UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14A
(RULE 14A-101)
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE
SECURITIES EXCHANGE ACT OF 1934
Filed by the registrant [X]
Filed by a party other than the registrant [_]
Check the appropriate box:
[X] Preliminary proxy statement
[_] Confidential, for use of the Commission only (as permitted by Rule
14a-6(e)(2)
[_] Definitive proxy statement
[_] Definitive additional materials
[_] Soliciting material under ss.240.14a-12
MMC ENERGY, INC.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified in Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of filing fee (Check the appropriate box):
[X] No fee required.
[_] $125 per Exchange Act Rules 0-11(c)(i)(ii), 14a-6(i)(ii), 14a-6(i)(4) and
0-11.
[_] Fee computed on the table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
(1) Title of each class of securities to which transaction applies:
--------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
--------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
--------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
--------------------------------------------------------------------
(5) Total fee paid:
--------------------------------------------------------------------
[_] Fee paid previously by written preliminary materials
[_] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount previously paid:
--------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
--------------------------------------------------------------------
(3) Filing party:
--------------------------------------------------------------------
(4) Date filed:
--------------------------------------------------------------------
MMC ENERGY, INC.
26 BROADWAY, SUITE 907
NEW YORK, NEW YORK 10004
(212) 977-0900
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON SEPTEMBER 19, 2006
A special meeting of stockholders of MMC Energy, Inc. ("we", "our" or
"MMC Energy"), a Nevada corporation, will be held on September 19, 2006, at 3:00
p.m., local time, at the Pierre Hotel in New York located on 2 East 61st St. in
the Wedgwood Room, for the following purposes:
1. To approve the reincorporation of MMC Energy in the State of
Delaware;
2. To approve an amendment to increase the size of the Company's 2006
Stock Incentive Plan; and
3. To transact such other business as may properly come before the
special meeting and any adjournment or postponement thereof.
The foregoing matters are described in more detail in the enclosed
proxy statement. The Board of Directors has fixed the close of business on
August 10, 2006 as the record date for the determination of the stockholders
entitled to notice of, and to vote at the special meeting and any postponement
or adjournment thereof. Only those stockholders of record of the company as of
the close of business on that date will be entitled to vote at the special
meeting or any postponement or adjournment thereof.
We cordially invite all stockholders to attend the special meeting in
person. HOWEVER, REGARDLESS OF WHETHER YOU PLAN TO ATTEND THE SPECIAL MEETING IN
PERSON, WE URGE YOU TO COMPLETE, SIGN AND DATE THE ENCLOSED FORM OF PROXY AND
RETURN IT PROMPTLY IN THE ENVELOPE PROVIDED. No postage is required if you mail
the proxy in the United States. Stockholders who attend the special meeting may
revoke their proxy and vote their shares in person.
By Order of the Board of Directors,
/s/Denis Gagnon
---------------------------
Secretary
New York, New York
August 21, 2006
MMC ENERGY, INC.
26 BROADWAY, SUITE 907
NEW YORK, NEW YORK 10004
(212) 977-0900
PROXY STATEMENT
Your vote at the special meeting is important to us. Please vote your
shares of common stock by completing the enclosed proxy card and returning it to
us in the enclosed envelope. This proxy statement has information about the
special meeting and was prepared by our management for the Board of Directors.
This proxy statement and the accompanying proxy card are first being mailed to
you on or about August 21, 2006.
GENERAL INFORMATION ABOUT VOTING
WHAT IS THE PURPOSE OF THE SPECIAL MEETING?
At the Special Meeting, stockholders will act upon the matters outlined
in the attached Notice of Meeting and described in detail in this Proxy
Statement. They are:
(1) To approve our reincorporation in Delaware; and
(2) To approve an amendment to our 2006 Executive Incentive Plan.
WHAT IS ENTAILED BY THE REINCORPORATION?
We are incorporated in Nevada and, as such, are governed by Nevada law.
As a result of the reincorporation, we will be reincorporated in Delaware and
governed by the Delaware corporate law.
The reincorporation will be effected by our merger into a wholly-owned
subsidiary of ours that was incorporated under Delaware law solely for this
purpose. The Delaware subsidiary, which also is named "MMC Energy, Inc.," will
be the surviving corporation in the merger, and is sometimes referred to in this
Proxy Statement as "MMC-DELAWARE." A copy of the Agreement and Plan of Merger,
or Merger Agreement, by which the reincorporation will be effected is attached
to this Proxy Statement as Appendix A. Approval of the proposed reincorporation
also will constitute approval of the Merger Agreement.
In the reincorporation, each outstanding share of our common stock
will automatically be converted into one share of common stock of MMC-Delaware.
Outstanding options and warrants to purchase shares of our common stock likewise
will become options and warrants to purchase the same number of shares of common
stock of MMC-Delaware, with no change in the exercise price or other terms or
provisions of the options and warrants.
Our name, business, directors, officers, employees, assets and
liabilities and the location of our offices will remain unchanged by the
reincorporation.
HOW WILL THE REINCORPORATION AFFECT OUR RIGHTS AS STOCKHOLDERS?
Your rights as stockholders currently are governed by Nevada law and
the provisions of our Articles of Incorporation and Bylaws. As a result of the
reincorporation, you will become stockholders of MMC-Delaware with rights
governed by Delaware law and the provisions of the Certificate of Incorporation
and the Bylaws of MMC-Delaware, which differ in some important respects from
your current rights. These important differences are discussed in this Proxy
Statement under "Proposal No.1 - Approval of Reincorporation in Delaware;
Comparison of the Certain Rights of Stockholders Under Nevada and Delaware Law."
2
ARE DISSENTERS' RIGHTS AVAILABLE IN CONNECTION WITH THE
REINCORPORATION?
Yes. Nevada law affords stockholders dissenters' rights in connection
with the reincorporation. If you choose to exercise your dissenters' rights, you
will be entitled to be paid the fair value of your shares of our common stock as
determined by judicial valuation, which could be more than, or less than, the
market value of your shares based upon the trading price of MMC-Delaware common
stock that you otherwise would receive in the reincorporation. To exercise your
dissenters' rights, you must follow specific procedures under Nevada law. If you
do not follow these procedures exactly, you will lose your dissenters' rights.
SHOULD I SEND IN MY STOCK CERTIFICATES?
No. Do not send us your stock certificates. Following the
reincorporation, stock certificates previously representing our common stock may
be delivered in effecting sales through a broker, or otherwise, of shares of
MMC-Delaware common stock. It will not be necessary for you to exchange your
existing stock certificates for stock certificates of MMC-Delaware, and if you
do so, it will be at your own cost.
WHAT ARE THE TAX CONSEQUENCES TO ME?
The reincorporation is intended to qualify as a tax-free organization
for U.S. federal income tax purposes. If the reincorporation does so qualify, no
gain or loss would generally be recognized by our U.S. stockholders upon
conversion of their shares of our common stock into shares of common stock of
MMC-Delaware pursuant to the reincorporation. We believe that there will be no
tax consequences to our U.S. stockholders. We urge stockholders to consult their
own tax advisors regarding the tax consequences of the reincorporation.
WHO CAN VOTE?
You can vote your shares if our records show that you owned shares of
our common stock as of August 10, 2006. On that date, a total of 47,625,968
shares of common stock were outstanding and entitled to vote at the special
meeting. Each stockholder is entitled to one vote for each share of common stock
held by such stockholder. The enclosed proxy card shows the number of shares you
can vote.
HOW DO I VOTE BY PROXY?
Follow the instructions on the enclosed proxy card to vote on each
proposal to be considered at the special meeting. Sign and date the proxy card
and mail it back to us in the enclosed envelope. The proxy holders named on the
proxy card will vote your shares as you instruct.
WHAT IF OTHER MATTERS COME UP AT THE SPECIAL MEETING?
The matters described in this proxy statement are the only matters we
know will be voted on at the special meeting. If other matters are properly
presented at the meeting, the proxy holders will vote your shares as they
determine, in their discretion.
CAN I CHANGE MY VOTE AFTER I RETURN MY PROXY CARD?
Yes. At any time before the vote on a proposal, you can change your
vote either by giving our corporate secretary a written notice revoking your
proxy card or by signing, dating, and returning to us a new proxy card. We will
honor the proxy card with the latest date.
CAN I VOTE IN PERSON AT THE SPECIAL MEETING RATHER THAN BY COMPLETING
THE PROXY CARD?
Although we encourage you to complete and return the proxy card to
ensure that your vote is counted, you can attend the special meeting and vote
your shares in person.
3
WHAT DO I DO IF MY SHARES ARE HELD IN "STREET NAME"?
If your shares are held in the name of your broker, a bank, or other
nominee, that party should give you instructions for voting your shares.
WHAT DOES IT MEAN IF I GET MORE THAN ONE PROXY CARD?
It means you hold shares registered in more than one account. Sign and
return all proxies to ensure that all your shares are voted.
HOW ARE VOTES COUNTED?
We will hold the special meeting if there is a quorum. In order to have
a quorum, the holders of a majority of our issued and outstanding shares of
common stock must either sign and return their proxy cards or attend the
meeting. If you sign and return your proxy card, your shares will he counted to
determine whether we have a quorum even if you abstain or fail to vote on any of
the proposals listed on the proxy card.
If your shares are held in the name of a nominee, and you do not tell
the nominee how to vote your shares (so-called "broker non-votes"), the nominee
can vote them as it sees fit, but only on matters that are determined to be
routine (and on which such brokers are permitted to vote under the rules
applicable to them) and not on any other proposal. Broker non-votes will be
counted as present to determine if a quorum exists but will not be counted as
present and entitled to vote on any non-routine proposal.
WHO PAYS FOR THIS PROXY SOLICITATION?
MMC does. In addition to sending you these materials, some of our
directors and employees may contact you by telephone, by mail, or in person.
None of our directors or employees will receive any extra compensation for any
such solicitation.
4
EXECUTIVE OFFICERS OF THE COMPANY
NAME AGE POSITION WITH THE COMPANY
---- --- -------------------------
Karl Miller 40 Chairman and Chief Executive Officer
Martin Quinn 58 Director, President and Chief Operating Officer
Denis Gagnon 34 Chief Financial Officer
KARL MILLER, age 40, has been our Chairman and Chief Executive Officer
since May 2006. Mr. Miller served as Chief Executive Officer of MMC Energy North
America, LLC, our predecessor, from August 2002 until MMC North America's merger
with High Tide Ventures to form MMC Energy, Inc. in May 2006. From October 2001
to January 2002, Mr. Miller served as a Senior Advisor, Europe, to Statkraft SF
(Statkraft Energy Europe) an owner and manager of energy assets in Scandinavia.
From January 2001 to October 2001, Mr. Miller was Senior Vice President, Head of
Marketing, Business Development and Structured Transactions in North America for
PG&E Corporation. Prior to that time, Mr. Miller held various executive
operational and financial positions in the energy producing sector including
Electricite de France, El Paso Energy and Chase Manhattan Bank. Mr. Miller holds
an MBA from the Kenan-Flagler Business School at the University of North
Carolina. He also holds a B.A. in Accounting from Catholic University located in
Washington, D.C.
MARTIN QUINN, age 55, has been a director and our President and Chief
Operating Officer since May 2006. Mr. Quinn served as Chief Operating Officer of
MMC Energy North America from March 2005 until MMC North America's merger with
High Tide Ventures to form MMC Energy, Inc. in May 2006. Prior to that time, he
served as Executive Vice President, Chief Operating Officer and Chief Financial
Officer of Ridgewood Power, an independent power company with over 80 plants in
the US, Europe and the Middle East from February 1996 to May 2003. At Ridgewood
Power he managed all financial and operational aspects of the company. Prior to
that, Mr. Quinn was the officer in-charge of the M&A function at Brown-Forman
Corporation and NERCO, Inc., both Fortune 300 companies, and he has been Chief
Financial Officer of NORSTAR Energy and Controller of NERCO Inc., both energy
companies. Mr. Quinn received his Bachelor of Science degree in Accounting and
Finance from the University of Scranton, and is a Certified Public Accountant.
DENIS GAGNON, age 34, has been a director and our Chief Financial
Officer since May 2006. Mr. Gagnon served as Chief Financial Officer of MMC
North America from February 2005 until MMC Energy North America's merger with
High Tide Ventures to form MMC Energy, Inc. in May 2006. Prior to that time, Mr.
Gagnon served as Vice President at Deutsche Bank - Corporate Investments since
June 2000 covering its venture capital, Latin America and Asia/Pacific private
equity portfolios. Prior to that, Mr. Gagnon was an Associate at Gefinor (USA)
Inc., manager of the Kaizen Breakthrough Partnership, L.P., or KBP, an LBO fund
targeting control investments in underperforming, middle-market companies. Mr.
Gagnon also served as Acting chief financial officer for the Alexander Doll
Company and Fournier Furniture, Inc., both portfolio companies of KBP. Mr.
Gagnon is also a Director of Excel Dryer Corp. Mr. Gagnon holds an MBA from
Columbia Business School and B.A. in Accounting from Babson College, and was a
Certified Public Accountant in Massachusetts.
GEORGE ROUNTREE, III, age 72, has been a director since July 2006. Mr.
Rountree has been an attorney in private practice in Wilmington, North Carolina
since 1962. He has been a senior partner in the firm of Rountree, Losee &
Baldwin, LLP and its predecessors since 1965. In June 2004, Mr. Rountree was
inducted into the North Carolina Bar Association General Practice Hall of Fame.
Mr. Rountree has been a director of Southern Union Company (NYSE: SUG) since
1990.
5
EXECUTIVE COMPENSATION
Compensation Committee. Currently, the sole member of the Compensation
Committee is George Rountree, III. We intend to add additional independent
directors to our Board of Directors in the coming months and will expand the
Compensation Committee as we do so. Our Board of Directors has determined that
Mr. Rountree is an "independent director" under the rules of the American Stock
Exchange. The Compensation Committee was established in July 2006 and has not
yet had a meeting. The Compensation Committee reviews and recommends the
compensation arrangements for our executive officers and administers our stock
compensation plans.
Compensation Committee Interlocks And Insider Participation. No member
of our Compensation Committee has been an employee of the Company. None of our
executive officers serves as a member of the board of directors or the
compensation committee of any other entity that has one or more executive
officers serving as a member of our Board or our Compensation Committee.
The following summary compensation table sets forth the compensation
paid by us during the last three years ending December 31, 2005, to our chief
executive officer and the other most highly compensated executive officers,
other than our chief executive officer, whose total compensation for services in
all capacities exceeded $100,000 during such year, whom we refer to as our
"Named Executive Officers."
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION
----------------------------------------------------------------
NAME AND OTHER ANNUAL RESTRICTED
PRINCIPAL POSITION YEAR SALARY ($) BONUS ($) COMPENSATION ($) AWARDS ($)
- ------------------ ------- ---------- ---------- ---------------- ----------
Karl Miller 2005 -- -- -- --
Chairman and Chief 2004 -- -- -- --
Executive Officer -- -- -- -- --
Martin Quinn 2005 -- -- -- --
President and 2004 -- -- -- --
Chief Operating 2003 -- -- -- --
Officer
Denis Gagnon 2005 -- -- -- --
Chief Financial 2004 -- -- -- --
Officer 2003 -- -- -- --
------- ---------- ---------- ---------------- ----------
LONG-TERM COMPENSATION AWARDS
-------------------------------------------------
NUMBER OF
SECURITIES
NAME AND UNDERLYING LTIP ALL OTHER
PRINCIPAL POSITION OPTION/SARS (#) PAYMENTS ($) COMPENSATION ($)
- ------------------ --------------- ------------ ----------------
Karl Miller -- -- --
Chairman and Chief -- -- --
Executive Officer -- -- --
Martin Quinn -- -- --
President and -- -- --
Chief Operating -- -- --
Officer
Denis Gagnon -- -- --
Chief Financial -- -- --
Officer -- -- --
--------------- ------------ ----------------
OPTIONS GRANTED IN 2005
We did not grant any options to our Named Executive Officers for the
fiscal year ended December 31, 2005.
OPTION EXERCISES IN 2005 AND YEAR-END VALUES TABLE
None of our Named Executive Officers exercised any options in 2005 or
held any unexercised options as of December 31, 2005.
6
EMPLOYMENT ARRANGEMENTS
We have entered into employment agreements with each of our Named
Executive Officers.
KARL MILLER. We entered into an employment agreement with Mr. Miller on
May 15, 2006. The term of the agreement runs until May 15, 2011, subject to
automatic one-year renewal terms. The agreement provides for an annual base
salary of $225,000. The Compensation Committee will review Mr. Miller's salary
on an annual basis and make a recommendation to the Board of Directors about
whether such salary should be adjusted. Mr. Miller will not present during such
deliberations. Mr. Miller is also eligible to receive an annual bonus, in an
amount to be determined by the Board of Directors, provided that we meet certain
performance-related and operating targets. Mr. Miller received an option to
purchase 500,000 shares of our common stock when he entered into the employment
agreement. This option is subject to a stock option agreement under which
one-third of the option vests on each anniversary date of the grant.
Mr. Miller is also eligible to receive standard employee benefits. If
we terminate Mr. Miller without "cause," he will be entitled to severance pay
equal to his salary and benefits through the scheduled termination date of the
agreement on May 15, 2011. In the event of termination for "cause," Mr. Miller
will not be entitled to severance pay. In either case, Mr. Miller will be
precluded from competing with us for one year following his termination date.
MARTIN QUINN. We entered into an employment agreement with Mr. Quinn on
May 15, 2006. The term of the agreement runs until May 15, 2009, subject to
automatic one-year renewal terms. The agreement provides for an annual base
salary of $175,000. The Compensation Committee will review Mr. Quinn's salary on
an annual basis and make a recommendation to the Board of Directors about
whether such salary should be adjusted. Mr. Quinn is also eligible to receive an
annual bonus, in an amount to be determined by the Board of Directors, provided
that we meet certain performance-related and operating targets. Mr. Quinn
received an option to purchase 250,000 shares of our common stock when he
entered into the employment agreement. This option is subject to a stock option
agreement under which one-third of the option vests on each anniversary date of
the grant.
