies are
now delivered, upon written request to us at our address noted above.
Security holders may also address future requests regarding delivery of
information statements and/or annual reports by contacting us at the address
noted above.
DISSENTERS' RIGHT OF APPRAISAL
Delaware law provides for a right of a stockholder to dissent to the
proposed merger and obtain appraisal of or payment for such stockholder's
shares. See "Change of Domicile - Dissent Rights of Our Stockholders."
CHANGE OF DOMICILE
PLAN OF MERGER
We are proposing to change our state of incorporation from Delaware to
Nevada by means of a merger permitted under the corporate statutes of both
states. The merger will be between Ozolutions Inc., a Delaware corporation, and
International Development Corp., a Nevada corporation, organized by us for the
specific purpose of the change of domicile. A copy of the special resolution
authorizing the change of domicile to be voted on by our stockholders is
contained in Attachment A. The merger will be consummated pursuant to a Plan of
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Merger, a copy of which is contained in Attachment B. Copies of the articles of
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incorporation and bylaws, which will serve as our articles of incorporation and
bylaws following the change of domicile are attached to the Plan of Merger. The
Plan of Merger provides that Ozolutions Inc. will merge into International
Development Corp. Following the merger, International Development Corp. will be
the surviving entity.
International Development Corp. is a newly formed corporation with one
share of common stock issued and outstanding held by Betty-Ann Harland, our
chairman, chief executive officer and a director, with only minimal capital.
The terms of the merger provide that the currently issued one share of the
common stock of International Development Corp. held by Ms. Harland will be
cancelled. As a result, following the merger, our current stockholders will be
the only stockholders of the newly merged corporation.
The change of domicile will not interrupt the existence of Ozolutions Inc.
Each share of our common stock will remain issued and outstanding as a share of
the common stock of International Development Corp. after the change of domicile
from Delaware to Nevada. For a summary of certain of the rights of stockholders
of Ozolutions Inc. before and after the change of domicile, see "Change of
Domicile - Effect of the Change of Domicile on Stockholder Rights."
Officers and Directors. Our board of directors currently consists of five
members, Betty-Ann Harland, Max Weissengruber, Douglas Robertson, Robert W.
Gingell, and Arthur N. Kelly. Upon the change of domicile, our board of
directors will consist of the same individuals who are currently the directors
of Ozolutions Inc., and who are named as the directors in the articles of
incorporation filed pursuant to our change of domicile into Nevada.
Additionally, immediately following the change of domicile, our officers will be
Betty-Ann Harland, chairman and chief executive officer, Max Weissengruber,
president and chief operating officer, and Brian Robertson, chief financial
officer. See "Management - Executive Officers and Directors."
Exchange of Share Certificates. As soon as practicable on or after the
change of domicile, our stockholders of record immediately prior to the change
of domicile will be sent detailed instructions concerning the procedures to be
followed for submission of certificates representing our common stock to our
transfer agent, together with a form of transmittal letter to be sent to the
transfer agent at the time such certificates are submitted.
After the change of domicile, the transfer agent will deliver to any holder
who has previously submitted a duly completed and executed transmittal letter
and a certificate representing the common stock, a certificate issued by us
representing an equal number of shares of our common stock as a Nevada
corporation into which such shares of the common stock were converted.
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After the change of domicile but before a certificate representing common
stock is surrendered, certificates representing common stock will represent the
number of shares of our common stock as a Nevada corporation into which such
common stock was converted pursuant to the terms of the change of domicile. Our
transfer agent will deliver certificates representing the appropriate amount and
type of our capital stock in accordance with the stockholder's instructions for
transfer or exchange.
Failure by a stockholder to return appropriate transmittal letters or to
surrender certificates representing common stock will not affect such person's
rights as a stockholder, as such stockholder's certificates representing common
stock following the change of domicile will represent the number of shares of
our common stock as a Nevada corporation into which such common stock was
converted pursuant to the terms of the change of domicile, and will present no
material consequences to us.
CONDITIONS TO THE CHANGE OF DOMICILE; STOCKHOLDER APPROVALS
Change of Domicile. The change of domicile is subject to, among other
things:
- - The approval by our stockholders of the special resolution authorizing the
change of domicile (a copy of which is contained in Attachment A) by the
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affirmative vote of at least the majority of our common stock issued and
outstanding on the record date;
- - The filing of Articles of Merger with the Secretary of State of Nevada; and
- - The filing of a Certificate of Merger with the Secretary of State of
Delaware.
Notwithstanding the requisite stockholder approvals of the change of
domicile, our board of directors has reserved the right to terminate or abandon
the change of domicile without further stockholder approval if the board
determines that the consummation of the change of domicile would be inadvisable
or not in our best interests or our stockholders, or if all of the respective
conditions to consummation of the change of domicile have not occurred within a
reasonable period of time.
FILING OF ARTICLES OF MERGER
The change of domicile is subject to filing of Articles of Merger with the
Secretary of State of Nevada pursuant to the Nevada Revised Statutes and the
Certificate of Merger with the Secretary of State of Delaware pursuant to the
Delaware General Corporation Law. When the special resolution is passed by the
requisite number of holders of the shares of our common stock, we intend to file
the Articles of Merger and the Certificate of Merger.
Under the Delaware General Corporation Law and the Nevada Revised Statutes,
when the merger takes effect:
- - Every other entity that is a constituent entity (in our case, Ozolutions
Inc., a Delaware corporation) merges into the surviving entity
(International Development Corp.) and the separate existence of every
entity except the surviving entity ceases;
- - The title to all real estate and other property owned by each merging
constituent entity is vested in the surviving entity without reversion or
impairment;
- - The surviving entity has all of the liabilities of each other constituent
entity;
- - A proceeding pending against any constituent entity may be continued as if
the merger had not occurred or the surviving entity may be substituted in
the proceeding for the entity whose existence has ceased;
- - The articles of incorporation of the surviving entity are amended to the
extent provided in the plan of merger; and
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- - The stockholders' interests of each constituent entity that are to be
converted into stockholders' interests, obligations or other securities of
the surviving or any other entity or into cash or other property are
converted, and the former holders of the stockholders' interests are
entitled only to the rights provided in the Articles of Merger or any
created pursuant to Chapters 92A.300 to 92A.500, inclusive, of the Nevada
Revised Statutes and Section 262 of the Delaware General Corporation Law
dealing with dissenter's rights.
Resales of Our Common Stock. Pursuant to Rule 145 under the Securities Act
of 1933, the merger of Ozolutions Inc. as a Delaware corporation into a Nevada
corporation and the exchange of our shares of common stock in the Delaware
corporation into the shares of the common stock of the Nevada corporation is
exempt from registration under the Securities Act, since the sole purpose of the
transaction is a change of our domicile within the United States. The effect of
the exemption is that the shares of our common stock issuable in the change of
domicile may be resold by the former stockholders without restriction to the
same extent that such shares may have been sold before the change of domicile.
Accounting for the Transaction. Upon consummation of the change of
domicile, the historical financial statements of the Delaware company will
become the historical financial statements of the Nevada company. Total
stockholders' equity will be unchanged as a result of the change of domicile.
PRINCIPAL REASONS FOR THE CHANGE OF DOMICILE
We have chosen to change our state of incorporation in order to take
advantage of several features of Nevada corporate law which are expected to help
us reduce our taxes and to facilitate our corporate actions. A comparison of
Nevada and Delaware law follows:
- - Corporations domiciled in Nevada do not pay a franchise tax or a corporate
income tax. Delaware imposes a corporate income tax.
- - Under Nevada law, unless otherwise provided in the articles of
incorporation, a corporation that desires to change the number of shares of
a class or series, if any, of its authorized stock by increasing or
decreasing the number of authorized shares of the class or series and
correspondingly increasing or decreasing the number of issued and
outstanding shares of the same class or series held by each stockholder of
record at the effective date and time of the change, except as otherwise
provided in subsections 2 and 3 of Chapter 78.207 of the Nevada Revised
Statutes, may do so by a resolution adopted by the board of directors,
without obtaining the approval of the stockholders. The resolution may also
provide for a change of the par value, if any, of the same class or series
of the shares increased or decreased. After the effective date and time of
the change, the corporation may issue its stock in accordance therewith.
The second bullet point above is especially important to us, inasmuch as we
will be able to change our authorized shares to more efficiently meet our
current needs. Presently, we need to go to the time and expense of having a
stockholders' meeting in order to change our authorized shares. We must be able
to quickly deal with situations calling for us to modify our capital structure.
EFFECT OF CHANGE OF DOMICILE ON STOCKHOLDER RIGHTS
On the effective date of the merger resulting in our change of domicile,
Ozolutions Inc. will be deemed incorporated under the Nevada Revised Statutes.
Consequently, we will be governed by the articles of incorporation and bylaws
filed with the Articles of Merger. The following summary describes the material
consequences of the change of domicile to our stockholders, in addition to the
differences in state law described above in "Change of Domicile - Principal
Reasons for the Change of Domicile." This summary does not purport to be
exhaustive and is qualified in its entirety by reference to our current articles
of incorporation and bylaws, and the proposed new articles of incorporation and
bylaws. The text of the proposed articles of incorporation and bylaws are
included in this information statement as exhibits to the Plan of Merger
described in Attachment B. A copy of our current articles of incorporation,
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bylaws, the Delaware Statutes, and the Revised Nevada Statutes will be available
for reference by the stockholders of Ozolutions Inc. or their legal advisers at
our registered office.
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Capital Structure. Under our proposed articles of incorporation, the total
number of shares of capital stock that we will have the authority to issue is
900,000,000 consisting of 800,000,000 shares of common stock, par value $0.001
per share, and 100,000,000 shares of preferred stock, par value $0.001 per
share. Under our current articles of incorporation, Ozolutions Inc. presently
has the authority to issue only 50,000,000 shares of common stock, par value
$0.001 per share and no shares of preferred stock.
Common Stock. Currently, the holders of our common stock are entitled to
one vote for each share held of record on all matters submitted to a vote of our
stockholders, including the election of directors. Following the change of
domicile, the holders of our common stock will have the same voting rights.
Also, our stockholders do not have and will not have cumulative voting rights.
Following the change in domicile, subject to preferences that may be applicable
to any then outstanding series of our preferred stock, holders of our common
stock will be entitled to receive ratably such dividends, if any, as may be
declared by our board of directors out of legally available funds. In the event
of our liquidation, dissolution, or winding up, the holders of our common stock
will be entitled to share ratably in the net assets legally available for
distribution to our stockholders after the payment of all our debts and other
liabilities, subject to the prior rights of any series of our preferred stock
then outstanding. The holders of our common stock do not have and will not have
following the change of domicile any preemptive or conversion rights or other
subscription rights and there are not now nor will there be any redemption or
sinking fund provisions applicable to our common stock.
Preferred Stock. Following the change of domicile, in accordance with the
Nevada Revised Statutes, our board of directors will have the authority to fix
the number of shares of preferred stock and the designations, preferences,
powers and relative, participating, optional or other special rights and the
qualifications or restrictions on such rights. The preferences, powers, rights
and restrictions of different series of our preferred stock may vary with
respect to dividend rates, amounts payable on liquidation, voting rights,
conversion rights, redemption provisions, sinking fund provisions, purchase
funds, and other matters. The holders of our preferred stock will have no
preemptive or cumulative voting rights.
Following the change of domicile, we will have the authority to issue
shares of our preferred stock with the rights and preferences as those
established by our certificate of designation of Series A preferred stock,
contained in Attachment C to this information statement.
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Authorizing 800,000,000 shares of common stock and the authorizing of
series of preferred stock would give the board of directors the express
authority, without further action of the shareholders, to issue common stock or
preferred stock from time to time as the board deems necessary. The board of
directors believes it is necessary to have the ability to issue such additional
shares of common stock or preferred stock for general corporate purposes.
Potential uses of the additional authorized shares may include equity
financings, issuance of options, acquisition transactions, stock dividends or
distributions, without further action by the shareholders, unless such action
were specifically required by applicable law or rules of any stock exchange or
similar system on which our securities may then be listed.
Issuance of Additional Shares. Following the change of domicile, we have
no plans to issue any additional shares of common stock or any shares of our
newly authorized preferred stock.
The proposed increase in the authorized number of shares of common stock
and the authorization of preferred stock could have a number of effects on our
stockholders depending upon the exact nature and circumstances of any actual
issuance of authorized but unissued shares. The increase could have an
anti-takeover effect, in that the additional shares could be issued (within the
limits imposed by applicable law) in one or more transactions that could make a
change in control or takeover of our company more difficult. For example,
additional shares could be issued by us so as to dilute the stock ownership or
voting rights of persons seeking to obtain control of the company.
The proposed change in our capital structure is not being made by us in
response to any known accumulation of shares or threatened takeover. Similarly,
the issuance of additional shares to certain persons allied with our management
could have the effect of making it more difficult to remove our current
management by diluting the stock ownership or voting rights of persons seeking
to cause such removal. In addition, an issuance of additional shares by us
could have an effect on the potential realizable value of a stockholder's
investment.
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In the absence of a proportionate increase in our earnings and book value,
an increase in the aggregate number of our outstanding shares caused by the
issuance of additional shares of our common stock would dilute the earnings per
share and book value per share of all outstanding shares of our common stock.
If such factors were reflected in the price per share of common stock, the
potential realizable value of a stockholder's investment could be adversely
affected.
Stockholder Consent in Lieu of Meeting. Under both the Delaware Statutes
and the Nevada Revised Statutes, stockholder action may be taken without a
meeting if stockholders holding the requisite voting power execute a consent.
Our proposed articles of incorporation provide that our stockholders may take
action if stockholders holding the requisite voting power execute a consent in
lieu of a meeting, if the action to be taken by written consent has been
approved in advance by our board of directors.
CERTAIN PROVISIONS OF OUR PROPOSED ARTICLES OF INCORPORATION AND BYLAWS
General. Provisions of our articles of incorporation and bylaws concern
matters of corporate governance and the rights of our stockholders, such as the
ability of our board of directors to issue shares of our common and preferred
stock and to set the voting rights, preferences, and other terms of our
preferred stock without further stockholder action. These provisions could also
delay or frustrate the removal of incumbent directors or the assumption of
control of our board of directors by our stockholders, and may be deemed to
discourage takeover attempts, mergers, tender offers, or proxy contests not
first approved by our board of directors, which some stockholders may deem to be
in their best interests.
Board of Directors. Our business and affairs will continue to be managed
under the direction of our board of directors, which currently consists of five
members. The number of members on our board of directors is fixed by, and may
be increased or decreased from time to time by, the affirmative vote of a
majority of the members at any time constituting our board of directors.
