EXHIBIT 99.1
WE SELL FOR U CORP.
580 St. Kilda Road - Level 8
Melbourne, Victoria 3004
Australia
NOTICE OF ACTION TAKEN BY WRITTEN CONSENT OF HOLDERS
OF A MAJORITY OF THE
VOTING POWER OF THE COMPANY'S CAPITAL STOCK
To our Shareholders:
Notice is hereby given to the shareholders of We Sell For U Corp., a
Florida corporation ("WSFU," the "Company," "we," "us" or "our"), that the
holders of a majority of the voting power of our outstanding capital stock
entitled to vote thereon have approved the merger of the Company with and into
its wholly-owned Delaware subsidiary, ProIndia International Inc. ("ProIndia")
(formerly known as ProEnergy International Inc.) for the purpose (the
"Reincorporation") of changing the Company's state of domicile from Florida to
Delaware. In connection with the Reincorporation, our corporate name will be
changed to ProIndia International Inc. and the number of authorized shares of
capital stock will be increased to five hundred twenty million (520,000,000)
shares, of which five hundred million (500,000,000) shares shall be Common Stock
and twenty million (20,000,000) shares shall be Preferred Stock, each with a par
value of $.0001 per share. Except as otherwise required by statute, the
designations and the powers, preferences and rights, and the qualifications or
restrictions thereof, of any class or classes of stock or any series of any
class of stock of the Company may be determined from time to time by resolution
or resolutions of the Board of Directors. A copy of the proposed form of Merger
Agreement is included as Annex A to this Information Statement.
Our sole Director has unanimously approved the Reincorporation, and as
permitted by Florida law, we have received the written consent of the holder of
a majority of our outstanding capital stock entitled to vote thereon approving
the Reincorporation.
ACCORDINGLY, WE ARE NOT ASKING FOR A PROXY AND YOU ARE REQUESTED NOT TO
SEND US A PROXY. NO PROXY CARD HAS BEEN ENCLOSED WITH THIS INFORMATION STATEMENT
AND NO SHAREHOLDERS MEETING WILL BE HELD TO CONSIDER THE REINCORPORATION.
Pursuant to the terms of the Merger Agreement, the Reincorporation will
not become effective until at least 20 calendar days following the date of
mailing of this Information Statement to our shareholders.
WE SELL FOR U CORP.
By: __________________________
Joseph I. Gutnick
President and Chief Executive
Officer
6
EXHIBIT 99.1
General
- -------
The Company, a Florida corporation, proposes to reincorporate as a
Delaware corporation. The reincorporation will be effected pursuant to an
Agreement and Plan of Merger (the "Merger Agreement") by and between the Company
and ProIndia International Inc., a Delaware corporation and a wholly-owned
subsidiary of the Company ("ProIndia"), that was formed for the purpose of
merging with the Company to effect the reincorporation (the "Reincorporation").
The Company's sole director has approved the Merger Agreement and the
Reincorporation and, as permitted by Florida law, we have received the written
consent of the holder of a majority of our outstanding capital stock entitled to
vote thereon approving the Reincorporation.
The Merger Agreement, the Delaware certificate of incorporation of
ProIndia (the "Delaware Certificate") and the Delaware bylaws of ProIndia (the
"Delaware Bylaws") are included as Annexes A, B and C, respectively, to this
Notice.
Principal Reasons for the Reincorporation
- -----------------------------------------
For many years, Delaware has followed a policy of encouraging
incorporation in Delaware and, in furtherance of that policy, has been the
leader in adopting, construing, and implementing comprehensive, flexible
corporate laws that are responsive to the legal and business needs of the
corporations organized under the General Corporation Law of the State of
Delaware (the "DGCL"). Delaware has established progressive principles of
corporate governance that the Company could draw upon when making business and
legal decisions. The direct benefit that Delaware law provides to corporations
indirectly benefits the shareholders, since they are the owners of the
corporations, and because Delaware law is responsive to the needs of
shareholders, Delaware law also directly benefits shareholders.
