AGREEMENT AND PLAN OF MERGER between Electronic Engineering and Design
Corporation, a Delaware corporation ("EED"), and Electro Pulse Technologies
Commercial, Inc., a Delaware corporation ("EPT").
WHEREAS, the board of directors of each of EED and EPT (sometimes
referred to as the "Constituent Corporations") deems it advisable that the
Constituent Corporations merge into a single corporation (the "Merger");
NOW, THEREFORE, in consideration of the premises and the respective
mutual covenants, representations and warranties herein contained, the parties
agree as follows:
1. Surviving Corporation. EPT shall be merged with and into EED which shall
be the surviving corporation (hereinafter the "Surviving Corporation") in
accordance with the applicable laws of the State of Delaware.
2. Merger Date. The Merger shall become effective (the "Merger Date") upon
the completion of:
(i) Adoption of this Agreement by the shareholders of EED and EPT
pursuant to the General Corporation Act of Delaware.
(ii) Execution and filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with the
General Corporation Law of Delaware.
3. Time of Filings. The Certificate of Merger shall be filed with the
Secretary of State of Delaware upon the approval of this Agreement by the
shareholders of the Constituent Corporations and the fulfillment or waiver of
the terms and conditions herein.
4. Governing Law. The Surviving Corporation shall be governed by the laws
of the State of Delaware.
5. Certificate of Incorporation. On the Merger Date, the Certificate of
Incorporation of EED, amended and restated in its entirety in the form set forth
as Exhibit A (which restatement shall become effective only upon consummation of
the Merger), shall be the Articles of Incorporation of the Surviving
Corporation.
6. Bylaws. On the Merger Date, the Bylaws of EED, amended and restated in
its entirety in the form set forth as Exhibit B (which restatement shall become
effective only upon consummation of the Merger), shall be the Bylaws of the
Surviving Corporation as in effect on the date of this Agreement.
7. Name of Surviving Corporation. The Surviving Corporation shall change
its name to "Electro Pulse Technologies Commercial, Inc." contemporaneously with
the consummation of the Merger.
8. Conversion. The mode of carrying the merger into effect and the manner
and basis of converting the shares of EPT into shares of the Surviving
Corporation are as follows:
At the Closing, by virtue of the Merger, EPT shall cancel and
extinguish each share of EPT Common Stock issued and outstanding and held of
record by the EPT Shareholders immediately prior to the Closing, other than any
shares held by holders of Dissenting Shares, and, in consideration thereof, EED
shall issue to each of the EPT Shareholders, on a pro rata basis, 5,100,000
fully paid and non-assessable shares of EED Common Stock.
Immediately prior to the Merger, (a) there shall be 10,000,000 shares
of EPT Common Stock issued and outstanding and (b) EED shall effect a reverse
stock split (the "Stock Split") so that the 1,019,000 shares of EED Common Stock
issued and outstanding immediately prior to the Effective Date shall be
converted to 500,000 shares of EED Common Stock issued and outstanding, of which
53,729 shares shall be owned by PageOne Business Productions LLC.
The EED Common Stock to be issued pursuant hereto shall be issued to
the holders of EPT Common Stock in exchange for their shares on a pro rata basis
in accordance with each holder's relative ownership of the EPT Common Stock that
is being exchanged.
EPT represents that there are no outstanding warrants to purchase any
capital stock of EPT but there is an outstanding debenture which allows the
holders thereof, upon the occurrence of certain events, to convert the
indebtedness evidenced by such debenture into a certain number of shares of EPT
(or its successor), as more fully set forth in Section 15 hereof.
Fractional shares of EED Common shall not be issued, but in lieu
thereof EED shall round up fractional shares to the next highest whole number.
The shares of EED Common Stock to be issued in exchange for EPT Common
Stock hereunder shall be proportionately reduced by any shares owned by EPT
shareholders who shall have timely objected to the merger (the "Dissenting
Shares") in accordance with the provisions of the General Corporation Law of
Delaware, which objections will be dealt with as provided in those sections.
Each share of EPT Common Stock that is issued and outstanding and owned
by EPT on the Merger Date shall, by virtue of the merger and without any action
on the part of EED, be retired and canceled.
After giving effect to the Stock Split, each certificate evidencing
ownership of shares of EED Common Stock issued and outstanding on the Merger
Date or held by EED in its treasury, of which there are none, shall continue to
evidence ownership of the same number of shares of EED Common Stock.
9. Exchange of Certificates. As promptly as practicable after the
Merger Date, each holder of an outstanding certificate or certificates
theretofore representing shares of EPT Common Stock (other than certificates
representing Dissenting Shares) shall surrender such certificate(s) for
cancellation to the party designated by the Surviving Corporation to handle such
exchange (the "Exchange Agent"), and shall receive in exchange a certificate or
certificates representing the number of full shares of EED Common Stock into
which the shares of EPT Common Stock represented by the certificate or
certificates so surrendered shall have been converted.
10. Unexchanged Certificates. Until surrendered, each outstanding
certificate that prior to the Merger Date represented EPT Common Stock (other
than certificates representing Dissenting Shares) shall be deemed for all
purposes, other than the payment of dividends or other distributions, to
evidence ownership of the number of shares of EED Common Stock into which it was
converted. No dividend or other distribution payable to holders of EED Common
Stock as of any date subsequent to the Merger Date shall be paid to the holders
of outstanding certificates of EPT Common Stock; provided, however, that upon
surrender and exchange of such outstanding certificates (other than certificates
representing Dissenting Shares), there shall be paid to the record holders of
the certificates issued in exchange therefor the amount, without interest
thereon, of dividends and other distributions that would have been payable
subsequent to the Merger Date with respect to the shares of EED Common Stock
represented thereby.
11. Board of Directors and Officers. The members of the board of
directors of the Surviving Corporation shall be the members of the board of
directors of EPT on the Merger Date or such others as EPT may designate. The
officers of the Surviving Corporation shall be the officers of EPT on the Merger
Date or such others as EPT may designate.
12. Effect of the Merger. On the Merger Date, the separate existence of
EPT shall cease (except insofar as continued by statute), and it shall be merged
with and into the Surviving Corporation. All the property, real, personal, and
mixed, of each of the Constituent Corporations, and all debts due to either of
them, shall be transferred to and vested in the Surviving Corporation, without
further act or deed. The Surviving Corporation shall thenceforth be responsible
and liable for all the liabilities and obligations, including liabilities to
holders of Dissenting Shares, of each of the Constituent Corporations, and any
claim or judgment against either of the Constituent Corporations may be enforced
against the Surviving Corporation.
13. Approval of Shareholders. This Agreement shall be adopted by the
shareholders of the Constituent Corporations at meetings of such shareholders
called for that purpose or by written consent pursuant to the laws applicable
thereto. There shall be required for the adoption of this Agreement the
affirmative vote of the holders of at least a majority of the holders of all the
shares of the Common Stock issued and outstanding and entitled to vote for each
of the Constituent Corporations.
14. Representations and Warranties of EED. EED represents and warrants
that:
Corporate Organization and Good Standing. EED is a corporation duly
organized, validly existing, and in good standing under the laws of the
State of Delaware, and is qualified to do business as a foreign corporation
in each jurisdiction, if any, in which its property or business requires
such qualification.
Capitalization. EED's authorized capital stock consists of (i)
100,000,000 shares of Common Stock, $0.001 par value, of which 1,019,000
shares are issued and outstanding (subject to the provisions of Section 8),
and (ii) 8,000,000 shares of Preferred Stock, $0.001 par value, of which 0
shares are issued and outstanding.
Stock Rights. There are no stock grants, options, rights, warrants or
other rights to purchase or obtain EED Common Stock issued or committed to
be issued.
Issued Stock. All the outstanding shares of its Common Stock are duly
authorized and validly issued and are fully paid and nonassessable.
Corporate Authority. EED has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its business as
it is now being conducted and to execute, deliver, perform and conclude the
transactions contemplated by this Agreement and all other agreements and
instruments related to this Agreement.
Authorization. Execution of this Agreement has been duly authorized
and approved by EED's board of directors.
Subsidiaries. EED has no subsidiaries.