Mr. Quinn is also eligible to receive standard employee benefits. If we
terminate Mr. Quinn without "cause," he will be entitled to severance pay equal
to his salary and benefits through the scheduled termination date of the
agreement on May 15, 2009. In the event of termination for "cause," Mr. Quinn
will not be entitled to severance pay. In either case, Mr. Quinn will be
precluded from competing with us for one year following his termination date.
DENIS GAGNON. We entered into an employment agreement with Mr. Gagnon
on May 15, 2006. The term of the agreement runs until May 15, 2009, subject to
automatic one-year renewal terms. The agreement provides for an annual base
salary of $150,000, which was increased to $175,000 by our Board of Directors
effective August 1, 2006. The Compensation Committee will review Mr. Gagnon's
salary on an annual basis and makes a recommendation to the Board of Directors
about whether such salary should be adjusted. Mr. Gagnon is also eligible to
receive an annual bonus, in an amount to be determined by the Board of
Directors, provided that we meet certain performance-related and operating
targets. Mr. Gagnon received an option to purchase 200,000 shares of our common
stock when he entered into the employment agreement. This option is subject to a
stock option agreement under which one-third of the option vests on each
anniversary date of the grant.
Mr. Gagnon is also eligible to receive standard employee benefits. If
we terminate Mr. Gagnon without "cause," he will be entitled to severance pay
equal to his salary and benefits through the scheduled termination date of the
agreement on May 15, 2009. In the event of termination for "cause," Mr. Gagnon
will not be entitled to severance pay. In either case, Mr. Gagnon will be
precluded from competing with us for one year following his termination date.
7
EQUITY COMPENSATION PLAN INFORMATION
The following table sets forth information regarding our equity
compensation plans as of December 31, 2005.
NUMBER OF SECURITIES
REMAINING AVAILABLE FOR
NUMBER OF SECURITIES WEIGHTED-AVERAGE FUTURE ISSUANCE UNDER
PLAN CATEGORY TO BE ISSUED UPON EXERCISE PRICE OF EQUITY COMPENSATION
EXERCISE OF OUTSTANDING PLANS (EXCLUDING
OUTSTANDING OPTIONS, OPTIONS, WARRANTS SECURITIES REFLECTED IN
WARRANTS AND RIGHTS (1) AND RIGHTS FIRST COLUMN) (1)
Equity compensation plans 0 0 0
approved by security
holders
Equity compensation plans 0 0 0
not approved by security
holders
Total 0 0 0
(1) Represents shares of common stock issuable in connection with such equity
compensation plans.
8
PRINCIPAL STOCKHOLDERS
The following table shows the number of shares of our common stock beneficially
owned as of March 31, 2006 by:
o each person who we know beneficially owns more than 5% of the
common stock;
o each member of our Board of Directors;
o each of our Named Executive Officers; and
o all of the directors and executive officers as a group.
Unless otherwise indicated, (1) the persons named in the table have
sole voting and investment power with respect to all shares of common stock
shown as beneficially owned by them, subject to community property laws where
applicable, and (2) the address for the persons named in the table is c/o MMC
Energy, Inc., 26 Broadway, Suite 907, New York, New York 10004.
NUMBER OF SHARES PERCENT OF SHARES
NAME OF BENEFICIAL OWNER BENEFICIALLY OWNED OUTSTANDING (1)
- ------------------------------ ------------------ ------------------
Karl Miller (2) 4,858,255 10.2%
Martin Quinn (3) 4,097,088 8.6%
Denis Gagnon (3) 1,692,352 3.5%
George Rountree III (4) 1,387,348 2.9%
All Named Executive Officers and 12,035,043 25.3%
Directors as a Group (4 persons)
(1) As of August 10, 2006, we had outstanding 47,625,968 shares of common
stock. Unless otherwise noted, the persons named in this table have
sole voting power with respect to all shares of common stock. In
compliance with the SEC rules, for purposes of calculating the
percentage of common stock outstanding, any securities not outstanding
which are subject to options, warrants, restricted stock units or
conversion privileges, are deemed outstanding for the purposes of
computing the percentage of the outstanding securities owned by such
person but are not deemed to be outstanding for the purpose of
computing the percentage owned by any other person. Share ownership in
each case includes shares issuable upon exercise of outstanding
options, warrants and restricted stock units that are exercisable
within 60 days of August 11, 2006.
9
(2) Excludes option to acquire 500,000 shares of our common stock which is not
exercisable within 60 days of August 11, 2006.
(3) Excludes option to acquire 250,000 shares of our common stock which is not
exercisable within 60 days of August 11, 2006.
(4) Excludes option to acquire 200,000 shares of our common stock which is not
exercisable within 60 days of August 11, 2006.
10
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
From January 9, 2006 through May 15, 2006, the time we consummated
our merger with High Tide, Inc. and became a public company, an entity named MMC
Energy Management LLC provided certain management services to us. MMC Energy
Management LLC was owned by Messrs. Miller, Gagnon and Quinn. MMC Energy
Management LLC was paid an aggregate of $260,000 by us for management services
provided to the Company from January 9, 2006 to June 30, 2006. In connection
with the Merger, MMC Energy Management LLC was dissolved.
Contemporaneously with the closing of the Merger, we split off our
wholly-owned subsidiary, High Tide Leasco, Inc., a Nevada corporation
("Leaseco"), through the sale of all of the outstanding capital stock of
Leaseco. We executed a Split Off Agreement with Brent Peters, Douglas Smith, MMC
North America and Leaseco. Mr. Peters was President and Chief Executive Officer
of High Tide, and Mr. Smith was Chief Financial Officer, Treasurer and Director
of High Tide. In connection with the Merger, Mr. Peters and Mr. Smith have
resigned from High Tide.
11
PROPOSAL NO. 1: APPROVAL OF REINCORPORATION IN DELAWARE
Our Board of Directors has unanimously approved our reincorporation in
Delaware and has determined that the terms of the Merger Agreement by which the
reincorporation will be effected are fair to, and in the best interests of, our
stockholders. For the reasons discussed below, the Board of Directors recommends
that the stockholders also approve the reincorporation. Approval of the
reincorporation also will constitute approval of the Merger Agreement. For
purposes of the discussion below, we sometimes refer to our company before the
reincorporation, as "MMC-NEVADA" and after the reincorporation as
"MMC-DELAWARE".
Our corporate affairs currently are governed by Nevada law and the
provisions of the Articles of Incorporation and the Bylaws of MMC-Nevada. Copies
of these Articles of Incorporation and Bylaws are included as exhibits to our
filings with the SEC and are available for inspection during regular business
hours at our principal executive offices. Copies will be sent to stockholders
upon request. If the reincorporation is approved at the Special Meeting and
effected, our corporate affairs will be governed by Delaware law and the
provisions of the Certificate of Incorporation and the Bylaws of MMC-Delaware.
Copies of the Certificate of Incorporation and the Bylaws of MMC-Delaware are
attached to this Proxy Statement as Appendices B and C, respectively. See
"Comparison of Certain Rights of Stockholders Under Nevada and Delaware Law,"
below, for a discussion of some similarities and important differences in the
rights of our stockholders before and after the reincorporation.
We believe that the reincorporation will give us a greater measure of
flexibility and certainty in corporate governance than is available under Nevada
law and may enhance investors' perception of our company. The State of Delaware
is recognized for adopting comprehensive, modern and flexible corporate laws,
which are revised periodically to respond to the changing legal and business
needs of corporations. Delaware's specialized business judiciary are expert in
corporate law matters, and a substantial body of court decisions has developed
construing Delaware corporation law. Delaware law, accordingly, has been, and is
likely to continue to be, interpreted in many significant judicial decisions,
which may provide greater clarity and predictability with respect to our
corporate legal affairs than is currently the case under Nevada law. For these
reasons, the Board of Directors believes that our business and affairs can be
conducted to better advantage us if we are reincorporated in Delaware. In this
regard, many major U.S. corporations have incorporated in Delaware, or have
changed their corporate domiciles to Delaware in a manner similar to the
reincorporation.
PRINCIPAL FEATURES OF THE REINCORPORATION
The reincorporation will be effected by the merger of MMC-Nevada with
and into MMC-Delaware pursuant to the Merger Agreement, a copy of which is
attached to this Proxy Statement as Appendix A. MMC-Delaware is a wholly owned
subsidiary of MMC-Nevada that was incorporated by us under the Delaware General
Corporation Law for the sole purpose of effecting the reincorporation. The
reincorporation will become effective upon the filing of the requisite merger
documents in Delaware and Nevada, which will occur as soon as practicable after
the Special Meeting if the reincorporation is approved by stockholders. Our
Board of Directors, however, may determine to abandon the reincorporation and
the merger either before or after stockholder approval has been obtained. The
discussion below is qualified in its entirety by reference to the Merger
Agreement, and by the applicable provisions of Nevada law and Delaware law.
On effectiveness of the reincorporation:
o Each outstanding share of our common stock will be converted
into one share of MMC-Delaware common stock;
o Each outstanding share of MMC-Delaware common stock held by
MMC-Nevada will be retired and canceled and will resume the
status of authorized and unissued MMC-Delaware stock; and
o Each outstanding option and warrant to purchase shares of our
common stock will be deemed to be an option or warrant to
purchase the same number of shares of MMC-Delaware common
stock, with no change in the exercise price or other terms or
provisions of the option or warrant.
12
Following the reincorporation, stock certificates previously
representing our common stock may be delivered in effecting sales through a
broker, or otherwise, of shares of MMC-Delaware stock. IT WILL NOT BE NECESSARY
FOR YOU TO EXCHANGE YOUR EXISTING STOCK CERTIFICATES FOR STOCK CERTIFICATES OF
MMC-DELAWARE, and if you do so, it will be at your own cost.
The reincorporation will not cause a change in our name, which will
remain "MMC Energy, Inc." The reincorporation also will not effect any change in
our business, management or operations or the location of our principal
executive office. On effectiveness of the reincorporation, our directors and
officers will become all of the officers and directors of MMC-Delaware, all of
our employee benefit and stock option plans will become MMC-Delaware plans, and
each option or right issued under such plans will automatically be converted
into an option or right to purchase the same number of shares of MMC-Delaware
common stock, at the same price per share, upon the same terms and subject to
the same conditions as before the reincorporation. Stockholders should note that
approval of the reincorporation will also constitute approval of these plans
continuing as plans of MMC-Delaware. Our employment contracts and other employee
benefit arrangements also will be continued by MMC-Delaware upon the terms and
subject to the conditions currently in effect. We believe that the
reincorporation will not affect any of our material contracts with any third
parties, and that our rights and obligations under such material contractual
arrangements will continue as rights and obligations of MMC-Delaware.
Other than receipt of stockholder approval, there are no federal or
state regulatory requirements or approvals that must be obtained in order for us
to consummate the reincorporation.
SECURITIES ACT CONSEQUENCES
The shares of MMC-Delaware common stock to be issued upon conversion of
shares of our common stock in the reincorporation are not being registered under
the Securities Act of 1933, as amended. In this regard, we are relying on Rule
145(a)(2) under the Securities Act, which provides that a merger that has "as
its sole purpose" a change in the domicile of a corporation does not involve the
sale of securities for purposes of the Securities Act, and on interpretations of
Rule 145 by the SEC to the effect that effective certain changes in the
redomiciled corporation's charter or bylaws in connection with the
reincorporation that otherwise could be made only with the approval of
stockholders does not render Rule 145 inapplicable. After the reincorporation,
MMC-Delaware will be a publicly held company, MMC-Delaware common stock will
continue to be qualified for trading on the Nasdaq Bulletin Board for
Over-the-Counter traded securities, and MMC-Delaware will file periodic reports
and other documents with the SEC and provide to its stockholders the same types
of information that we have previously filed and provided.
Holders of shares of our common stock that are freely tradable before
the reincorporation will continue to have freely tradable shares of MMC-Delaware
common stock. Stockholders holding so-called restricted shares of our common
stock will have shares of MMC-Delaware common stock that are subject to the same
restrictions on transfer as those to which their shares of our common stock are
subject, and their stock certificates, if surrendered for replacement
certificates representing shares of MMC-Delaware common stock, will bear the
same restrictive legend as appears on their present stock certificates. For
purposes of computing compliance with the holding period requirement of Rule 144
under the Securities Act, stockholders will be deemed to have acquired their
shares of MMC-Delaware common stock on the date they acquired their shares of
common stock of MMC-Nevada.
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following discussion summarizes the material U.S. federal income
tax consequences of the reincorporation that are applicable to you as a
stockholder. It is based on the Internal Revenue Code, applicable Treasury
Regulations, judicial authority, and administrative rulings and practice, all as
of the date of this Proxy Statement and all of which are subject to change,
including changes with retroactive effect. The discussion below does not address
any state, local or foreign tax consequences of the reincorporation. Your tax
treatment may vary depending upon your particular situation. You also may be
subject to special rules not discussed below if you are a certain kind of
stockholder, including, but not limited to: an insurance company; a tax-exempt
organization; a financial institution or broker-dealer; a person who is neither
a citizen nor resident of the United States or entity that is not organized
under the laws of the United States or political subdivision thereof; a holder
of our shares as part of a hedge, straddle or conversion transaction; a person
that does not hold our shares as a capital asset at the time of the
reincorporation; or an entity taxable as a partnership for U.S. federal income
tax purposes. The Company will not request an advance ruling from the Internal
Revenue Service as to the U.S. federal income tax consequences of the
reincorporation or any related transaction. The Internal Revenue Service could
adopt positions contrary to those discussed below and such positions could be
sustained. You are urged to consult with your own tax advisors and financial
planners as to the particular tax consequences of the reincorporation to you,
including the applicability and effect of any state, local or foreign laws, and
the effect of possible changes in applicable tax laws.
13
It is intended that the reincorporation qualify as a "reorganization"
under Section 368(a) of the Code. As a "reorganization," it is expected that the
reincorporation will have the following U.S. federal income tax consequences:
o Neither MMC-Nevada nor MMC-Delaware will recognize any gain or
loss from the reincorporation;
o An MMC-Nevada stockholder will not recognize any gain or loss
as a result of the receipt of MMC-Delaware shares in exchange
for such stockholder's MMC-Nevada shares in the
reincorporation;
o An MMC-Nevada stockholder's aggregate tax basis in the
MMC-Delaware shares received in the reincorporation will equal
such stockholder's aggregate tax basis in the MMC-Nevada
shares held immediately before the reincorporation; and
o An MMC-Nevada stockholder's tax holding period for
MMC-Delaware shares received in the reincorporation will
include the period during which such stockholder held
MMC-Nevada shares.
COMPARISON OF CERTAIN RIGHTS OF STOCKHOLDERS UNDER NEVADA AND DELAWARE LAW
MMC-Nevada currently is a Nevada corporation and, as such, the rights
of its stockholders are governed by the Nevada Business Corporation Act,
codified in the Nevada Revised Statutes, or NRS, and by the Articles of
Incorporation and Bylaws of MMC-Nevada. Upon completion of the reincorporation,
the stockholders of MMC-Nevada will become stockholders of MMC-Delaware and
their rights will be governed by the Delaware General Corporation Law, or DGCL,
and by the MMC-Delaware Certificate of Incorporation and ByLaws, which differ in
some important respects from the NRS and the MMC-Nevada Articles and MMC-Nevada
Bylaws.
The following comparison of the DGCL and the MMC-Delaware Certificate
and MMC-Delaware Bylaws with the NRS and the MMC-Nevada Articles and MMC-Nevada
Bylaws summarizes the important differences, but is not intended to list all
differences.
BUSINESS COMBINATIONS
Generally, under the DGCL and the NRS, the approval by the affirmative
vote of the holders of a majority of the outstanding stock (or, if the
certificate or articles of incorporation, as the case may be, provides for more
or less than one vote per share, a majority of the votes of the outstanding
stock) of a corporation entitled to vote on the matter is required for a merger
or consolidation or sale, lease or exchange of all or substantially all the
corporation's assets to be consummated. Neither the MMC-Delaware Certificate nor
the MMC-Nevada Articles provides for any different required vote.
STATE TAKEOVER LEGISLATION
DGCL Section 203, or "Delaware Business Combination Law", in general
prohibits a business combination between a corporation and an interested
stockholder within three years of the time such stockholder became an interested
stockholder, unless:
o prior to such time the board of directors of the corporation
approved either the business combination or the transaction
that resulted in the stockholder becoming an interested
stockholder;
14
o upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
exclusive of shares owned by directors who are also officers
and by certain employee stock plans; or
o at or subsequent to such time, the business combination is
approved by the board of directors and authorized by the
affirmative vote at a stockholders' meeting of at least 66
2/3% of the outstanding voting stock that is not owned by the
interested stockholder.
The term "business combination" is defined to include, among other
transactions between an interested stockholder and a corporation or any direct
or indirect majority owned subsidiary thereof, a merger or consolidation; a
sale, pledge, transfer or other disposition (including as part of a dissolution)
of assets having an aggregate market value equal to 10% or more of either the
aggregate market value of all assets of the corporation on a consolidated basis
or the aggregate market value of all the outstanding stock of the corporation;
certain transactions that would increase the interested stockholder's
proportionate share ownership of the stock of any class or series of the
corporation or such subsidiary; and any receipt by the interested stockholder of
the benefit of any loans, advances, guarantees, pledges or other financial
benefits provided by or through the corporation or any such subsidiary. In
general, and subject to certain exceptions, an "interested stockholder" is any
person who is the owner of 15% or more of the outstanding voting stock (or, in
the case of a corporation with classes of voting stock with disparate voting
power, 15% or more of the voting power of the outstanding voting stock) of the
corporation, and the affiliates and associates of such person. The term "owner"
is broadly defined to include any person that individually or with or through
such person's affiliates or associates, among other things, beneficially owns
such stock, or has the right to acquire such stock (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement or understanding or upon the exercise of warrants or options or
otherwise or has the right to vote such stock pursuant to any agreement or
understanding, or has an agreement or understanding with the beneficial owner of
such stock for the purpose of acquiring, holding, voting or disposing of such
stock.
The restrictions of the Delaware Business Combination Law do not apply
to corporations that have elected, in the manner provided therein, not to be
subject to the Delaware Business Combination Law or, with certain exceptions,
which do not have a class of voting stock that is listed on a national
securities exchange or authorized for quotation on the Nasdaq Stock Market or
held of record by more than 2,000 stockholders. The MMC-Delaware Certificate and
the MMC-Delaware Bylaws do not opt out of the Delaware Business Combination Law.