Many corporations choose to incorporate in Delaware or choose to reincorporate
in Delaware, as the Company now proposes to do, in order to take advantage of
Delaware's flexible and responsive corporate laws. The Company believes that the
Company itself and its shareholders would benefit from the flexible corporate
and legal environment provided by Delaware law.
The Company believes that, as a Delaware corporation, it will be better
able to attract and retain qualified directors and officers than it is as a
Florida corporation, in part, because Delaware law is more predictable with
respect to the issue of liability of directors and officers than the law of
Florida or other states.
ProIndia
- --------
The Company has formed ProIndia as a wholly-owned Delaware subsidiary
exclusively for the purpose of merging with the Company to effect the
Reincorporation. The address and phone number of ProIndia's principal office
will be the same as the Company's current address and phone number. Before the
reincorporation, ProIndia will have no material assets or liabilities and will
7
EXHIBIT 99.1
not have carried on any business. Upon completion of the reincorporation, the
rights of the shareholders of ProIndia will be governed by the DGCL and the
Delaware Certificate and the Delaware Bylaws of ProIndia.
In connection with the Reincorporation, our corporate name will be
changed to ProIndia International Inc. and the number of authorized shares of
capital stock will be increased to five hundred twenty million (520,000,000)
shares, of which five hundred million (500,000,000) shares shall be Common Stock
and twenty million (20,000,000) shares shall be Preferred Stock, each with a par
value of $.0001 per share. Except as otherwise required by statute, the
designations and the powers, preferences and rights, and the qualifications or
restrictions thereof, of any class or classes of stock or any series of any
class of stock of the Company may be determined from time to time by resolution
or resolutions of the Board of Directors.
Some Implications of the Reincorporation
- ----------------------------------------
The Merger Agreement provides that the Company will merge with and into
ProIndia, with ProIndia being the surviving corporation. Under the Merger
Agreement, ProIndia will assume all of the Company's assets and liabilities,
including obligations under the Company's outstanding indebtedness and
contracts, and the Company will cease to exist as a corporate entity. The
Company's existing sole director and officers will become the sole director and
officers of ProIndia.
At the effective time of the Reincorporation, (i) each outstanding
share of the Company 's Common Stock, $.0001 par value, automatically will be
converted into one share of Common Stock of ProIndia, $.0001 par value.
Shareholders will not have to exchange their existing stock certificates for
stock certificates of ProIndia. Upon request, we will issue new certificates to
anyone who holds the Company's stock certificates, provided that such holder has
surrendered the certificates representing the Company's shares in accordance
with the Merger Agreement. Any request for new certificates will be subject to
normal requirements including proper endorsement, signature guarantee, if
required, and payment of any applicable taxes and fees.
Shareholders whose shares of Common Stock were freely tradable before
the reincorporation will own shares of ProIndia that are freely tradable after
the reincorporation. Similarly, any shareholders holding securities with
transfer restrictions before the reincorporation will hold shares of ProIndia
that have the same transfer restrictions after the reincorporation.
Following the Reincorporation, the securities of the Surviving
Corporation will be registered under Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") by virtue of Rule 12g-3 of the
Exchange Act.
After the reincorporation, ProIndia will continue to be a publicly held
corporation, with its common stock trading on the Over the Counter Bulletin
Board ("OTCBB"). The trading symbol for ProIndia will be revised to reflect the
change of corporate name.
Accounting Treatment
- --------------------
The Reincorporation would be accounted for as a reverse merger under
which, for accounting purposes, the Company would be considered the acquirer and
the surviving corporation and ProIndia would be treated as the successor to the
8
EXHIBIT 99.1
Company's historical operations. Accordingly, the Company's historical financial
statements would be treated as the financial statements of ProIndia.