Financial Statements. EED's audited balance sheet and the related
statements of income and retained earnings, dated December 31, 1998, copies
of which will have been delivered by EED to EPT prior to the Merger Date
(the "EED Financial Statements"), have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied and
fairly present the financial condition of EED as of the date therein and
the results of its operations for the periods then ended in conformity with
generally accepted accounting principles consistently applied. Except as
and to the extent reflected on, or reserved against in, the EED Financial
Statements, EED has no liabilities or obligations (whether accrued,
absolute, contingent or otherwise) that would be required to be reflected
on, or reserved against in, a balance sheet of EED or in the notes thereto,
prepared in accordance with GAAP, except for liabilities or obligations
incurred in the ordinary course of business since December 31, 1998 that,
individually or in the aggregate, would not have a material adverse effect
on EED and which are reflected on the consolidated balance sheet at
September 30, 1999.
Absence of Undisclosed Liabilities. Except to the extent reflected or
reserved against in the EED Financial Statements, EED did not have at that
date any liabilities or obligations (secured, unsecured, contingent, or
otherwise) of a nature customarily reflected in a corporate balance sheet
prepared in accordance with generally accepted accounting principles.
No Material Changes. There has been no material adverse change in the
business, properties, or financial condition of EED since the date of the
EED Financial Statements.
Litigation. There is not, to the knowledge of EED, any pending,
threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated against
EED or against any of its officers as it pertains to their roles as
officers of EED.
Contracts. EED is not a party to any material contract not in the
ordinary course of business that is to be performed in whole or in part at
or after the date of this Agreement.
Title. EED has good and marketable title to all the real property and
good and valid title to all other property included in the EED Financial
Statements. Except as set out in the balance sheet thereof, the properties
of EED are not subject to any mortgage, encumbrance, or lien of any kind
except minor encumbrances that do not materially interfere with the use of
the property in the conduct of the business of EED.
Tax Returns. All federal, state, county, municipal, local, foreign and
other taxes and assessments, including any and all interest, penalties and
additions imposed with respect to such amounts, have been properly prepared
and filed by EED for all years to and including the taxable year ending
December 31, 1998. The provisions for federal and state taxes reflected in
the EED Financial Statements are adequate to cover any such taxes that may
be assessed against EED in respect of its business and its operations
during the periods covered by the EED Financial Statements and all prior
periods.
No Violation. Consummation of the merger will not constitute or result
in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree,
law, or regulation to which any property of EED is subject or by which EED
is bound.
15. Representations and Warranties of EPT. EPT represents and warrants
that:
Corporate Organization and Good Standing. EPT is a corporation duly
organized, validly existing, and in good standing under the laws of the
State of Delaware and is qualified to do business as a foreign corporation
in each jurisdiction, if any, in which its property or business requires
such qualification.
Capitalization. EPT's authorized capital stock consists of 10,000,000
shares of Common Stock, $0.0001 par value, of which 10,000,000 shares are
issued and outstanding.
Stock Rights. Other than the 6.08% Convertible Subordinated Debenture
dated as of December 31, 1999, in the original principal amount of
$4,000,000 which entitles the holders thereof the right, but not the
obligation, to convert the Debenture into a specified number of shares of
common stock of the Surviving Corporation, there are no stock grants,
options, rights, warrants or other rights to purchase or obtain EPT Common
Stock issued or committed to be issued.
Issued Stock. All the outstanding shares of its Common Stock were duly
authorized and validly issued and are fully paid and non-assessable.
Corporate Authority. EPT has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver, perform and
conclude the transactions contemplated by this Agreement and all other
agreements and instruments related to this Agreement.
Authorization. Execution of this Agreement has been duly authorized
and approved by EPT's board of directors.
Subsidiaries. Other than Drytronic Acquisition Co., a Delaware
corporation ("Acquisition"), EPT has no subsidiaries.
Immediately prior hereto, Acquisition merged with and into Drytronic, Inc.,
a Wisconsin corporation ("Drytronic").
Financial Statements. The audited balance sheet and the related
statements of income and retained earnings, for each of EPT and Drytronic,
Inc. for the periods ended December 31, 1997 and 1998 and the interim
reviewed balance sheet and the related statements of income and retained
earnings for each of EPT and Drytronic for the period ended September 30,
1999, and the management-prepared consolidation of such September 30, 1999
statements copies of which will have been delivered by EPT to EED by the
Merger Date (the "EPT Financial Statements"), have been prepared in
accordance with GAAP consistently applied and fairly present the financial
condition of EPT as of the date therein and the results of its operations
for the periods then ended in conformity with generally accepted accounting
principles consistently applied. Except as and to the extent reflected on,
or reserved against in, the EPT Financial Statements, EPT has no
liabilities or obligations (whether accrued, absolute, contingent or
otherwise) that would be required to be reflected on, or reserved against
in, a balance sheet of EPT or in the notes thereto, prepared in accordance
with GAAP, except for liabilities or obligations incurred in the ordinary
course of business since September 30, 1999 that, individually or in the
aggregate, would not have a material adverse effect on EPT and which are
reflected on the pro forma consolidated balance sheet at December 31, 1999.
Absence of Undisclosed Liabilities. Except to the extent reflected or
reserved against in the EPT Financial Statements, EPT did not have at that
date any liabilities or obligations (secured, unsecured, contingent, or
otherwise) of a nature customarily reflected in a corporate balance sheet
prepared in accordance with generally accepted accounting principles.
No Material Changes. There has been no material adverse change in the
business, properties, or financial condition of EPT since the date of the
EPT Financial Statements.
Litigation. There is not, to the knowledge of EPT, any pending,
threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated against
EPT or against any of its officers as it pertains to their roles as
officers of EPT.
Contracts. Other than as set forth on the attached Schedule 1, EPT is
not a party to any material contract not in the ordinary course of business
that is to be performed in whole or in part at or after the date of this
Agreement.
Title. EPT has good and marketable title to all the real property and
good and valid title to all other property included in the EPT Financial
Statements. Except as set out in the balance sheet thereof, the properties
of EPT are not subject to any mortgage, encumbrance, or lien of any kind
except minor encumbrances that do not materially interfere with the use of
the property in the conduct of the business of EPT.
Tax Returns. All state taxes and assessments, including any and all
interest, penalties and additions imposed with respect to such amounts,
have been properly prepared and filed by EPT for all years to and including
the taxable year ending December 31, 1998. Any and all federal, state,
county, municipal, local, foreign and other taxes and assessments,
including any and all interest, penalties and additions imposed with
respect to such amounts for the year ending December 31, 1998, have been
paid or if any is outstanding as at the date hereof provision has been made
prorated to the date hereof to be an adjustment to the credit of EED
payable to EED on the merger hereof. The provisions for federal and state
taxes reflected in the EPT Financial Statements are adequate to cover any
such taxes that may be assessed against EPT in respect of its business and
its operations during the periods covered by the EPT Financial Statements
and all prior periods.
No Violation. Consummation of the merger will not constitute or result
in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree,
law, or regulation to which any property of EPT is subject or by which EPT
is bound.
16. Conduct of EED Pending the Merger Date
EED covenants that between the date of this Agreement and the Merger
Date:
EED will not make any change in its authorized or issued capital
stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock other
than as provided herein.
EED will submit this Agreement for its shareholders' approval with a
favorable recommendation by its board of directors and will use its best
efforts to obtain the requisite shareholder approval.
EED will use its best efforts to maintain and preserve its business
organization, employee relationships, and goodwill intact, and will not
enter into any material commitment except in the ordinary course of
business.
17. Conduct of EPT Pending the Merger Date
EPT covenants that between the date of this Agreement and the Merger
Date:
No change will be made in EPT's certificate of incorporation or
bylaws.
EPT will not make any change in its authorized or issued capital
stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock otherwise
than as provided herein.
EPT will submit this Agreement for its shareholders' approval with a
favorable recommendation by its board of directors and will use its best
efforts to obtain the requisite shareholder approval.
EPT will use its best efforts to maintain and preserve its business
organization, employee relationships, and goodwill intact, and will not
enter into any material commitment except in the ordinary course of
business.
18. Conditions Precedent to Obligation of EED. EED's obligation to
consummate the Merger shall be subject to fulfillment on or before the Merger
Date of each of the following conditions, unless waived in writing by EED:
EPT's Representations and Warranties. The representations and
warranties of EPT set forth herein shall be true and correct at the Merger
Date as though made at and as of that date, except as affected by
transactions contemplated hereby.