Newly created directorships resulting from any increase in the number of
directors and any vacancies on our board of directors resulting from death,
resignation, disqualification, removal or other causes shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the board of directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term for which the new directorship was created or the vacancy occurred
and until the director's successor shall have been elected and qualified or
until his earlier death, resignation, or removal. No decrease in the number of
directors constituting the board of directors shall shorten the term of any
incumbent director. Our board of directors may not have less than one member.
There is no limit on the maximum size of our board.
Whenever the holders of any class or series of our capital stock are
entitled to elect one or more directors under any resolution or resolutions of
our board of directors designating a series of our preferred stock, vacancies
and newly created directorships of a class or series may be filled by a majority
of the directors then in office elected by the applicable class or series, by a
sole remaining director so elected, or by the written consent, or the
affirmative vote of a majority of the outstanding shares of the class or series
entitled to elect the directors.
Any director may be removed from office only by the affirmative vote of the
holders of a majority of the combined voting power of our then outstanding
shares of capital stock entitled to vote at a meeting of stockholders called for
that purpose, voting together as a single class.
Meetings of Stockholders. Our articles of incorporation will provide that
a special meeting of our stockholders may only be called by:
- - Our president;
- - The holders of at least 10 percent of the outstanding shares of our capital
stock entitled to vote at the proposed special meeting; or
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- - Our board of directors by means of a duly adopted resolution.
Special stockholder meetings may not be called by any other person or in
any other manner. Our bylaws provide that only those matters set forth in the
notice of the special meeting may be considered or acted upon at the special
meeting. Our articles of incorporation do not permit our stockholders to take
an action by written consent unless the action to be taken and the taking of
that action by written consent have been approved in advance by our board of
directors.
Limitation of Liability. Our articles of incorporation will provide that
any director or officer shall not be personally liable to us or our stockholders
for damages as a result of any act or failure to act in his capacity as a
director or officer, unless:
- - It is proven that his act or failure to act constituted a breach of his
fiduciary duties and involved intentional misconduct, fraud, or a knowing
violation of law; or
- - Such person is a director liable under Section 78.300 of the Nevada Revised
Statutes for the payment of an improper distribution by us to our
stockholders.
Indemnification. Our articles of incorporation will provide that we shall
indemnify anyone 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, except an action by us or in our
right, by reason of the fact that he is or was a director, officer, employee, or
agent of our company, or is or was serving at our request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the action, suit or proceeding if:
- - The liability did not result from any act or failure to act which
constituted a breach of that person's fiduciary duties in his capacity as a
director or officer, and involved intentional misconduct, fraud, or a
knowing violation of law; or
- - The person acted in good faith and in a manner which he reasonably believed
to be in, or not opposed to, our best interests, and with respect to any
criminal action or proceeding, he had no reasonable cause to believe his
conduct was unlawful.
Further, our proposed articles of incorporation will permit us to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by us or in our right, to
procure a judgment in our favor by reason of the fact that he is or was a
director, officer, employee, or agent of our company, or is or was serving at
our request as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses,
including amounts paid in settlement and attorneys' fees actually and reasonably
incurred by him in connection with defense or settlement of the action or suit,
if:
- - The liability did not result from any act or failure to act which
constituted a breach of that person's fiduciary duties in his capacity as a
director or officer, and involved intentional misconduct, fraud or a
knowing violation of law; or
- - The person acted in good faith and in a manner which he reasonably believed
to be in, or not opposed to, our best interests.
However, we will be prohibited from indemnifying any person with respect to
any action, suit, or proceeding by a court of competent jurisdiction, if he has
been finally adjudged to be liable to us, unless, and only to the extent that,
the court of competent jurisdiction determines upon application that the person
is fairly and reasonably entitled to indemnification in view of all the
circumstances of the case.
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Our proposed bylaws will contain similar indemnification and limitation of
liability provisions. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers, or persons
controlling our company under the indemnification provisions, or otherwise, we
are aware that, in the opinion of the SEC, the indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
Permitted Combinations. Our proposed articles of incorporation will
expressly provide that we will not be governed by Nevada Revised Statutes 78.411
to 78.444, inclusive, which means that we are not subject to the restrictions
contained in the NRS applicable to mergers and other forms of combinations with
holders of 10 percent or more of our stock.
Amendment of Bylaws. Under our proposed articles of incorporation, our
proposed bylaws may be amended by our board of directors or by the affirmative
vote of the holders of at least a majority of the combined voting power of the
outstanding shares of our capital stock then outstanding and entitled to vote,
voting together as a single class.
DISSENT RIGHTS OF OUR STOCKHOLDERS
Under Delaware law, our stockholders are entitled, after complying with
certain requirements of Delaware law, to dissent to the approval of the merger,
pursuant to Section 262 of the Delaware General Corporation Law and to be paid
the "fair value" of their shares of Ozolutions Inc. common stock in cash by
complying with the procedures set forth in Section 262 of the Delaware General
Corporation Law. Set forth below is a summary of the procedures relating to the
exercise of dissenters' rights by our stockholders. This summary does not
purport to be a complete statement of the provisions of Section 262 of the
Delaware General Corporation Law and is qualified in its entirety by reference
to such provisions, which are contained in Attachment D to this information
------------
statement.
Under Delaware law, if you do not wish to accept the cash payment provided
for in the merger agreement, you have the right to dissent from the merger and
to receive payment in cash for the fair value of your shares of our common
stock, exclusive of any element of value arising from the accomplishment or
expectation of the merger. Stockholders electing to exercise appraisal rights
must comply with the provisions of Section 262 of the Delaware General
Corporation Law in order to perfect their rights. We will require strict
compliance with the statutory procedures.
The following is intended as a brief summary of the material provisions of
the Delaware statutory procedures required to be followed by a stockholder in
order to dissent from the merger and perfect appraisal rights.
Section 262 requires that stockholders be notified that appraisal rights
will be available not less than 20 days before the special meeting to vote on
the merger. A copy of Section 262 must be included with such notice. This
information statement constitutes our notice to our stockholders of the
availability of appraisal rights in connection with the merger in compliance
with the requirements of Section 262. If you wish to consider exercising your
appraisal rights, you should carefully review the text of Section 262 contained
in Attachment D to this information statement since failure to timely and
-------------
properly comply with the requirements of Section 262 will result in the loss of
your appraisal rights under Delaware law.
If you elect to demand appraisal of your shares of our common stock, you
must satisfy each of the following conditions:
- - You must deliver to us a written demand for appraisal of your shares of our
common stock before the vote with respect to the merger is taken. This
written demand for appraisal must be in addition to and separate from any
proxy or vote abstaining from or voting against adoption of the merger
agreement. Voting against or failing to vote for adoption of the merger
agreement by itself does not constitute a demand for appraisal within the
meaning of Section 262;
- - You must not vote in favor of adoption of the merger agreement. A vote in
favor of the adoption of the merger agreement, by proxy or in person, will
constitute a waiver of your appraisal rights in respect of the shares of
our common stock so voted and will nullify any previously filed written
demands for appraisal.
- 8 -
If you fail to comply with either of these conditions and the merger is
completed, you will be entitled to receive the cash payment for your shares of
our common stock as provided for in the merger agreement, but you will have no
appraisal rights with respect to your shares of our common stock.
All demands for appraisal should be addressed to Mr. Max Weissengruber at
Ozolutions Inc., 30 Denver Crescent, Suite 200, Toronto, Ontario, Canada M2J
1G8, before the vote on the merger is taken at the special meeting, and should
be executed by, or on behalf of, the record holder of the shares of our common
stock. The demand must reasonably inform us of the identity of the stockholder
and the intention of the stockholder to demand appraisal of his shares of our
common stock.
To be effective, a demand for appraisal by a holder of our common stock
must be made by, or in the name of, such registered stockholder, fully and
correctly, as the stockholder's name appears on his stock certificate(s) and
cannot be made by the beneficial owner if he does not also hold the shares of
record. The beneficial holder must, in such cases, have the registered owner
submit the required demand in respect of those shares.
If shares of our common stock are owned of record in a fiduciary capacity,
such as by a trustee, guardian or custodian, execution of a demand for appraisal
should be made in that capacity; and if the shares of our common stock are owned
of record by more than one person, as in a joint tenancy or tenancy in common,
the demand should be executed by or for all joint owners. An authorized agent,
including an authorized agent for two or more joint owners, may execute the
demand for appraisal for a stockholder of record; however, the agent must
identify the record owner or owners and expressly disclose the fact that, in
executing the demand, he is acting as agent for the record owner. A record
owner, such as a broker, who holds shares of our common stock as a nominee for
others, may exercise his right of appraisal with respect to the shares of our
common stock held for one or more beneficial owners, while not exercising this
right for other beneficial owners. In that case, the written demand should
state the number of shares of our common stock as to which appraisal is sought.
Where no number of shares is expressly mentioned, the demand will be presumed to
cover all shares held in the name of the record owner.
If you hold your shares of our common stock in a brokerage account or in
other nominee form and you wish to exercise appraisal rights, you should consult
with your broker or the other nominee to determine the appropriate procedures
for the making of a demand for appraisal by the nominee.
Within 10 days after the effective date of the merger, we must give written
notice that the merger has become effective to each stockholder who has properly
filed a written demand for appraisal and who did not vote in favor of the merger
or consent to the merger. At any time within 60 days after the effective date,
any stockholder who has demanded an appraisal has the right to withdraw the
demand and to accept the cash payment specified by the merger agreement for his
shares of our common stock. Within 120 days after the effective date, either we
or any stockholder who has complied with the requirements of Section 262 may
file a petition in the Delaware Court of Chancery demanding a determination of
the fair value of the shares of our common stock held by all stockholders
entitled to appraisal. We have no obligation to file such a petition in the
event there are dissenting stockholders. Accordingly, the failure of any
stockholder to file such a petition within the period specified could nullify
previously written demands for appraisal.
If a petition for appraisal is duly filed by a stockholder and a copy of
the petition is delivered to us, we will then be obligated, within 20 days after
receiving service of a copy of the petition, to provide the Delaware Court of
Chancery with a duly verified list containing the names and addresses of all
stockholders who have demanded an appraisal of their shares of our common stock.
After notice to dissenting stockholders, the Delaware Court of Chancery is
empowered to conduct a hearing upon the petition, and to determine those
stockholders who have complied with Section 262 and who have become entitled to
the appraisal rights provided thereby. The Delaware Court of Chancery may
require the stockholders who have demanded payment for their shares to submit
their certificates representing shares of our common stock to the Register in
Chancery for notation thereon of the pendency of the appraisal proceedings; and
if any stockholder fails to comply with that direction, the Delaware Court of
Chancery may dismiss the proceedings as to that stockholder.
After determination of the stockholders entitled to appraisal of their
shares of our common stock, the Delaware Court of Chancery will appraise the
shares, determining their fair value exclusive of any element of value arising
from the accomplishment or expectation of the merger, together with a fair rate
of interest. When the value
- 9 -
is determined, the Delaware Court of Chancery will direct the payment of such
value, with interest thereon accrued during the pendency of the proceeding, if
the Delaware Court of Chancery so determines, to the stockholders entitled to
receive the same, upon surrender by such holders of the certificates
representing those shares of our common stock.
In determining fair value, the Delaware Court of Chancery is required to
take into account all relevant factors. You should be aware that the fair value
of your shares as determined under Section 262 could be more, the same or less
than the value that you are entitled to receive under the terms of the merger
agreement.
Costs of the appraisal proceeding may be imposed upon us and the
stockholders participating in the appraisal proceeding by the Delaware Court of
Chancery as the Delaware Court of Chancery deems equitable in the circumstances.
Upon the application of a stockholder, the Delaware Court of Chancery may order
all or a portion of the expenses incurred by any stockholder in connection with
the appraisal proceeding, including, without limitation, reasonable attorneys'
fees and the fees and expenses of experts, to be charged pro rata against the
value of all shares entitled to appraisal. Any stockholder who had demanded
appraisal rights will not, after the effective date, be entitled to vote shares
subject to that demand for any purpose or to receive payments of dividends or
any other distribution with respect to those shares, other than with respect to
payment as of a record date prior to the effective date; however, if no petition
for appraisal is filed within 120 days after the effective date of the merger,
or if the stockholder delivers a written withdrawal of his demand for appraisal
and an acceptance of the merger within 60 days after the effective date of the
merger, then the right of that stockholder to appraisal will cease and that
stockholder will be entitled to receive the cash payment for his shares of our
common stock pursuant to the merger agreement. Any withdrawal of a demand for
appraisal made more than 60 days after the effective date of the merger may only
be made with the written approval of the successor corporation and must, to be
effective, be made within 120 days after the effective date.
In view of the complexity of Section 262, stockholders who may wish to
dissent from the merger and pursue appraisal rights should consult their legal
advisers.
VOTE REQUIRED
The affirmative vote of a majority of the total number of shares of our
issued and outstanding capital stock is required to approve the change in our
domicile.
The board of directors recommends a vote FOR approval of a change in our
domicile. The proposed change in our domicile was approved by a vote of our
directors on October 25, 2004.
Information regarding the beneficial ownership of our common stock by
management and the board of directors is noted below.
INTENTIONALLY LEFT BLANK.
- 10 -
MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth information concerning the directors and
executive officers of Ozolutions Inc. as of the date of this information
statement:
NAME AGE POSITION POSITION HELD SINCE
----------------- --- --------------------------------------- -------------------
Betty-Ann Harland 52 Chairman, Chief Executive Officer, and 2004
Director
Max Weissengruber 66 President, Chief Operating Officer, and 2000
Director
Brian Robertson 62 Chief Financial Officer N/A
Douglas Robertson 66 Director 2001
Robert W. Gingell 53 Director 2004
Arthur N. Kelly 43 Director 2004
Our executive officers are elected annually by our board of directors.
There are no family relationships among our directors and executive officers.
See "Certain Provisions of Our Articles of Incorporation and Bylaws" for the
manner of election and term of office of our directors.
We may employ additional management personnel as our board of directors
deems necessary. We have not identified or reached an agreement or
understanding with any other individuals to serve in management positions. We
do not anticipate any difficulty in employing qualified staff.
A description of the business experience during the past several years for
each of our directors and executive officers is set forth below.
Betty-Ann Harland has 31 years of experience in a variety of senior
management positions. Prior to becoming our chief executive officer, she was
vice-president of Ameri-can Equipment Sales and Leasing. Prior to joining
Ameri-can Equipment Sales and Leasing, she fulfilled a number of significant
managerial responsibilities in the automotive industry. From 1988 to 1993, she
worked in finance and insurance and sales consulting for Decarie Motors, a
Montreal luxury car dealer carrying Jaguar, Rolls Royce, Bentley and Range Rover
product lines. From 1994 until 1995, she was a finance and insurance specialist
for Addison Bay, a Toronto Cadillac, Pontiac, and Buick dealer.