Nevada law prevents an "interested stockholder" and a Nevada
corporation from entering into a "combination", unless certain conditions are
met. A "combination" means any merger or consolidation with an "interested
stockholder," or any sale, lease, exchange, mortgage, pledge, transfer or other
disposition, in one transaction or a series of transactions with an "interested
stockholder" having: (i) an aggregate market value equal to 5% or more of the
aggregate market value of the assets of a corporation; (ii) an aggregate market
value equal to 5% or more of the aggregate market value of all outstanding
shares of a corporation; or (iii) representing 10% or more of the earning power
or net income of the corporation. An "interested stockholder" means a person or
entity holding the beneficial ownership of 10% or more of the outstanding voting
shares of a corporation, or an affiliate or associate thereof. A corporation may
not engage in a combination within three years after the interested stockholder
acquires his shares unless the combination or purchase is approved by the board
of directors before the interested stockholder acquired such shares. If approval
is not obtained, after the expiration of the three-year period, the business
combination may be consummated with the approval of the board of directors or a
majority of the voting power held by disinterested stockholders, or if the
consideration to be paid by the interested stockholder is at least equal to the
greater of (i) the highest price per share paid by the interested stockholder
within the three years immediately preceding the date of the announcement of the
combination or in the transaction in which he became an interested stockholder,
whichever is higher, (ii) the market value per common share on the date of
announcement of the combination or the date the interested stockholder acquired
the shares, whichever is higher, or (iii) if higher for the holders of preferred
stock, the highest liquidation value of the preferred stock. Nevada law does not
require a tender offer or to file a registration statement or information
statement with the state of Nevada.
15
The restrictions of Nevada law relating to combinations with
interested stockholders do not apply to corporations that have elected, in the
manner provided therein, not to be subject to the relevant sections of Nevada
law or, with certain exceptions, which do not have a class of voting stock
registered with the Securities and Exchange Commission under Section 12 of the
Securities Exchange Act. The MMC-Nevada Articles and MMC-Nevada Bylaws do not
opt out of the Nevada laws relating to combinations with interested
stockholders.
APPRAISAL RIGHTS
Under the DGCL, except as otherwise provided by the DGCL, stockholders
of a constituent corporation in a merger or consolidation have the right to
demand and receive payment of the fair value of their stock in a merger or
consolidation. However, except as otherwise provided by the DGCL, stockholders
do not have appraisal rights in a merger or consolidation if, among other
things, their shares are:
o listed on a national securities exchange or designated as a
national market system security on an inter-dealer quotation
system by the National Association of Securities Dealers,
Inc., or NASD; or
o held of record by more than 2,000 stockholders;
and, in each case, the consideration such stockholders receive for
their shares in a merger or consolidation consists solely of:
o shares of stock of the corporation surviving or resulting from
such merger or consolidation;
o shares of stock of any other corporation that at the effective
date of the merger or consolidation will be either listed on a
national securities exchange, or designated as a national
market system security on an interdealer quotation system by
the NASD or held of record by more than 2,000 stockholders;
o cash in lieu of fractional shares of the corporations
described in the two immediately preceding bullet points; or
o any combination of shares of stock and cash in lieu of
fractional shares described in the three immediately preceding
bullet points.
A stockholder of a Nevada corporation, with certain exceptions, has the
right to dissent from, and to obtain payment of the fair value of his shares in
the event of:
o consummation of a plan of merger to which the corporation is a
party and to which such stockholder would have had a right to
vote;
o consummation of a plan of exchange to which the corporation is
a party as the corporation whose shares will be acquired, if
the stockholder is entitled to vote on the plan; and
o any corporate action taken pursuant to a vote of the
stockholders to the extent that the articles of incorporation,
bylaws or a resolution of the board of directors provides that
voting or non-voting stockholders are entitled to dissent and
obtain payment for their shares.
The NRS provide that unless a corporation's articles of incorporation
provide otherwise, which the MMC-Nevada Articles do not, a stockholder does not
have dissenters' rights with respect to a plan of merger or share exchange if
the shares held by the stockholder are either listed on a national securities
exchange, designated as a national market system security on an interdealer
quotation system by the NASD, or held of record by 2,000 or more stockholders. A
stockholder of record of a Nevada corporation may assert dissenter's rights as
to less than all of the shares registered in his name only if he dissents with
respect to all shares beneficially owned by any one person and notifies the
corporation in writing of the name and address of each person on whose behalf he
asserts dissenter's rights. In such event, the stockholder's rights shall be
determined as if the shares as to which he dissents and his other shares were
registered in the names of different stockholders. As discussed under
"Dissenter's Rights of Appraisal," below, the NRS affords MMC-Nevada
stockholders dissenters' right in connection with the reincorporation.
16
AMENDMENTS TO CHARTER
Under the DGCL, unless a corporation's certificate of incorporation
requires a greater vote, a proposed amendment to the certificate of
incorporation requires an affirmative vote of a majority of the voting power of
the outstanding stock entitled to vote thereon and a majority of the voting
power of the outstanding stock of each class entitled to vote thereon. The
MMC-Delaware Certificate does not require a greater vote. The approval of the
holders of a majority of the outstanding shares of any class of capital stock of
a corporation, voting separately as a class, is required under the DGCL to
approve a proposed amendment to a corporation's certificate of incorporation,
whether or not entitled to vote on such amendment by the certificate of
incorporation, if the amendment would increase or decrease the aggregate number
of authorized shares of such class (except as provided in the last sentence of
this paragraph), increase or decrease the par value of the shares of such class,
or alter or change the powers, preferences or special rights of the shares of
such class so as to affect them adversely. For this purpose, if a proposed
amendment would alter or change the powers, preferences or special rights of one
or more series of any class so as to affect them adversely, but would not so
affect the entire class, then only the shares of the series so affected by the
amendment would be entitled to vote as a separate class on the amendment.
Accordingly, a proposed amendment the adverse effect of which on the powers,
preferences or special rights of any series of common stock does not differ from
its adverse effect on the powers, preferences or special rights of any other
series of common stock would not entitle such series to vote as a class
separately from the other series of common stock. The authorized number of
shares of any class of stock may be increased or decreased (but not below the
number of shares of such class outstanding) by the requisite vote described
above if so provided in the original certificate of incorporation or in any
amendment thereto that created such class of stock or that was adopted prior to
the issuance of any shares of such class, or in an amendment authorized by a
majority vote of the holders of shares of such class.
An amendment to a Nevada corporation's articles of incorporation must
be approved by the corporation's stockholders. Under the NRS, unless a
corporation's articles of incorporation require a greater vote, an amendment to
a Nevada corporation's articles of incorporation must generally be approved by a
majority of the votes entitled to be cast on the amendment. If such amendments
would increase or decrease the number of authorized shares of any class or
series or the par value of such shares or would adversely affect the shares of
such class or series, a majority of the outstanding stock of such class or
series would also have to approve the amendment. The MMC-Nevada Articles do not
include any provision requiring greater than a majority of votes to amend them.
AMENDMENTS TO BYLAWS
Under the DGCL, the power to adopt, alter and repeal bylaws of a
corporation is vested in its stockholders, except to the extent that a
corporation's certificate of incorporation vests concurrent power in the board
of directors or the bylaws state otherwise. The MMC-Delaware Certificate
provides that the board of directors has the power to make and to alter or amend
the MMC-Delaware Bylaws. The MMC-Delaware Bylaws provide that they may be
amended by the stockholders of MMC-Delaware, or by the MMC-Delaware Board of
Directors at any meeting by a majority vote of the full MMC-Delaware Board of
Directors or by a consent in writing signed by the entire MMC-Delaware Board of
Directors.
Under the NRS, except as otherwise provided in a corporation's
certificate of incorporation, bylaws may be amended, repealed or adopted by the
board of directors. The MMC-Nevada Articles do not provide otherwise.
NO PREEMPTIVE RIGHTS
Under the DGCL, a stockholder does not possess preemptive rights unless
such rights are specifically granted in the certificate of incorporation. The
MMC-Delaware Certificate does not provide for preemptive rights.
Under the NRS, unless otherwise provided in the articles of
incorporation, stockholders do not have preemptive rights. The MMC-Nevada
Articles specifically state that stockholders have no preemptive rights.
17
DURATION OF PROXIES
Under the DGCL, no proxy is valid more than three years after its date
unless otherwise provided in the proxy. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation generally.
Under the NRS, no proxy will be valid for more than six months after
its creation unless the stockholder specifies in the proxy the length of time
that it will be valid, which may not exceed seven years from the date of its
creation.
STOCKHOLDER ACTION
Under both the DGCL and the NRS, unless otherwise provided in a
corporation's certificate of incorporation any action required or permitted to
be taken at a meeting of stockholders may be taken without a meeting, without
prior notice and without a vote, if a written consent or consents setting forth
the action taken is signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote upon such action
were present and voted. Neither the MMC-Delaware Certificate nor the MMC-Nevada
Articles provides otherwise.
Under both the NRS and DGCL, directors of a corporation are generally
elected by a plurality of the votes cast by the stockholders entitled to vote at
a stockholders' meeting at which a quorum is present. With respect to matters
other than the election of directors, unless a greater number of affirmative
votes is required by the statute or the corporation's articles or certificate of
incorporation, if a quorum exists, action on any matter is generally approved by
the stockholders if the votes cast by the holders of the shares represented at
the meeting and entitled to vote on the matter favoring the action exceed the
votes cast opposing the action. In the case of a merger, the affirmative vote of
the holders of a majority of the issued and outstanding shares entitled to vote
is required under both the NRS and the DGCL.
Neither the MMC-Nevada Articles nor the MMC-Nevada Bylaws include a
provision requiring a greater vote on any matter than required by the NRS.
Under both the NRS and the DGCL, unless otherwise provided in a
corporation's articles or certificate of incorporation or bylaws, a majority of
shares entitled to vote on a matter constitutes a quorum at a meeting of
stockholders. Neither the MMC-Nevada Articles nor MMC-Nevada Bylaws provides for
a different quorum requirement. The MMC-Delaware Certificate and the
MMC-Delaware Bylaws also do not provide for a different quorum requirement.
NOMINATION PROCEDURES AND STOCKHOLDER PROPOSALS
Neither the DGCL nor the NRS provides procedures for the nomination
for election of directors by stockholders or the submission of other stockholder
proposals at an annual or special meeting of stockholders.
The MMC-Nevada Bylaws provide no procedures for stockholders to
nominate individuals for election as directors. The MMC-Delaware Bylaws require
that nominations (other than by the Board of Directors or a nominating
committee) for the election of directors at a meeting of stockholders must be
made by written notice, delivered or mailed by first class mail, to MMC-Delaware
not less than 120 days prior to the anniversary of the date on which the proxy
statement for the immediately preceding annual meeting was mailed to
stockholders or if MMC-Delaware did not hold an annual meeting in the prior year
or if the date of the annual meeting occurs more than 30 days before or after
the anniversary of such immediately preceding annual meeting, then not later
than the close of business on the later of the 60th day prior to such annual
meeting or the 10th day following the date on which public notice of the date of
such annual meeting is first made.
18
SPECIAL STOCKHOLDER MEETINGS
The DGCL provides that a special meeting of stockholders may be called
by the board of directors or by such person or persons as may be authorized by
the certificate of incorporation or by the bylaws. The MMC-Delaware Bylaws
provide that a special meeting of stockholders be called by the Board of
Directors or the Chairman of the Board or the Chief Executive Officer of
MMC-Delaware. The DGCL and the MMC-Delaware Bylaws require that a notice of
stockholders meeting be delivered to stockholders not less than ten days nor
more than 60 days before the meeting. The notice must state the place, day, hour
and purpose of the meeting.
The NRS provide that, unless a corporation's articles of incorporation
or bylaws provide otherwise, the entire board of directors, any two directors or
the president may call annual or special meetings of the stockholders or
directors. The MMC-Nevada Bylaws provide that a special meeting of stockholders
may be called by the Board of Directors or the Chairman of the Board or the
President of MMC-Nevada, or by one or more stockholders entitled to cast not
less than 10% of the votes entitled to be cast at the special meeting. The NRS
and the MMC-Nevada Bylaws require that a notice of stockholders meeting be
delivered to stockholders not less than ten days nor more than 60 days before
the meeting. The notice must state the place, day, hour and the general nature
of the business to be transacted.
STOCKHOLDER INSPECTION OF BOOKS AND RECORDS
Under the DGCL, any stockholder may, upon five days written demand,
inspect, in person or by agent or attorney, the stockholder ledger or other
record of stockholders during usual business hours. The written demand must be
under oath and state the purpose of such an inspection. The stockholder may,
unless denied for cause, copy such records. The DGCL also allows stockholders,
by the same written demand, to inspect the corporation's other books and
records.
Pursuant to the NRS, a stockholder of record for at least six months
immediately preceding his demand, or any person holding at least 5% of all
outstanding shares, or authorized in writing by at least 5% of all outstanding
shares, is entitled to inspect a list of the names of the corporation's
stockholders during usual business hours, if the stockholder gives at least five
business days' prior written notice to the corporation. The stockholders may
also copy such records. The NRS also permit stockholders of record (combined or
individually) of 15% or more of the outstanding stock, upon five days written
demand, the right to inspect during normal business hours, the books and
financial records of the corporation, to make extracts therefrom and to conduct
an audit of such records. This right may not be limited by a corporation's
bylaws or articles of incorporation. The NRS also provide that a corporation may
deny any demand for inspection if the stockholder refuses to furnish the
corporation with an affidavit that such inspection is not desired for a purpose
which is in the interest of a business or object other than the business of the
corporation and that such stockholder has not previously sold or offered for
sale any list of stockholders of the corporation or any other corporation. The
NRS also provide that the corporation may charge to recover costs of copying of
providing any such records.
CUMULATIVE VOTING
Under both the DGCL and the NRS, a corporation's certificate of
incorporation or articles of incorporation, as the case may be, may provide that
at all elections of directors, or at elections held under specified
circumstances, each stockholder is entitled to cumulate such stockholder's
votes. Neither the MMC-Delaware Certificate nor the MMC-Nevada Articles provide
for cumulative voting for the election of directors.
SIZE OF THE BOARD OF DIRECTORS AND NO CLASSIFICATION OF THE
MMC-DELAWARE BOARD
The DGCL permits the certificate of incorporation or the bylaws of a
corporation to contain provisions governing the number and terms of directors.
However, if the certificate of incorporation contains provisions fixing the
number of directors, such number may not be changed without amending the
certificate of incorporation. The DGCL permits the certificate of incorporation
of a corporation or a bylaw adopted by the stockholders to provide that
directors be divided into one, two or three classes, with the term of office of
one class of directors to expire each year. The MMC-Delaware Certificate and
MMC-Delaware Bylaws do not provide for a classified board. The DGCL also permits
the certificate of incorporation to confer upon holders of any class or series
of stock the right to elect one or more directors to serve for such terms and
have such voting powers as are stated in the certificate of incorporation. The
terms of office and voting powers of directors so elected may be greater or less
than those of any other director or class of directors. No such provisions are
contained in the MMC-Delaware Certificate. The MMC-Delaware Bylaws provide for a
Board of Directors of not less than three nor more than eleven members, to be
elected for a one-year term. Within this range, the exact number of directors
may be fixed from time to time by resolution of the MMC-Delaware Board of
Directors.
19
The NRS permits the articles of incorporation or the bylaws of a
corporation to contain provisions governing the number and terms of directors.
The MMC-Nevada Bylaws provide for an MMC-Nevada board of directors of not less
than two nor more than nine members, to be elected for a one-year term. Within
this range, the exact number of directors may be fixed from time to time by
resolution of the MMC-Nevada Board of Directors. The NRS provide that a
corporation's board of directors may be divided into various classes with
staggered terms of office. The MMC-Nevada Articles and MMC-Nevada Bylaws do not
provide for a classified board.
REMOVAL OF DIRECTORS AND FILLING VACANCIES
The DGCL provides that all vacancies on the board of directors,
including vacancies caused by an increase in the number of authorized directors,
may be filled by the board of directors, unless otherwise provided in the
certificate of incorporation or bylaws. Neither the MMC-Delaware Certificate nor
the MMC-Delaware Bylaws alters this provision.
The NRS provide that vacancies on the board of directors, including
vacancies caused by an increase in the number of authorized directors, may be
filled by a majority of the remaining directors, even if they are less than a
quorum, unless otherwise provided in the articles of incorporation. The
MMC-Nevada Articles do not alter this provision.
The DGCL provides that a director or directors may be removed with or
without cause by the holders of a majority in voting power of the shares then
entitled to vote at an election of directors, except that (a) members of a
classified board of directors may be removed only for cause, unless the
certificate of incorporation provides otherwise, and (b) in the case of a
corporation having cumulative voting, if less than the entire board of directors
is to be removed, no director may be removed without cause if the votes cast
against such director's removal would be sufficient to elect such director if
then cumulatively voted at an election of the entire board of directors or of
the class of directors of which such director is a part.
The NRS provides that any director may be removed from office by the
vote of stockholders holding not less than two-thirds of the issued and
outstanding stock entitled to vote. Stockholders may remove one or more
directors with or without cause unless the articles of incorporation provide
that directors may be removed only for cause. The MMC-Nevada Articles do not
include such a provision.
VACANCIES
Under the DGCL, unless otherwise provided in a corporation's
certificate of incorporation or the bylaws, vacancies on a board of directors
and newly created directorships resulting from an increase in the authorized
number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by the sole remaining director, provided that,
in the case of a classified board of directors, such vacancies and newly created
directorships may be filled by a majority of the directors elected by such class
or by the sole remaining director so elected. In the case of a classified board
of directors, directors elected to fill vacancies or newly created directorships
shall hold office until the next election of the class for which such directors
have been chosen, and until their successors have been duly elected and
qualified. In addition, if, at the time of the filling of any such vacancy or
newly created directorship, the directors in office constitute less than a
majority of the whole board of directors (as constituted immediately prior to
any such increase), the Delaware Court of Chancery may, upon application of any
stockholder or stockholders holding at least 10% of the total number of
outstanding shares entitled to vote for such directors, summarily order an
election to fill any such vacancy or newly created directorship, or replace the
directors chosen by the directors then in office.