EPT's Covenants. EPT shall have performed all covenants required by
this Agreement to be performed by it on or before the Merger Date.
Shareholder Approval. This Agreement shall have been approved by the
required number of shareholders of the Constituent Corporations.
Supporting Documents of EPT. EPT shall have delivered to EED
supporting documents in form and substance satisfactory to EED, to the
effect that:
(i) EPT is a corporation duly organized, validly existing, and in
good standing.
(ii) EPT's authorized and issued capital stock is as set forth herein.
(iii) The execution and consummation of this Agreement have
been duly authorized and approved by EPT's board of directors.
19. Conditions Precedent to Obligation of EPT. EPT's obligation to
consummate this merger shall be subject to fulfillment on or before the Merger
Date of each of the following conditions, unless waived in writing by EPT:
EED's Representations and Warranties. The representations and
warranties of EED set forth herein shall be true and correct at the
Merger Date as though made at and as of that date, except as affected
by transactions contemplated hereby.
EED's Covenants. EED shall have performed all covenants required
by this Agreement to be performed by it on or before the Merger Date.
Shareholder Approval. This Agreement shall have been approved by
the required number of shareholders of the Constituent Corporations.
Supporting Documents of EED. EED shall have delivered to EPT
supporting documents in form and substance satisfactory to EPT to the
effect that:
(i) EED is a corporation duly organized, validly existing, and in
good standing.
(ii) EED's authorized and issued capital stock is as set forth herein.
(iii) The execution and consummation of this Agreement have been duly
authorized and approved by EED's board of directors.
20. Access. From the date hereof to the Merger Date, EPT and EED shall
provide each other with such information and permit each other's officers and
representatives such access to its properties and books and records as the other
may from time to time reasonably request. If the merger is not consummated, all
documents received in connection with this Agreement shall be returned to the
party furnishing such documents, and all information so received shall be
treated as confidential.
21. Closing. The transfers and deliveries to be made pursuant to this
Agreement (the "Closing") shall be made by and take place at the offices of the
Exchange Agent or other location designated by the Constituent Corporations
without requiring the meeting of the parties hereof. All proceedings to be taken
and all documents to be executed at the Closing shall be deemed to have been
taken, delivered and executed simultaneously, and no proceeding shall be deemed
taken nor documents deemed executed or delivered until all have been taken,
delivered and executed.
Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission required by this Agreement
or any signature required thereon may be used in lieu of an original
writing or transmission or signature for any and all purposes for
which the original could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission or
original signature.
At the Closing, EED shall deliver to the Exchange Agent in
satisfactory form, if not already delivered to EPT:
(i) A list of the holders of the shares of EED Common Stock being
exchanged with an itemization of the number of shares held by each,
the address of each holder, and the aggregate number of shares of EPT
Common Stock to be issued to each holder;
(ii) Evidence of the consent of shareholders of EED to this
Agreement;
(iii) Certificate of the Secretary of State of Delaware as of a
recent date as to the good standing of EED;
(iv) Certified copies of the resolutions of the board of
directors of EED authorizing the execution of this Agreement and the
consummation of the Merger;
(v) The EED Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and
directors of EED; and
(vii) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
At the Closing, EPT shall deliver to the Exchange Agent in satisfactory
form, if not already delivered to EED:
(i) A list of the shareholders of record of EPT, including,
wherever available, addresses and telephone numbers;
(ii) Evidence of the consent of shareholders of EPT to this
Agreement;
(iii) Certificate of the appropriate agency of the State of
Delaware of as of a recent date as to the good standing of EPT;
(iv) Certified copies of the resolutions of the board of
directors of EPT authorizing the execution of this
Agreement and the consummation of the merger;
(v) The EPT Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and
directors of EPT; and
(vii) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
22. Survival of Representations and Warranties. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
23. Arbitration
Scope. The parties hereby agree that any and all claims (except only
for requests for injunctive or other equitable relief) whether existing
now, in the past or in the future as to which the parties or any affiliates
may be adverse parties, and whether arising out of this agreement or from
any other cause, will be resolved by arbitration before the American
Arbitration Association.
Situs. The parties hereby irrevocably consent to the jurisdiction of
the American Arbitration Association and the situs of the arbitration
within the State of Delaware at a time and place chosen by American
Arbitration Association. Any award in arbitration may be entered in any
domestic or foreign court having jurisdiction over the enforcement of such
awards.
Applicable Law. The law applicable to the arbitration and this
Agreement shall be that of the State of Delaware, determined without regard
to its provisions which would otherwise apply to a question of conflict of
laws. Any dispute as to the applicable law shall be decided by the
arbitrator.
Disclosure and Discovery. The arbitrator may, in its discretion, allow
the parties to make reasonable disclosure and discovery in regard to any
matters, which are the subject of the arbitration, and to compel compliance
with such disclosure and discovery order. The arbitrator may order the
parties to comply with all or any of the disclosure and discovery
provisions of the Federal Rules of Civil Procedure, as they then exist, as
may be modified by the arbitrator consistent with the desire to simplify
the conduct and minimize the expense of the arbitration.
Rule of Law. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of
the jurisdiction whose law applies to the arbitration so that the decision
of the arbitrator will be, as much as possible, the same as if the dispute
had been determined by a court of competent jurisdiction.
Finality and Fees. Any award or decision by the American Arbitration
Association shall be final, binding and non-appealable except as to errors
of law. The non-prevailing party to the arbitration shall be responsible
for payment of all costs and counsel fees incurred by either of the parties
hereto.
Measure of Damages. In any adverse action, the parties shall restrict
themselves to claims for compensatory damages and no claims shall be made
by any party or affiliate for lost profits, punitive or multiple damages.
Covenant Not to Sue. The parties covenant that under no conditions
will any party or any affiliate file any action against the other (except
only requests for injunctive or other equitable relief) in any forum other
than before the American Arbitration Association, and the parties agree
that any such action, if filed, shall be dismissed upon application and
shall be referred for arbitration hereunder with costs and attorney's fees
to the prevailing party.
Intention. It is the intention of the parties and their affiliates
that all disputes of any nature between them, whenever arising, from
whatever cause, based on whatever law, rule or regulation, whether
statutory or common law, and however characterized, be decided by
arbitration as provided herein and that no party or affiliate be required
to litigate in any other forum any disputes or other matters except for
requests for injunctive or equitable relief. This agreement shall be
interpreted in conformance with this stated intent of the parties and their
affiliates.
24. General Provisions
Further Assurances. From time to time, each party will execute such
additional instruments and take such actions as may be reasonably required
to carry out the intent and purposes of this Agreement.
Waiver. Any failure on the part of either party hereto to comply with
any of its obligations, agreements, or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
Brokers. Each party agrees to indemnify and hold harmless the other
party against any fee, loss, or expense arising out of claims by brokers or
finders employed or alleged to have been employed by the indemnifying
party.
Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or
sent by prepaid first-class certified mail, return receipt requested, or
recognized commercial courier service, as follows:
If to EPT, to:
Electro Pulse Technologies Commercial, Inc.
48 Old Mill Road
Greenwich, CT 06831
If to EED, to:
Electronic Engineering and Design Corporation
860 Via de la Paz Suite E
Pacific Palisades, CA 90272
25. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
26. Assignment. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
27. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
28. Effective Date. The effective date of this Agreement shall be January
20, 2000.
Signature Page to Agreement and Plan of Merger
between Electro Pulse Technologies Commercial, Inc. and
Electronic Engineering and Design Corporation
IN WITNESS WHEREOF, the parties have executed this Agreement.
ELECTRO PULSE TECHNOLOGIES
COMMERCIAL, INC.
By /s/ Bjorn R. Koritz
-------------------------
Name: Bjorn R. Koritz
Title:President
ELECTRONIC ENGINEERING AND DESIGN CORPORATION
By/s/ George Todt
------------------------
Name: George Todt
Title: President
Exhibit A
RESTATED CERTIFICATE OF INCORPORATION
RESTATED CERTIFICATE OF INCORPORATION
OF
ELECTRO PULSE TECHNOLOGIES COMMERCIAL, INC.
a Delaware corporation
ARTICLE I
The name of this corporation is Electro Pulse Technologies Commercial,
Inc., (the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
ARTICLE IV
This Corporation is authorized to issue two classes of shares to be
designated, respectively, Common Stock and Preferred Stock. Each share of Common
Stock shall have a par value of $0.0001 and each share of Preferred Stock shall
have a par value of $0.0001. The total number of shares of Common Stock the
Corporation shall have authority to issue is 100,000,000, and the total number
of shares of Preferred Stock the Corporation shall have authority to issue is
8,000,000.