Max Weissengruber has served as our president since April, 2000. From 1980
to 1984, he was a manager of consulting services for KPMG, a world wide
professional consulting firm specializing in business advice fro small and
medium sized companies. He then joined Wilson Learning International as
director of marketing specializing in sales and customer service consulting for
firms such as General Motors and IBM. In 1993 he became managing partner and
owner of Acris Partners, a marketing and consulting firm specializing in
employee surveys and marketing communications and sales training programs. A
graduate in Behavioral Sciences from Michigan State University, he has taught
Organizational Behaviour at the University of Toronto and Entrepreneurial
Studies for the MBA Program at the Canadian School of Management in Toronto.
Brian Robertson, a Chartered Accountant, is responsible for our financial
management, preparation of all financial reports, forecasts and budgets as well
as assuring financial compliance with all regulatory authorities and liaison
with auditors. In 1959, he joined Touche Ross & Co. and obtained his Chartered
Accountant's degree in 1964. In 1982, he became an investment advisor for a
national investment dealer and in 1988, he became a vice-president and director
of Continental Securities Limited. During the 1990's, he was self-employed as a
business and financial consultant to a number of different business enterprises.
In 2000, he was instrumental in founding
- 11 -
Ozolutions Inc. where he continued to act as a financial consultant and business
advisor in the development of our water treatment business.
Douglas R. Robertson, has served as our chief financial officer from July
2003 until September 23, 2004. Mr. Robertson has been general manager of MTL
Trading of Toronto, Ontario since May 2001. MTL Trading is engaged in the
business of buying and selling meat and poultry products. For over five years
prior to May 2001, Mr. Robertson was the president and owner of Robertson Foods
of Toronto, Ontario, a company engaged in the business of exporting pork, beef
and poultry.
Robert W. Gingell has been an account specialist for Wesco Distribution of
Hamilton, Ontario, since 2003 until the present. From 2001 until 2003, he was a
technical sales representative for Siemens Westinghouse Technical Services in
Toronto, Ontario. From 1999 until 2001, he was senior account manager for
Ainsworth Inc., Toronto, Ontario. From 1994 until 1999, he was a sales manager
for G. E. Canada - Power Systems Division, Burlington, Ontario.
Arthur N. Kelly has 18 years of marketing, sales and management experience
and is currently vice president of sales-North America for ELTEK Energy where he
is responsible for the development and growth of all ELTEK Energy sales in the
U.S. and Canadian markets. He attended Concordia University in Montreal where
he earned his Bachelor of Business Administration degree. Mr. Kelly held
various sales and management positions with Marconi Communications from 1988 to
2001 where he was responsible for sales of power generation and communication
supplies to major North American communications companies. Mr. Kelly was sales
manager for S.N.P. Associates in France from 1986 to 1988 and also district
sales manager for Pylon Electronics in Montreal from 1985 to 1986.
FEDERAL TAX CONSEQUENCES
The following is a discussion of certain federal income tax considerations
that may be relevant to holders of our common stock who receive the common stock
of International Development Corp. as a result of the proposed change of
domicile. No state, local, or foreign tax consequences are addressed herein.
This discussion does not address the state, local, federal or foreign
income tax consequences of the change of domicile that may be relevant to
particular stockholders, such as dealers in securities, or our stockholders who
exercise dissenters' rights. In view of the varying nature of such tax
considerations, each stockholder is urged to consult his own tax adviser as to
the specific tax consequences of the proposed change of domicile, including the
applicability of federal, state, local, or foreign tax laws. Subject to the
limitations, qualifications and exceptions described herein, and assuming the
change of domicile qualifies as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended, the following federal
income tax consequences generally should result:
- - No gain or loss should be recognized by the stockholders of Ozolutions Inc.
upon conversion of their common stock into common stock of the Nevada
company pursuant to the change of domicile;
- - The aggregate tax basis of the common stock received by each stockholder of
Ozolutions Inc. in the change of domicile should be equal to the aggregate
tax basis of our common stock converted in exchange therefor;
- - The holding period of our common stock received by each stockholder of
Ozolutions Inc. in the change of domicile should include the period during
which the stockholder held his common stock converted therefor, provided
such common stock is held by the stockholder as a capital asset on the
effective date of the change of domicile; and
- - Ozolutions Inc. should not recognize gain or loss for federal income tax
purposes as a result of the change of domicile.
Ozolutions Inc. has not requested a ruling from the Internal Revenue
Service with respect to the federal income tax consequences of the change of
domicile under the Code. We expect to receive an opinion from our legal
- 12 -
counsel, Glast, Phillips & Murray, P.C., substantially to the effect that the
change of domicile should qualify as a reorganization within the meaning of
Section 368(a) of the Code. The tax opinion will neither bind the IRS nor
preclude it from asserting a contrary position, and will be subject to certain
assumptions and qualifications, including representations made by us. We
believe the change of domicile will constitute a tax-free reorganization under
Section 368(a) of the Code, inasmuch as Section 368(a)(1)(F) of the Code defines
a reorganization as a mere change in identity, form, or place of organization of
our corporation.
PRINCIPAL STOCKHOLDERS
The following table presents information regarding the beneficial ownership
of all shares of our common stock as of the record date by:
- - Each person who beneficially owns more than five percent of the outstanding
shares of our common stock;
- - Each of our directors;
- - Each named executive officer; and
- - All directors and officers as a group.
COMMON SHARES BENEFICIALLY
--------------------------
OWNED(2)
--------
NAME OF BENEFICIAL OWNER(1) NUMBER PERCENT
------------------------------------------------------------- ------------- -----------
Betty-Ann Harland (3) . . . . . . . . . . . . . . . . . . . . 15,000,000 30.51
Max Weissengruber . . . . . . . . . . . . . . . . . . . . . . -0- -0-
Brian Robertson (4) . . . . . . . . . . . . . . . . . . . . . 1,726,546 3.51
Douglas Robertson . . . . . . . . . . . . . . . . . . . . . . -0- -0-
Robert W. Gingell . . . . . . . . . . . . . . . . . . . . . . -0- -0-
Arthur N. Kelly . . . . . . . . . . . . . . . . . . . . . . . -0- -0-
------------- -----------
All directors and executive officers as a group (six persons) 16,726,546 34.02
------------- -----------
Non officer and directors five percent stockholders:
1421209 Ontario Limited . . . . . . . . . . . . . . . . . . . 6,000,000 12.21
------------- -----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,726,546 46.23
============= ===========
_______________
(1) Unless otherwise indicated, the address for each of these stockholders is
c/o Ozolutions Inc., 30 Denver Crescent, Suite 200, Toronto, Ontario,
Canada M2J 1G8. Also, unless otherwise indicated, each person named in the
table above has the sole voting and investment power with respect to our
shares of common stock which he beneficially owns.
(2) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission. As of the date of this Information
Statement, there were issued and outstanding 49,154,430 shares of our
common stock.
(3) Ms. Harland also has proxies to vote 6,000,000 shares of our common stock
granted by 1421209 Ontario Limited.
(4) Mr. Robertson owns directly 1,052,440 shares of our common stock and his
wife, Margaret Robertson, owns 164,106 shares of our common stock. Mr.
Robertson is a controlling shareholder of Arenal Holdings S.A., which owns
510,000 shares of our common stock.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
CHANGE OF CONTROL
On September 23, 2004, Betty-Ann Harland acquired 15,000,000 shares of our
common stock, which represented 30.51 percent of our issued and outstanding
common stock. In addition, Ms. Harland has proxies to vote 6,000,000 shares of
our common stock, granted by 1421209 Ontario Limited. The proxies expire on
February 1, 2005. Ms. Harland was elected as our chairman of the board, chief
executive officer and director on September 23, 2004.
On October 12, 2004, 1421209 Ontario Limited granted to us an option
to redeem 3,000,000 shares of our common stock, which are currently held in
escrow, for a total sum of US $25,000.00, payable in two installments. The
first installment of US$10,000 was paid by us on October 12, 2004, and the
balance of US$15,000.00 is due on or before February 1, 2005. In the event that
we do not pay the second installment of US$15,000.00, our option to
- 13 -
redeem the 3,000,000 shares of our common stock will terminate. In any event,
Betty-Ann Harland will retain her proxies to vote 6,000,000 shares of our common
stock, granted by 1421209 Ontario Limited.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our directors, executive
officers and persons who own more than 10 percent of a registered class of our
equity securities, file with the SEC initial reports of ownership and
reports of changes in ownership of our equity securities. Officers, directors
and greater than 10 percent stockholders are required by SEC regulation to
furnish us with copies of all Section 16(a) forms they file. All such persons
have filed all required reports.
FORM 10-KSB ANNUAL REPORT AND QUARTERLY REPORTS ON FORM 10-QSB
Our Annual Report on Form 10-KSB for the year ended August 31, 2003, and
Financial Information from our Quarterly Reports for the Periods Ended November
30, 2003, February 29, 2004, as amended, and May 31, 2004 are incorporated
herein by reference.
COPIES OF ANNUAL AND QUARTERLY REPORTS
We will furnish a copy of our Annual Report on Form 10-KSB for the year
ended August 31, 2003 and a copy of our Quarterly Reports for the Periods Ended
November 30, 2003, February 29, 2004, as amended, and May 31, 2004 and any
exhibit referred to therein without charge to each person to whom this
information statement is delivered upon written or oral request by first class
mail or other equally prompt means within one business day of receipt of such
request. Any request should be directed to our corporate secretary at 30 Denver
Crescent, Suite 200, Toronto, Ontario, Canada M2J 1G8, telephone (416) 490-0254.
By Order of the Board of Directors,
/s/ Max Weissengruber
Max Weissengruber,
President
- 14 -
ATTACHMENT A
SPECIAL RESOLUTION APPROVING PLAN AND AGREEMENT OF MERGER AND CHANGE IN DOMICILE
WHEREAS, it is in the best interests of the Company that it merge with
and into International Development Corp., a Nevada corporation
("International Development Corp.") as set forth in that certain Plan and
Agreement of Merger by and between the Company and International
Development Corp, in the form contained in Attachment B (the "Plan of
------------
Merger") to the Company's information statement dated November 5, 2004, and
WHEREAS, pursuant to the Plan of Merger, among other things, (a) the
Company shall be merged with and into International Development Corp, to
exist and be governed by the laws of the State of Nevada, (b) International
Development Corp will be the surviving corporation, (c) the holders of
shares of the common stock, par value $0.001 per share, of the Company
shall be entitled to receive one share of the common stock, $0.001 par
value per share, of International Development Corp for every share of the
common stock of the Company held by the common stockholders of the Company;
and the currently issued one share of the common stock of International
Development Corp will be cancelled;
NOW, THEREFORE, IT IS RESOLVED, that the Directors of the Company be,
and they hereby are, authorized and directed to take whatever steps which
may be necessary and to implement the Plan of Merger and to effectuate the
merger and change of domicile approved herein.
ATTACHMENT B
PLAN OF MERGER
PLAN AND AGREEMENT OF MERGER BETWEEN
OZOLUTIONS INC. (A DELAWARE CORPORATION)
AND
INTERNATIONAL DEVELOPMENT CORP. (A NEVADA CORPORATION)
OZOLUTIONS INC., a Delaware corporation ("Ozolutions") and INTERNATIONAL
DEVELOPMENT CORP., a Nevada corporation ("International Development"), hereby
agree as follows:
1. Plan Adopted. A plan of merger merging Ozolutions with and into
-------------
International Development (this "Plan of Merger"), pursuant to the provisions of
Chapter 92A of the Nevada Revised Statutes (the "NRS"), Section 252 of the
Delaware General Corporation Law and Section 368(a)(1)(F) of the Internal
Revenue Code of 1986, as amended, is adopted as follows:
(a) Ozolutions shall be merged with and into International
Development, to exist and be governed by the laws of the State of Nevada.
(b) International Development shall be the Surviving Corporation (the
"Surviving Corporation").
(c) When this Plan of Merger shall become effective, the separate
existence of Ozolutions shall cease and the Surviving Corporation shall succeed,
without other transfer, to all the rights and properties of Ozolutions and shall
be subject to all the debts and liabilities of such corporation in the same
manner as if the Surviving Corporation had itself incurred them. All rights of
creditors and all liens upon the property of each constituent entity shall be
preserved unimpaired, limited in lien to the property affected by such liens
immediately prior to the merger (the "Merger").
(d) The Surviving Corporation will be responsible for the payment of
all fees and franchise taxes of the constituent entities payable to the State of
Nevada, if any.
(e) The Surviving Corporation will carry on business with the assets
of Ozolutions, as well as the assets of International Development.
(f) The Surviving Corporation will be responsible for the payment of
the fair value of shares, if any, required under Section 262 of the Delaware
General Corporation Law.
(g) The stockholders of Ozolutions will surrender all of their shares
in the manner hereinafter set forth.
(h) In exchange for the shares of Ozolutions surrendered by its
stockholders, the Surviving Corporation will issue and transfer to such
stockholders on the basis hereinafter set forth, shares of its common stock.
(i) The stockholders of International Development will keep their
shares of the Surviving Corporation.
2. Effective Date. The effective date of the Merger (the "Effective Date")
--------------
shall be the date of the filing of Articles of Merger for Ozolutions and
International Development in the States of Delaware and Nevada.
3. Submission to Stockholders. This Plan of Merger shall be submitted for
---------------------------
approval separately to the stockholders of Ozolutions and International
Development in the manner provided by the laws of the States of Delaware and
Nevada.
4. Manner of Exchange. On the Effective Date, the stockholders of
--------------------
Ozolutions shall surrender their stock certificates to Ozolutions in exchange
for shares of the Surviving Corporation to which they are entitled.
1
5. Basis of Exchange. The holders of shares of the common stock, $0.001 par
-----------------
value per share, of Ozolutions shall be entitled to receive, in exchange for all
the outstanding stock of Ozolutions, an amount of stock so that after the
issuance thereof, such holders of Ozolutions will hold all of the issued and
outstanding shares of the common stock of the Surviving Corporation, par value
$0.001 per share.
6. Shares of the Surviving Corporation Held by the Current Stockholders of
-----------------------------------------------------------------------
International Development. The presently outstanding shares of the common stock
- --------------------------
of International Development will be cancelled.
7. Directors and Officers.
------------------------
(a) The present Board of Directors of Ozolutions shall serve as the
Board of Directors of the Surviving Corporation until the next annual meeting or
until such time as their successors have been elected and qualified.
(b) If a vacancy shall exist on the Board of Directors of the
Surviving Corporation on the Effective Date, such vacancy may be filled by the
Board of Directors as provided in the Bylaws of the Surviving Corporation.
(c) All persons who, on the Effective Date, are executive or
administrative officers of Ozolutions shall be officers of the Surviving
Corporation until the Board of Directors of the Surviving Corporation shall
otherwise determine. The Board of Directors of the Surviving Corporation may
elect or appoint such additional officers as it may deem necessary or
appropriate.