Rights of Dissenting Shareholders
- ---------------------------------
Shareholders complying with Sections 607.1301, 607.1302, 607.1303,
607.1320, 607.1321, 607.1323, 607.1324 and 607.1326 of the Florida Business
Corporation Act, which we will refer to as the "Florida statute" in this section
are entitled to appraisal rights in connection with the reincorporation merger.
Copies of these provisions of the Florida statute are attached hereto as Annex D
to this Notice.
Section 607.1302 of the Florida statute provides that a shareholder is
entitled to appraisal rights and to obtain payment of the fair value of that
shareholder's shares in the event of, among other things, consummation of a
merger to which the shareholder is entitled to vote.
Under Section 607.1321 of the Florida statute, if a shareholder wishes
to assert appraisal rights in connection with the Reincorporation, he or she
must deliver to us, within 20 days after receiving notice from us that they may
be entitled to such rights, written notice of the shareholder's intent to demand
payment if the Reincorporation is completed.
If the Reincorporation becomes effective, we must deliver a written
appraisal notice and form, together with financial statements, to all
shareholders who satisfied the requirements of Section 607.1321 of the Florida
statute, specifying the date the corporate action became effective. The form
must state, among other things:
o where the form must be sent;
o where certificates must be deposited and the date by which those
certificates must be deposited;
o a date by which we must receive the completed form;
o an estimate of the fair value of the shares and an offer to pay
each stockholder who is entitled to appraisal rights the fair
value.
A shareholder who wishes to exercise appraisal rights must return the
form by the date specified in the notice. Alternatively, a shareholder who is
dissatisfied with our offer of estimated fair value as set forth in the notice
must notify us of his or her estimate of the fair value of shares by the due
date for the form and demand payment of that estimate plus interest. Failure to
return the form and, if applicable, share certificates, or notify us of his or
her estimate of fair value by the due date will cause the shareholder to waive
the right to demand payment.
A shareholder may withdraw its exercise of appraisal rights by
notifying us, in writing, by the date designated in the appraisal notice. A
shareholder who fails to withdraw in this manner may not thereafter withdraw
without our written consent. If the shareholder accepts our offer for payment of
the estimated fair value for the shares, payment will be made within 90 days
after our receipt of the form.
9
EXHIBIT 99.1
The costs and expenses of any dissent proceeding will be determined by
the court and will ordinarily be assessed against us, but costs and expenses may
be assessed against all or some of the dissenting shareholders, in such amounts
as the court deems equitable, to the extent the court finds such dissenting
shareholders acted "arbitrarily, vexatiously or not in good faith" in demanding
payment after receiving an offer of payment from us. The court may also assess
the reasonable fees and expenses of counsel and experts for the respective
parties, in amounts the court finds equitable:
o against us and in favor of any or all dissenting shareholders if
the court finds that we did not substantially comply with the
relevant requirements of Florida law; or
o against us or a dissenting shareholder, 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 the Florida
law.
o If the court finds that the services of counsel for any
dissenting shareholder were of substantial benefit to the other
dissenting shareholders similarly situated, and that the fees for
the services should not be assessed against us, the court may
award such counsel reasonable fees to be paid out of the amounts
awarded to dissenting shareholders who were benefited.
The above is only a summary of Florida's dissenters' rights provisions,
and is qualified in its entirety by reference to the provisions thereof, the
text of which is set forth as Annex D to this proxy statement. We urge each
shareholder to carefully read the full text of the provisions of Florida law
governing dissenters' rights.
Certain Federal Income Tax Consequences of Reincorporation
- ----------------------------------------------------------
The Company intends the reincorporation to be a tax-free reorganization
under the Internal Revenue Code. Assuming the reincorporation qualifies as a
tax-free reorganization, the holders of the Company's common stock will not
recognize any gain or loss under the Federal tax laws as a result of the
occurrence of the reincorporation, and neither will the Company or ProIndia.