Except as otherwise provided by the Delaware General Corporation Law or
this Certificate of Incorporation (the "Certificate"), the holders of Common
Stock (i) subject to the rights of holders of any series of Preferred Stock,
shall share ratably in all dividends payable in cash, stock or otherwise and
other distributions, whether in respect of liquidation or dissolution (voluntary
or involuntary) or otherwise and (ii) are subject to all the powers, rights,
privileges, preferences and priorities of any series of Preferred Stock as
provided herein or in any resolution or resolutions adopted by the Board of
Directors pursuant to authority expressly vested in it by the provisions of this
Article.
The Common Stock shall not be convertible into, or exchangeable for,
shares of any other class or classes or of any other series of the same class of
the Corporation's capital stock.
No holder of Common Stock shall have any preemptive, subscription,
redemption, conversion or sinking fund rights with respect to the Common Stock,
or to any obligations convertible (directly or indirectly) into stock of the
Corporation whether now or hereafter authorized.
Except as otherwise provided by the Delaware General Corporation Law or
this Certificate, and subject to the rights of holders of any series of
Preferred Stock, all of the voting power of the stockholders of the Corporation
shall be vested in the holders of the Common Stock, and each holder of Common
Stock shall have one vote for each share held by such holder on all matters
voted upon by the stockholders of the Corporation.
The Preferred Stock initially shall be undesignated as to series. Any
Preferred Stock not previously designated as to series may be issued from time
to time in one or more series pursuant to a resolution or resolutions providing
for such issue duly adopted by the Board of Directors (authority to do so being
hereby expressly vested in the Board), and such resolution or resolutions shall
also set forth the voting powers, full or limited or none, of each such series
of Preferred Stock and shall fix the designations, preferences and relative,
participating, optional or other special rights of each such series of Preferred
Stock and the qualifications, limitations or restrictions of such powers,
designations, preferences or rights. The Board of Directors is authorized to
alter the powers, designation, preferences, rights, qualifications, limitations
and restrictions granted to or imposed upon any wholly unissued series of
Preferred Stock and, within the limits and restrictions stated in any resolution
or resolutions of the Board of Directors originally fixing the number of shares
constituting any series of Preferred Stock, to increase or decrease (but not
below the number of shares of any such series then outstanding) the number of
shares of any such series subsequent to the issue of shares of that series.
Each share of Preferred Stock issued by the Corporation, if reacquired
by the Corporation (whether by redemption, repurchase, conversion to Common
Stock or other means), shall upon such reacquisition resume the status of
authorized and unissued shares of Preferred Stock, undesignated as to series and
available for designation and issuance by the Corporation in accordance with the
immediately preceding paragraph.
The Corporation shall from time to time in accordance with the laws of
the State of Delaware increase the authorized amount of its Common Stock if at
any time the number of shares of Common Stock remaining unissued and available
for issuance shall not be sufficient to permit conversion, if applicable, of the
Preferred Stock.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
The Board of Directors shall be divided into three classes designated
as Class I, Class II and Class III, respectively. Directors shall be assigned to
each class in accordance with a resolution or resolutions adopted by the Board
of Directors. Each class shall consist, as nearly as may be possible, of
one-third of the total number of directors constituting the entire Board of
Directors. At the first annual meeting of stockholders following the date
hereof, the term of office of the Class I directors shall expire and Class I
directors shall be elected for a full term of three years. At the second annual
meeting of stockholders following the date hereof, the term of office of the
Class II directors shall expire and Class II directors shall be elected for a
full term of three years. At the third annual meeting of stockholders following
the date hereof, the term of office of the Class III directors shall expire and
Class III directors shall be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose term expire at
such annual meeting. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any additional director
of any class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director.
ARTICLE VII
Section 1. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors.
Section 2. In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, alter,
amend or repeal the Bylaws of the Corporation. The affirmative vote of at least
a majority of the Board of Directors then in office shall be required to adopt,
amend, alter or repeal the Corporation's Bylaws. The Corporation's Bylaws also
may be adopted, amended, altered or repealed by the affirmative vote of the
holders of at least a majority of the voting power of the shares entitled to
vote at an election of directors. No Bylaw hereafter legally adopted, amended,
altered or repealed by the stockholders of the Corporation shall invalidate any
prior act of the directors or officers of the Corporation which would have been
valid if such Bylaw had not been adopted, amended, altered or repealed.
Section 3. Elections of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
Section 4. Every stockholder entitled to vote at an election of
directors shall have the right to vote the number of shares owned by such
stockholder for as many persons as there are directors to be elected and for
whose election such stockholder has a right to vote, or to cumulate the votes by
giving one candidate as many votes as the number of such directors multiplied by
the aggregate number of votes shall equal, or by distributing such votes on the
same principle among any number of such candidates.
Section 5. The number of directors which constitute the whole Board of
Directors shall be fixed exclusively in the manner designated in the Bylaws of
the Corporation.
ARTICLE VIII
Section 1. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or as may hereafter be amended, a director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Section 2. The Corporation shall indemnify to the fullest extent
permitted by law, as now or hereinafter in effect, any person made or threatened
to be made a party to an action or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he, his testator or
intestate is or was a director or officer of the Corporation or any predecessor
of the Corporation or serves or served at any other enterprise as a director,
officer, employee or agent at the request of the Corporation or any predecessor
to the Corporation and such right to indemnification shall continue as to a
person who has ceased to be a director or officer of the Corporation and shall
inure to the benefit of his or her heirs, executors and personal and legal
representatives; PROVIDED, HOWEVER, that, except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to indemnify
any director or officer (or his or her heirs, executors or personal or legal
representatives) in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented
to by the Board of Directors of the Corporation. The right to indemnification
conferred by this Section 2 shall include the right to be paid by the
Corporation the expenses incurred in defending or otherwise participating in any
proceeding in advance of its final disposition. The Corporation may indemnify to
the fullest extent permitted by law, as now or hereinafter in effect, any person
made or threatened to be made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that he,
his testator or intestate is or was an employee or agent of the Corporation or
any predecessor of the Corporation or serves or served at any other enterprise
as a director, officer, employee or agent at the request of the Corporation or
any predecessor to the Corporation. The rights to indemnification and to the
advancement of expenses conferred in this Section 2 shall not be exclusive of
any other right which any person may have or hereafter acquire under this
Restated Certificate Incorporation (as amended and restated from time to time,
the "Certificate of Incorporation"), the Bylaws of the Corporation, any statute,
agreement, vote of the stockholders of the Corporation or disinterested
directors of the Corporation or otherwise.
Section 3. Neither any amendment nor repeal of any Section of this
Article VIII, nor the adoption of any provision of the Certificate of
Incorporation inconsistent with this Article VIII, shall adversely affect any
right or protection of any director or officer established pursuant to this
Article VIII existing at the time of such amendment, repeal or adoption of an
inconsistent provision, including without limitation by eliminating or reducing
the effect of this Article VIII, for or in respect of any act, omission or other
matter occurring, or any action or proceeding accruing or arising (or that, but
for this Article VIII, would accrue or arise) prior to such amendment, repeal or
adoption of an inconsistent provision.
ARTICLE IX
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation.
ARTICLE X
Section 1. Except as otherwise provided for or fixed by or pursuant to
the provisions of Article IV hereof in relation to the rights of the holders of
Preferred Stock to elect directors under specified circumstances, newly-created
directorships resulting from any increase in the number of directors, created in
accordance with the Bylaws of the Corporation, 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, or by a sole remaining director. 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 such director's 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.
Section 2. Any director or the entire Board of Directors may be removed
from office at any time, but only for cause, and only by the affirmative vote of
the holders of at least a majority of the voting power of the issued and
outstanding capital stock of the Corporation entitled to vote in the election of
directors.
ARTICLE XI
Advance notice of new business and stockholder nominations for the
election of directors shall be given in the manner and to the extent provided in
the Bylaws of the Corporation.
ARTICLE XII
Stockholders of the Corporation may not take action by written consent
in lieu of a meeting but must take any actions at a duly called annual or
special meeting.