8. Articles of Incorporation. The Articles of Incorporation of
---------------------------
International Development, existing on the Effective Date and reflecting the
change of the corporate name to International Development Corp. and other
provisions, a copy of which are attached hereto as Exhibit A and incorporated
---------
herein for all purposes, shall continue in full force as the Articles of
Incorporation of the Surviving Corporation until altered, amended, or repealed
as provided therein or as provided by law.
9. Bylaws. The Bylaws of International Development existing on the
------
Effective Date, a copy of which is attached hereto as Exhibit B and incorporated
---------
herein for all purposes, shall continue in full force as the Bylaws of the
Surviving Corporation until altered, amended, or repealed as provided therein or
as provided by law.
(a) Copies of the Plan of Merger. A copy of this Plan of Merger is on
----------------------------
file at 30 Denver Crescent, Suite 200, Toronto, Ontario Canada M2J 1G8, the
principal offices of Ozolutions, and 30 Denver Crescent, Suite 200, Toronto,
Ontario Canada M2J 1G8, the principal offices of International Development. A
copy of this Plan of Merger will be furnished to any stockholder of Ozolutions
or International Development, on written request and without cost.
10. Contractual Consents Needed. The parties to this Plan of Merger shall
----------------------------
have obtained, at or prior to the Effective Date, all consents required for the
consummation of the transactions contemplated by this Plan of Merger from any
party to any contract, agreement, instrument, lease, license, arrangement, or
understanding to which any of them is a party, or to which any of their
respective businesses, properties, or assets are subject.
11. Notices. All notices, requests, demands, and other communications
-------
hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, or
by telecopy or e-mail, if to Ozolutions, addressed to Max Weissengruber at 30
Denver Crescent, Suite 200, Toronto, Ontario Canada M2J 1G8 and e-mail
maxweissengruber@hotmail.com; and if to International Development, addressed to
Max Weissengruber at 30 Denver Crescent, Suite 200, Toronto, Ontario Canada M2J
1G8 and e-mail maxweissengruber@hotmail.com. Any party hereto may change its
address upon 10 days' written notice to any other party hereto.
12. Legal Construction. In case any one or more of the provisions contained
------------------
in this Plan of Merger shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
2
unenforceability shall not affect any other provisions hereof, and this Plan of
Merger shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
13. Benefit. All the terms and provisions of this Plan of Merger shall be
-------
binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their successors and permitted assigns.
14. Law Governing. This Plan of Merger shall be construed and governed by
--------------
the laws of the State of Nevada, and all obligations hereunder shall be deemed
performable in Nevada.
15. Perfection of Title. The parties hereto shall do all other acts and
---------------------
things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Plan of Merger, and to carry out the intent
of this Plan of Merger.
16. Cumulative Rights. The rights and remedies of any party under this Plan
-----------------
of Merger and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
17. Waiver. No course of dealing on the part of any party hereto or its
------
agents, nor any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Plan of Merger or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
18. Construction. Whenever used herein, the singular number shall include
------------
the plural, the plural number shall include the singular, and the masculine
gender shall include the feminine.
19. Multiple Counterparts. This Plan of Merger may be executed in one or
----------------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Plan of Merger on
October 25, 2004.
OZOLUTIONS INC.
By
--------------------------------
Max Weissengruber, President
INTERNATIONAL DEVELOPMENT CORP.
By
--------------------------------
Max Weissengruber, President
Attachments:
- -----------
Exhibit A - Articles of Incorporation of International Development Corp.
Exhibit B - Bylaws of International Development Corp.
3
EXHIBIT A
ARTICLES OF INCORPORATION OF
INTERNATIONAL DEVELOPMENT CORP.,
A NEVADA CORPORATION
SECRETARY OF STATE
[GRAPHIC OMITED]
SEAL
STATE OF NEVADA
CORPORATE CHARTER
I, DEAN HELLER, the duly elected and qualified Nevada Secretary of State, do
hereby certify that INTERNATIONAL DEVELOPMENT CORP. did on OCTOBER 22, 2004 file
in this office the original Articles of Incorporation; that said Articles are
now on file and of record in the office of the Secretary of State of the State
of Nevada, and further, that said Articles contain all the provisions required
by the law of said State of Nevada.
[GRAPHIC OMITED]
SEAL
IN WITNESS WHEREOF, I have hereunto set my hand
and affixed the Great Seal of
State, at my office, in Carson
City, Nevada, on OCTOBER 22, 2004.
/s/ Dean Heller
DEAN HELLER
Secretary of State
By /s/
Certification Clerk
FILED # 28839-2004
[GRAPHIC OMITED] ----------
DEAN HELLER
SECRETARY OF STATE
206 NORTH CARSON STREET
CANON CITY. NEVADA 89701-4299 OCT 22 2004
(775)684 5708
WEBSITE: SECRETARYOFSTATE.BIZ
- --------------------------------------------------------
Articles of Incorporation
(PURSUANT TO NRS 78)
- --------------------------------------------------------
Important. Read attached Instructions before completing form. ABOVE SPACE IS FOR OFFICE USE ONLY
- ----------------------------------------------------------------------------------------------------------------------
1. Name of
--------
Corporation International Development corp.
-----------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
2. Resident Agent Capitol Corporate Services, Inc.
--------------
Name and Street Name
---------------
Address: 202 South Minnesota Carson City NEVADA 89703
--------
(must be a Nevada address Street Address City Zip Code
-------------------------
where process may be
--------------------
served Optional Mailing Address City State Zip Code
------
- ----------------------------------------------------------------------------------------------------------------------
3. Shares:
-------
(number of shares
----------------
corporation Number of shares Number of shares
-----------
authorized to issue with par value 900,000,000 Par value: $ $0.01 without par value NONE
-------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
4. Names & 1. Betty-Ann Harland
-------
Addresses Name
---------
of Board of 30 Denver Crescent, Suite 200, Toronto Ontario Canada M2J 1G8
-----------
Directors/ Trustees: Street Address City State Zip Code
--------------------
(attached additional page
-------------------------
there is more than 3
--------------------
Directors 2. Max Weissengruber
Name
30 Denver Crescent, Suite 200, Toronto Ontario Canada M2J 1G8
Street Address City State Zip Code
3. Douglas Robertson
Name
30 Denver Crescent, Suite 200, Toronto Ontario Canada M2J 1G8
Street Address City State Zip Code
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
5. Purpose: The purpose of this Corporation shall be:
--------
Optional- see instructions
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
6. Names, Address 4. Norman T. Reynolds
--------------
And Signature of Name
---------------
Incorporator 815 Walker St. Suite 1250 Houston TX 77002
------------
(attach additional page Street Address City State Zip Code
-----------------------
if there is more than 1
-----------------------
incorporator)
-------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
7. Certificate of
--------------
Acceptance of I hereby accept appointment as Resident Agent for the above named corporation.
-------------
Appointment of /s/ Lee Ann Brooks 10-22-04
-------------- ------------------ --------
Resident Agent: Authorized Signature of R. A. pr On Behalf of R. A. Company Date
- ----------------------------------------------------------------------------------------------------------------------
This form must be accompanied by appropriate fees. See attached fee schedule.
ARTICLES OF INCORPORATION
OF
INTERNATIONAL DEVELOPMENT CORP.
CONTINUATION TO ARTICLE 4
NAMES & ADDRESSES OF BOARD OF DIRECTORS/TRUSTEES CONTINUED:
Arthur N. Kelly 30 Denver Crescent, Suite 200 Toronto Ontario Canada M2J 1G8
Robert W. Gingell 30 Denver Crescent, Suite 200 Toronto Ontario Canada M2J 1G8
CONTINUATION FOR ARTICLES OF INCORPORATION
FOR
INTERNATIONAL DEVELOPMENT CORP.
(THE "COMPANY")
CAPITAL STOCK
1. Authorized Stock. The total number of shares of stock which the
-----------------
Company shall have authority to issue is 900,000,000, consisting of 800,000,000
shares of common stock, par value $0.001 per share (the "Common Stock"), and
100,000,000 shares of preferred stock, par value $0.001 per share (the
"Preferred Stock").
2. Preferred Stock. The Preferred Stock may be issued from time to
----------------
time in one or more series. The Board of Directors is hereby authorized to
create and provide for the issuance of shares of the Preferred Stock in series
and, by filing a certificate pursuant to the applicable section of the NRS (the
"Preferred Stock Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designations, powers,
preferences and rights of the shares of each such series and the qualifications,
limitations or restrictions thereof. The authority of the Board of Directors
with respect to each series shall include, but not be limited to, determination
of the following:
(a) The designation of the series, which may be by distinguishing
number, letter or title.
(b) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
(c) Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series.
(d) The dates at which dividends, if any, shall be payable.
(e) The redemption rights and price or prices, if any, for shares
of the series.
(f) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
(g) The amounts payable on, and the preferences, if any, of shares
of the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company.
(h) Whether the shares of the series shall be convertible into
shares of any other class or series, or any other security, of the Company or
any other corporation, and, if so, the specification of such other class or
series of such other security, the conversion price or prices or rate or rates,
any adjustments thereof, the date or dates at which such shares shall be
convertible and all other terms and conditions upon which such conversion may be
made.
(i) Restrictions on the issuance of shares of the same series or
of any other class or series.
(j) The voting rights, if any, of the holders of shares of the
series.
(k) Such other powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions thereof as the Board of Directors shall determine.
2
3. Common Stock. The Common Stock shall be subject to the express
-------------
terms of the Preferred Stock and any series thereof. Each share of the Common
Stock shall be equal to each other share of the Common Stock. The holders of
shares of the Common Stock shall be entitled to one vote for each such share
upon all questions presented to the stockholders.
4. Voting Rights. Except as may be provided in these Articles of
--------------
Incorporation or in a Preferred Stock Designation, or as may be required by
applicable law, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, and holders of shares of the
Preferred Stock shall not be entitled to receive notice of any meeting of
stockholders at which they are not entitled to vote. At each election for
directors, every stockholder entitled to vote at such election shall have the
right to vote, in person or by proxy, the number of shares owned by him for as
many persons as there are directors to be elected and for whose election he has
a right to vote. It is expressly prohibited for any stockholder to cumulate his
votes in any election of directors.
5. Denial of Preemptive Rights. No stockholder of the Company shall,
-----------------------------
by reason of his holding shares of any class, have any preemptive or
preferential right to purchase or subscribe to any shares of any class of the
Company, now or hereafter to be authorized, or any notes, debentures, bonds, or
other securities convertible into or carrying options or warrants to purchase
shares of any class, now or hereafter to be authorized, whether or not the
issuance of any such shares, or such notes, debentures, bonds or other
securities would adversely affect dividend or voting rights of such stockholder,
other than such rights, if any, as the Board of Directors in its discretion may
fix; and the Board of Directors may issue shares of any class of the Company, or
any notes, debentures, bonds, or other securities convertible into or carrying
options or warrants to purchase shares of any class, without offering any such
shares of any class, either in whole or in part, to the existing stockholders of
any class.
ELECTION OF DIRECTORS
1. Number. The number of directors constituting the initial Board of
------
Directors is three. The business and affairs of the Company shall be conducted
and managed by, or under the direction of, the Board of Directors. The total
number of directors constituting the entire Board of Directors shall be fixed
and may be altered from time to time by or pursuant to a resolution passed by
the Board of Directors.
2. Vacancies. Except as otherwise provided for herein, newly created
---------
directorships resulting from any increase in the authorized number of directors,
and any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause, may be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum of the Board of Directors. Any director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the newly created directorship or for the directorship in which the vacancy
occurred, and until such director's successor shall have been duly elected and
qualified, subject to his earlier death, disqualification, resignation or
removal. Subject to the provisions of these Articles of Incorporation, no
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
3. Removal of Directors. Except as otherwise provided in any Preferred
--------------------
Stock Designation, any director may be removed from office only by the
affirmative vote of the holders of a majority or more of the combined voting
power of the then outstanding shares of capital stock of the Company entitled to
vote at a meeting of stockholders called for that purpose, voting together as a
single class.
MEETING OF STOCKHOLDERS
Meetings of stockholders of the Company (the "Stockholder Meetings") may be
held within or without the State of Nevada, as the Bylaws of the Company (the
"Bylaws") may provide. Special Stockholder Meetings may be called only by (a)
the President, (b) the holders of at least 10 percent of all of the shares
entitled to vote at the proposed special meeting, or (c) the Board of Directors
pursuant to a duly adopted resolution. Special Stockholder Meetings may not be
called by any other person or persons or in any other manner. Elections of
directors need not be by written ballot unless the Bylaws shall so provide.
3
STOCKHOLDER CONSENT
No action that is required or permitted to be taken by the stockholders of
the Company at any annual or special meeting of stockholders may be effected by
written consent of stockholders in lieu of a meeting of stockholders, unless the
action to be effected by written consent of stockholders and the taking of such
action by such written consent have expressly been approved in advance by the
Board of Directors.
LIMITATION OF LIABILITY
Except as otherwise provided in the NRS, a director or officer of the
Company shall not be personally liable to the Company or its stockholders for
damages as a result of any act or failure to act in his capacity as a director
or officer; provided, however, that this Article shall not eliminate or limit
the liability of a director or officer (a) if it is proven that his act or
failure to act constituted a breach of his fiduciary duties and such breach
involved intentional misconduct, fraud or a knowing violation of law, or (b)
under Section 78.300 of the NRS.
If the NRS is amended after the date of filing of these Articles of
Incorporation to authorize corporate action further limiting or eliminating the
personal liability of a director, then the liability of the directors of the
Company shall be limited or eliminated to the fullest extent permitted by the
NRS, as so amended, or a similar successor provision. Any repeal or
modification of this Article by the stockholders of the Company or otherwise
shall not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
INDEMNIFICATION
1. Discretionary Indemnification.(a) The Company 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, except an action by or in the right
of the Company, by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit or
proceeding if he: (i) is not liable pursuant to Section 78.138 of the NRS; or
(ii) acted in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Company, 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, does not, of itself, create a presumption that the person is liable
pursuant to Section 78.138 of the NRS or 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 Company, or that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
(b) The Company 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
or suit by or in the right of the Company to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses, including amounts paid in settlement
and attorneys' fees actually and reasonably incurred by him in connection with
the defense or settlement of the action or suit if he: (i) is not liable
pursuant to Section 78.138 of the NRS; or (ii) acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company. Indemnification may not be made for any claim, issue
or matter as to which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
Company or for amounts paid in settlement to the Company, unless and only to the
extent that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the courts deem proper.
2. Determination of Discretionary Indemnification. Any discretionary
------------------------------------------------
indemnification pursuant to Section 1 of this Article "Indemnification", unless
ordered by a court or advanced pursuant to this Section 2, may be
4
made by the Company only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances. The determination must be made:
(a) By the stockholders;
(b) By the Board of Directors by majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who
were not parties to the action, suit or proceeding so orders, by independent
legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to
the action, suit or proceeding cannot be obtained, by independent legal counsel
in a written opinion.