20
The MMC-Delaware Bylaws provide that any vacancies on the Board of
Directors caused by death, resignation, removal or otherwise and newly created
directorships resulting from an increase in the number of directors, shall be
filled by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum, or by the sole remaining director. The
MMC-Delaware Bylaws also provide that any directors chosen to fill a vacancy on
the Board of Directors or newly created directorship will serve for the
remainder of the full term of the class for which such director was chosen and
until his successor shall be duly elected and shall have qualified.
The NRS provide that a vacancy on the board of directors of a
corporation may generally be filled by the affirmative vote of a majority of the
remaining directors, though constituting less than a quorum of the board of
directors, unless the articles of incorporation provide otherwise. The
MMC-Nevada Articles do not alter this provision.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The DGCL generally permits a corporation to indemnify its directors
and officers against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with a third-party action, other
than a derivative action, and against expenses actually and reasonably incurred
in the defense or settlement of a derivative action, provided that there is a
determination that the individual acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation. Such
determination shall be made, in the case of an individual who is a director or
officer at the time of such determination:
o by a majority of the disinterested directors, even though less
than a quorum;
o by a committee of such directors designated by a majority vote
of such directors, even though less than a quorum;
o by independent legal counsel, regardless of whether a quorum
of disinterested directors exists; or
o by a majority vote of the stockholders, at a meeting at which
a quorum is present.
Without court approval, however, no indemnification may be made in
respect of any derivative action in which such individual is adjudged liable to
the corporation.
The DGCL requires indemnification of directors and officers for
expenses relating to a successful defense on the merits or otherwise of a
derivative or third-party action.
The DGCL permits a corporation to advance expenses relating to the
defense of any proceeding to directors and officers contingent upon such
individuals' commitment to repay any advances unless it is determined ultimately
that such individuals are entitled to be indemnified.
Under the DGCL, the rights to indemnification and advancement of
expenses provided in the law are non-exclusive, in that, subject to public
policy issues, indemnification and advancement of expenses beyond that provided
by statute may be provided by by-law, agreement, vote of stockholders,
disinterested directors or otherwise.
The MMC-Delaware Certificate provides that MMC-Delaware shall have the
power to indemnify directors, officers, employees and agents of MMC-Delaware to
the fullest extent permitted by Section 145 of the DGCL. The MMC-Delaware Bylaws
provides that MMC-Delaware officers and directors shall be indemnified to the
fullest extent permitted by applicable law, and that MMC-Delaware shall pay the
expenses incurred in defending any proceeding in advance of its final
disposition. Payment of expenses incurred by a director or officer in advance of
the final disposition of the proceeding shall be made only upon the receipt of
an undertaking by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer is not entitled to
be indemnified.
21
Under the NRS, a corporation may generally indemnify its officers,
directors, employees and agents against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement of any proceedings (other than
derivative actions), investigations, whether civil or administrative or criminal
in nature, if they acted in good faith on behalf of the corporation and in a
manner they 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 their conduct was unlawful. Similar standards are
applicable in derivative actions, except that indemnification may be made only
for (a) reasonable expenses (including attorneys' fees) and certain amounts paid
in settlement, and (b) in the event the person seeking indemnification has been
adjudicated liable, amounts deemed proper, fair and reasonable by the
appropriate court upon application thereto. The NRS provide that to the extent
that such persons have been successful in defense of any proceeding, they must
be indemnified by the corporation against expenses. Generally, the termination
of any action, suit or proceeding by judgment, order, settlement, conviction
upon a plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that such person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best intent of the
corporation, and with respect to a criminal investigation, or action, he had
reasonable cause to believe that his conduct was lawful. If a corporation does
not so indemnify such persons, they may seek, and a court may order,
indemnification under certain circumstances even if the board of directors or
stockholders of the corporation have determined that the persons are not
entitled to indemnification.
In addition, under the NRS expenses incurred by an officer or director
in connection with a proceeding may be paid by the corporation in advance of the
final disposition, upon receipt of an undertaking by such director or officer to
repay such amount if he is ultimately found not to be entitled to
indemnification by the corporation.
The MMC-Nevada Articles provide that MMC-Nevada officers and directors
shall be indemnified to the fullest extent permitted by the General Corporation
Law of Nevada, and that MMC-Nevada shall pay the expenses incurred in defending
any proceeding in advance of its final disposition; provided, however that the
payment of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon the receipt of an
undertaking by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer is not entitled to
be indemnified.
The NRS, the DGCL and the respective Bylaws of MMC-Delaware and
MMC-Nevada may permit indemnification for liabilities arising under the Exchange
Act. The Board of Directors of both MMC-Nevada and MMC-Delaware has been advised
that, in the opinion of the SEC, indemnification for liabilities arising under
the Securities Act or the Exchange Act is contrary to public policy and is
therefore unenforceable absent a decision to the contrary by a court of
appropriate jurisdiction.
LIMITATION OF PERSONAL LIABILITY OF DIRECTORS
The DGCL provides that a corporation's certificate of incorporation
may include a provision limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. However, no such provision can eliminate or limit the
liability of a director for:
o any breach of the director's duty of loyalty to the
corporation or its stockholders;
o acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of the law;
o violation of certain provisions of the DGCL;
o any transaction from which the director derived an improper
personal benefit; or
o any act or omission prior to the adoption of such a provision
in the certificate of incorporation.
The MMC-Delaware Certificate provides that a director of MMC-Delaware
shall not be personally liable to MMC-Delaware or any of its stockholders for
monetary damages for breach of fiduciary duty as a director except to the extent
provided by applicable law for the actions described above.
22
The NRS allow a corporation to provide in its articles of
incorporation that a director or officer will not be personally liable for
monetary damages to the corporation or its stockholders for breach of fiduciary
duty as a director or officer, except that such provision must not eliminate or
limit the liability of a director or officer for (a) acts or omissions which
involve intentional misconduct, fraud or a knowing violation of law; or (b) the
payment of distributions in violation of Section 78.300 of the NRS. The
MMC-Nevada Articles contain such a provision.
DERIVATIVE ACTIONS
Under each of the Nevada Rules of Civil Procedure and the DGCL, a
person may not bring a derivative action unless the person was a stockholder of
the corporation at the time of the challenged transaction or unless the person
acquired the shares by operation of law from a person who was a stockholder at
such time. The Nevada Rules of Civil Procedure and Rule 23.1 of the Delaware
Court of Chancery Rules also provide that a complaint in a derivative proceeding
must be verified and must allege with particularity the efforts, if any, made by
the plaintiff to obtain the desired action, and the reasons for his failure to
obtain the action he desires or for not making the effort. The Nevada Rules of
Civil Procedure also provide that a derivative action may not be maintained if
it appears that the plaintiff does not fairly and adequately represent the
interests of stockholders. The NRS and the Delaware Court of Chancery Rules also
provide that an action shall not be dismissed or compromised without the
approval of the court having jurisdiction of the action.
DISTRIBUTIONS AND REDEMPTIONS
Under the DGCL, unless otherwise restricted in its certificate of
incorporation, a corporation may only pay dividends out of surplus or net
profit. Additionally, under the DGCL, a corporation may not redeem any shares if
such redemption would cause an impairment of its capital. The MMC-Delaware
Certificate does not otherwise restrict the right to pay dividends or redeem
shares.
A Nevada corporation may make distributions to its stockholders as
long as, after giving effect to such distribution (a) the corporation would be
able to pay its debts as they become due in the usual course of business and (b)
the corporation's total assets would not be less than the sum of its total
liabilities plus (unless the articles of incorporation permit otherwise, which
the MMC-Nevada Articles do not) the amount that would be needed if the
corporation were to be dissolved at the time of the distribution to satisfy the
preferential rights upon dissolution of stockholders whose preferential rights
are superior to those receiving the distribution. Such determinations may be
made by the board of directors based on financial statements, fair market
valuation or any other reasonable method. Under the NRS, a corporation's
redemption of its own capital stock is subject to the same restrictions as apply
to a distribution.
LOANS TO DIRECTORS AND OFFICERS
Under the DGCL, a corporation may lend money to, or guarantee any
obligation of, an officer, including an officer who is a director, when it is
deemed, in the judgment of the board of directors, to be reasonably expected to
benefit the corporation.
Under the NRS, a corporation may make a loan or guaranty to directors
or officers if (a) the financial interest is known or disclosed to the board of
directors or committee and noted in the minutes, and the board or committee
authorizes the transaction in good faith by a majority vote sufficient for the
purpose without counting the vote of the interested director; (b) the financial
interest is known or disclosed to the stockholders, and the stockholders
authorize the transaction by a vote of stockholders holding a majority of the
voting power; or (c) the transaction is fair to the corporation at the time it
is authorized or approved.
The foregoing summary does not purport to be a complete statement of
the respective rights of holders of MMC-Delaware common stock and of our common
stock, and is qualified in its entirety by reference to the DGCL and the NRS,
respectively, and to the MMC-Delaware Certificate and MMC-Delaware Bylaws and
the MMC-Nevada Articles and MMC-Nevada Bylaws.
23
FRANCHISE TAXES
All corporations doing business in Nevada, regardless of
capitalization, are required to pay an annual flat fee of $100 to obtain a
business license. Nevada imposes no franchise tax or similar fee on Nevada
corporations. After the reincorporation, we will be required to pay annual
franchise taxes to Delaware based on a formula involving the number of our
authorized shares, or the value of our assets, whichever would result in a
lesser tax. We will pay a pro rata share of the annual Delaware franchise tax
for 2006 if the reincorporation is approved and effected, based upon the
effective date of the reincorporation.
THE MERGER AGREEMENT
The following is only a summary of the material provisions of the
Merger Agreement between MMC-Nevada and MMC-Delaware and is not complete. The
Merger Agreement is attached to this Proxy Statement as Appendix A. Please read
the Merger Agreement in its entirety.
GENERAL
The Merger Agreement provides that, subject to the approval and
adoption of the Merger Agreement by the stockholders of MMC-Nevada and the
authority of the Board of Directors of MMC-Nevada (and MMC-Delaware) to abandon
the merger:
o MMC-Nevada will merge with and into MMC-Delaware; and
o MMC-Nevada will cease to exist and MMC-Delaware will continue
as the surviving corporation.
EFFECTIVE TIME
The Merger Agreement provides that, subject to the approval of the
stockholders of MMC-Nevada, the merger will be consummated by the filing of
articles of merger and any other appropriate documents, in accordance with the
relevant provisions of the NRS and the DGCL, with the Secretaries of State of
the States of Nevada and Delaware.
MERGER CONSIDERATION
Upon consummation of the merger, each outstanding share of our common
stock (except shares as to which dissenters' rights have been properly
exercised) will be converted into the right to receive one share of MMC-Delaware
common stock. The shares of MMC-Nevada common stock will no longer be
outstanding and will automatically be cancelled and retired and will cease to
exist. Each holder of a certificate representing shares of MMC-Nevada common
stock immediately prior to the merger will cease to have any rights with respect
to such certificate, except the right to receive shares of MMC-Delaware common
stock upon surrender of such certificate.
TREATMENT OF STOCK OPTIONS AND WARRANTS
Under the terms of the Merger Agreement, upon consummation of the
merger each outstanding option to purchase a share of our common stock will be
deemed to constitute an option to purchase one share of MMC-Delaware common
stock at an exercise price per full share equal to the stated exercise price and
each outstanding warrant to purchase a share of our common stock will be deemed
to constitute a warrant to purchase one share of MMC-Delaware common stock at an
exercise price per full share equal to the stated exercise price.
Under the Merger Agreement, MMC-Delaware will assume MMC-Nevada's
stock option plans, including its 2005 Stock Incentive Plan (assuming it
approved at the Special Meeting), which following the reincorporation will be
used by MMC-Delaware to make awards to directors, officers, and employees of
MMC-Delaware and others as permitted in the Plans.
24
DIRECTORS AND OFFICERS
The Merger Agreement provides that the board of directors of
MMC-Delaware from and after the merger will consist of the directors of
MMC-Nevada immediately prior to the merger. The Merger Agreement further
provides that the officers of MMC-Delaware from and after the merger will be the
officers of MMC-Nevada immediately prior to the merger.
CERTIFICATE OF INCORPORATION AND BYLAWS
The Merger Agreement provides that the MMC-Delaware Certificate of
Incorporation in effect immediately before the merger will be the certificate of
incorporation of the surviving corporation, and the bylaws of MMC-Delaware
Bylaws in effect immediately before the merger will be the bylaws of the
surviving corporation until later amended in accordance with Delaware law.
CONDITIONS TO THE MERGER
The obligations of MMC-Nevada and MMC-Delaware to consummate the
merger are subject to the satisfaction or waiver of the conditions that the
Merger Agreement and merger shall have been approved and adopted by the
stockholders of MMC-Nevada.
ABANDONMENT OF THE MERGER
Notwithstanding stockholder approval of the Merger Agreement and the
merger, the Board of Directors of MMC-Nevada may elect to abandon the merger as
permitted under the NRS.
EFFECT OF THE REINCORPORATION ON STOCK CERTIFICATES
The reincorporation will not have any effect on the transferability of
outstanding stock certificates representing our common stock. The
reincorporation will be reflected by our transfer agent in book-entry. For those
stockholders that hold physical certificates, please do not destroy or send us
your stock certificates, as those stock certificates should be carefully
preserved by you.
DISSENTERS' RIGHTS OF APPRAISAL
YOU HEREBY GIVEN NOTICE THAT YOU HAVE THE RIGHT TO DISSENT FROM THE
REINCORPORATION AND OBTAIN CASH PAYMENT FOR THE "FAIR VALUE" OF YOUR SHARES, AS
DETERMINED IN ACCORDANCE WITH THE NRS. Set forth below is a description of the
steps you must take if you wish to exercise dissenters' rights with respect to
the reincorporation under NRS Sections 92A.300 to 92A.500, the Nevada
dissenters' rights statute. The text of the statute is set forth in Appendix D
to this Proxy Statement. This description is not intended to be complete. If you
are considering exercising your dissenters' rights with respect to the
reincorporation, you should review NRS Sections 92A.300 to 92A.500 carefully,
particularly the steps required to perfect dissenters' rights. Failure to take
any one of the required steps may result in termination of your dissenters'
rights under Nevada Law. If you are considering dissenting, you should consult
with your own legal advisor.
To exercise your right to dissent, you must:
o before the effective date of the reincorporation, deliver
written notice to MMC Energy, Inc., 26 Broadway, Suite 907,
New York, New York 10004, Attention: Denis Gagnon, Corporate
Secretary, stating that you intend to demand payment for your
shares if the reincorporation is completed; and
o not vote your shares in favor of the reincorporation, either
by proxy or in person.
A vote against the reincorporation will not be deemed to satisfy the
written notice requirement, above. Failure to vote against the reincorporation
will not constitute a waiver of dissenters' rights.
25
If you satisfy the conditions for exercising your dissenters' rights,
we will send you a written dissenter's notice within 10 days after the
reincorporation is effective. This dissenter's notice will:
o specify where you should send your payment demand and where
and when you must deposit your stock certificates, if any;
o inform holders of uncertificated shares to what extent the
transfer of their shares will be restricted after their
payment demand is received;
o supply a form of payment demand that includes the date the
reincorporation was first publicly announced and the date by
which you must have acquired beneficial ownership of your
shares in order to dissent;
o set a date by when we must receive the payment demand, which
may not be less than 30 or more than 60 days after the date
the dissenters' notice is delivered; and
o provide you a copy of Nevada's dissenters' rights statute.
After you have received a dissenter's notice, if you still wish to
exercise your dissenters' rights, you must:
o demand payment either through the delivery of the payment
demand form to be provided or other comparable means;
o certify whether you have acquired beneficial ownership of the
shares before the date set forth in the dissenter's notice;
and
o deposit your certificates, if any, in accordance with the
terms of the dissenter's notice.
Failure to demand payment in the proper form or deposit your
certificates as described in the dissenter's notice will terminate your right to
receive payment for your shares pursuant to Nevada's dissenters' rights statute.
Your rights as a stockholder will continue until those rights are canceled or
modified by the completion of the reincorporation.
Within 30 days after receiving your properly executed payment demand,
we will pay you what we determine to be the fair value of your shares, plus
accrued interest (computed from the effective date of the reincorporation until
the date of payment). The payment will be accompanied by:
o our balance sheet as of the end of a fiscal year ended not
more than 16 months before the date of payment, an income
statement for that year, a statement of changes in
stockholders' equity for that year, and the latest available
interim financial statements, if any;
o an explanation of how we estimated the fair value of the
shares and how the interest was calculated;
o information regarding your right to challenge the estimated
fair value; and
o a copy of Nevada's dissenters' rights statute.
We may elect to withhold payment from you if you became the beneficial
owner of the shares on or after the date set forth in the dissenter's notice. If
we withhold payment, after the consummation of the reincorporation, we will
estimate the fair value of the shares, plus accrued interest, and offer to pay
this amount to you in full satisfaction of your demand. The offer will contain a
statement of our estimate of the fair value, an explanation of how the interest
was calculated, and a statement of dissenters' rights to demand payment under
NRS Section 92A.480.
26
If you believe that the amount we pay in exchange for your dissenting
shares is less than the fair value of your shares or that the interest is not
correctly determined, you can demand payment of the difference between your and
our estimate or reject our offer pursuant to NRS Section 92A.470 and demand
payment of your estimate in full. You must make such demand within 30 days after
we have made or offered payment; otherwise, your right to challenge calculation
of fair value terminates.
If there is still disagreement about the fair market value within 60
days after we receive your demand, we will petition the District Court of Carson
City, Nevada to determine the fair value of the shares and the accrued interest.
If we do not commence such legal action within the 60-day period, we will have
to pay the amount demanded for all unsettled demands. All dissenters whose
demands remain unsettled will be made parties to the proceeding, and are
entitled to a judgment for either:
o the amount of the fair value of the shares, plus interest, in
excess of the amount we paid; or
o the fair value, plus accrued interest, of the after-acquired
shares for which we elected to withhold payment pursuant to
NRS Section 92A.470.
MMC will pay the costs and expenses of the court proceeding, unless the
court finds the dissenters acted arbitrarily, vexatiously or in bad faith, in
which case the costs will be equitably distributed. Attorney fees will be
divided, as the court considers equitable.
Failure to follow the steps required by NRS Sections 92A.400 through
92A.500 for perfecting dissenters' rights may result in the loss of such rights.