ARTICLE XIII
The Corporation expressly elects not to be governed by Section 203 of
the Delaware General Corporation Law with respect to business combinations with
interested stockholders.
ARTICLE XIV
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
IN WITNESS WHEREOF, Electro Pulse Technologies Commercial, Inc. has
caused this Restated Certificate of Incorporation to be signed by Bjorn R.
Koritz, its Chief Executive Officer and attested to by Patricia Koritz, its
Secretary, on January 14, 2000.
Exhibit B
RESTATED BY-LAWS
RESTATED BYLAWS
OF
ELECTRO PULSE TECHNOLOGIES COMMERCIAL, INC.
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE.The registered office of the corporation shall be
fixed in the Certificate of Incorporation of the corporation.
1.2 OTHER OFFICES. The board of directors may at any time establish
branch or subordinate offices at any place or places where the corporation is
qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated from time to time by
the board of directors. In the absence of any such designation, stockholders'
meetings shall be held at the registered office of the corporation.
2.2 ANNUAL MEETING. The annual meeting of stockholders shall be held
each year on a date and at a time designated from time to time by the board of
directors. In the absence of such designation, the annual meeting of
stockholders shall be held on the first Monday of April in each year at 10:00
a.m. However, if such day falls on a legal holiday, then the meeting shall be
held at the same time and place on the next succeeding full business day. At the
meeting, directors shall be elected, and any other proper business may be
transacted.
2.3 SPECIAL MEETING. A special meeting of the stockholders may be
called at any time by the board of directors, or by the chairman of the board,
by the chief executive officer or by the president or by one of the foregoing if
so requested by one or more stockholders holding shares in the aggregate
entitled to cast not less than twenty percent (20%) of the votes at that
meeting.
If a special meeting is called by any person or persons other than the
board of directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, the president, the
chief executive officer or the secretary of the corporation. No business may be
transacted at such special meeting otherwise than specified in the notice of
such special meeting delivered to stockholders (or any supplement thereto).
2.4 NOTICE OF STOCKHOLDERS' MEETINGS. All notices of meetings of
stockholders shall be sent or otherwise given in accordance with Section 2.5 of
these Bylaws not less than ten (10) or more than sixty (60) days before the date
of the meeting. The notice shall specify the place, date, and hour of the
meeting and (i) in the case of a special meeting, the general nature of the
business to be transacted (no business other than that specified in the notice
(or in any supplement thereto) may be transacted) or (ii) in the case of the
annual meeting, those matters which the board of directors, at the time of
giving the notice, intends to present for action by the stockholders (but any
proper matter may be presented at the meeting for such action). The notice of
any meeting at which directors are to be elected shall include the name of any
nominee or nominees who, at the time of the notice, the board intends to present
for election.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Written notice of any
meeting of stockholders shall be given by first-class mail or by facsimile,
telegraphic or other written communication or in such other manner as permitted
by law. Notices shall be sent charges prepaid and shall be addressed to the
stockholder at the address of that stockholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice. Notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by telegram or other means of
written communication.
If any notice addressed to a stockholder at the address of that
stockholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the stockholder
at that address, then all future notices or reports shall be deemed to have been
duly given without further mailing if the same shall be available to the
stockholder on written demand of the stockholder at the principal executive
office of the corporation for a period of one (1) year from the date of the
giving of the notice.
An affidavit of the mailing or other means of giving any notice (or
supplement thereto) of any stockholders' meeting, executed by the secretary,
assistant secretary or any transfer agent of the corporation giving the notice,
shall be prima facie evidence of the giving of such notice (or supplement
thereto).
2.6 QUORUM. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote thereat constitutes a quorum for the
transaction of business at all meetings of stockholders. The stockholders
present at a duly called or held meeting at which a quorum is present may
continue to do business for which such meeting is called until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
2.7 ADJOURNED MEETING; NOTICE. Any stockholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned from time to time
by the vote of the majority of the shares represented at that meeting, either in
person or by proxy. In the absence of a quorum, no other business may be
transacted at that meeting except as has been transacted while a quorum was
present, if any, as provided in Section 2.6 of these Bylaws.
When any meeting of stockholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place are announced at the meeting at which the
adjournment is taken. However, if a new record date for the adjourned meeting is
fixed or if the adjournment is for more than thirty (30) days from the date set
for the original meeting, then notice of the adjourned meeting shall be given.
Notice of any such adjourned meeting shall be given to each stockholder of
record entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 2.4 and 2.5 of these Bylaws. At any adjourned meeting,
the corporation may transact any business which might have been transacted at
the original meeting.
2.8 VOTING. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section
2.11 of these Bylaws, subject to the provisions of Sections 217 and 218 of the
General Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgors and joint owners, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the corporation's Certificate of
Incorporation, each outstanding share, regardless of class, shall be entitled to
one vote on each matter submitted to a vote of the stockholders.
If a quorum is present, the affirmative vote of the majority of the
shares represented and voting at a duly held meeting (which shares voting
affirmatively also constitute at least a majority of the required quorum) shall
be the act of the stockholders, unless the vote of a greater number or a vote by
classes is required by law, by the Certificate of Incorporation or by these
Bylaws. The board of directors, in its discretion, or the officer of the
corporation presiding at a meeting of stockholders, in such officer's
discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
At a stockholders' meeting at which directors are to be elected, the
candidates receiving the highest number of affirmative votes, up to the number
of directors to be elected, shall be elected; votes against any candidate and
votes withheld shall have no legal effect.
2.9 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT. The transactions
of any meeting of stockholders, either annual or special, however called and
noticed, and wherever held, shall be as valid as though they had been taken at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the meeting, each person
entitled to vote, who was not present in person or by proxy, signs a written
waiver of notice or a consent to the holding of the meeting or an approval of
the minutes thereof. The waiver of notice or consent or approval need not
specify either the business to be transacted or the purpose of any annual or
special meeting of stockholders. All such waivers, consents, and approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of and presence at that meeting, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. Attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice of the meeting but not so included, if that objection is
expressly made at the meeting.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Unless
otherwise provided in the Certificate of Incorporation, any action which may be
taken at any annual or special meeting of stockholders may be taken without a
meeting and without prior notice, if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
that action at a meeting at which all shares entitled to vote on that action
were present and voted and shall be delivered to the corporation by delivery to
its registered office in the State of Delaware, its principal place of business,
or an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Every written consent
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within sixty days of the earliest dated consent delivered in the
manner required by this Section 2.10 to the corporation, written consents signed
by a sufficient number of holders to take action are delivered to the
corporation by delivery to its registered office in the state of Delaware, its
principal place of business, or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Notwithstanding the foregoing provisions of this paragraph, unless
otherwise provided in the Certificate of Incorporation, stockholders shall not
be entitled to take action by written consent at any time following the Public
Offering Date.
Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing. If the action which is consented to is such as
would have required the filing of a certificate under any Section of the General
Corporation Law of Delaware if such action had been voted on by stockholders at
a meeting thereof, then the certificate filed under such Section shall state, in
lieu of any statement required by such Section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS. For
purposes of determining the stockholders entitled to notice of any meeting or to
vote thereat or entitled to give consent to corporate action without a meeting,
the board of directors may fix, in advance, a record date, which shall be
neither more than sixty (60) days nor less than ten (10) days before the date of
any such meeting or more than sixty (60) days before any such action without a
meeting, and in such event only stockholders of record on the date so fixed are
entitled to notice and to vote or to give consents, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date.
If the board of directors does not so fix a record date:
(a) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the business day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held; and
(b) the record date for determining stockholders entitled to
give consent to corporate action in writing without a meeting, (i) when no prior
action by the board has been taken, shall be the day on which the first written
consent is given as required by Section 2.10, or (ii) when prior action by the
board has been taken, shall be at the close of business on the day on which the
board adopts the resolution relating to that action.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
providing, however, that the board of directors may fix a new record date for
the adjourned meeting. The record date for any other purpose shall be as
provided in Article VIII of these Bylaws.
2.12 PROXIES. Every person entitled to vote for directors, or on any
other matter, shall have the right to do so either in person or by one or more
agents authorized by a written proxy signed by the person and filed with the
secretary of the corporation, but no such proxy shall be voted or acted upon
after [three (3)] years from its date, unless the proxy provides for a longer
period. A proxy shall be deemed signed if the stockholder's name is placed on
the proxy (whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the stockholder or the stockholder's attorney-in-fact. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Section 212(e) of the General Corporation Law of
Delaware.