The expenses of officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the Company as they are
incurred in advance of the final disposition of the action, suit or proceeding,
upon receipt of an undertaking by or on behalf of the director or officer to
repay the amount if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the Company.
3. Mandatory Indemnification. To the extent that a director, officer,
--------------------------
employee or agent of the Company has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in Section 1 of this
Article "Indemnification", or in defense of any claim, issue or matter therein,
the Company shall indemnify him against expenses, including attorneys' fees
actually and reasonably incurred by him in connection with the defense.
4. Non-Exclusivity. The indemnification and advancement of expenses
---------------
authorized in or ordered by a court pursuant to this Article:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors or otherwise, for either an
action in his official capacity or an action in another capacity while holding
his office, except that indemnification, unless ordered by a court pursuant to
Section 1 of this Article, or for the advancement of expenses made pursuant to
Section 2 of this Article may not be made to or on behalf of any director or
officer if a final adjudication establishes that his acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was material
to the cause of action.
(b) Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs, executors and
administrators of any such person.
5. Insurance. The Company may purchase and maintain insurance or make
---------
other financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise for any liability asserted
against him and liability and expenses incurred by him in his capacity as a
director, officer, employee or agent, or arising out of his status as such,
whether or not the Company has the authority to indemnify him against such
liability expenses.
AMENDMENT OF CORPORATE DOCUMENTS
1. Articles of Incorporation. Whenever any vote of the holders of
---------------------------
voting shares of the capital stock of the Company is required by law to amend,
alter, repeal or rescind any provision of these Articles of Incorporation, such
alteration, amendment, repeal or rescission of any provision of these Articles
of Incorporation must be approved by the Board of Directors and by the
affirmative vote of the holders of at least a majority of the combined voting
power of the then outstanding voting shares of capital stock of the Company,
voting together as a single class.
5
Subject to the provisions hereof, the Company reserves the right at any
time, and from time to time, to amend, alter, repeal or rescind any provision
contained in these Articles of Incorporation in the manner now or hereafter
prescribed by law, and other provisions authorized by the laws of the State of
Nevada at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to these Articles of Incorporation in their present
form or as hereafter amended are granted subject to the rights reserved in this
Article.
2. Bylaws. In addition to any affirmative vote required by law, any
------
change of the Bylaws may be adopted either (a) by the affirmative vote of the
Board of Directors, or (b) by the stockholders by the affirmative vote of the
holders of at least a majority of the combined voting power of the then
outstanding voting shares of capital stock of the Company, voting together as a
single class.
APPLICATION OF NRS 78.411 TO 78.444, INCLUSIVE
These Articles of Incorporation expressly provide that the Company shall
not be governed by NRS 78.411 to 78.444, inclusive.
EXISTENCE
The Company is to have perpetual existence.
6
EXHIBIT B
BYLAWS OF
INTERNATIONAL DEVELOPMENT CORP.,
A NEVADA CORPORATION
BYLAWS OF
INTERNATIONAL DEVELOPMENT CORP.
ARTICLE I
OFFICES
1.1. Resident Office. The resident office of International Development
---------------
Corp. (the "Company") required by Section 78.035 of the Nevada Revised Statutes
or any successor statute (the "NRS") to be maintained in the State of Nevada
shall be the resident office named in the Articles of Incorporation of the
Company, as they may be amended or restated from time to time in accordance with
the NRS (the "Articles of Incorporation").
1.2. Other Offices. The Company may also have offices at such other
--------------
places both within and without the State of Nevada as the Board of Directors of
the Company (the "Board of Directors") may determine from time to time or as the
business of the Company may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1. Place of Meetings. Meetings of the Company's stockholders shall
-------------------
be held at such place within or without the State of Nevada as may be designated
by the Board of Directors or the officer calling the meeting, or, in the absence
of such designation, at the principal office of the Company.
2.2. Annual Meeting. An annual meeting of the stockholders, for the
---------------
election of directors to succeed those whose terms expire or to fill vacancies
and for the transaction of such other business as may properly come before the
meeting, shall be held on such date and at such time as the Board of Directors
shall fix and set forth in the notice of the meeting, which date shall be within
13 months subsequent to the last annual meeting of stockholders. At the annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the annual meeting as set forth in Paragraph 2.8
hereof. Failure to hold the annual meeting at the designated time shall not
work a dissolution of the Company.
2.3. Special Meetings. Subject to the rights of the holders of any
-----------------
series of the Company's preferred stock, par value $0.001 per share (the
"Preferred Stock"), as designated in any resolutions adopted by the Board of
Directors and filed with the State of Nevada (a "Preferred Stock Designation"),
special meetings of the stockholders may be called at any time by those persons
set forth in the Articles of Incorporation. Upon written request of any person
or persons who have duly called a special meeting, it shall be the duty of the
Secretary to fix the date of the meeting to be held not less than 10 nor more
than 60 days after the receipt of the request and to give due notice thereof, as
required by the NRS. If the Secretary shall neglect or refuse to fix the date
of the meeting and give notice thereof, the person or persons calling the
meeting may do so.
2.4. Notice of Meeting. Written or printed notice of all meetings,
-------------------
stating the place, day and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be delivered not less than 10 nor more than
60 days before the date of the meeting, either personally or by mail, by or at
the direction of the Chairman of the Board or Secretary, to each stockholder
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered to a stockholder when deposited in the United States mail addressed to
such stockholder at such stockholder's address as it appears on the stock
transfer records of the Company, with postage thereon prepaid.
2.5. Registered Holders of Shares; Closing of Share Transfer Records;
------------------------------------------------------------------
and Record Date.
- -----------------
(a) Registered Holders as Owners. Unless otherwise provided under
----------------------------
the NRS, the Company may regard the person in whose name any shares are
registered in the stock transfer records of the Company at any particular time
(including, without limitation, as of a record date fixed pursuant to
subparagraph (b) of this Paragraph 2.5) as the owner of such shares at that time
for purposes of voting, receiving distributions thereon or notices in respect
thereof, transferring such shares, exercising rights of dissent with respect to
such shares, entering
1
into agreements with respect to such shares, or giving proxies with respect to
such shares; and neither the Company nor any of its officers, directors,
employees or agents shall be liable for regarding that person as the owner of
such shares at that time for those purposes, regardless of whether that person
possesses a certificate for such shares.
(b) Record Date. For the purpose of determining stockholders
------------
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive a distribution by the Company (other
than a distribution involving a purchase or redemption by the Company of any of
its own shares) or a share dividend, or in order to make a determination of
stockholders for any other proper purpose, the Board of Directors may fix in
advance a date as the record date for any such determination of stockholders,
such date in any case to be not more than 60 days and not less than 10 days,
prior to the date on which the particular action requiring such determination of
stockholders is to be taken. The Board of Directors shall not close the books
of the Company against transfers of shares during the whole or any part of such
period.
If the Board of Directors does not fix a record date for any meeting of the
stockholders, the record date for determining stockholders entitled to notice of
or to vote at such meeting shall be at the close of business on the day next
preceding the day on which notice is given, or, if in accordance with Paragraph
7.3 of these Bylaws notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
2.6. Quorum of Stockholders; Adjournment. Unless otherwise provided in
-----------------------------------
the Articles of Incorporation, a majority of the outstanding shares of capital
stock of the Company entitled to vote, present in person or represented by
proxy, shall constitute a quorum at any meeting of the stockholders, and the
stockholders present at any duly convened meeting may continue to do business
until adjournment notwithstanding any withdrawal from the meeting of holders of
shares counted in determining the existence of a quorum. Unless otherwise
provided in the Articles of Incorporation or these Bylaws, any meeting of the
stockholders may be adjourned from time to time by the chairman of the meeting
or the holders of a majority of the issued and outstanding stock, present in
person or represented by proxy, whether or not a quorum is present, without
notice other than by announcement at the meeting at which such adjournment is
taken, and at any such adjourned meeting at which a quorum shall be present any
action may be taken that could have been taken at the meeting originally called;
provided that if the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the adjourned meeting.
2.7. Voting by Stockholders.
------------------------
(a) Voting on Matters Other than the Election of Directors. With
-------------------------------------------------------
respect to any matters as to which no other voting requirement is specified by
the NRS, the Articles of Incorporation or these Bylaws, and, subject to the
rights of the holders of any series of Preferred Stock to elect directors under
specific circumstances, the affirmative vote required for stockholder action
shall be that of a majority of the shares present in person or represented by
proxy at the meeting (as counted for purposes of determining the existence of a
quorum at the meeting). In the case of a matter submitted for a vote of the
stockholders as to which a stockholder approval requirement is applicable under
the stockholder approval policy of any stock exchange or quotation system on
which the capital stock of the Company is traded or quoted, the requirements
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any provision of the Internal Revenue Code, in each case for which no higher
voting requirement is specified by the NRS, the Articles of Incorporation or
these Bylaws, the vote required for approval shall be the requisite vote
specified in such stockholder approval policy, the Exchange Act or Internal
Revenue Code provision, as the case may be (or the highest such requirement if
more than one is applicable).
(b) Voting in the Election of Directors. Unless otherwise
----------------------------------------
provided in the Articles of Incorporation or these Bylaws in accordance with the
NRS, directors shall be elected by a plurality of the votes cast by the holders
of outstanding shares of capital stock of the Company entitled to vote in the
election of directors at a meeting of stockholders at which a quorum is present.
(c) Consents in Lieu of Meeting. Pursuant to the Articles of
-------------------------------
Incorporation, no action that is required or permitted to be taken by the
stockholders of the Company at any annual or special meeting of
2
stockholders may be effected by the written consent of stockholders in lieu of a
meeting, unless the action to be effected by the written consent of stockholders
and the taking of such action by written consent have been expressly approved in
advance by the Board of Directors.
(d) Other. The Board of Directors, in its discretion, or the
-----
officer of the Company presiding at a meeting of stockholders of the Company, in
his discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
2.8. Business to be Conducted at Annual or Special Stockholder
-----------------------------------------------------------------
Meetings. At any annual or special meeting of stockholders, only such business
shall be conducted, and only such proposals shall be acted upon, as shall have
been disclosed in the notice delivered to the stockholders with respect to such
meeting.
2.9. Proxies. Each stockholder entitled to vote at a meeting of
-------
stockholders may authorize another person or persons to act for him by proxy.
Proxies for use at any meeting of stockholders shall be filed with the
Secretary, or such other officer as the Board of Directors may from time to time
determine by resolution, before or at the time of the meeting. All proxies
shall be received and taken charge of and all ballots shall be received and
canvassed by the secretary of the meeting who shall decide all questions
relating to the qualification of voters, the validity of the proxies, and the
acceptance or rejection of votes, unless an inspector or inspectors shall have
been appointed by the chairman of the meeting, in which event such inspector or
inspectors shall decide all such questions.
2.10. Approval or Ratification of Acts or Contracts by Stockholders.
----------------------------------------------------------------
The Board of Directors in its discretion may submit any act or contract for
approval or ratification at any annual meeting of the stockholders, or at any
special meeting of the stockholders called for the purpose of considering any
such act or contract, and any act or contract that shall be approved or be
ratified by the vote of the stockholders holding a majority of the issued and
outstanding shares of stock of the Company entitled to vote and present in
person or by proxy at such meeting (provided that a quorum is present), shall be
as valid and as binding upon the Company and upon all the stockholders as if it
has been approved or ratified by every stockholder of the Company.
2.11. Inspectors of Election. The Company shall, in advance of any
------------------------
meeting of stockholders, appoint one or more inspectors of election, who may be
employees of the Company, to act at the meeting or any adjournment thereof and
to make a written report thereof. The Company may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no
inspector so appointed or designated is able to act at a meeting of
stockholders, the chairman or the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath to execute
faithfully the duties of inspector with strict impartiality and according to the
best of his ability.
The inspector or inspectors so appointed or designated shall: (a) ascertain
the number of shares of capital stock of the Company outstanding and the voting
power of each such share; (b) determine the shares of capital stock of the
Company represented at the meeting and the validity of proxies and ballots; (c)
count all votes and ballots; (d) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors; and (e) certify their determination of the number of shares of the
capital stock of the Company represented at the meeting and such inspectors'
count of all votes and ballots. Such certification and report shall specify
such other information as may be required by law. In determining the validity
and counting of proxies and ballots cast at any meeting of stockholders of the
Company, the inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for an office at an election may
serve as an inspector at such election.
3
ARTICLE III
DIRECTORS
3.1. Powers, Number, Classification and Tenure.
---------------------------------------------
(a) The powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed under
the direction of, the Board of Directors. Each director shall hold office for
the full term for which such director is elected and until such director's
successor shall have been duly elected and qualified or until his earlier death
or resignation or removal in accordance with the Articles of Incorporation or
these Bylaws.
(b) Within the limits specified in the Articles of Incorporation,
and subject to the rights of the holders of any series of Preferred Stock to
elect directors under specific circumstances, the number of directors that shall
constitute the whole Board of Directors shall be fixed by, and may be increased
or decreased from time to time by, the affirmative vote of a majority of the
members at any time constituting the Board of Directors. Except as provided in
the Articles of Incorporation, and subject to the rights of the holders of any
series of Preferred Stock to elect directors under specific circumstances, newly
created directorships resulting from any increase in the number of directors and
any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the vacancy
occurred and until such director's successor shall have been elected and
qualified or until his earlier death, resignation or removal. No decrease in
the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
3.2. Qualifications. Directors need not be residents of the State of
--------------
Nevada or stockholders of the Company.
3.3. Place of Meeting; Order of Business. Except as otherwise provided
-----------------------------------
by law, meetings of the Board of Directors, regular or special, may be held
either within or without the State of Nevada, at whatever place is specified by
the person or persons calling the meeting. In the absence of specific
designation, the meetings shall be held at the principal office of the Company.
At all meetings of the Board of Directors, business shall be transacted in such
order as shall from time to time be determined by the Chairman of the Board, or
in his absence by the President, or by resolution of the Board of Directors.
3.4. Regular Meetings. Regular meetings of the Board of Directors
-----------------
shall be held, in each case, at such hour and on such day as may be fixed by
resolution of the Board of Directors, without further notice of such meetings.
The time or place of holding regular meetings of the Board of Directors may be
changed by the Chairman of the Board by giving written notice thereof as
provided in Paragraph 3.6 hereof.
3.5. Special Meetings. Special meetings of the Board of Directors
-----------------
shall be held, whenever called by the Chairman of the Board or by resolution
adopted by the Board of Directors, in each case, at such hour and on such day as
may be stated in the notice of the meeting.