If dissenters' rights are not perfected, you will be entitled to receive the
consideration receivable with respect to such shares in accordance with the plan
of merger. In view of the complexity of the provisions of Nevada's dissenters'
rights statute, if you are considering objecting to the reincorporation you
should consult your own legal advisor.
REQUIRED VOTE
The affirmative vote of the holders of a majority of the shares of our
common stock present at the special meeting in person or by proxy and entitled
to vote is necessary for approval of this Proposal No. 2.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE "FOR"
APPROVAL OF THE REINCORPORATION.
27
PROPOSAL NO. 2: AMENDMENT OF 2006 EXECUTIVE INCENTIVE PLAN
Our board of directors has adopted, subject to stockholder approval, an
amendment to our 2006 Stock Incentive Plan which will increase the authorized
number of shares of common stock available for issuance under the plan from
2,000,000 to 5,000,000 shares. We are proposing to increase the shares available
for issuance under the 2006 Stock Incentive Plan for the purpose of having the
flexibility in the future to issue options as performance compensation and to
new hires.
GENERAL
Our 2006 Stock Incentive Plan currently provides for the issuance of up
to 2,000,000 shares of common stock. As of August 10, 2006, options to acquire
1,070,000 shares of our common stock were issued and outstanding under the plan.
On February 8, 2005, our board of directors voted to amend the 2006 Stock
Incentive Plan to increase the number of shares authorized and reserved for
issuance thereunder from 2,000,000 shares to 5,000,000 shares of common stock
(subject to adjustment in the event of stock splits and other similar events),
and to recommend the amendment to our stockholders for approval.
We believe the 2006 Stock Incentive Plan is a particularly important
component of the our compensation program and is critical to remaining
competitive. We grant options or restricted stock units to substantially all of
our employees. We believe that this broad-based program is key to aligning the
interests of our employees with the long-term interests of our stockholders. We
believe the plan also enables us to attract, motivate, and retain high-caliber
employees to the ultimate benefit our stockholders. This is especially important
today as we look to hire employees over the next several years in line with our
expectations for revenue and profit growth.
In 2006, we expect our gross dilution due to employee stock option
grants to be approximately 1.11%.
DESCRIPTION OF THE PLAN
Our 2006 Stock Incentive Plan authorizes the grant of stock options,
stock appreciation rights and restricted stock. The Compensation Committee of
our board of directors administers the plan. The committee has sole power and
authority, consistent with the provisions of the plan, to determine which
eligible participants will receive awards, the form of the awards and the number
of shares of our common stock covered by each award. The committee may impose
terms, limits, restrictions and conditions upon awards, and may modify, amend,
extend or renew awards, accelerate or change the exercise time of awards or
waive any restrictions or conditions to an award.
TYPES OF AWARDS
Options. We can grant options to purchase shares of our common stock
that either are intended to qualify as incentive stock options under the
Internal Revenue Code or that do not qualify as incentive options. The
Compensation Committee can determine the option exercise price, the term of each
option, the time when each option may be exercised and, the period of time, if
any, after retirement, death, disability or termination of employment during
which options may be exercised.
Stock Appreciation Rights. We can grant rights to receive a number of
shares or cash amounts, or a combination of the two that is based on the
increase in the fair market value of the shares underlying the right during a
stated period specified by the Compensation Committee. We can award shares of
our common stock at no cost or for a purchase price. These stock awards may be
subject to restrictions at the Compensation Committee's discretion.
Restricted Stock. We can grant performance awards to participants
entitling the participants to receive shares of restricted stock, subject to
terms and conditions determined by the Compensation Committee.
28
REQUIRED VOTE
Approval of the amendment to our 2006 Stock Incentive Plan requires the
affirmative vote of a majority of our issued and outstanding shares of common
stock. Abstentions and broker non-votes will have the same effect as negative
votes.
RECOMMENDATION OF THE BOARD OF DIRECTORS
OUR BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" RATIFICATION OF THE
AMENDMENT TO THE 2006 STOCK INCENTIVE PLAN.
29
STOCKHOLDER PROPOSALS
Pursuant to Rule 14a-8 under the Securities Exchange Act, our
stockholders may present proposals for inclusion in our proxy statement for
consideration at the next annual meeting of our stockholders by submitting their
proposals to us in a timely manner. Any such proposal must comply with Rule
14a-8 and must be received by the company at the address appearing on the first
page of this proxy statement no later than April 21, 2007.
Our by-laws require stockholders who intend to propose business for
consideration by stockholders at an annual meeting, other than stockholder
proposals that are included in the proxy statement, to give written notice to
our Secretary not less than 90 days and not more than 120 days before the
anniversary of the prior years' meeting. If no annual meeting was held in the
previous year or the date of the annual meeting is more than thirty (30) days
earlier than the date contemplated at the time of the previous year's proxy
statement, notice by the stockholders to be timely must be received not later
than the close of business on the tenth day following the day on which the date
of the annual meeting is publicly announced. The written notice should be sent
to our corporate secretary, Denis Gagnon, MMC Energy, Inc. 26 Broadway, Suite
907, New York, New York 10004, and must include a brief description of the
business, the reasons for conducting such business, any material interest the
stockholder has in such business, the name and address of the stockholder as
they appear on our books and the number of shares of our common stock the
stockholder beneficially owns.
SEC rules set forth standards for what stockholder proposals we are
required to include in a proxy statement for an annual meeting.
OTHER MATTERS
Our Board of Directors knows of no other business that will be
presented to the special meeting. If any other business is properly brought
before the special meeting, proxies in the enclosed form will be voted in
respect thereof in accordance with the judgments of the persons voting the
proxies.
It is important that the proxies be returned promptly and that your
shares be represented. You are urged to sign, date and promptly return the
enclosed proxy card in the enclosed envelope.
30
MMC ENERGY, INC.
26 BROADWAY, SUITE 907
NEW YORK, NEW YORK 10004
SOLICITED BY THE BOARD OF DIRECTORS
FOR THE SPECIAL MEETING OF STOCKHOLDERS
The undersigned hereby appoints Karl Miller and Denis Gagnon, each with the
power to appoint his or her substitute, and hereby authorizes them to represent
and to vote, as designated on the reverse side, all shares of common stock of
MMC Energy, Inc. held of record by the undersigned on August 10, 2006 at the
Special Meeting of Stockholders to he held on September 19, 2007 at 3:00 p.m.
local time, at the Pierre Hotel in New York located on 2 East 61st St. in the
Wedgwood Room and any adjournment thereof.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED AS DIRECTED. IF NO DIRECTION IS
GIVEN WITH RESPECT TO A PARTICULAR PROPOSAL, THIS PROXY WILL BE VOTED FOR SUCH
PROPOSAL.
PLEASE MARK, DATE, SIGN AND RETURN THIS PROXY CARD PROMPTLY, USING THE ENCLOSED
ENVELOPE. NO POSTAGE IS REQUIRED IF MAILED IN THE UNITED STATES.
CONTINUED AND TO BE SIGNED ON REVERSE SIDE
31
DETACH HERE
[X] Please mark votes as in this example.
1. Approval of the company's reincorporation in Delaware.
FOR AGAINST ABSTAIN
2. Approve an amendment to increase the size of the company's 2006 Stock
Incentive Plan.
FOR AGAINST ABSTAIN
In their discretion, the proxies are authorized to vote upon such other
matter(s) which may properly come before the meeting or any adjournment thereof.
MARK HERE FOR ADDRESS CHANGE AND NOTE BELOW
- ---------------------------------------
Please sign exactly as name appears hereon. Joint owners each should sign.
Executors, administrators, trusts, trustees, guardians or other fiduciaries
should give full title as such. If signing for a corporation, please sign in
full corporate name by a duly authorized officer.
--------------------------
Signature of Shareholder
Date: _______________, 2006
---------------------------
Signature if held jointly
APPENDIX A
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered
into as of [____], 2006 by and between MMC Energy, Inc., a Nevada corporation
("MMC-Nevada"), and MMC Energy, Inc., a Delaware corporation ("MMC-Delaware").
WITNESSETH:
WHEREAS, MMC-Delaware is a corporation duly organized and existing
under the laws of the State of Delaware;
WHEREAS, MMC-Nevada is a corporation duly organized and existing under
the laws of the State of Nevada;
WHEREAS, on the date of this Merger Agreement, MMC-Delaware has
authority to issue 300,000,000 shares of common stock, par value $0.001 per
share (the "MMC-Delaware Common Stock"), of which [____] shares are issued and
outstanding and owned by MMC-Nevada and 10,000,000 shares of Preferred Stock,
par value $0.001 per share (the "MMC-Delaware Preferred Stock"), of which no
shares are issued or outstanding
WHEREAS, on the date of this Merger Agreement, MMC-Nevada has authority
to issue 75,000,000 shares of common stock (the "MMC-Nevada Common Stock"), of
which 47,625,000 shares are issued and outstanding;
WHEREAS, the respective Boards of Directors for MMC-Delaware and MMC-
Nevada have determined that, for the purpose of effecting the reincorporation of
MMC-Nevada in the State of Delaware, it is advisable and to the advantage of
said two corporations and their shareholders that MMC-Nevada merge with and into
MMC-Delaware upon the terms and conditions herein provided; and
WHEREAS, the respective Boards of Directors of MMC-Delaware and
MMC-Nevada, the shareholders of MMC-Nevada, and the sole stockholder of
MMC-Delaware have adopted and approved this Merger Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, MMC-Nevada and MMC-Delaware hereby agree to merge as follows:
1. Merger. MMC-Nevada shall be merged with and into MMC-Delaware, and
MMC-Delaware shall survive the merger ("Merger"), effective upon the date when
this Merger Agreement is made effective in accordance with applicable law (the
"Effective Date").
2. Governing Documents. The Certificate of Incorporation of
MMC-Delaware, attached hereto as Exhibit A (the "Certificate of Incorporation")
shall continue to be the Certificate of Incorporation of MMC-Delaware as the
surviving Corporation, unless and until thereafter changed or amended in
accordance with the provisions thereof and applicable laws.
1
The Bylaws of MMC-Delaware, in effect on the Effective Date, shall
continue to be the Bylaws of MMC-Delaware as the surviving Corporation without
change or amendment until further amended in accordance with the provisions
thereof and applicable laws.
3. Directors and Officers. The directors and officers of MMC-Nevada
shall become the directors and officers of MMC-Delaware upon the Effective Date
and any committee of the Board of Directors of MMC-Nevada shall become the
members of such committees for MMC-Delaware.
4. Succession. On the Effective Date, MMC-Delaware shall succeed to
MMC-Nevada in the manner of and as more fully set forth in Section 259 of the
General Corporation Law of the State of Delaware.
5. Further Assurances. From time to time, as and when required by MMC-
Delaware or by its successors and assigns, there shall be executed and delivered
on behalf of MMC-Nevada such deeds and other instruments, and there shall be
taken or caused to be taken by it such further and other action, as shall be
appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in MMC-Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of MMC-Nevada, and otherwise to carry out the purposes of this Merger
Agreement and the officers and directors of MMC-Delaware are fully authorized
in the name and on behalf of MMC-Nevada or otherwise to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
6. Stock of MMC-Nevada. Upon the Effective Date, by virtue of the
Merger and without any action on the part of the holder thereof, each
outstanding share of MMC-Nevada Common Stock outstanding immediately prior
thereto shall be changed and converted into one (1) fully paid and nonassessable
share of MMC-Delaware Common Stock.
7. Stock Certificates. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of
MMC-Nevada stock shall be deemed for all purposes to evidence ownership of and
to represent the shares of MMC-Delaware stock into which the shares of
MMC-Nevada stock represented by such certificates have been converted as herein
provided. The registered owner on the books and records of MMC-Delaware or its
transfer agent of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to MMC-Delaware or its transfer agent, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend and other
distributions upon the shares of MMC-Delaware stock evidenced by such
outstanding certificate as above provided.
8. Options, Warrants and All Other Rights to Purchase Stock. Upon the
Effective Date, each outstanding option, warrant or other right to purchase
shares of MMC-Nevada stock, including those options granted under the 2006 Stock
Incentive Plan (the "Option Plan") of MMC-Nevada, shall be converted into and
become an option, warrant, or right to purchase the same number of shares of
MMC-Delaware stock, at a price per share equal to the exercise price of the
option, warrant or right to purchase MMC-Nevada stock and upon the same terms
and subject to the same conditions as set forth in the Option Plan and other
agreements entered into by MMC-Nevada pertaining to such options, warrants, or
rights. A number of shares of MMC-Delaware stock shall be reserved for purposes
of such options, warrants, and rights equal to the number of shares of
MMC-Nevada stock so reserved as of the Effective Date. As of the Effective Date,
MMC-Delaware shall assume all obligations of MMC-Nevada under agreements
pertaining to such options, warrants, and rights, including the Option Plan, and
the outstanding options, warrants, or other rights, or portions thereof, granted
pursuant thereto.
2
9. Other Employee Benefit Plans. As of the Effective Date, MMC-Delaware
hereby assumes all obligations of MMC-Nevada under any and all employee benefit
plans in effect as of said date or with respect to which employee rights or
accrued benefits are outstanding as of said date.
10. Outstanding Common Stock of MMC-Delaware. Forthwith upon the
Effective Date, the ____________________ (__________) shares of MMC-Delaware
Common Stock presently issued and outstanding in the name of MMC-Nevada shall be
canceled and retired and resume the status of authorized and unissued shares of
MMC-Delaware Common Stock, and no shares of MMC-Delaware Common Stock or other
securities of MMC-Delaware shall be issued in respect thereof.
11. Covenants of MMC-Delaware. MMC-Delaware covenants and agrees that
it will, on or before the Effective Date:
a. Qualify to do business as a foreign corporation in the State of
Nevada, and in all other states in which MMC-Nevada is so qualified and in which
the failure so to qualify would have a material adverse impact on the business
or financial condition of MMC-Delaware. In connection therewith, MMC-Delaware
shall irrevocably appoint an agent for service of process as required under the
applicable provisions of state law in other states in which qualification is
required hereunder.
b. File any and all documents with the Nevada Franchise Tax Board
necessary to the assumption by MMC-Delaware of all of the franchise tax
liabilities of MMC-Nevada.
12. Amendment. At any time before or after approval and adoption by the
stockholders of MMC-Nevada, this Merger Agreement may be amended in any manner
as may be determined in the judgment of the respective Boards of Directors of
MMC-Delaware and MMC-Nevada to be necessary, desirable or expedient in order to
clarify the intention of the parties hereto or to effect or facilitate the
purposes and intent of this Merger Agreement.
13. Abandonment. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either MMC-Nevada or MMC-Delaware or both, notwithstanding
approval of this Merger Agreement by the sole stockholder of MMC-Delaware and
the stockholders of MMC-Nevada.
14. Counterparts. In order to facilitate the filing and recording of
this Merger Agreement, the same may be executed in any number of counterparts,
each of which shall be deemed to be an original.
3
IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by resolution of the Board of Directors of MMC-Nevada and MMC-Delaware,
is hereby executed on behalf of each of said two corporations by their
respective officers thereunto duly authorized.
MMC ENERGY, INC., a Delaware corporation
By:
--------------------------
Name:
Title:
MMC ENERGY, INC., a Nevada corporation
By:
--------------------------
Name:
Title:
CERTIFICATE OF SECRETARY
OF
MMC ENERGY, INC.
(a Delaware corporation)
I, Denis Gagnon, the Secretary of MMC ENERGY, INC., a Delaware
corporation (the "Corporation"), hereby certify that the Agreement and Plan of
Merger to which this Certificate is attached was duly signed on behalf of the
Corporation by its Chief Executive Officer and was duly approved and adopted by
a unanimous vote of the outstanding stock entitled to vote thereon by written
consent of the sole stockholder of the Corporation dated __________, 2006.
Executed effective on the ___ day of ________________, 2006.
---------------------------
Denis Gagnon, Secretary
1
CERTIFICATE OF APPROVAL OF
AGREEMENT AND PLAN OF MERGER OF
MMC ENERGY, INC.
(a Nevada corporation)
Karl Miller and Denis Gagnon certify that:
1. They are the duly elected and acting Chief Executive Officer and
Secretary, respectively, of MMC ENERGY, INC., a Nevada corporation (the
"Corporation").
2. This Certificate is attached to the Agreement and Plan of Merger
dated as of [___], 2006, providing for the merger of the Corporation with and
into a Delaware corporation.
3. The Agreement and Plan of Merger in the form attached hereto (the
"Merger Agreement") was approved by the Board of Directors of the Corporation
[by unanimous written consent effective ____________, 2006].
4. The total number of outstanding shares of the Corporation entitled
to vote on the merger was ___________ shares of Common Stock.
5. The principal terms of the Merger Agreement were approved by an
affirmative vote which exceeded the vote required, such vote being a majority of
the total number of outstanding shares of Common Stock.
Dated: [___], 2006.
---------------------------
Karl Miller, Chief Executive Officer
---------------------------
Denis Gagnon, Secretary
The undersigned, Karl Miller and Denis Gagnon, Chief Executive Officer
and Secretary, respectively, of MMC ENERGY, INC., a Nevada corporation, declare
under penalty of perjury under the laws of the State of Nevada that the matters
set forth in this Certificate are true and correct of their own knowledge.
Executed at __________________, Nevada, on ____, 2006.
---------------------------
Karl Miller, Chief Executive Officer
---------------------------
Denis Gagnon, Secretary
Exhibit A
Certificate of Incorporation
2
APPENDIX B
CERTIFICATE OF INCORPORATION
OF
MMC ENERGY, INC.
ARTICLE FIRST
The name of the Corporation is MMC Energy, Inc. (the "Corporation").
ARTICLE SECOND
The address of its registered office in the State of Delaware is 2711
Centerville Road, Suite 400 in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is Corporation Service Company.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law (the "DGCL"), as the same exists or may hereafter be amended.
ARTICLE FOURTH
The Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the Corporation is authorized to issue is 310,000,000 shares,
consisting of 300,000,000 shares of Common Stock with a par value of $.001 per
share and 10,000,000 shares shall be Preferred Stock with a par value of $.001
per share. A statement of the powers, designations, preferences, and relative
participating, optional or other special rights and the qualifications,
limitations and restrictions of the Common Stock and the Preferred Stock is as
follows.