2.13 INSPECTORS OF ELECTION. The board of directors of the corporation
may adopt by resolution such rules and regulations for the conduct of the
meeting of the stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the board of
directors, the chairman of any meeting of the stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the board of directors or prescribed by the chairman of the meeting, and such
acts may include, without limitation, the following: (i) the establishment of an
agenda or order of business for the meeting; (ii) the determination of when the
polls shall open and close for any given matter to be voted on at the meeting;
(iii) rules and procedures for maintaining order at the meeting and the safety
of those present; (iv) limitations on attendance at or participation in the
meeting to stockholders of record of the corporation, their duly authorized and
constituted proxies or such other persons as the chairman of the meeting shall
determine; (v) restrictions on entry to the meeting after the time fixed for the
commencement thereof; (vi) limitations on the time allotted to questions or
comments by participants; (vii) determination of the number of shares
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, and the authenticity, validity, and
effect of proxies; (viii) counting and tabulation of all votes or consents; (ix)
hearing and determining all challenges and questions in any way arising in
connection with the right to vote; (x) any other acts that may be proper to
conduct the election or vote with fairness to all stockholders and (xi) the
appointment of an inspector or inspectors of election to act at the meeting or
its adjournment in respect of one or more of the foregoing matters. The board of
directors or chairman may hear and determine all challenges and questions in any
way arising in connection with the right to vote.
2.14 ADVANCE NOTICE OF STOCKHOLDER BUSINESS. To be properly brought
before an annual meeting, any business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the board of
directors, (b) otherwise properly brought before the meeting by or at the
direction of the board of directors, or (c) otherwise properly brought before
the meeting by a stockholder (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 2.14 and on the record
date for the determination of stockholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set forth in this
Section 2.14. For such nominations or other business to be considered properly
brought before the meeting by a stockholder such stockholder must, in addition
to any other applicable requirements, have given timely notice and in proper
form of such stockholder's intent to bring such business before such meeting. To
be timely, such stockholder's notice must be delivered to or mailed and received
by the Secretary of the corporation at the principal executive offices of the
corporation not less than ninety (90) days prior to the anniversary date of the
immediately preceding annual meeting; provided, however, that in the event the
annual meeting is called for a date that is not within thirty (30) days before
or after such anniversary date, notice by the stockholder to be timely must be
so received not later than the close of business on the tenth day following the
day on which such notice of the date of the meeting was mailed or such public
disclosure made, whichever occurs first. To be in proper form, a stockholder's
notice to the Secretary shall set forth:
(a) the name and record address of the stockholder who intends
to propose the business and the class or series and number of shares of capital
stock of the corporation which are owned beneficially or of record by such
stockholder;
(b) a representation that the stockholder is a holder of
record of stock of the corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting introduce the business specified
in the notice;
(c) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting; and
(d) any material interest of the shareholder in such business.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section; provided, however, that, once business has
been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 2.13 shall be deemed to preclude discussion
by any stockholder of any such business. The chairman of the meeting may refuse
to acknowledge the proposal of any business not made in compliance with the
foregoing procedure.
2.15 ADVANCE NOTICE OF DIRECTOR NOMINATIONS. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors of the corporation, except as may be otherwise provided in
the Certificate of Incorporation with respect to the right of holders of
preferred stock of the corporation to nominate and elect a specified number of
directors in certain circumstances. To be properly brought before an annual
meeting of stockholders, or any special meeting of stockholders called for the
purpose of electing directors, nominations for the election of directors must be
(a) specified in the notice of meeting (or any supplement thereto), (b) made by
or at the direction of the board of directors (or any duly authorized committee
thereof) or (c) made by any stockholder of the corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 2.15 and on the record date for the determination of stockholders
entitled to vote at such meeting and (ii) who complies with the notice
procedures set forth in this Section 2.15.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the corporation. To be timely, a
stockholder's notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the corporation (a) in the case
of an annual meeting, not less than ninety (90) days prior to the anniversary
date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure of the date
of the annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting of stockholders called for the purpose of electing directors,
not later than the close of business on the tenth (10th) day following the day
on which notice of the date of the special meeting was mailed or public
disclosure of the date of the special meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth:
(a) as to each person whom the stockholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the corporation which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and
(b) as to the stockholder giving the notice (i) the name and
record address of such stockholder, (ii) the class or series and number of
shares of capital stock of the corporation which are owned beneficially or of
record by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a
director if elected.
No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in this
Section 2.15. If the Chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
ARTICLE III
DIRECTORS
3.1 POWERS. Subject to the provisions of the General Corporation Law of
Delaware and to any limitations in the Certificate of Incorporation or these
Bylaws relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
3.2 NUMBER AND TERM OF OFFICE. The authorized number of directors shall
be established from time to time by resolution of the board of directors or by
amendment of this Section 3.2, duly adopted by the board of directors or by the
stockholders.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
3.3 RESIGNATION AND VACANCIES. Any director may resign effective on
giving written notice to the chairman of the board, the president, the secretary
or the board of directors, unless the notice specifies a later time for that
resignation to become effective. If the resignation of a director is effective
at a future time, the board of directors (including such director whose
resignation is to be effective at a later time) may elect a successor to take
office when the resignation becomes effective.
Prior to the Public Offering Date, vacancies in the board of directors
may be filled by a majority of the remaining directors, even if less than a
quorum, or by a sole remaining director; however, a vacancy created by the
removal of a director by the vote or written consent of the stockholders or by
court order may be filled only by the affirmative vote of a majority of the
shares represented and voting at a duly held meeting at which a quorum is
present (which shares voting affirmatively also constitute a majority of the
required quorum), or by the unanimous written consent of all shares entitled to
vote thereon. Each director so elected shall hold office until the next annual
meeting of the stockholders and until a successor has been elected and
qualified. From and after the Public Offering Date, unless otherwise required by
law or the Certificate of Incorporation, vacancies arising through death,
resignation, removal, an increase in the number of directors or otherwise may be
filled only by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director. 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 such director's 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.
3.4 REMOVAL. Prior to the Public Offering Date, subject to any
limitations imposed by law or the Certificate of Incorporation, the board of
directors, or any individual director, may be removed from office at any time
with or without cause by the affirmative vote of the holders of at least a
majority of the then outstanding shares of the capital stock of the corporation
entitled to vote at an election of directors. From and after the Public Offering
Date, any director may be removed from office at any time only with cause by the
affirmative vote of the holders of at least a majority of the then outstanding
shares of the capital stock of the corporation entitled to vote at an election
of directors.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE. Regular meetings of the
board of directors may be held at any place within or outside the State of
Delaware that has been designated from time to time by resolution of the board.
In the absence of such a designation, regular meetings shall be held at the
principal executive office of the corporation. Special meetings of the board may
be held at any place within or outside the State of Delaware that has been
designated in the notice of the meeting or, if not stated in the notice or if
there is no notice, at the principal executive office of the corporation.
Any meeting, regular or special, may be held by conference telephone or
similar communication equipment, so long as all directors participating in the
meeting can hear one another; and all such directors shall be deemed to be
present in person at the meeting.
3.6 REGULAR MEETINGS. Regular meetings of the board of directors may be
held without notice if the times of such meetings are fixed by the board of
directors.
3.7 SPECIAL MEETINGS; NOTICE.Special meetings of the board of directors
for any purpose or purposes may be called at any time by the chairman of the
board, the president, or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail,
facsimile or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the corporation. If the
notice is mailed, it shall be deposited in the United States mail at least four
(4) days before the time of the holding of the meeting. If the notice is
delivered personally or by telephone or by facsimile, it shall be delivered
personally or by telephone or by facsimile machine at least forty-eight (48)
hours before the time of the holding of the meeting or on such shorter notice as
the person or persons calling such meeting may deem necessary or appropriate in
the circumstances. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director.