3.6. Attendance at and Notice of Meetings. Written notice of the time
-------------------------------------
and place of, and general nature of the business to be transacted at, all
special meetings of the Board of Directors, and written notice of any change in
the time or place of holding the regular meetings of the Board of Directors,
shall be given to each director personally or by mail or by telegraph,
telecopier or similar communication at least one day before the day of the
meeting; provided, however, that notice of any meeting need not be given to any
director if waived by him in writing, or if he shall be present at such meeting.
Participation in a meeting of the Board of Directors shall constitute presence
in person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
4
3.7. Quorum of and Action by Directors. A majority of the directors in
---------------------------------
office shall constitute a quorum of the Board of Directors for the transaction
of business; but a lesser number may adjourn from day to day until a quorum is
present. Except as otherwise provided by law or in these Bylaws, all questions
shall be decided by the vote of a majority of the directors present at a meeting
at which a quorum is present.
3.8. Board and Committee Action Without a Meeting. Unless otherwise
-----------------------------------------------
restricted by the Articles of Incorporation or these Bylaws, any action required
or permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by all the members of the Board of Directors or
such committee, as the case may be, and shall be filed with the Secretary.
3.9. Board and Committee Telephone Meetings. Subject to the provisions
--------------------------------------
required or permitted by the NRS for notice of meetings, unless otherwise
restricted by the Articles of Incorporation or these Bylaws, members of the
Board of Directors, or members of any committee designated by the Board of
Directors, may participate in and hold a meeting of such Board of Directors or
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Paragraph 3.9 shall constitute
presence in person at such meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
3.10. Compensation. Directors shall receive such compensation for
------------
their services as shall be determined by the Board of Directors.
3.11. Removal. Directors may be removed from office in the matter set
-------
forth in the Articles of Incorporation, subject to the rights of the holders of
any series of Preferred Stock to elect directors under specific circumstances.
3.12. Committees of the Board of Directors.
-----------------------------------------
(a) The Board of Directors, by resolution adopted by a majority of
the full Board of Directors, may designate from among its members one or more
committees (in addition to those listed below), each of which shall be comprised
of one or more of its members, and may designate one or more of its members as
alternate members of any committee, who may, subject to any limitations by the
Board of Directors, replace absent or disqualified members at any meeting of
that committee. Any such committee, to the extent provided in such resolution
or in the Articles of Incorporation or these Bylaws, shall have and may exercise
all of the authority of the Board of Directors to the extent permitted by the
NRS, including, without limitation, the power and authority to declare a
dividend, to authorize the issuance of stock or to adopt a plan of merger
pursuant to Section 78.125 of the NRS. Any such committee may authorize the
seal of the Company to be affixed to all papers which may require it. In
addition to the above, such committee or committees shall have such other powers
and limitations of authority as may be determined from time to time by
resolution adopted by the Board of Directors.
(b) The Board of Directors shall have the power at any time to
change the membership of any such committee and to fill vacancies in it. A
majority of the number of members of any such committee shall constitute a
quorum for the transaction of business unless a greater number is required by a
resolution adopted by the Board of Directors. The act of the majority of the
members of a committee present at any meeting at which a quorum is present shall
be the act of such committee, unless the act of a greater number is required by
a resolution adopted by the Board of Directors. Each such committee may elect a
chairman and appoint such subcommittees and assistants as it may deem necessary.
Except as otherwise provided by the Board of Directors, meetings of any
committee shall be conducted in accordance with Paragraphs 3.4, 3.5, 3.6, 3.7,
3.8, 3.9 and 7.3 hereof. In the absence or disqualification of a member of a
committee, the member or members present at any meeting and not disqualified
from voting, whether or not constituting a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member. Any member of any such committee elected or
appointed by the Board of Directors may be removed by the Board of Directors
whenever in its judgment the best interests of the Company will be served
thereby, but such removal shall be without prejudice to
5
the contract rights, if any, of the person so removed. Election or appointment
of a member of a committee shall not of itself create contract rights.
(c) Any action taken by any committee of the Board of Directors
shall promptly be recorded in the minutes and filed with the Secretary.
(d) Notwithstanding anything herein contained to the contrary, the
composition and powers of any committee of the Board of Directors are expressly
subject to the requirements of any stock exchange or quotation system on which
the capital stock of the Company is traded or quoted, or the Exchange Act.
(e) Executive Committee. The Board of Directors may create an
--------------------
Executive Committee of the Board of Directors, which committee shall have and
may exercise all the powers and authority of the Board of Directors between
regular or special meetings of the Board of Directors in the management of the
business and affairs of the Company, except to the extent limited by Nevada law.
Without limiting the generality of the foregoing, the Executive Committee shall
have the power and authority to (i) declare dividends on any class of capital
stock of the Company, (ii) authorize the issuance of capital stock of the
Company, (iii) adopt plans of merger, and (iv) in reference to amending the
Articles of Incorporation, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of capital stock adopted by the
Board of Directors, fix the designations and any of the preferences or rights of
such shares relating to dividends, redemptions, dissolution, any distribution of
assets of the Company or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Company or fix the number of shares of
any series of stock or authorize the increase or decrease of the shares of any
series.
(f) Audit Committee. The Board of Directors may create an Audit
----------------
Committee of the Board of Directors whose members shall consist solely of
directors who are not employees or affiliates of the Company and have no
relationship with the Company that would, in the judgment of the Board of
Directors, interfere with their exercise of independent judgment as a member of
such committee. The Audit Committee shall have and may exercise the power and
authority to recommend to the Board of Directors the accounting firm to be
selected by the Board of Directors or to be recommended by it for stockholder
approval, as independent auditor of the financial statements of the Company and
its subsidiaries, and to act on behalf of the Board of Directors in meeting and
reviewing with the independent auditors, the chief accounting officer, the chief
internal auditor, if any, and the appropriate corporate officers, matters
relating to corporate financial reporting and accounting procedures and
policies, adequacy of financial, accounting and operating controls and the scope
of the respective audits of the independent auditors and the internal auditor,
if any. The Audit Committee shall also review the results of such audits with
the respective auditors and shall report the results of those reviews to the
Board of Directors. The Audit Committee shall submit to the Board of Directors
any recommendations it may have from time to time with respect to financial
reporting and accounting practices and policies and financial, accounting and
operational controls and safeguards. The Audit Committee may submit to the
Compensation Committee any recommendations it may have with respect to the
compensation of the chief accounting officer and the chief internal auditor, if
any. The Board of Directors shall, by resolution adopted by a majority of the
Board of Directors, designate not less than two of its qualifying members from
time to time to constitute members of the Audit Committee.
(g) Nominating Committee. The Board of Directors may create a
---------------------
Nominating Committee of the Board of Directors, which committee shall have and
may exercise the power and authority to recommend to the Board of Directors
prior to each annual meeting of the stockholders of the Company: (i) the
appropriate size and composition of the Board of Directors; and (ii) nominees:
(1) for election to the Board of Directors for whom the Company should solicit
proxies; (2) to serve as proxies in connection with the annual stockholders'
meeting; and (3) for election to all committees of the Board of Directors other
than the Nominating Committee. The Board of Directors shall, by resolution
adopted by a majority of the Board, designate one or more of its members from
time to time to constitute members of the Nominating Committee.
(h) Compensation Committee. The Board of Directors may create a
-----------------------
Compensation Committee of the Board of Directors, whose members shall consist
solely of directors who are not employees or affiliates of the Company and have
no relationship with the Company that would, in the judgment of the Board of
6
Directors, interfere with their exercise of independent judgment as a member of
such committee. The Compensation Committee shall have and may exercise all the
power and authority to (i) establish a general compensation policy for the
officers and employees of the Company, including to establish and at least
annually review officers' salaries and levels of officers' participation in the
benefit plans of the Company, (ii) prepare any reports that may be required by
the regulations of the Securities and Exchange Commission or otherwise relating
to officer compensation, (iii) approve any increases in directors' fees, and
(iv) exercise all other powers of the Board of Directors with respect to matters
involving the compensation of employees and the employee benefits of the Company
as shall be delegated by the Board of Directors to the Compensation Committee
from time to time. Without limiting the generality of the foregoing, the
Compensation Committee shall have the power and authority to authorize the
issuance of capital stock of the Company pursuant to any compensation or benefit
plan or arrangement adopted or entered into by the Company. The Board of
Directors shall, by resolution adopted by a majority of the Board, designate two
or more of its qualifying members from time to time to constitute members of the
Compensation Committee.
ARTICLE IV
OFFICERS
4.1. Designation. The officers of the Company shall consist of a
-----------
Chairman of the Board, Chief Executive Officer, President, Chief Operating
Officer, Secretary, Chief Financial Officer, Treasurer, Controller and such
Executive, Senior or other Vice Presidents, Assistant Secretaries, Assistant
Treasurers, Assistant Controllers and other officers as may be elected or
appointed by the Board of Directors from time to time. Any number of offices
may be held by the same person.
4.2. Chairman of the Board. The Chairman of the Board shall be the
------------------------
Chief Executive Officer of the Company and shall preside at all meetings of the
stockholders and of the Board of Directors. Except where by law the signature
of the President is required, the Chairman of the Board shall possess the same
power as the President to sign all contracts, certificates and other instruments
of the Company which may be authorized by the Board of Directors. The Chairman
of the Board shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors. In the absence or incapacity to act of the President, the
Chairman of the Board shall serve as acting President, and when so acting, shall
have all the powers of and be subject to the restrictions of such office.
4.3. President. The President shall be the Chief Operating Officer of
---------
the Company and shall have general supervision and control of the business,
affairs and properties of the Company and its general officers, and shall see
that all orders and resolutions of the Board of Directors are carried into
effect. He shall have the power to appoint and remove all subordinate officers,
agents and employees, except those elected or appointed by the Board of
Directors, and shall execute all bonds, mortgages, contracts and other
instruments of the Company requiring a seal, under the seal of the Company,
except where required or permitted by law to be otherwise signed and executed
and except that the other officers of the Company may sign and execute documents
when so authorized by these Bylaws, the Board of Directors or the President.
The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors. In the incapacity to act of the Chairman of the Board, the
President shall serve as acting Chairman of the Board, and when so acting, shall
have all the powers of and be subject to the restrictions of such office.
4.4. Chief Operating Officer. As the Chief Operating Officer, the
-------------------------
President shall have general charge and supervision of the day to day operations
of the Company (subject to the direction of the Board of Directors), and, in
general, shall perform such other duties as are incident to the office of a
chief operating officer of a corporation, including those duties customarily
performed by persons occupying such office, and shall perform such other duties
as, from time to time, may be assigned to him by the Board of Directors.
4.5. Vice President. The Board of Directors may appoint such Vice
---------------
Presidents as may be recommended by the President or as the directors deem
necessary or appropriate. Vice Presidents may be designated as Senior Vice
Presidents, Executive Vice Presidents or some other designation as the Board of
Directors deems appropriate (each a "Vice President"). Each Vice President
shall perform such duties as the Board of
7
Directors may from time to time prescribe and have such other powers as the
President may from time to time prescribe.
4.6. Chief Financial Officer. The Chief Financial Officer shall be the
-----------------------
chief accounting officer of the Company and shall have general charge and
supervision of the day to day financial operations of the Company (subject to
the direction of the Board of Directors), and, in general, shall perform such
other duties as are incident to the office of a chief financial officer of a
corporation, including those duties customarily performed by persons occupying
such office, and shall perform such other duties as, from time to time, may be
assigned to him by the Board of Directors or the Audit Committee.
4.7. Secretary. The Secretary shall attend the meetings of the Board
---------
of Directors and all meetings of stockholders and record the proceedings thereof
in a book or books to be kept for that purpose; the Secretary shall also perform
like duties for the standing committees when required. The Secretary shall
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or the President, under whose
supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and if there be no Assistant Secretary, then
the Chairman of the Board may choose another officer to cause such notice to be
given. The Secretary shall have custody of the seal of the Company and the
Secretary or any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Company and to attest the affixing by his
signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
4.8. Treasurer. The Treasurer shall have the custody of the Company's
---------
funds and securities and shall keep full and accurate accounts of receipt and
disbursements in books belonging to the Company and shall deposit all moneys and
other valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Chief Financial Officer or the Board of
Directors. The Treasurer shall disburse the funds of the Company as may be
ordered by the Chief Financial Officer or the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chairman of the Board
and the Board of Directors, at its regular meeting, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of
the liquidity of the Company. If required by the Board of Directors, the
Treasurer shall give the Company a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Company,
in case of his death, resignation, retirement or removal from office, of all
books papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Company.
4.9. Controller. The Controller, if there is one, shall maintain
----------
records of all assets, liabilities, and transactions of the Company and shall be
responsible for the design, installation and maintenance of accounting and cost
control systems and procedures for the Company and shall perform such other
duties and have such other powers as from time to time may be assigned to him by
the Chief Financial Officer, Board of Directors or the Audit Committee.
4.10. Assistant Secretaries. Except as may be otherwise provided in
----------------------
these Bylaws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, or the Secretary, and in the
absence of the Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Secretary.
4.11. Assistant Treasurers. Assistant Treasurers, if there be any,
---------------------
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President or the Treasurer, and
in the absence of the Treasurer or in the event of his disability or refusal to
act, shall perform the duties of the Treasurer, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the Treasurer.
8
If required by the Board of Directors, an Assistant Treasurer shall give the
Company a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Company.
4.12. Assistant Controllers. Except as may be otherwise provided in
----------------------
these Bylaws, Assistant Controllers, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, or the Controller, and in the
absence of the Controller or in the event of his disability or refusal to act,
shall perform the duties of the Controller, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Controller.
4.13. Other Officers. Such other officers as the Board of Directors
---------------
may choose shall perform such duties and have such powers, subordinate to those
powers specifically delegated to certain officers in these Bylaws, as from time
to time may be assigned to them by the Board of Directors. The President of the
Company shall have the power to choose such other officers and to prescribe
their respective duties and powers, subject to control by the Board of
Directors.
4.14. Vacancies. Whenever any vacancies shall occur in any office by
---------
death, resignation, increase in the number of offices of the Company, or
otherwise, the same shall be filled by the Board of Directors (or the President,
in accordance with Paragraph 4.3 of these Bylaws, subject to control by the
Board of Directors), and the officer so appointed shall hold office until such
officer's successor is elected or appointed in accordance with these Bylaws or
until his earlier death, resignation or removal.
4.15. Removal. Any officer or agent of the Company may be removed by
-------
the Board of Directors whenever in its judgment the best interests of the
Company will be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed. Election or appointment
of an officer or agent shall not of itself create contract rights.
4.16. Action with Respect to Securities of Other Corporations. Unless
--------------------------------------------------------
otherwise directed by the Board of Directors, the Chairman of the Board, the
President, any Vice President and the Treasurer of the Company shall each have
power to vote and otherwise act on behalf of the Company, in person or by proxy,
at any meeting of security holders of or with respect to any action of security
holders of any other corporation in which the Company may hold securities and
otherwise to exercise any and all rights and powers which the Company may
possess by reason of its ownership of securities in such other corporation.