1. Common Stock.
(a) Dividends. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as, if and when, determined by the Board
of Directors and subject to any preferential dividend rights of any then
outstanding shares of Preferred Stock.
(b) Liquidation Rights. In the event of a voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, the holders of shares
of Common Stock shall be entitled, after payment or provision for payment of the
debts and other liabilities of the Corporation, to share in the distribution of
any remaining assets available for distribution to its stockholders ratably,
subject to any preferential rights of any then outstanding Preferred Stock.
(c) Voting Rights. The holders of Common Stock shall be entitled to
one vote per share in voting or consenting to the election of directors and for
all other matters presented to the stockholders of the Corporation for their
action or consideration. Cumulative voting for the election of directors is not
permissible. Except as otherwise required by law and subject to any voting
rights of any then outstanding Preferred Stock, the holders of the Common Stock
shall vote together as a single class on all matters submitted to the
stockholders of the Corporation.
2. Preferred Stock. The Board of Directors is authorized, subject to
limitations prescribed by law, to provide for the issuance of the Preferred
Stock in one or more series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof, as shall be stated in the
resolutions providing for the issuance of such series adopted by the Board of
Directors.
The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(a) the number of shares constituting that series and the distinctive
designation of that series;
(b) the rate of dividend, and whether (and if so, on what terms and
conditions) dividends shall be cumulative (and if so, whether unpaid dividends
shall compound or accrue interest) or shall be payable in preference or in any
other relation to the dividends payable on any other class or classes of stock
or any other series of the Preferred Stock;
(c) whether that series shall have voting rights in addition to the
voting rights provided by law and, if so, the terms and extent of such voting
rights;
(d) whether the shares must or may be redeemed and, if so, the terms
and conditions of such redemption (including, without limitation, the dates upon
or after which they must or may be redeemed and the price or prices at which
they must or may be redeemed, which price or prices may be different in
different circumstances or at different redemption dates);
(e) whether the shares shall be issued with the privilege of
conversion or exchange and, if so, the terms and conditions of such conversion
or exchange (including without limitation the price or prices or the rate or
rates of conversion or exchange or any terms for adjustment thereof);
(f) the amounts, if any, payable upon the shares in the event of
voluntary liquidation, dissolution or winding up of the Corporation in
preference of shares of any other class or series and whether the shares shall
be entitled to participate generally in distributions on the Common Stock under
such circumstances;
(g) the amounts, if any, payable upon the shares thereof in the event
of involuntary liquidation, dissolution or winding up of the Corporation in
preference of shares of any other class or series and whether the shares shall
be entitled to participate generally in distributions in the Common Stock under
such circumstances;
2
(h) sinking fund provisions, if any, for the redemption or purchase
of the shares (the term "sinking fund" being understood to include any similar
fund, however designated) and, if so, the terms and amount of such sinking fund;
and
(i) any other relative rights, preferences, limitations and powers of
that series.
3. No Preemptive Rights. Except as expressly set forth in this
Certificate of Incorporation, any certificate of designation, any resolution or
resolutions providing for the issuance of a series of stock adopted by the Board
of Directors, or any agreement between the Corporation and its stockholders, the
holders of Common Stock or any series of Preferred Stock shall have no
preemptive right to subscribe for any shares of any class of capital stock of
the Corporation whether now or hereafter authorized.
ARTICLE FIFTH
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
1. Powers and Duties of the Board of Directors. The business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors. In addition to the powers and authority expressly conferred
upon them by statute or by this Certificate of Incorporation or the Bylaws of
the Corporation, the directors are hereby empowered to exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation.
2. No Written Ballots. The directors of the Corporation need not be
elected by written ballot unless the Bylaws so provide.
3. No Action by Written Consent of Stockholders. Any action required
or permitted to be taken by the stockholders of the Corporation must be effected
at a duly called annual or special meeting of stockholders of the Corporation
and may not be effected by any consent in writing by such stockholders.
4. Special Meeting of Stockholders. Special meetings of stockholders
of the Corporation may be called only (a) by the Board of Directors pursuant to
a resolution adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any such resolution is presented to the Board for adoption) or (b)
by the Chairman of the Board, the Chief Executive Officer, or the President and
any power of stockholders to call a special meeting is specifically denied. Only
such business shall be considered as is set forth in the notice for such
meeting.
ARTICLE SIXTH
1. Number of Directors. The number of directors shall initially be set
at five (5) and, thereafter, shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is presented
to the Board for adoption) but such number shall in no case be less than one
(1). Any such determination made by the Board of Directors shall continue in
effect unless and until changed by the Board of Directors, but no such changes
shall affect the term of any directors then in office.
3
2. Vacancies. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation or other cause (including removal
from office by a vote of the stockholders) may be filled only by a majority vote
of the directors then in office, though less than a quorum, or by the sole
remaining director, and directors so chosen shall hold office for a term
expiring at the next annual meeting of stockholders at which the term of office
of the class to which they have been elected expires, and until their respective
successors are elected, except in the case of the death, resignation, or removal
of any director. No decrease in the number of directors constituting the Board
of Directors shall shorten the term of any incumbent director
3. Nominations. Advance notice of nominations by stockholders for the
election of directors, and of stockholder proposals regarding action to be taken
at any meeting of stockholders, shall be given in the manner and to the extent
provided in the Bylaws of the Corporation.
ARTICLE SEVENTH
The Board of Directors is expressly empowered to adopt, amend or repeal
Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of the
Corporation by the Board of Directors shall require the approval of a majority
of the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board).
ARTICLE EIGHTH
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; provided that nothing contained in this Article Eighth shall
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involved intentional misconduct or a
knowing violations of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
If the DGCL is hereafter amended to authorize the further elimination
or limitation of the liability of a director, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
Any repeal or modification of the foregoing provisions of this Article
Eighth by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of, or
increase the liability of any director of the Corporation with respect to any
acts or omissions of such director occurring prior to, such repeal or
modification.
4
ARTICLE NINTH
The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner prescribed by the
laws of the State of Delaware and all rights conferred upon stockholders are
granted subject to this reservation; provided, however, that, notwithstanding
any other provision of this Certificate of Incorporation or any provision of law
which might otherwise permit a lesser vote or no vote, but in addition to any
vote of the holders of any class or series of the stock of this Corporation
required by law or by this Certificate of Incorporation, the affirmative vote or
written consent of the holders of not less than at least two-thirds (2/3) of the
voting power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to amend or repeal Article Fifth,
Article Sixth, Article Seventh, Article Eighth or this Article Ninth, or any
provision within any such articles. No repeal, alteration or amendment of this
Certificate of Incorporation shall be made unless the same is first approved by
the Board of Directors of the Corporation pursuant to a resolution adopted by
the directors then in office in accordance with the Bylaws and applicable law
and thereafter approved by the stockholders.
[Remainder of Page Intentionally Left Blank]
5
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Incorporation on this [ ] day of [ ], 2006.
---------------------------
Nia M. Brown, Incorporator
APPENDIX C
BYLAWS OF
MMC ENERGY, INC.
ARTICLE I
STOCKHOLDERS
1.1 Place of Meetings. All meetings of stockholders shall be held at
such time and place, within or without the State of Delaware, as may be
designated from time to time by the Board of Directors or the President or Chief
Executive Officer and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
1.2 Annual Meeting. The annual meeting of stockholders for the election
of directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date to be fixed by the Board of
Directors at the time and place to be fixed by the Board of Directors and stated
in the notice of the meeting.
1.3 Special Meetings. Special meetings of stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the President
or the Chief Executive Officer, for any purpose or purposes prescribed in the
notice of the meeting and shall be held at such place, on such date and at such
time as the Board may fix. Business transacted at any special meeting of
stockholders shall be confined to the purpose or purposes stated in the notice
of meeting.
1.4 Notice of Meetings. Written notice of each meeting of stockholders,
whether annual or special, shall be given not less than ten (10) nor more than
sixty (60) days before the date on which the meeting is to be held, to each
stockholder entitled to vote at such meeting, except as otherwise provided
herein or as required by law (meaning here and hereafter, as required from time
to time by the Delaware General Corporation Law or the Certificate of
Incorporation). The notices of all meetings shall state the place, date and hour
of the meeting. The notice of a special meeting shall state, in addition, the
purpose or purposes for which the meeting is called. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
1.5 Voting List. The officer who has charge of the stock ledger of the
corporation shall prepare, at least ten (10) days before each 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, 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 of the meeting, and may be inspected by any stockholder who is
present. This list shall determine the identity of the stockholders entitled to
vote at the meeting and the number of shares held by each of them.
1.6 Quorum. Except as otherwise provided by law or these Bylaws, the
holders of a majority of the shares of the capital stock of the corporation
entitled to vote at the meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business. If, within half an
hour form the time appointed for the meeting, a quorum shall fail to attend, the
chairman of the meeting or the holders of a majority of the shares of stock
entitled to vote who are present, in person or by proxy, may adjourn the meeting
to another place, date or time.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
1.7 Adjournments. Any meeting of stockholders may be adjourned to any
other time and to any other place at which a meeting of stockholders may be held
under these Bylaws by the Chairman of the meeting or, in the absence of such
person, by any officer entitled to preside at or to act as Secretary of such
meeting, or by the holders of a majority of the shares of stock present or
represented at the meeting and entitled to vote, although less than a quorum.
When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date and time thereof are
announced at the meeting at which the adjournment is taken; provided, however,
that if the date of any adjourned meeting is more than 30 days after the date
for which the meeting was originally noticed, or if a new record date is fixed
for the adjourned meeting, written notice of the place, date, and time of the
adjourned meeting shall be given in conformity herewith. At the adjourned
meeting, the corporation may transact any business which might have been
transacted at the original meeting.
1.8 Voting and Proxies. Subject to a special voting rights or
restrictions attached to a class of shares, each stockholder shall have one vote
for each share of stock entitled to vote held of record by such stockholder and
a proportionate vote for each fractional share so held, unless otherwise
provided by law or in the Certificate of Incorporation. Each stockholder of
record entitled to vote at a meeting of stockholders may vote in person or may
authorize any other person or persons to vote or act for him by written proxy
executed by the stockholder or his authorized agent or by a transmission
permitted by law and delivered to the Secretary of the corporation. No
stockholder may authorize more than one proxy for his shares. Any copy,
facsimile transmission or other reliable reproduction of the writing or
transmission created pursuant to this Section may be substituted or used in lieu
of the original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that such copy,
facsimile transmission or other reproduction shall be a complete reproduction of
the entire original writing or transmission.
1.9 Motions. No motion proposed at an annual or special meeting need to
be seconded.
1.10 Action at Meeting. When a quorum is present at any meeting, any
election shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at the election, and all other matters shall be
determined by a majority of the votes cast affirmatively or negatively on the
matter (or if there are two or more classes of stock entitled to vote as
separate classes, then in the case of each such class, a majority of each such
class present or represented and voting affirmatively or negatively on the
matter) shall decide such matter, except when a different vote is required by
express provision of law, the Certificate of Incorporation or these Bylaws.
All voting, including on the election of directors, but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballot, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballot shall be counted by an inspector or inspectors
appointed by the chairman of the meeting. The corporation may, and to the extent
required by law, shall, in advance of any meeting of stockholders, appoint one
or more inspectors to act at the meeting and make a written report thereof. The
corporation may designate one or more persons as an alternate inspector to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the person presiding at the meeting may, and
to the extent required by law, shall, appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath to faithfully execute the duties of inspector with
strict impartiality and according to the best of his or her ability.
1.11 Meetings by Remote Communication. If authorized by the Board of
Directors, and subject to such guidelines and procedures as the Board may adopt,
stockholders and proxy holders not physically present at a meeting of
stockholders may, by means of remote communication, participate in the meeting
and be deemed present in person and vote at the meeting, whether such meeting is
to be held at a designated place or solely by means of remote communication,
provided that (i) the corporation shall implement reasonable measures to verify
that each person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxy holder, (ii) the corporation
shall implement reasonable measures to provide such stockholders and proxy
holders a reasonable opportunity to participate in the meeting and to vote on
matters submitted to the stockholders, including an opportunity to read or hear
the proceedings of the meeting substantially concurrently with such proceedings,
and (iii) if any stockholder or proxy holder votes or takes other action at the
meeting by means of remote communication, a record of such vote or other action
shall be maintained by the corporation.
1.12 Notice of Stockholder Business.
(a) At an annual or special meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must be (i)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (ii) properly brought before the
meeting by or at the direction of the Board of Directors, or (iii) properly
brought before an annual meeting by a stockholder of record. For business to be
properly brought before an annual meeting by a stockholder, it must be a proper
matter for stockholder action under the Delaware General Corporation Law, and
the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation and if the stockholder, or the beneficial owner on
whose behalf any such proposal is made, has provided the corporation with a
Solicitation Notice, as that term is defined in subclause (v) of paragraph (b),
such stockholder or beneficial owner must have delivered a proxy statement and
form of proxy to holders of at least the percentage of the corporation's voting
shares required under applicable law to carry any such proposal, and must have
included in such materials the Solicitation Notice, and if no Solicitation
Notice relating thereto has been timely provided pursuant to this section, the
stockholder or beneficial owner proposing such business must not have solicited
a number of proxies sufficient to have required the delivery of such a
Solicitation Notice under this section. To be timely, a stockholder proposal to
be presented at an annual meeting shall be received at the corporation's
principal executive offices not less than 120 calendar days in advance of the
first anniversary of the date that the corporation's (or the corporation's
predecessor's) proxy statement was released to stockholders in connection with
the previous year's annual meeting of stockholders, except that if no annual
meeting was held in the previous year or the date of the annual meeting is more
than thirty (30) days earlier than the date contemplated at the time of the
previous year's proxy statement, notice by the stockholders to be timely must be
received not later than the close of business on the 10th day following the day
on which the date of the annual meeting is publicly announced. "public
announcement" for purposes hereof shall have the meaning set forth in Article
II, Section 2.15(c) of these Bylaws. In no event shall the public announcement
of an adjournment or postponement of an annual meeting commence a new time
period (or extend any time period) for the giving of a stockholder's notice as
described above.
(b) A stockholder's notice to the Secretary of the corporation shall
set forth as to each matter the stockholder proposes to bring before the annual
or special meeting (i) a brief description of the business desired to be brought
before the annual meeting, (ii) the name and address of the stockholder
proposing such business and of the beneficial owner, if any, on whose behalf the
business is being brought, (iii) the class and number of shares of the
corporation which are owned beneficially and of record by the stockholder and
such other beneficial owner, and (iv) any material interest of the stockholder
and such other beneficial owner in such business and (v) whether such
stockholder or beneficial owner intends to deliver a proxy statement and form of
proxy to holders of at least the percentage of the corporation's voting shares
required under applicable law to carry the proposal (an affirmative statement of
such intent being referred to in this Section 1.12 as a "Solicitation Notice").
(c) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw. Nothing in this
Bylaw shall be deemed to affect any rights of stockholders to request inclusion
of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
1.13 Conduct of Business. At every meeting of the stockholders, the
Chairman of the Board, or, in his or her absence, the President, or, in his or
her absence, such other person as may be appointed by the Board of Directors,
shall act as chairman. The Secretary of the corporation or a person designated
by the chairman of the meeting shall act as secretary of the meeting. Unless
otherwise approved by the chairman of the meeting, attendance at the
stockholders' meeting is restricted to stockholders of record, persons
authorized in accordance with Section 1.8 of these Bylaws to act by proxy, and
officers of the corporation.
The chairman of the meeting shall call the meeting to order, establish
the agenda, and conduct the business of the meeting in accordance therewith or,
at the chairman's discretion, it may be conducted otherwise in accordance with
the wishes of the stockholders in attendance. The date and time of the opening
and closing of the polls for each matter upon which the stockholders will vote
at the meeting shall be announced at the meeting.
The chairman shall also conduct the meeting in an orderly manner, rule
on the precedence of, and procedure on, motions and other procedural matters,
and exercise discretion with respect to such procedural matters with fairness
and good faith toward all those entitled to take part. Without limiting the
foregoing, the chairman may (a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the presiding officer or Board of Directors, (b) restrict use of
audio or video recording devices at the meeting, and (c) impose reasonable
limits on the amount of time taken up at the meeting on discussion in general or
on remarks by any one stockholder. Should any person in attendance become unruly
or obstruct the meeting proceedings, the chairman shall have the power to have
such person removed from the meeting. Notwithstanding anything in the Bylaws to
the contrary, no business shall be conducted at a meeting except in accordance
with the procedures set forth in this Section 1.13 and Section 1.12 above. The
chairman of a meeting may determine and declare to the meeting that any proposed
item of business was not brought before the meeting in accordance with the
provisions of this Section 1.13 and Section 1.12, and if he should so determine,
he shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted
1.14 Stockholder Action Without Meeting. Any action required or
permitted to be taken by the stockholders of the corporation must be effected at
a duly called annual or special meeting of stockholders of the corporation and
may not be effected by any consent in writing by such stockholders.
ARTICLE II
BOARD OF DIRECTORS
2.1 General Powers. The business and affairs of the corporation shall
be managed by or under the direction of a Board of Directors, who may exercise
all of the powers of the corporation except as otherwise provided by law or the
Certificate of Incorporation. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
2.2 Number and Term of Office. The first Board of Directors, and all
subsequent Boards, shall consist of not less than one (1) and not more than nine
(9) directors. The number of directors shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption). The first Board of Directors
shall hold office until the first annual meeting of stockholders and until the
expiration of the term for which elected and until their respective successors
are elected and qualified, except in the case of the death, resignation or
removal of any director.
2.3 Vacancies and Newly Created Directorships. Subject to the rights of
the holders of any series of Preferred Stock then outstanding, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification or other cause (other than removal from office by a
vote of the stockholders) may be filled only by a majority vote of the directors
then in office, though less than a quorum, or by the sole remaining director,
and directors so chosen shall hold office for a term expiring at the next annual
meeting of stockholders. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
2.4 Resignation. Any director may resign by delivering notice in
writing or by electronic transmission to the President, Chairman of the Board or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
2.5 Removal. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, but only for cause, by the
affirmative vote of the holders of a majority of the voting power of all of the
outstanding shares of capital stock entitled to vote generally in the election
of directors, voting together as a single class. Vacancies in the Board of
Directors resulting from such removal may be filled by a majority of the
directors then in office, though less than a quorum, by the sole remaining
director. Directors so chosen shall hold office until the next annual meeting of
stockholders.