3.8 QUORUM. Except as otherwise required by law, a majority of the
authorized number of directors shall constitute a quorum for the transaction of
business, except to adjourn as provided in Section 3.11 of these Bylaws. Every
act or decision done or made by a majority of the directors present at a duly
held meeting at which a quorum is present shall be regarded as the act of the
board of directors, subject to the provisions of the Certificate of
Incorporation and applicable law.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
3.9 WAIVER OF NOTICE. Notice of a meeting need not be given to any
director (i) who signs a waiver of notice or a consent to holding the meeting or
an approval of the minutes thereof, whether before or after the meeting, or (ii)
who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such directors. All such waivers, consents,
and approvals shall be filed with the corporate records or made part of the
minutes of the meeting. A waiver of notice need not specify the purpose of any
regular or special meeting of the board of directors.
3.10 ADJOURNMENT. A majority of the directors present, whether or
not constituting a quorum, may adjourn any meeting to another time and place.
3.11 NOTICE OF ADJOURNMENT. Notice of the time and place of holding an
adjourned meeting need not be given unless the meeting is adjourned for more
than twenty-four (24) hours. If the meeting is adjourned for more than
twenty-four (24) hours, then notice of the time and place of the adjourned
meeting shall be given before the adjourned meeting takes place, in the manner
specified in Section 3.7 of these Bylaws, to the directors who were not present
at the time of the adjournment.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
required or permitted to be taken by the board of directors may be taken without
a meeting, provided that all the members of the board individually or
collectively consent in writing to that action. Such action by written consent
shall have the same force and effect as a unanimous vote of the board of
directors. Such written consent and any counterparts thereof shall be filed with
the minutes of the proceedings of the board.
3.13 FEES AND COMPENSATION OF DIRECTORS. Directors and members of
committees may receive such compensation, if any, for their services and such
reimbursement of expenses as may be fixed or determined by resolution of the
board of directors. This Section 3.13 shall not be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee or otherwise and receiving compensation for those services.
3.14 APPROVAL OF LOANS TO OFFICERS. The corporation may lend money to,
or guarantee any obligation of, or otherwise assist any officer or other
employee of the corporation or of its subsidiary, including any officer or
employee who is a director of the corporation or its subsidiary, whenever, in
the judgment of the directors, such loan, guaranty or assistance may reasonably
be expected to benefit the corporation. The loan, guaranty or other assistance
may be with or without interest and may be unsecured, or secured in such manner
as the board of directors shall approve, including, without limitation, a pledge
of shares of stock of the corporation. Nothing contained in this Section shall
be deemed to deny, limit or restrict the powers of guaranty or warranty of the
corporation at common law or under any statute.
3.15 INTERESTED DIRECTORS. No contract or transaction between the
corporation and one or more of its directors or officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates
in the meeting of the board of directors or committee thereof which authorizes
the contract or transaction, or solely because the director or officer's vote is
counted for such purpose if (i) the material facts as to the director or
officer's relationship or interest and as to the contract or transaction are
disclosed or are known to the board of directors or the committee, and the board
of directors or committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or (ii) the material
facts as to the director or officer's relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the corporation as of the time it is authorized, approved or ratified
by the board of directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the board of directors or of a committee which authorizes the
contract or transaction.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS. The board of directors may designate one
(1) or more committees, each consisting of one (1) or more directors, to serve
at the pleasure of the board. The board may designate one (1) or more directors
as alternate members of any committee, who may replace any absent member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, and in the absence of a designation by the board of directors of an
alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent permitted by law
and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the board of directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it;
provided, however, that no such committee shall have the power or authority to
(i) amend the Certificate of Incorporation (except that a committee may, to the
extent authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the board of directors as provided in Section 151(a)
of the General Corporation Law of Delaware, fix any of the preferences or rights
of such shares relating to dividends, redemption, dissolution, any distribution
of assets of the corporation 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 corporation), (ii) adopt an
agreement of merger or consolidation under Sections 251 or 252 of the General
Corporation Law of Delaware, (iii) recommend to the stockholders the sale, lease
or exchange of all or substantially all of the corporation's property and
assets, (iv) recommend to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or (v) amend the Bylaws of the corporation; and,
unless the board resolution establishing the committee, the Bylaws or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend, to authorize the issuance of
stock, or to adopt a certificate of ownership and merger pursuant to Section 253
of the General Corporation Law of Delaware. Each committee shall keep regular
minutes and report to the board of directors when required
4.2 MEETINGS AND ACTION OF COMMITTEES. Meetings and actions of
committees shall be governed by, and held and taken in accordance with, the
provisions of Article III of these Bylaws, Section 3.5 (place of meetings),
Section 3.6 (regular meetings), Section 3.7 (special meetings and notice),
Section 3.8 (quorum), Section 3.9 (waiver of notice), Section 3.10
(adjournment), Section 3.11 (notice of adjournment), and Section 3.12 (action
without meeting), with such changes in the context of those Bylaws as are
necessary to substitute the committee and its members for the board of directors
and its members; provided, however, that the time of regular meetings of
committees may be determined either by resolution of the board of directors or
by resolution of the committee, that special meetings of committees may also be
called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these Bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS. The officers of the corporation shall be a president, a
secretary, and a chief financial officer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, a chief executive
officer, a treasurer, one or more vice presidents, one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 5.3 of these Bylaws. Any
number of offices may be held by the same person.
5.2 APPOINTMENT OF OFFICERS. The officers of the corporation, except
such officers as may be appointed in accordance with the provisions of Section
5.3 or Section 5.5 of these Bylaws, shall be chosen by the board of directors,
subject to the rights, if any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS. The board of directors may appoint, or may
empower the president to appoint, such other officers as the business of the
corporation may require, each of whom shall hold office for such period, have
such authority, and perform such duties as are provided in these Bylaws or as
the board of directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any,
of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the board of directors at any regular or
special meeting of the board or, except in case of an officer chosen by the
board of directors, by any officer upon whom such power of removal may be
conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for regular appointments to that office.
5.6 CHAIRMAN OF THE BOARD. The chairman of the board, if such an
officer be elected, shall, if present, preside at meetings of the board of
directors and exercise and perform such other powers and duties as may from time
to time be assigned to him by the board of directors or as may be prescribed by
these Bylaws. If there is no chief executive officer, then the chairman of the
board shall also be the chief executive officer of the corporation and shall
have the powers and duties prescribed in Section 5.7 of these Bylaws.
5.7 CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers, if
any, as may be given by the board of directors to the chairman of the board, if
there be such an officer, the chief executive officer shall be subject to the
control of the board of directors and have general supervision, direction and
control of the business. He or she shall preside at all meetings of the
stockholders and, in the absence or non-existence of the chairman of the board,
at all meetings of the board of directors. He or she shall have the general
powers and duties of management usually vested in the office of the chief
executive officer of a corporation, and shall have such other powers and perform
such other duties as from time to time may be prescribed by the board of
directors or these Bylaws.
5.8 PRESIDENT. In the absence or disability of the chief executive
officer, and if there is no chairman of the board, the president shall perform
all the duties of the chief executive officer and when so acting shall have the
power of, and be subject to all the restrictions upon, the chief executive
officer. The president shall have such other powers and perform such other
duties as from time to time may be prescribed for the president by the board of
directors, these Bylaws, the chief executive officer or the chairman of the
board.
5.9 VICE PRESIDENTS. In the absence or disability of the president, the
vice presidents, if any, in order of their rank as fixed by the board of
directors or, if not ranked, a vice president designated by the board of
directors, shall perform all the duties of the president and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
board of directors, these Bylaws, the president or the chairman of the board.
5.10 SECRETARY. The secretary shall keep or cause to be kept, at the
principal executive office of the corporation or such other place as the board
of directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors and shareholders. The minutes shall show the
time and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
shareholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register, or a duplicate share register, showing the names of
all shareholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings
of the shareholders and of the board of directors required to be given by law or
by these Bylaws. He shall keep the seal of the corporation, if one be adopted,
in safe custody and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or by these Bylaws.