ARTICLE V
CAPITAL STOCK
5.1. Certificates for Shares. The certificates for shares of the
-------------------------
capital stock of the Company shall be in such form as may be approved by the
Board of Directors from time to time. The Company shall deliver one or more
certificates to each of the Company's stockholders, which shall represent the
number of shares to which such stockholder is entitled. Certificates shall be
signed by the Chairman of the Board, the President or a Vice President and
either the Secretary or an Assistant Secretary, and may bear the seal of the
Company or a facsimile thereof. The signatures of such officers upon a
certificate may be facsimiles. The stock record books and the blank stock
certificates shall be kept by the Secretary, or at the office of such transfer
agent or transfer agents as the Board of Directors may from time to time by
resolution determine. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Company with
the same effect as if such person were such officer at the date of its issuance.
5.2. Multiple Classes of Stock. As the Company is authorized to issue
--------------------------
more than one class of capital stock and more than one series of preferred
stock, a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualification, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
each of
9
the certificates the Company issues to represent such class or series of stock;
provided that, to the extent allowed by law, in lieu of such statement, the face
or back of such certificates may state that the Company will furnish a copy of
such statement without charge to each requesting stockholder.
5.3. Transfer of Shares. The shares of stock of the Company shall be
--------------------
transferable only on the books of the Company by the holders thereof in person
or by their duly authorized attorneys or legal representatives upon surrender
and cancellation of certificates for a like number of shares.
5.4. Ownership of Shares. As the Company is entitled to treat the
---------------------
holder of record of any share or shares of capital stock as the holder in fact
thereof under Paragraph 2.5 hereof, the Company shall not be bound to recognize
any equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of the State of Nevada.
5.5. Regulations Regarding Certificates. The Board of Directors shall
-----------------------------------
have the power and authority to make all such rules and regulations as they may
deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the Company.
5.6. Lost or Destroyed Certificates. The Board of Directors may
---------------------------------
determine the conditions upon which a new certificate representing shares of the
capital stock of the Company may be issued in place of a certificate which is
alleged to have been lost, stolen or destroyed; and may, in its discretion,
require the owner of such certificate or his legal representative to give bond,
with sufficient surety, to indemnify the Company and each transfer agent and
registrar against any and all losses or claims that may arise by reason of the
issue of a new certificate in the place of the one so lost, stolen or destroyed.
ARTICLE VI
INDEMNIFICATION
6.1. General. The Company shall indemnify its directors, officers,
-------
employees, agents and others as provided in the Articles of Incorporation.
6.2. Request for Indemnification. A party requesting indemnification
-----------------------------
(the "Indemnitee") shall submit notice of such request in writing to the
Secretary of the Company. Such notice of request for indemnification shall
contain sufficient information to reasonably inform the Company about the nature
and extent of the indemnification or advance sought by the Indemnitee. The
Secretary shall promptly advise the Board of Directors of any such request.
6.3. Extension of Rights. No amendment, alteration or repeal of this
---------------------
Article VI or any provision hereof shall be effective as to any Indemnitee for
acts, events and circumstances that occurred, in whole or in part, before such
amendment, alteration or repeal. The provisions of this Article VI shall
continue as to an Indemnitee whose Corporate Status has ceased for any reason
and shall inure to the benefit of his heirs, executors and administrators.
Neither the provisions of this Article VI nor those of any agreement to which
the Company is a party shall be deemed to preclude the indemnification of any
person who is not specified in this Article VI as having the right to receive
indemnification or is not a party to any such agreement, but whom the Company
has the power or obligation to indemnify under the provisions of the NRS.
6.4. Insurance and Subrogation. The Company shall not be liable under
--------------------------
the Articles of Incorporation or this Article VI to make any payment of amounts
otherwise indemnifiable hereunder if, but only to the extent that, the
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise. In the event of any payment
hereunder, the Company shall be subrogated to the extent of such payment to all
the rights of recovery of the Indemnitee, who shall execute all papers required
and take all action reasonably requested by the Company to secure such rights,
including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.
10
6.5. Severability. If any provision or provisions of this Article VI
------------
shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby; and, to the fullest extent possible,
the provisions of this Article VI shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
6.6. Notices. Promptly after receipt by the Indemnitee of notice of
-------
the commencement of any action, suit or proceeding, the Indemnitee shall, if he
anticipates or contemplates making a claim for expenses or an advance pursuant
to the terms of the Articles of Incorporation and this Article VI, notify the
Company of the commencement of such action, suit or proceeding; provided,
however, that any delay in so notifying the Company shall not constitute a
waiver or release by the Indemnitee of rights hereunder and that any omission by
the Indemnitee to so notify the Company shall not relieve the Company from any
liability that it may have to the Indemnitee otherwise than under the Articles
of Incorporation or this Article VI. Any communication required or permitted to
the Company shall be addressed to the Secretary and any such communication to
the Indemnitee shall be addressed to the Indemnitee's address as shown on the
Company's records unless he specifies otherwise and shall be personally
delivered or delivered by overnight mail delivery. Any such notice shall be
effective upon receipt.
6.7. Contractual Rights. The right to be indemnified or to the
-------------------
advancement or reimbursement of expenses (a) is a contract right based upon good
and valuable consideration, pursuant to which the Indemnitee may sue as if these
provisions were set forth in a separate written contract between the Indemnitee
and the Company, (b) is and is intended to be retroactive and shall be available
as to events occurring prior to the adoption of these provisions, and (c) shall
continue after any rescission or restrictive modification of such provisions as
to events occurring prior thereto.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1. Bylaw Amendments. These Bylaws may be amended as provided in the
-----------------
Articles of Incorporation.
7.2. Books and Records. The Company shall keep books and records of
-------------------
account and shall keep minutes of the proceedings of its stockholders, its Board
of Directors and each committee of its Board of Directors.
7.3. Notices; Waiver of Notice. Whenever any notice is required to be
--------------------------
given to any stockholder, director or committee member under the provisions of
the NRS, the Articles of Incorporation or these Bylaws, said notice shall be
deemed to be sufficient if given by deposit of the same in the United States
mail, with postage paid thereon, addressed to the person entitled thereto at his
address as it appears on the records of the Company, and such notice shall be
deemed to have been given on the day of such mailing.
Whenever any notice is required to be given to any stockholder, director or
committee member under the provisions of the NRS, the Articles of Incorporation
or these Bylaws, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be equivalent to the giving of such notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
7.4. Resignations. Any director or officer may resign at any time.
------------
Such resignations shall be made in writing and shall take effect at the time
specified therein, or, if no time be specified, at the time of its receipt by
the President or the Secretary. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
7.5. Seal. The seal of the Company shall be in such form as the Board
----
of Directors may adopt.
7.6. Fiscal Year. The fiscal year of the Company shall be determined
------------
by a resolution adopted by the Board of Directors.
11
7.7. Facsimile Signatures. In addition to the provisions for the use
---------------------
of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any director or officer of the Company may be used
whenever and as authorized by the Board of Directors.
7.8. Reliance upon Books, Reports and Records. Each director and each
-----------------------------------------
member of any committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account or reports made to the Company by any of its officers, or by an
independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Company.
ARTICLE VIII
ADOPTION OF BYLAWS
8.1. Adoption. These Bylaws were adopted by the Board of Directors as
--------
of _______ , 2004.
12
ATTACHMENT C
CERTIFICATE OF DESIGNATION ESTABLISHING SERIES OF PREFERRED STOCK
[GRAPHIC OMITED]
DEAN HELLER
SECRETARY OF STATE
204 NORTH CARSON STREET, SUITE 1
CARSON CITY, NEVADA 89701-4299
(775) 684 5708
WEBSITE: SECRETARYOFSTATE.BIZ
- -------------------------------------------------
Certificate of Designation
(PURSUANT TO NRS 78.1955)
- -------------------------------------------------
Important: Read attached instructions before completing form.
ABOVE SPACE IS FOR OFFICE USE ONLY
CERTIFICATE OF DESIGNATION
--------------------------
FOR NEVADA PROFIT CORPORATIONS
------------------------------
(PURSUANT TO NRS 78.1955)
1. Name of corporation:
- --------------------------------------------------------------------------------
INTERNATIONAL DEVELOPMENT CORP.
- --------------------------------------------------------------------------------
2. By resolution of the board of directors pursuant to a provision in the
articles of incorporation, this certificate establishes the following
regarding the voting powers, designations, preferences, limitations,
restrictions and relative rights of the following class or series of stock:
- --------------------------------------------------------------------------------
Series A Preferred Stock to consist of 1,000,000 shares:
1. Dividends. Except as provided herein, the holders of outstanding shares of
the Series A Preferred Stock shall be entitled to receive cash, stock, or other
property, as dividends when, as, and if declared by the Board of Directors of
the Company. If shares of the Series A Preferred Stock or the common stock of
the Company, par value $0.001 per share (the "Common Stock") are to be issued as
a dividend, any such shares shall be issued at Market Value. "Market Value" for
the Common Stock for the purposes of this Certificate of Designation shall mean
the average of the bid and ask prices for the Common Stock for the five business
days preceding the declaration of a dividend by the Board of Directors. "Market
Value" with respect to any shares of the Series A Preferred Stock shall be as
determined by the Board of Directors, whose decision shall be final and binding
on all parties. (CONTINUATION ATTACHED)
- --------------------------------------------------------------------------------
---------------------------------------
3. Effective date of filing (optional):
---------------------------------------
(must not be later than 90 days after
the certificate is filed)
4. Officer Signature:
--------------------------------------------------
FILING FEE: $175.00
IMPORTANT: Failure to include any of the above information and submit the
proper fees may cause this filing to be rejected.
SUBMIT IN DUPLICATE
This form must be accompanied by appropriate fees. See attached fee
schedule.
Nevada Secretary of State AM 78.1955 Designation 2003
Revised on: 11/03/03
INTERNATIONAL DEVELOPMENT CORP
CONTINUATION FOR THE CERTIFICATE OF DESIGNATION
FOR THE
SERIES A PREFERRED STOCK
2. Liquidation Rights. Upon the dissolution, liquidation or winding up of
-------------------
the Company, whether voluntary or involuntary, the holders of the then
outstanding shares of Series A Preferred Stock shall be entitled to receive out
of the assets of the Company the sum of $0.001 per share (the "Liquidation
Rate") before any payment or distribution shall be made on the Common Stock, or
any other class of capital stock of the Company ranking junior to the Series A
Preferred Stock.
(a) The sale, conveyance, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all the
property and assets of the Company shall be deemed a dissolution, liquidation or
winding up of the Company for purposes of this Paragraph 3, but the merger,
consolidation, or other combination of the Company into or with any other
corporation, or the merger, consolidation, or other combination of any other
corporation into or with the Company, shall not be deemed a dissolution,
liquidation or winding up,
voluntary or involuntary, for purposes of this Paragraph 3. As use herein, the
"merger, consolidation, or other combination" shall include, without limitation,
a forward or reverse triangular merger, or stock exchange of the Company and any
of its subsidiaries with any other corporation.
(b) After the payment to the holders of shares of the Series A
Preferred Stock of the full preferential amounts fixed by this Paragraph 3 for
shares of the Series A Preferred Stock, the holders of the Series A Preferred
Stock as such shall have no right or claim to any of the remaining assets of the
Company.
(c) In the event the assets of the Company available for distribution
to the holders of the Series A Preferred Stock upon dissolution, liquidation or
winding up of the Company shall be insufficient to pay in full all amounts to
which such holders are entitled pursuant to this Paragraph 3, no distribution
shall be made on account of any shares of a class or series of capital stock of
the Company ranking on a parity with the shares of the Series A Preferred Stock,
if any, upon such dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the shares of the Series A
Preferred Stock, ratably, in proportion to the full distributive amounts for
which holders of all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up.
3. Conversion of Series A Preferred Stock. At any time, the holder of
--------------------------------------
shares of the Series A Preferred Stock shall have the right, at such holder's
option, to convert any number of shares of the Series A Preferred Stock into
shares of the Common Stock. Such right to convert shall commence as of the date
the shares of such Series A Preferred Stock are issued to such holder (the
"Issue Date") and shall continue thereafter for a period of 10 years, such
period ending on the 10th anniversary of the Issue Date. In the event that the
holder of the Series A Preferred Stock elects to convert such shares into Common
Stock, the holder shall have 60 days from the date of such notice in which to
tender his shares of Series A Preferred Stock to the Company. Any such
conversion shall be upon the other following terms and conditions:
(a) Conversion Right. Subject to adjustment as provided herein, each
-----------------
share of the Series A Preferred Stock shall be convertible into 200 fully paid
and nonassessable shares of the Common Stock (the "Conversion Rate").
(b) Adjustment of Conversion Rate for Dilution and Other Events. In
-------------------------------------------------------------
order to prevent dilution of the rights granted to the holders of shares of the
Series A Preferred Stock, the Conversion Rate will be subject to adjustment from
time to time as follows:
(i) Adjustment of Conversion Rate upon Subdivision or Combination
-------------------------------------------------------------
of the Common Stock. If the Company at any time subdivides the Common Stock (by
- --------------------
any stock split, stock dividend, recapitalization or otherwise) into a greater
number of shares, the Conversion Rate in effect immediately prior to such
subdivision will be proportionately reduced. If the Company at any time combines
the Common Stock (by combination, reverse stock split or otherwise) into a
smaller number of shares, the Conversion Rate in effect immediately prior to
such combination will be proportionately increased.
(ii) Reorganization, Reclassification, Consolidation, Merger, or
-----------------------------------------------------------
Sale. Any recapitalization, reorganization, reclassification, consolidation,
- ----
merger, or other similar transaction which is effected in such a way that
holders of the Common Stock are entitled to receive (either directly or upon
subsequent liquidation) stock, securities or assets with respect to or in
exchange for the Common Stock is referred to herein as an "Organic Change."
Prior to the consummation of any Organic Change, the Company will make
appropriate provision, in form and substance satisfactory to the holders of a
majority of the outstanding shares of the Series A Preferred Stock, to ensure
that each of the holders of shares of the Series A Preferred Stock will
thereafter have the right to acquire and receive in lieu of or in addition to,
as the case may be, the shares of the Common Stock immediately theretofore
acquirable and receivable upon the conversion of such holder's Series A
Preferred Stock, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for the number of shares of the Common
Stock immediately theretofore acquirable and receivable upon the conversion of
such holder's shares of the Series A Preferred Stock had such Organic Change not
taken place. In any such case, the Company will make appropriate provision, in
form and substance satisfactory to the holders of a majority of the outstanding
shares of the Series A Preferred Stock, with respect to such holders' rights and
interests to ensure that the provisions of this paragraph and paragraph 4(c)
below will thereafter be applicable to the Series A Preferred
Stock. The Company will not effect any such consolidation or merger, unless
prior to the consummation thereof the successor entity resulting from such
consolidation or merger, if other than the Company, assumes, by written
instrument, in form and substance satisfactory to the holders of a majority of
the outstanding shares of the Series A Preferred Stock, the obligation to
deliver to each holder of shares of the Series A Preferred Stock such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
that such holder may be entitled to acquire.