2.6 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.7 Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the President or two or more directors on
two (2) days' notice to each director by mail or forty-eight (48) hours notice
to each director either personally or by telegram and may be held at any time
and place, within or without the State of Delaware.
2.8 Notice of Special Meetings. Notice of any special meeting of
directors shall be given to each director by the Secretary or by the officer or
one of the directors calling the meeting. Notice shall be duly given to each
director by (i) giving notice to such director in person or by telephone,
electronic transmission or voice message system at least twenty-four (24) hours
in advance of the meeting, (ii) sending a facsimile, or delivering written
notice by hand, to his last known business or home address at least twenty-four
(24) hours in advance of the meeting, or (iii) mailing written notice to his
last known business or home address at least three (3) days in advance of the
meeting. Whenever notice is required to be given as provided herein or as
required by law, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. A notice or waiver of notice of a meeting of the
Board of Directors need not specify the purposes of the meeting. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
2.9 Participation in Meetings by Telephone Conference Calls or Other
Methods of Communication. Directors or any members of any committee designated
by the directors may participate in a meeting of the Board of Directors or such
committee by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other, and
participation by such means shall constitute presence in person at such meeting.
2.10 Quorum. A majority of the total number of authorized directors
shall constitute a quorum at any meeting of the Board of Directors. In the event
one or more of the directors shall be disqualified to vote at any meeting, then
the required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than 1/3 of the
number so fixed constitute a quorum. In the absence of a quorum at any such
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice other than announcement at the meeting, until a
quorum shall be present. Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or at a meeting of a
committee which authorizes a particular contract or transaction.
2.11 Action at Meeting. At any meeting of the Board of Directors at
which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law, the
Certificate of Incorporation or these Bylaws.
2.12 Action by Written Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee of the Board
of Directors may be taken without a meeting if all members of the Board or
committee, as the case may be, consent to the action in writing or by electronic
transmission, and the writings or electronic transmissions are filed with the
minutes of proceedings of the Board or committee. Such filing shall be in paper
form if the minutes are maintained in paper form and shall be in electronic form
if the minutes are maintained in electronic form.
2.13 Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
corporation, with such lawfully delegated powers and duties as it therefor
confers, to serve at the pleasure of the Board. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors and subject to the provisions of the
Delaware General Corporation Law, 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. Each such committee shall keep
minutes and make such reports as the Board of Directors may from time to time
request. Except as the Board of Directors may otherwise determine, any committee
may make rules for the conduct of its business, but unless otherwise provided by
such rules, its business shall be conducted as nearly as possible in the same
manner as is provided in these Bylaws for the Board of Directors.
2.14 Compensation of Directors. Directors may be paid such compensation
for their services and such reimbursement for expenses of attendance at meetings
as the Board of Directors may from time to time determine. No such payment shall
preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
2.15 Nomination of Director Candidates.
(a) Subject to the rights of holders of any class or series of
Preferred Stock then outstanding, nominations for the election of Directors at
an annual meeting may be made by (i) the Board of Directors or a duly authorized
committee thereof or (ii) any stockholder entitled to vote in the election of
Directors generally who complies with the procedures set forth in this Bylaw and
who is a stockholder of record at the time notice is delivered to the Secretary
of the corporation. Any stockholder entitled to vote in the election of
Directors generally may nominate one or more persons for election as Directors
at an annual meeting only if timely notice of such stockholder's intent to make
such nomination or nominations has been given in writing to the Secretary of the
corporation and if the stockholder, or the beneficial owner on whose behalf any
such nomination is made, has provided the corporation with a Solicitation
Notice, as that term is defined in subclause (vii) of this paragraph, such
stockholder or beneficial owner must have delivered a proxy statement and form
of proxy to holders of a percentage of the corporation's voting shares
reasonably believed by such stockholder or beneficial holder to be sufficient to
elect the nominee or nominees proposed to be nominated by such stockholder, and
must have included in such materials the Solicitation Notice, and if no
Solicitation Notice relating thereto has been timely provided pursuant to this
section, the stockholder or beneficial owner proposing such nomination must not
have solicited a number of proxies sufficient to have required the delivery of
such a Solicitation Notice under this section. To be timely, a stockholder
nomination for a director to be elected at an annual meeting shall be received
at the corporation's principal executive offices not less than 120 calendar days
in advance of the first anniversary of the date that the corporation's (or the
corporation's predecessor's) proxy statement was released to stockholders in
connection with the previous year's annual meeting of stockholders, except that
if no annual meeting was held in the previous year or the date of the annual
meeting has been advanced by more than thirty (30) calendar days from the date
contemplated at the time of the previous year's proxy statement, notice by the
stockholders to be timely must be received not later than the close of business
on the tenth day following the day on which public announcement of the date of
such meeting is first made. Each such notice shall set forth: (i) the name and
address of the stockholder who intends to make the nomination, of the beneficial
owner, if any, on whose behalf the nomination is being made and of the person or
persons to be nominated; (ii) a representation that the stockholder is a holder
of record of stock of the corporation entitled to vote for the election of
Directors on the date of such notice and intends to appear in person or by proxy
at the meeting to nominate the person or persons specified in the notice; (iii)
a description of all arrangements or understandings between the stockholder or
such beneficial owner and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder; (iv) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; (v) the consent of each nominee to serve as a director of
the corporation if so elected; (vi) the class and number of shares of the
corporation that are owned beneficially and of record by such stockholder and
such beneficial owner; and (vii) whether such stockholder or beneficial owner
intends to deliver a proxy statement and form of proxy to holders of a
sufficient number of holders of the corporation's voting shares to elect such
nominee or nominees (an affirmative statement of such intent being referred to
in this Section 2.15 as a "Solicitation Notice"). In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above. Notwithstanding the third sentence of this Section
2.15(a), in the event that the number of Directors to be elected at an annual
meeting is increased and there is no public announcement by the corporation
naming the nominees for the additional directorships at least 130 days prior to
the first anniversary of the date that the corporation's (or its predecessor's)
proxy statement was released to stockholders in connection with the previous
year's annual meeting, a stockholder's notice required by this Section 2.15(a)
shall also be considered timely, but only with respect to nominees for the
additional directorships, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the corporation.
(b) Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are to be
elected pursuant to the corporation's notice of meeting by (i) or at the
direction of the Board of Directors or a committee thereof or (ii) any
stockholder of the corporation who is entitled to vote at the meeting, who
complies with the notice procedures set forth in this Bylaw and who is a
stockholder of record at the time such notice is delivered to the Secretary of
the corporation. In the event the corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case
may be), for election to such position(s) as are specified in the corporation's
notice of meeting, if the stockholder's notice as required by paragraph (a) of
this Bylaw shall be delivered to the Secretary at the principal executive
offices of the corporation not earlier than the 90th day prior to such special
meeting and not later than the close of business on the later of the 70th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above.
(c) For purposes of these Bylaws, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(d) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
(e) Only persons nominated in accordance with the procedures set
forth in this Section 2.15 shall be eligible to serve as directors. Except as
otherwise provided by law, the chairman of the meeting shall have the power and
duty (a) to determine whether a nomination was made in accordance with the
procedures set forth in this Section 2.15 and (b) if any proposed nomination was
not made in compliance with this Section 2.15, to declare that such nomination
shall be disregarded.
(f) If the chairman of the meeting for the election of Directors
determines that a nomination of any candidate for election as a Director at such
meeting was not made in accordance with the applicable provisions of this
Section 2.15, such nomination shall be void; provided, however, that nothing in
this Section 2.15 shall be deemed to limit any voting rights upon the occurrence
of dividend arrearages provided to holders of Preferred Stock pursuant to the
Preferred Stock designation for any series of Preferred Stock.
ARTICLE III
OFFICERS
3.1 Enumeration. The officers of the corporation shall consist of a
Chief Executive Officer, a President, a Secretary, a Chief Financial Officer, a
Treasurer and such other officers with such other titles as the Board of
Directors shall determine, including, at the discretion of the Board of
Directors, one or more Vice Presidents and Assistant Secretaries. A Chairman of
the Board may also be appointed which may also be an officer position if so
determined by the Board of Directors. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election. Officers shall be elected annually by the Board of
Directors at its first meeting following the annual meeting of stockholders.
Officers may be appointed by the Board of Directors at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more
offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of
Incorporation or by these Bylaws, each officer shall hold office until his
successor is elected and qualified, unless a different term is specified in the
vote appointing him, or until his earlier death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering his
written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event. Any officer elected by the Board of Directors may be removed at any
time, with or without cause, by the Board of Directors.
3.6 Chairman of the Board. The Board of Directors may appoint a
Chairman of the Board. If the Board of Directors appoints a Chairman of the
Board, he shall perform such duties and possess such powers as are assigned to
him by the Board of Directors. Unless otherwise provided by the Board of
Directors, he shall preside at all meetings of the stockholders, and, if he is a
director, at all meetings of the Board of Directors.
3.7 President. The President shall, subject to the direction of the
Board of Directors, have responsibility for the general management and control
of the business and affairs of the corporation and shall perform all duties and
have all powers which are commonly incident to the office of President or which
are delegated to him or her by the Board of Directors. Unless otherwise
designated by the Board of Directors, the President shall be the Chief Executive
Officer of the corporation. The President shall, in the absence of or because of
the inability to act of the Chairman of the Board, perform all duties of the
Chairman of the Board and preside at all meetings of the Board of Directors and
of stockholders. The President shall perform such other duties and shall have
such other powers as the Board of Directors may from time to time prescribe. He
or she shall have power to sign stock certificates, contracts and other
instruments of the corporation which are authorized and shall have general
supervision and direction of all of the other officers, employees and agents of
the corporation, other than the Chairman of the Board.
3.8 Vice Presidents. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from time to
time prescribe. In the event of the absence, inability or refusal to act of the
President, the Vice President (or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors) shall perform the
duties of the President and when so performing shall have at the powers of and
be subject to all the restrictions upon the President. The Board of Directors
may assign to any Vice President the title of Executive Vice President, Senior
Vice President or any other title selected by the Board of Directors.
3.9 Secretary and Assistant Secretaries. The Secretary shall perform
such duties and shall have such powers as the Board of Directors or the
President may from time to time prescribe. In addition, the Secretary shall
perform such duties and have such powers as are incident to the office of the
Secretary, including, without limitation, the duty and power to give notices of
all meetings of stockholders and special meetings of the Board of Directors, to
keep a record of the proceedings of all meetings of stockholders and the Board
of Directors, to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such
powers as the Board of Directors, the Chief Executive Officer, the President or
the Secretary may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Secretary, the Assistant Secretary (or if
there shall be more than one, the Assistant Secretaries in the order determined
by the Board of Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary at any
meeting of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.10 Chief Financial Officer. Unless otherwise designated by the Board of
Directors, the Chief Financial Officer shall be the Treasurer. The Chief
Financial Officer shall perform such duties and shall have such powers as may
from time to time be assigned to him by the Board of Directors, the Chief
Executive Officer or the President. In addition, the Chief Financial Officer
shall perform such duties and have such powers as are incident to the office of
chief financial officer, including without limitation, the duty and power to
keep and be responsible for all funds and securities of the corporation, to
maintain the financial records of the corporation, to deposit funds of the
corporation in depositories as authorized, to disburse such funds as authorized,
to make proper accounts of such funds, and to render as required by the Board of
Directors accounts of all such transactions and of the financial condition of
the corporation.
3.11 Salaries. Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
3.12 Delegation of Authority. The Board of Directors may from time to
time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
ARTICLE IV
CAPITAL STOCK
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
4.2 Certificates of Stock. Every holder of stock of the corporation
shall be entitled to have a certificate, in such form as may be prescribed by
law and by the Board of Directors, certifying the number and class of shares
owned by him in the corporation. Each such certificate shall be signed by, or in
the name of the corporation by, the Chairman or Vice Chairman, if any, of the
Board of Directors, or the President or a Vice President, and the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the
Bylaws, applicable securities laws or any agreement among any number of
shareholders or among such holders and the corporation shall have conspicuously
noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
4.3 Transfers. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to the
corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or authenticity of signature
as the corporation or its transfer agent may reasonably require. Except as may
be otherwise required by law, the Certificate of Incorporation or the Bylaws,
the corporation shall be entitled to treat the record holder of stock as shown
on its books as the owner of such stock for all purposes, including the payment
of dividends and the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the shares have been
transferred on the books of the corporation in accordance with the requirements
of these Bylaws.
4.4 Fractional Shares. Notwithstanding anything else in these Bylaws,
the Corporation, if the Directors so resolve, will not be required to issue
fractional shares in connection with an amalgamation, consolidation, exchange or
conversion. At the discretion of the Directors, fractional interests in shares
may be rounded to the nearest whole number, with fractions of 1/2 being rounded
to the next highest whole number, or may be purchased for cancellation by the
Corporation for such consideration as the Directors determine. The Directors may
determine the manner in which fractional interests in shares are to be
transferred and delivered to the Corporation in exchange for consideration and a
determination so made is binding upon all shareholders of the Corporation. In
case shareholders having fractional interests in shares fail to deliver them to
the Corporation in accordance with a determination made by the Directors, the
Corporation may deposit with the Corporation's Registrar and Transfer Agent a
sum sufficient to pay the consideration payable by the Corporation for the
fractional interests in shares, such deposit to be set aside in trust for such
shareholders. Such setting aside is deemed to be payment to such shareholders
for the fractional interests in shares not so delivered which will thereupon not
be considered as outstanding and such shareholders will not be considered to be
shareholders of the Corporation with respect thereto and will have no right
except to receive payment of the money so set aside and deposited upon delivery
of the certificates for the shares held prior to the amalgamation,
consolidation, exchange or conversion which result in fractional interests in
shares.
4.5 Lost, Stolen or Destroyed Certificates. The corporation may issue a
new certificate of stock in place of any previously issued certificate alleged
to have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation or any
transfer agent or registrar.
4.6 Record Date. The Board of Directors may fix in advance a record
date for the determination of the stockholders entitled to notice of or to vote
at any meeting of stockholders or to express consent (or dissent) to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, concession or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior
to any other action to which such record date relates.
If no record date is fixed, 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 day before the day on which notice is given,
or, if notice is waived, at the close of business on the day before the day on
which the meeting is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a meeting when no
prior action by the Board of Directors is necessary, shall be the day on which
the first written consent is expressed. The record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating to such purpose.
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;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE V
GENERAL PROVISIONS
5.1 Fiscal Year. The fiscal year of the corporation shall be as fixed,
and shall be subject to change, by the Board of Directors from time to time,
subject to applicable law by the Board of Directors.
5.2 Corporate Seal. The corporate seal shall be in such form as shall
be approved by the Board of Directors.
5.3 Waiver of Notice. Whenever any notice whatsoever is required to be
given by law, by the Certificate of Incorporation or by these Bylaws, a waiver
of such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by electronic transmission or any
other method permitted under the Delaware General Corporation Law, whether
before, at or after the time stated in such waiver, or the appearance of such
person or persons at such meeting in person or by proxy, shall be deemed
equivalent to such notice.
5.4 Actions with Respect to Securities of Other Corporations. Except as
the Board of Directors may otherwise designate, the Chief Executive Officer or
President or any officer of the corporation authorized by the Chief Executive
Officer or President shall have the power to vote and otherwise act on behalf of
the corporation, in person or proxy, and may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-fact to this
corporation (with or without power of substitution) at any meeting of
stockholders or shareholders (or with respect to any action of stockholders) of
any other corporation or organization, the securities of which may be held by
this corporation and otherwise to exercise any and all rights and powers which
this corporation may possess by reason of this corporation's ownership of
securities in such other corporation or other organization.
5.5 Evidence of Authority. A certificate by the Secretary, or an
Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith be
conclusive evidence of such action.
5.6 Certificate of Incorporation. All references in these Bylaws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
5.7 Severability. Any determination that any provision of these Bylaws
is for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these Bylaws.
5.8 Pronouns. All pronouns used in these Bylaws shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person or persons may require.
5.9 Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or by sending such notice by facsimile or
other electronic transmission in the manner provided in Section 232 of the
Delaware General Corporation Law, or by commercial courier service. Any such
notice shall be addressed to such stockholder, director, officer, employee or
agent at his or her last known address as the same appears on the books of the
corporation. The time when such notice shall be deemed to be given shall be the
time such notice is received by such stockholder, director, officer, employee or
agent, or by any person accepting such notice on behalf of such person, if
delivered by hand, facsimile, other electronic transmission or commercial
courier service, or the time such notice is dispatched, if delivered through the
mails.
5.10 Reliance Upon Books, Reports and Records. Each director, each
member of any committee designated by the Board of Directors, and each officer
of the corporation shall, in the performance of his duties, be fully protected
in relying in good faith upon the books of account or other records of the
corporation, including reports made to the corporation by any of its officers,
by an independent certified public accountant, or by an appraiser selected with
reasonable care.
5.11 Time Periods. In applying any provision of these Bylaws which
require that an act be done or not done a specified number of days prior to an
event or that an act be done during a period of a specified number of days prior
to an event, calendar days shall be used, the day of the doing of the act shall
be excluded, and the day of the event shall be included.
5.12 Facsimile Signatures. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
ARTICLE VI
AMENDMENTS
6.1 By the Board of Directors. Except as is otherwise set forth in
these Bylaws, these Bylaws may be altered, amended or repealed or new Bylaws may
be adopted by the affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a quorum is
present.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
7.1 Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director or officer of the
corporation or is or was serving at the request of the corporation as a director
or officer of another corporation, or as a controlling person of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director or officer, or in any other capacity while
serving as a director or officer, shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the corporation
to provide broader indemnification rights than said Law permitted the
corporation to provide prior to such amendment) against all expenses, liability
and loss reasonably incurred or suffered by such person in connection therewith
and such indemnification shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
Section 7.2 of this Article VII, the corporation shall indemnify any such person
seeking indemnity in connection with a proceeding (or part thereof) initiated by
such person only if (a) such indemnification is expressly required to be made by
law, (b) the proceeding (or part thereof) was authorized by the Board of
Directors of the corporation, (c) such indemnification is provided by the
corporation, in its sole discretion, pursuant to the powers vested in the
corporation under the Delaware General Corporation Law, or (d) the proceeding
(or part thereof) is brought to establish or enforce a right to indemnification
under an indemnity agreement or any other statute or law or otherwise as
required under Section 145 of the Delaware General Corporation Law. The rights
hereunder shall be contract rights and shall include the right to be paid
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, unless the Delaware General Corporation
Law then so prohibits, the payment of such expenses incurred by a director or
officer of the corporation in his or her capacity as a director or officer (and
not in any other capacity in which service was or is tendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of such proceeding,
shall be made only upon delivery to the corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
should be determined ultimately that such director or officer is not entitled to
be indemnified under this Section or otherwise.