Each holder will have the same basis in the Company's common stock received as a
result of the reincorporation as that holder has in the corresponding common
stock held at the time the reincorporation occurs. Each holder's holding period
in the Company's common stock received as a result of the reincorporation will
include the period during which such holder held the corresponding common stock
at the time the reincorporation occurs, provided the latter was held by such
holder as a capital asset at the time of consummation of the reincorporation.
This Notice only discusses U.S. federal income tax consequences and has
done so only for general information. This notice does not address all of the
federal income tax consequences that may be relevant to particular shareholders
based upon individual circumstances or to shareholders who are subject to
special rules, such as, financial institutions, tax-exempt organizations,
insurance companies, dealers in securities, foreign holders or holders who
acquired their shares as compensation, whether through employee stock options or
otherwise. This Notice does not address the tax consequences under state, local
or foreign laws.
10
EXHIBIT 99.1
You should consult your own tax advisor to determine the particular tax
consequences to you of the reincorporation, including the applicability and
effect of federal, state, local, foreign and other tax laws.
Effective Time
- --------------
It is anticipated that the Merger Agreement will be signed and the
Reincorporation will become effective approximately 20 days after the date this
Notice is first sent to shareholders. The Merger Agreement may be terminated and
abandoned by action of the Company's sole director at any time prior to the
effective time of the Reincorporation, if the sole director determines for any
reason, in its sole judgment and discretion, that the consummation of the
Reincorporation would not be in the best interests of the shareholders.
11
Annex A
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated July __, 2009 (the "Agreement"), is
between WE SELL FOR YOU CORP., a Florida corporation ("WSFU"), and ProIndia
International Inc. ("ProIndia") and a wholly-owned subsidiary of WSFU. WSFU and
ProIndia are sometimes hereinafter collectively referred to as the "Constituent
Corporations."
RECITALS
WHEREAS, WSFU is a corporation organized and existing under the laws of the
State of Florida, and, as of the date hereof, has 86,400,000 shares of common
stock, $.0001 par value per share, issued and outstanding ("WSFU Common Stock").
WHEREAS, ProIndia is a corporation organized and existing under the laws of the
State of Delaware, and, as of the date hereof, has 100 shares of common stock,
par value $0.0001 per share, issued and outstanding ("ProIndia Common Stock"),
all of which are held by WSFU.
WHEREAS, the respective sole Directors of WSFU and ProIndia have adopted and
approved, as the case may be, this Agreement, which is the plan of merger for
purposes of the Florida Business Corporation Act and the agreement of merger for
purposes of the Delaware General Corporation Law, and the transactions
contemplated by this Agreement, including the Merger (as hereinafter defined).
WHEREAS, the sole Director of WSFU has determined that for the purpose of
effecting the reincorporation of WSFU into the State of Delaware, this Agreement
and the transactions contemplated by this Agreement, including the Merger, are
advisable and in the best interests of WSFU and its shareholders, and the sole
Director of ProIndia has determined that this Agreement and the transactions
contemplated by this Agreement, including the Merger, are advisable and in the
best interests of ProIndia and its sole stockholder.
WHEREAS, the respective sole Directors of WSFU and ProIndia have determined to
recommend this Agreement and the Merger to their respective shareholders and
stockholder, as the case may be.
NOW THEREFORE, in consideration of the mutual agreements and covenants set forth
herein, WSFU and ProIndia hereby agree, subject to the terms and conditions
hereinafter set forth, as follows:
ARTICLE I
THE MERGER
1.1. Merger. In accordance with the provisions of this Agreement, the Delaware
General Corporation Law and the Florida Business Corporation Act, WSFU
shall be merged with and into ProIndia (the "Merger"), whereupon the
Annex A
separate existence of WSFU shall cease and ProIndia shall be, and is
hereinafter sometimes referred to as, the "Surviving Corporation."
1.2. Filing and Effectiveness. The Merger shall become effective, upon the
filing of (i) the certificate of merger with the Secretary of State of the
State of Delaware and (ii) the articles of merger with the Secretary of
State of the State of Florida, unless another date and time is set forth in
the certificate of merger and the articles of merger. The date and time
when the Merger shall become effective is referred to herein as the
"Effective Date of the Merger."