(iii) Notices. Immediately upon any adjustment of the Conversion
-------
Rate, the Company will give written notice of such adjustment to each holder of
shares of the Series A Preferred Stock, setting forth in reasonable detail and
certifying the calculation of such adjustment. The Company will give written
notice to each holder of shares of the Series A Preferred Stock at least 20 days
prior to the date on which the Company closes its books or takes a record with
respect to any dividend or distribution upon the Common Stock, or with respect
to any pro rata subscription offer to holders of the Common Stock. The Company
will also give written notice to each holder of shares of the Series A Preferred
Stock at least 20 days prior to the date on which any Organic Change,
dissolution or liquidation will take place.
(c) Purchase Rights. If at any time the Company grants, issues or
----------------
sells any options, convertible securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of the Common Stock
(the "Purchase Rights"), then each holder of shares of the Series A Preferred
Stock will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which such holder could have acquired if
such holder had held the number of shares of the Common Stock acquirable upon
complete conversion of the holder's shares of the Series A Preferred Stock
immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of
which the record holders of the Common Stock are to be determined for the grant,
issue or sale of such Purchase Rights.
(d) Mechanics of Conversion. To convert shares of the Series A
-------------------------
Preferred Stock into full shares of the Common Stock on any date (the
"Conversion Date"), the holder thereof shall (i) deliver or transmit by
facsimile to the Company, for receipt on or prior to 11:59 p.m., Eastern Time,
on the Conversion Date, a copy of a fully executed notice of conversion in the
form attached hereto as Attachment A (the "Conversion Notice"), and (ii)
-------------
surrender to a common carrier for delivery to the Company as soon as practicable
following such date, the certificates (each a "Preferred Stock Certificate")
representing the shares of the Series A Preferred Stock being converted, or an
indemnification undertaking with respect to such shares in the case of the loss,
theft or destruction thereof, and the originally executed Conversion Notice.
Upon receipt by the Company of a facsimile copy of a Conversion Notice, the
Company shall immediately send, via facsimile, a confirmation of receipt of such
Conversion Notice to such holder. Within five business days of the Company's
receipt of the originally executed Conversion Notice and the holder's Preferred
Stock Certificate(s), the Company shall issue and surrender to a common carrier
for overnight delivery to the address as specified in the Conversion Notice, a
certificate, registered in the name of the holder or its designee, for the
number of shares of the Common Stock to which the holder is entitled.
(e) Record Holder. The person or persons entitled to receive shares of
-------------
the Common Stock issuable upon conversion of shares of the Series A Preferred
Stock shall be treated for all purposes as the record holder or holders of such
shares of the Common Stock on the Conversion Date.
(f) Fractional Shares. The Company shall not be required to issue any
-----------------
fraction of a share of the Common Stock upon any conversion. All shares of the
Common Stock, including fractions thereof, issuable upon conversion of more than
one share of the Series A Preferred Stock shall be aggregated for purposes of
determining whether the conversion would result in the issuance of a fraction of
a share of the Common Stock. If, after such aggregation, the issuance would
result in the issuance of a fraction of it share of the Common Stock, the
Company shall round such fraction of a share of the Common Stock up or down to
the nearest whole share.
(g) Reissuance of Certificates. In the event of a conversion of less
---------------------------
than all of the shares of the Series A Preferred Stock represented by a
particular Preferred Stock Certificate, the Company shall promptly cause to be
issued and delivered to the holder of such Series A Preferred Stock a new Series
A Preferred Stock Certificate representing the remaining shares of the Series A
Preferred Stock which were not corrected.
4. Reservation of Shares. The Company shall, so long as any of the shares
----------------------
of the Series A Preferred Stock are outstanding, reserve and keep available out
of its authorized and unissued shares of the Common Stock, solely for the
purpose of effecting the conversion of the shares of the Series A Preferred
Stock, the number of shares of the Common Stock as shall from time to time be
sufficient to affect the conversion of all of the outstanding shares of the
Series A Preferred Stock.
5. Preferred Status. The rights of the shares of the Common Stock shall be
----------------
subject to the preferences and relative rights of the shares of the Series A
Preferred Stock. Without the prior written consent of the holders of not less
than two-thirds (2/3) of the outstanding shares of the Series A Preferred Stock,
the Company shall not hereafter authorize or issue additional or other capital
stock that is of senior or equal rank to the shares of the Series A Preferred
Stock in respect of the preferences as to distributions and payments upon the
liquidation, dissolution and winding up of the Company described in Paragraph 3
above.
6. Restriction on Dividends. If any shares of the Series A Preferred Stock
------------------------
are outstanding, the Company shall not, without the prior written consent of the
holders of not less than two-thirds (2/3) of the then outstanding shares of the
Series A Preferred Stock, directly or indirectly declare, pay or make any
dividends or other distributions upon any of the Common Stock. Notwithstanding
the foregoing, this paragraph shall not prohibit the Company from declaring and
paying a dividend in cash with respect to the shares of the Common Stock so long
as the Company simultaneously pays each holder of shares of the Series A
Preferred Stock an amount in cash equal to the amount such holder would have
received had all of such holder's shares of the Series A Preferred Stock been
converted to shares of the Common Stock on the business day prior to the record
date for any such dividend.
7. Vote to Change the Terms of the Series A Preferred Stock. Without the
---------------------------------------------------------
prior written consent of the holders of not less than two-thirds (2/3) of the
outstanding shares of the Series A Preferred Stock, the Company shall not amend,
alter, change or repeal any of the powers, designations, preferences and rights
of the Series A Preferred Stock.
8. Lost or Stolen Certificates. Upon receipt by the Company of evidence
-----------------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Preferred Stock Certificates representing shares of the Series A Preferred
Stock, and, in the case of loss, theft or destruction, of any indemnification
undertaking or bond, in the Company's discretion, by the holder to the Company
and, in the case of mutilation, upon surrender and cancellation of the Preferred
Stock Certificate(s), the Company shall execute and deliver new Series A
Preferred Stock Certificate(s) of like tenor and date; provided, however, the
Company shall not be obligated to re-issue Series A Preferred Stock Certificates
if the holder thereof contemporaneously requests the Company to convert such
shares of the Series A Preferred Stock into the Common Stock.
9. Voting. On all matters submitted to a vote of the holders of the Common
------
Stock, including, without limitation, the election of directors, a holder of
shares of the Series A Preferred Stock shall be entitled to the number of votes
on such matters equal to the number of shares of the Series A Preferred Stock
held by such holder multiplied by the number of shares of the Common Stock each
such share of the Series A Preferred Stock shall then be convertible into
pursuant to the terms Paragraph 4 hereof.
ATTACHMENT A
INTERNATIONAL DEVELOPMENT CORP.
CONVERSION NOTICE
In accordance with and pursuant to the provisions of the Certificate of
Designation Establishing Series A Preferred Stock of International Development
Corp., the undersigned hereby elects to convert the number of shares of Series A
Preferred Stock, par value $0.001 per share, of International Development Corp.
(the "Company") indicated below into shares of the Common Stock, par value
$0.001 per share (the "Common Stock"), of the Company, by tendering the stock
certificate(s) representing the share(s) of the Series A Preferred Stock
hereinafter described as of the date specified below.
The undersigned acknowledges that the securities issuable to the undersigned
upon conversion of shares of the Series A Preferred Stock may not be sold,
pledged, hypothecated or otherwise transferred unless such securities are
registered under the Securities Act, and any other applicable securities law, or
the Company has received an opinion of counsel satisfactory to it that
registration is not required. A legend in substantially the following form will
be placed on any certificates or other documents evidencing the securities to be
issued upon any conversion of the shares of the Series A Preferred Stock:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAW OF ANY STATE. WITHOUT SUCH REGISTRATION,
SUCH SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED EXCEPT UPON DELIVERY TO THE COMPANY OF
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER OR THE
SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY SUCH
TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OF
1933, AS AMENDED, THE SECURITIES LAW OF ANY STATE, OR ANY
RULE OR REGULATION PROMULGATED THEREUNDER.
Date of Conversion:______________________
Number of shares of the Series A Preferred Stock to be converted:
_________________________________________
Stock certificate no(s). of the shares of the Series A Preferred Stock to be
converted:
__________________________
Conversion Rate:_________________________
Number of shares of the Common Stock to be issued:
_________________________________________
Name in which shares of the Common Stock are to be issued:
____________________________________
____________________________________
Signature
____________________________________
Printed Name and Address
ATTACHMENT D
SECTION 262 OF THE DELAWARE STATUTES
1
SEC. 262. APPRAISAL RIGHTS.
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to Sec. 228 of
this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a nonstock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and the
words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions thereof,
solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Sec. 251 (other than a merger effected pursuant to Sec.
251(g) of this title), Sec. 252, Sec. 254, Sec. 257, Sec. 258, Sec. 263 or Sec.
264 of this title:
(1) Provided, however, that no appraisal rights under this section
shall be available for the shares of any class or series of stock, which stock,
or depository receipts in respect thereof, at the record date fixed to determine
the stockholders entitled to receive notice of and to vote at the meeting of
stockholders to act upon the agreement of merger or consolidation, were either
(i) listed on a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or (ii) held of record by more than 2,000 holders;
and further provided that no appraisal rights shall be available for any shares
of stock of the constituent corporation surviving a merger if the merger did not
require for its approval the vote of the stockholders of the surviving
corporation as provided in subsection (f) of Sec. 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series of
stock of a constituent corporation if the holders thereof are required by the
terms of an agreement of merger or consolidation pursuant to Sec.Sec. 251, 252,
254, 257, 258, 263 and 264 of this title to accept for such stock anything
except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository
receipts in respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the merger or
consolidation will be either listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or held of record
by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this paragraph;
or
d. Any combination of the shares of stock, depository receipts
and cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under Sec. 253 of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall be
available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights
are provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting, shall
notify each of its stockholders who was such on the record date for such meeting
with respect to shares for which appraisal rights are available pursuant to
subsection (b) or (c) hereof that appraisal rights are available for any or all
of the shares of the constituent corporations, and shall include in such notice
a copy of this section. Each stockholder electing to demand the appraisal of
such stockholder's shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for appraisal of such
stockholder's shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of such stockholder's shares. A proxy or
vote against the merger or consolidation shall not constitute such a demand. A
stockholder electing to take such action must do so by a separate written demand
as herein provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become effective;
or
(2) If the merger or consolidation was approved pursuant to Sec. 228
or Sec. 253 of this title, then either a constituent corporation before the
effective date of the merger or consolidation or the surviving or resulting
corporation within 10 days thereafter shall notify each of the holders of any
class or series of stock of such constituent corporation who are entitled to
appraisal rights of the approval of the merger or consolidation and that
appraisal rights are available for any or all shares of such class or series of
stock of such constituent corporation, and shall include in such notice a copy
of this section. Such notice may, and, if given on or after the effective date
of the merger or consolidation, shall, also notify such stockholders of the
effective date of the merger or consolidation. Any stockholder entitled to
appraisal rights may, within 20 days after the date of mailing of such notice,
demand in writing from the surviving or resulting corporation the appraisal of
such holder's shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of such holder's shares. If such notice
did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send a second
notice before the effective date of the merger or consolidation notifying each
of the holders of any class or series of stock of such constituent corporation
that are entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send such a
second notice to all such holders on or within 10 days after such effective
date; provided, however, that if such second notice is sent more than 20 days
following the sending of the first notice, such second notice need only be sent
to each stockholder who is entitled to appraisal rights and who has demanded
appraisal of such holder's shares in accordance with this subsection. An
affidavit of the secretary or assistant secretary or of the transfer agent of
the corporation that is required to give either notice that such notice has been
given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. For purposes of determining the stockholders entitled to receive
either notice, each constituent corporation may fix, in advance, a record date
that shall be not more than 10 days prior to the date the notice is given,
provided, that if the notice is given on or after the effective date of the
merger or consolidation, the record date shall be such effective date. If no
record date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the day on
which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise entitled to
appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw such stockholder's demand for appraisal and to accept the terms offered
upon the merger or consolidation. Within 120 days after the effective date of
the merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after such stockholder's written request for
such a statement is received by the surviving or resulting corporation or within
10 days after expiration of the period for delivery of demands for appraisal
under subsection (d) hereof, whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had
to pay to borrow money during the pendency of the proceeding. Upon application
by the surviving or resulting corporation or by any stockholder entitled to
participate in the appraisal proceeding, the Court may, in its discretion,
permit discovery or other pretrial proceedings and may proceed to trial upon the
appraisal prior to the final determination of the stockholder entitled to an
appraisal. Any stockholder whose name appears on the list filed by the surviving
or resulting corporation pursuant to subsection (f) of this section and who has
submitted such stockholder's certificates of stock to the Register in Chancery,
if such is required, may participate fully in all proceedings until it is
finally determined that such stockholder is not entitled to appraisal rights
under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of such stockholder's
demand for an appraisal and an acceptance of the merger or consolidation, either
within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the
Court, and such approval may be conditioned upon such terms as the Court deems
just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation. (8 Del. C. 1953, Sec.
262; 56 Del. Laws, c. 50; 56 Del. Laws, c. 186, Sec. 24; 57 Del. Laws, c. 148,
Sec.Sec. 27-29; 59 Del. Laws, c. 106, Sec. 12; 60 Del. Laws, c. 371, Sec.Sec.
3-12; 63 Del. Laws, c. 25, Sec. 14; 63 Del. Laws, c. 152, Sec.Sec. 1, 2; 64 Del.
Laws, c. 112, Sec.Sec. 46-54; 66 Del. Laws, c. 136, Sec.Sec. 30-32; 66 Del.
Laws, c. 352, Sec. 9; 67 Del. Laws, c. 376, Sec.Sec. 19, 20; 68 Del. Laws, c.
337, Sec.Sec. 3, 4; 69 Del. Laws, c. 61, Sec. 10; 69 Del. Laws, c. 262, Sec.Sec.
1-9; 70 Del. Laws, c. 79, Sec. 16; 70 Del. Laws, c. 186, Sec. 1; 70 Del. Laws,
c. 299, Sec.Sec. 2, 3; 70 Del. Laws, c. 349, Sec. 22; 71 Del. Laws, c. 120, Sec.
15; 71 Del. Laws, c. 339, Sec.Sec. 49-52; 73 Del. Laws, c. 82, Sec. 21.)