7.2 Right of Claimant to Bring Suit. If a claim under Section 7.1 is
not paid in full by the corporation within ninety (90) days after a written
claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim and, if such suit is not frivolous or brought in bad faith, the
claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any, has been tendered
to this corporation) that the claimant has not met the standards of conduct
which make it permissible under the Delaware General Corporation Law for the
corporation to indemnify the claimant for the amount claimed. Neither the
failure of the corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the corporation (including its Board of Directors, independent legal counsel
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
has not met the applicable standard of conduct.
7.3 Indemnification of Employees and Agents. The corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and to the advancement of related expenses, to any employee
or agent of the corporation to the fullest extent of the provisions of this
Article with respect to the indemnification of and advancement of expenses to
directors and officers of the corporation.
7.4 Non-Exclusivity of Rights. The rights conferred on any person in
Sections 7.1 and 7.2 shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
7.5 Indemnification Contracts. The Board of Directors is authorized to
enter into a contract with any director, officer, employee or agent of the
corporation, or any person serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including employee benefit plans, providing
for indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article VII.
7.6 Insurance. The corporation may maintain insurance to the extent
reasonably available, at its expense, to protect itself and any such director,
officer, employee or agent of the corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
7.7 Effect of Amendment. Any amendment, repeal or modification of any
provision of this Article VII by the stockholders and the directors of the
corporation shall not adversely affect any right or protection of a director or
officer of the corporation existing at the time of such amendment, repeal or
modification.
CERTIFICATE OF SECRETARY
OF
MMC ENERGY, INC.
(a Delaware corporation)
I, Denis Gagnon, the Secretary of MMC Energy, Inc., a Delaware
corporation (the "Corporation"), hereby certify that the Bylaws to which this
Certificate is attached are the Bylaws of the Corporation.
Executed effective on the ____ day of __________, 2006.
---------------------------
Denis Gagnon, Secretary
APPENDIX D
RIGHTS OF DISSENTING OWNERS
NRS 92A.300 DEFINITIONS. As used in NRS 92A.300 to 92A.500, inclusive,
unless the context otherwise requires, the words and terms defined in NRS
92A.305 to 92A.335, inclusive, have the meanings ascribed to them in those
sections.
NRS 92A.305 "BENEFICIAL STOCKHOLDER" DEFINED. "Beneficial stockholder"
means a person who is a beneficial owner of shares held in a voting trust or by
a nominee as the stockholder of record.
NRS 92A.310 "CORPORATE ACTION" DEFINED. "Corporate action" means the
action of a domestic corporation.
NRS 92A.315 "DISSENTER" DEFINED. "Dissenter" means a stockholder who is
entitled to dissent from a domestic corporation's action under NRS 92A.380 and
who exercises that right when and in the manner required by NRS 92A.400 to
92A.480, inclusive.
NRS 92A.320 "FAIR VALUE" DEFINED. "Fair value," with respect to a
dissenter's shares, means the value of the shares immediately before the
effectuation of the corporate action to which he objects, excluding any
appreciation or depreciation in anticipation of the corporate action unless
exclusion would be inequitable.
NRS 92A.325 "STOCKHOLDER" DEFINED. "Stockholder" means a stockholder of
record or a beneficial stockholder of a domestic corporation.
NRS 92A.330 "STOCKHOLDER OF RECORD" DEFINED. "Stockholder of record" means
the person in whose name shares are registered in the records of a domestic
corporation or the beneficial owner of shares to the extent of the rights
granted by a nominee's certificate on file with the domestic corporation.
NRS 92A.335 "SUBJECT CORPORATION" DEFINED. "Subject corporation" means the
domestic corporation which is the issuer of the shares held by a dissenter
before the corporate action creating the dissenter's rights becomes effective or
the surviving or acquiring entity of that issuer after the corporate action
becomes effective.
NRS 92A.340 COMPUTATION OF INTEREST. Interest payable pursuant to NRS
92A.300 to 92A.500, inclusive, must be computed from the effective date of the
action until the date of payment, at the average rate currently paid by the
entity on its principal bank loans or, if it has no bank loans, at a rate that
is fair and equitable under all of the circumstances.
NRS 92A.350 RIGHTS OF DISSENTING PARTNER OF DOMESTIC LIMITED PARTNERSHIP.
A partnership agreement of a domestic limited partnership or, unless otherwise
provided in the partnership agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the partnership interest of a
dissenting general or limited partner of a domestic limited partnership are
available for any class or group of partnership interests in connection with any
merger or exchange in which the domestic limited partnership is a constituent
entity.
NRS 92A.360 RIGHTS OF DISSENTING MEMBER OF DOMESTIC LIMITED-LIABILITY
COMPANY. The articles of organization or operating agreement of a domestic
limited-liability company or, unless otherwise provided in the articles of
organization or operating agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the interest of a dissenting
member are available in connection with any merger or exchange in which the
domestic limited-liability company is a constituent entity.
NRS 92A.370 RIGHTS OF DISSENTING MEMBER OF DOMESTIC NONPROFIT CORPORATION.
1. Except as otherwise provided in subsection 2, and unless otherwise
provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice,
but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his resignation
and is thereby entitled to those rights, if any, which would have existed if
there had been no merger and the membership had been terminated or the member
had been expelled.
2. Unless otherwise provided in its articles of incorporation or bylaws,
no member of a domestic nonprofit corporation, including, but not limited to, a
cooperative corporation, which supplies services described in chapter 704 of NRS
to its members only, and no person who is a member of a domestic nonprofit
corporation as a condition of or by reason of the ownership of an interest in
real property, may resign and dissent pursuant to subsection 1.
NRS 92A.380 RIGHT OF STOCKHOLDER TO DISSENT FROM CERTAIN CORPORATE ACTIONS
AND TO OBTAIN PAYMENT FOR SHARES.
1. Except as otherwise provided in NRS 92A.370 and 92A.390, any
stockholder is entitled to dissent from, and obtain payment of the fair value of
his shares in the event of any of the following corporate actions:
(a) Consummation of a conversion or plan of merger to which the domestic
corporation is a constituent entity:
(1) If approval by the stockholders is required for the conversion
or merger by NRS 92A.120 to 92A.160, inclusive, or the articles of
incorporation, regardless of whether the stockholder is entitled to vote on the
conversion or plan of merger; or
(2) If the domestic corporation is a subsidiary and is merged with
its parent pursuant to NRS.
92A.180.
(b) Consummation of a plan of exchange to which the domestic corporation
is a constituent entity as the corporation whose subject owner's interests will
be acquired, if his shares are to be acquired in the plan of exchange.
(c) Any corporate action taken pursuant to a vote of the stockholders to
the extent that the articles of incorporation, bylaws or a resolution of the
board of directors provides that voting or nonvoting stockholders are entitled
to dissent and obtain payment for their shares.
(d) Any corporate action not described in paragraph (a), (b) or (c) that
will result in the stockholder receiving money or scrip instead of fractional
shares.
2. A stockholder who is entitled to dissent and obtain payment pursuant to
NRS 92A.300 to 92A.500, inclusive, may not challenge the corporate action
creating his entitlement unless the action is unlawful or fraudulent with
respect to him or the domestic corporation.
NRS 92A.390 LIMITATIONS ON RIGHT OF DISSENT: STOCKHOLDERS OF CERTAIN
CLASSES OR SERIES; ACTION OF STOCKHOLDERS NOT REQUIRED FOR PLAN OF MERGER.
1. There is no right of dissent with respect to a plan of merger or
exchange in favor of stockholders of any class or series which, at the record
date fixed to determine the stockholders entitled to receive notice of and to
vote at the meeting at which the plan of merger or exchange is to be acted on,
were either listed on a national securities exchange, included in the national
market system by the National Association of Securities Dealers, Inc., or held
by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the shares
provide otherwise; or
(b) The holders of the class or series are required under the plan of
merger or exchange to accept for the shares anything except:
(1) Cash, owner's interests or owner's interests and cash in lieu
of fractional owner's interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of the plan
of merger or exchange, were either listed on a national securities exchange,
included in the national market system by the National Association of Securities
Dealers, Inc., or held of record by a least 2,000 holders of owner's interests
of record; or
(2) A combination of cash and owner's interests of the kind
described in sub-subparagraphs (I) and (II) of subparagraph (1) of paragraph
(b).
2. There is no right of dissent for any holders of stock of the surviving
domestic corporation if the plan of merger does not require action of the
stockholders of the surviving domestic corporation under NRS 92A.130.
NRS 92A.400 LIMITATIONS ON RIGHT OF DISSENT: ASSERTION AS TO PORTIONS ONLY
TO SHARES REGISTERED TO STOCKHOLDER; ASSERTION BY BENEFICIAL STOCKHOLDER.
1. A stockholder of record may assert dissenter's rights as to fewer than
all of the shares registered in his name only if he dissents with respect to all
shares beneficially owned by any one person and notifies the subject corporation
in writing of the name and address of each person on whose behalf he asserts
dissenter's rights. The rights of a partial dissenter under this subsection are
determined as if the shares as to which he dissents and his other shares were
registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter's rights as to shares
held on his behalf only if:
(a) He submits to the subject corporation the written consent of the
stockholder of record to the dissent not later than the time the beneficial
stockholder asserts dissenter's rights; and
(b) He does so with respect to all shares of which he is the beneficial
stockholder or over which he has power to direct the vote.
NRS 92A.410 NOTIFICATION OF STOCKHOLDERS REGARDING RIGHT OF DISSENT.
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, the notice of the meeting must state that
stockholders are or may be entitled to assert dissenters' rights under NRS
92A.300 to 92A.500, inclusive, and be accompanied by a copy of those sections.
2. If the corporate action creating dissenters' rights is taken by written
consent of the stockholders or without a vote of the stockholders, the domestic
corporation shall notify in writing all stockholders entitled to assert
dissenters' rights that the action was taken and send them the dissenter's
notice described in NRS 92A.430.
NRS 92A.420 PREREQUISITES TO DEMAND FOR PAYMENT FOR SHARES.
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, a stockholder who wishes to assert
dissenter's rights:
(a) Must deliver to the subject corporation, before the vote is taken,
written notice of his intent to demand payment for his shares if the proposed
action is effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. If a proposed corporate action creating dissenters' rights is taken by
written consent of the stockholders, a stockholder who wishes to assert
dissenters' rights must not consent to or approve the proposed corporate action.
3. A stockholder who does not satisfy the requirements of subsection 1 or
2 and NRS 92A.400 is not entitled to payment for his shares under this chapter.
NRS 92A.430 DISSENTER'S NOTICE: DELIVERY TO STOCKHOLDERS ENTITLED TO
ASSERT RIGHTS; CONTENTS.
1. The subject corporation shall deliver a written dissenter's notice to
all stockholders entitled to assert dissenters' rights.
2. The dissenter's notice must be sent no later than 10 days after the
effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where and when
certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates to what
extent the transfer of the shares will be restricted after the demand for
payment is received;
(c) Supply a form for demanding payment that includes the date of the
first announcement to the news media or to the stockholders of the terms of the
proposed action and requires that the person asserting dissenter's rights
certify whether or not he acquired beneficial ownership of the shares before
that date;
(d) Set a date by which the subject corporation must receive the demand
for payment, which may not be less than 30 nor more than 60 days after the date
the notice is delivered; and
(e) Be accompanied by a copy of NRS 92A.300 to 92A.500, inclusive.
NRS 92A.440 DEMAND FOR PAYMENT AND DEPOSIT OF CERTIFICATES; RETENTION OF
RIGHTS OF STOCKHOLDER.
1. A stockholder to whom a dissenter's notice is sent must:
(a) Demand payment;
(b) Certify whether he or the beneficial owner on whose behalf he is
dissenting, as the case may be, acquired beneficial ownership of the shares
before the date required to be set forth in the dissenter's notice for this
certification; and
(c) Deposit his certificates, if any, in accordance with the terms of the
notice.
2. The stockholder who demands payment and deposits his certificates, if
any, before the proposed corporate action is taken retains all other rights of a
stockholder until those rights are cancelled or modified by the taking of the
proposed corporate action.
3. The stockholder who does not demand payment or deposit his certificates
where required, each by the date set forth in the dissenter's notice, is not
entitled to payment for his shares under this chapter.
NRS 92A.450 UNCERTIFICATED SHARES: AUTHORITY TO RESTRICT TRANSFER AFTER
DEMAND FOR PAYMENT; RETENTION OF RIGHTS OF STOCKHOLDER.
1. The subject corporation may restrict the transfer of shares not
represented by a certificate from the date the demand for their payment is
received.
2. The person for whom dissenter's rights are asserted as to shares not
represented by a certificate retains all other rights of a stockholder until
those rights are cancelled or modified by the taking of the proposed corporate
action.
NRS 92A.460 PAYMENT FOR SHARES: GENERAL REQUIREMENTS.
1. Except as otherwise provided in NRS 92A.470, within 30 days after
receipt of a demand for payment, the subject corporation shall pay each
dissenter who complied with NRS 92A.440 the amount the subject corporation
estimates to be the fair value of his shares, plus accrued interest. The
obligation of the subject corporation under this subsection may be enforced by
the district court:
(a) Of the county where the corporation's registered office is located; or
(b) At the election of any dissenter residing or having its registered
office in this State, of the county where the dissenter resides or has its
registered office. The court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation's balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, a statement of income
for that year, a statement of changes in the stockholders' equity for that year
and the latest available interim financial statements, if any;
(b) A statement of the subject corporation's estimate of the fair value of
the shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter's rights to demand payment under NRS
92A.480; and
(e) A copy of NRS 92A.300 to 92A.500, inclusive.
NRS 92A.470 PAYMENT FOR SHARES: SHARES ACQUIRED ON OR AFTER DATE OF
DISSENTER'S NOTICE.
1. A subject corporation may elect to withhold payment from a dissenter
unless he was the beneficial owner of the shares before the date set forth in
the dissenter's notice as the date of the first announcement to the news media
or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment, after
taking the proposed action, it shall estimate the fair value of the shares, plus
accrued interest, and shall offer to pay this amount to each dissenter who
agrees to accept it in full satisfaction of his demand. The subject corporation
shall send with its offer a statement of its estimate of the fair value of the
shares, an explanation of how the interest was calculated, and a statement of
the dissenters' right to demand payment pursuant to NRS 92A.480.
NRS 92A.480 DISSENTER'S ESTIMATE OF FAIR VALUE: NOTIFICATION OF SUBJECT
CORPORATION; DEMAND FOR PAYMENT OF ESTIMATE.
1. A dissenter may notify the subject corporation in writing of his own
estimate of the fair value of his shares and the amount of interest due, and
demand payment of his estimate, less any payment pursuant to NRS 92A.460, or
reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of
his shares and interest due, if he believes that the amount paid pursuant to NRS
92A.460 or offered pursuant to NRS 92A.470 is less than the fair value of his
shares or that the interest due is incorrectly calculated.
2. A dissenter waives his right to demand payment pursuant to this section
unless he notifies the subject corporation of his demand in writing within 30
days after the subject corporation made or offered payment for his shares.
NRS 92A.490 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: DUTIES OF SUBJECT
CORPORATION; POWERS OF COURT; RIGHTS OF DISSENTER.
1. If a demand for payment remains unsettled, the subject corporation
shall commence a proceeding within 60 days after receiving the demand and
petition the court to determine the fair value of the shares and accrued
interest. If the subject corporation does not commence the proceeding within the
60-day period, it shall pay each dissenter whose demand remains unsettled the
amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its registered office is located. If the subject
corporation is a foreign entity without a resident agent in the State, it shall
commence the proceeding in the county where the registered office of the
domestic corporation merged with or whose shares were acquired by the foreign
entity was located.
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the proceeding
as in an action against their shares. All parties must be served with a copy of
the petition. Nonresidents may be served by registered or certified mail or by
publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced
under subsection 2 is plenary and exclusive. The court may appoint one or more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value. The appraisers have the powers described in the order
appointing them, or any amendment thereto. The dissenters are entitled to the
same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a
judgment:
(a) For the amount, if any, by which the court finds the fair value of his
shares, plus interest, exceeds the amount paid by the subject corporation; or
(b) For the fair value, plus accrued interest, of his after-acquired
shares for which the subject corporation elected to withhold payment pursuant to
NRS 92A.470.
NRS 92A.500 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: ASSESSMENT OF COSTS
AND FEES.
1. The court in a proceeding to determine fair value shall determine all
of the costs of the proceeding, including the reasonable compensation and
expenses of any appraisers appointed by the court. The court shall assess the
costs against the subject corporation, except that the court may assess costs
against all or some of the dissenters, in amounts the court finds equitable, to
the extent the court finds the dissenters acted arbitrarily, vexatiously or not
in good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and
experts for the respective parties, in amounts the court finds equitable:
(a) Against the subject corporation and in favor of all dissenters if the
court finds the subject corporation did not substantially comply with the
requirements of NRS 92A.300 to 92A.500, inclusive; or
(b) Against either the subject corporation or a dissenter in favor of any
other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously or not in good faith with
respect to the rights provided by NRS 92A.300 to 92A.500, inclusive.
3. If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the fees
for those services should not be assessed against the subject corporation, the
court may award to those counsel reasonable fees to be paid out of the amounts
awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS 92A.460, the court may assess
the costs against the subject corporation, except that the court may assess
costs against all or some of the dissenters who are parties to the proceeding,
in amounts the court finds equitable, to the extent the court finds that such
parties did not act in good faith in instituting the proceeding.
5. This section does not preclude any party in a proceeding commenced
pursuant to NRS 92A.460 or 92A.490 from applying the provisions of N.R.C.P. 68
or NRS 17.115.