5.11 CHIEF FINANCIAL OFFICER. The chief financial officer shall keep
and maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings, and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all money and other valuables
in the name and to the credit of the corporation with such depositaries as may
be designated in accordance with procedures established by the board of
directors. He shall disburse the funds of the corporation as may be ordered by
the board of directors, shall render to the president and directors, whenever
they request it, an account of all of his transactions as chief financial
officer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the board of
directors or these Bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES, AND OTHER AGENTS
6.1 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN
THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 6.3 of this
Article VI, the corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director or officer of the corporation, or is
or was a director or officer of the corporation serving at the request of the
corporation as a director or officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
6.2 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE
RIGHT OF THE CORPORATION. Subject to Section 6.3 of this Article VI, the
corporation shall 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 corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director or officer of the corporation, or is
or was a director or officer of the corporation serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation;
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
6.3 AUTHORIZATION OF INDEMNIFICATION. Any indemnification under this
Article VI (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because such person has met
the applicable standard of conduct set forth in Section 6.1 or Section 6.2 of
this Article VI, as the case may be. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (i) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (ii) by a
committee of such directors designated by a majority vote of such directors,
even though less than a quorum, or (iii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion or
(iv) by the stockholders (but only if a majority of the directors who are not
parties to such action, suit or proceeding, if they constitute a quorum of the
board of directors, presents the issue of entitlement to indemnification to the
shareholders for their determination). Such determination shall be made, with
respect to former directors and officers, by any person or persons having the
authority to act on the matter on behalf of the corporation. To the extent,
however, that a present or former director or officer of the corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith, without
the necessity of authorization in the specific case.
6.4 GOOD FAITH DEFINED. For purposes of any determination under Section
6.3 of this Article VI, a person shall be deemed to have acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe such person's conduct was
unlawful, if such person's action is based on the records or books of account of
the corporation or another enterprise, or on information supplied to such person
by the officers of the corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the corporation or another
enterprise or on information or records given or reports made to the corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the corporation or
another enterprise. The term "another enterprise" as used in this Section 6.4
shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the corporation as a director, officer, employee or agent. The
provisions of this Section 6.4 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 6.1 or 6.2 of this Article
VI, as the case may be.
6.5 INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 6.3 of this Article VI, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to the Court of Chancery in the State of Delaware for
indemnification to the extent otherwise permissible under Sections 6.1 and 6.2
of this Article VI. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standards
of conduct set forth in Section 6.1 or 6.2 of this Article VI, as the case may
be. Neither a contrary determination in the specific case under Section 6.3 of
this Article VI nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 5 shall be given
to the corporation promptly upon the filing of such application. If successful,
in whole or in part, the director or officer seeking indemnification shall also
be entitled to be paid the expense of prosecuting such application.
6.6 EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a director or
officer in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this Article VI.
6.7 NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article VI shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Restated Certificate of Incorporation, any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office, it being the policy of the corporation that indemnification of the
persons specified in Sections 6.1 and 6.2 of this Article VI shall be made to
the fullest extent permitted by law. The provisions of this Article VI shall not
be deemed to preclude the indemnification of any person who is not specified in
Section 6.1 or 6.2 of this Article VI but whom the corporation has the power or
obligation to indemnify under the provisions of the General Corporation Law of
the State of Delaware, or otherwise.
6.8 INSURANCE. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or
is or was a director or officer of the corporation serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power or the obligation to indemnify such
person against such liability under the provisions of this Article VI.
6.9 CERTAIN DEFINITIONS. For purposes of this Article VI, references to
"the corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors or officers, so that any
person who is or was a director or officer of such constituent corporation, or
is or was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall stand in the same position under the
provisions of this Article VI with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this
Article VI, references to "fines" shall include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to "serving at
the request of the corporation " shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the corporation"
as referred to in this Article VI.
6.10 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VI shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
6.11 LIMITATION ON INDEMNIFICATION. Notwithstanding anything contained
in this Article VI to the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 6.5 hereof), the corporation
shall not be obligated to indemnify any director or officer in connection with a
proceeding (or part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized or consented to by the board of directors of the
corporation.
6.12 INDEMNIFICATION OF EMPLOYEES AND AGENTS. The corporation may, to
the extent authorized from time to time by the board of directors, provide
rights to indemnification and to the advancement of expenses to employees and
agents of the corporation similar to those conferred in this Article VI to
directors and officers of the corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS.
The corporation shall, either at its principal executive office or at
such place or places as designated by the board of directors, keep a record of
its stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these Bylaws as amended to date,
accounting books and other records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
7.2 INSPECTION BY DIRECTORS. Any director shall have the right to
examine the corporation's stock ledger, a list of its stockholders and its other
books and records for a purpose reasonably related to his or her position as a
director. The Court of Chancery is hereby vested with the exclusive jurisdiction
to determine whether a director is entitled to the inspection sought. The Court
may summarily order the corporation to permit the director to inspect any and
all books and records, the stock ledger, and the stock list and to make copies
or extracts therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award such other
and further relief as the Court may deem just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS. The board of directors shall
present at each annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The chairman of the
board, the chief executive officer, the president or any other person authorized
by the board of directors or the chief executive officer or president, is
authorized to vote, represent, and exercise on behalf of this corporation all
rights incident to any and all shares of any other corporation or corporations
standing in the name of this corporation. The authority herein granted may be
exercised either by such person directly or by any other person authorized to do
so by proxy or power of attorney duly executed by such person having the
authority.
ARTICLE VIII
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For purposes
of determining the stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any other lawful action (other than action by
stockholders by written consent without a meeting), the board of directors may
fix, in advance, a record date, which shall not be more than sixty (60) days
before any such action. In that case, only stockholders of record at the close
of business on the date so fixed are entitled to receive the dividend,
distribution or allotment of rights, or to exercise such rights, as the case may
be, notwithstanding any transfer of any shares on the books of the corporation
after the record date so fixed, except as otherwise provided by law.
If the board of directors does not so fix a record date, then the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the board adopts the applicable resolution
or the sixtieth (60th) day before the date of that action, whichever is later.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS. From time to time, the
board of directors shall determine by resolution which person or persons may
sign or endorse all checks, drafts, other orders for payment of money, notes or
other evidences of indebtedness that are issued in the name of or payable to the
corporation, and only the persons so authorized shall sign or endorse those
instruments.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED. The board of
directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation; such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the board of directors or within the agency power of an officer, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
8.4 STOCK CERTIFICATES; PARTLY PAID SHARES. The shares of a corporation
shall be represented by certificates, provided that the board of directors of
the corporation may provide by resolution or resolutions that some or all of any
or all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the corporation. Notwithstanding the adoption of
such a resolution by the board of directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed in the name of the corporation by (a) the
chairman or vice-chairman of the board of directors, or the chief executive
officer, president or vice-president, and by (b) the chief financial officer,
treasurer, secretary or an assistant secretary of the corporation representing
the number of shares registered in certificate form. Any or all of the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate has ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he or she were such officer, transfer agent or registrar at
the date of issue.
8.5 SPECIAL DESIGNATION ON CERTIFICATES. If the corporation is
authorized to issue more than one class of stock or more than one series of any
class, then the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate that the corporation shall issue to represent such class or
series of stock; provided, however, that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate that
the corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
8.6 LOST CERTIFICATES. Except as provided in this Section 8.6, no new
certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the corporation and canceled at
the same time. The board of directors may, in case any share certificate or
certificate for any other security is lost, stolen or destroyed, authorize the
issuance of replacement certificates on such terms and conditions as the board
may require; the board may require indemnification of the corporation secured by
a bond or other adequate security sufficient to protect the corporation against
any claim that may be made against it, including any expense or liability, on
account of the alleged loss, theft or destruction of the certificate or the
issuance of the replacement certificate.
8.7 CONSTRUCTION; DEFINITIONS. Unless the context requires otherwise,
the general provisions, rules of construction, and definitions in the General
Corporation Law of Delaware shall govern the construction of these Bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular, and the term "person"
includes both a corporation and a natural person.
ARTICLE IX
AMENDMENTS
These Bylaws of the corporation may be altered, amended or repealed, in
whole or in part, or new Bylaws may be adopted by the stockholders entitled to
vote or by the board of directors. All such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to
vote thereon or by a majority of the board of directors then in office. The fact
that such power has been so conferred upon the board of directors shall not
divest the stockholders of the power, nor limit their power to adopt, alter,
amend or repeal Bylaws.
Schedule 1
CONTRACTS
- Consulting Agreement dated September 13, 1999 among Drytronic,
Egil Bjerke and Bjerke Consulting
- Solicitation, Offer and Award dated July 17, 1998 from the US
Army Construction Engineering Research Lab
- License Agreement dated May 1, 1999 between EPT and Drytronic
- License Agreement dated as of May 1, 1999 among EPT America,
Inc., PowerShield LLC and EPT