1.3. Effect of the Merger.
(a) On the Effective Date of the Merger, the separate existence of WSFU
shall cease, and the Merger shall have the effects set forth in the
applicable provisions of the Delaware General Corporation Law and the
Florida Business Corporation Act.
(b) Without limiting the generality of the foregoing, and subject thereto
and to any other applicable laws, at the Effective Date of the Merger,
all the properties, rights, privileges, powers and franchises of WSFU
shall vest in the Surviving Corporation, and, subject to the terms of
this Agreement, all debts, liabilities, restrictions, disabilities and
duties of WSFU shall become the debts, liabilities, restrictions,
disabilities and duties of the Surviving Corporation.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
1.4. Certificate of Incorporation. The Certificate of Incorporation of ProIndia
in effect immediately prior to the Effective Date of the Merger shall be,
as of the Effective Date of the Merger, the certificate of incorporation of
the Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
1.5. By-laws. The By-laws of ProIndia in effect immediately prior to the
Effective Date of the Merger shall be, as of the Effective Date of the
Merger, the by-laws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
1.6. Directors and Officers. The director and officers of the Surviving
Corporation as of the Effective Date of the Merger shall be the same as the
director and officers of WSFU immediately prior to the Effective Date of
the Merger.
ARTICLE II
MANNER OF CONVERSION OF SHARES
2.1. WSFU Common Stock. Upon the Effective Date of the Merger, each share of
WSFU Common Stock (excluding shares held by shareholders who perfect their
13
Annex A
dissenters' rights of appraisal as provided in Section 3.2 of this
Agreement) that is issued and outstanding immediately prior thereto shall,
by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be converted
into the right to receive one fully paid and nonassessable share of
ProIndia Common Stock (the "Merger Consideration"). As of the Effective
Date of the Merger, all shares of WSFU Common Stock shall no longer be
outstanding and shall automatically be cancelled and retired and shall
cease to exist and each certificate that previously represented such shares
of WSFU Common Stock shall thereafter represent the Merger Consideration
for all such shares.
2.2. Dissenting Shareholders. Any holder of shares of WSFU Common Stock who
perfects his or her dissenters' rights of appraisal in accordance with and
as contemplated by Section 607.1302 of the Florida Business Corporation Act
shall be entitled to receive the value of such shares in cash as determined
pursuant to Sections 607.1320 through 607.1333 of the Florida Business
Corporation Act; provided, however, that no such payment shall be made to
any dissenting shareholder unless and until such dissenting shareholder has
complied with the applicable provisions of the Florida Business Corporation
Act, and surrendered to the Surviving Corporation the certificate or
certificates representing the shares for which payment is being made. In
the event that after the Effective Date of the Merger a dissenting
shareholder of WSFU fails to perfect, or effectively withdraws or loses,
his or her right to appraisal and of payment for his or her shares, such
dissenting shareholder shall be entitled to receive the Merger
Consideration in accordance with Section 3.1 upon surrender of the
certificate or certificates representing the shares of WSFU Common Stock
held by such shareholder.
2.3. ProIndia Common Stock. Upon the Effective Date of the Merger, each share of
ProIndia Common Stock issued and outstanding immediately prior thereto
shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be cancelled
without compensation therefor and returned to the status of authorized but
unissued shares.
2.4. Exchange of Certificates.
(a) After the Effective Date of the Merger, each holder of an outstanding
certificate representing WSFU Common Stock (excluding holders of
certificates who perfect their dissenters' rights of appraisal as
provided in Section 3.2 of this Agreement) may, at such holder's
option, surrender the same for cancellation to such entity as the
Surviving Corporation so designates as exchange agent (the "Exchange
Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the Merger
Consideration. Until so surrendered, each outstanding certificate
theretofore representing WSFU Common Stock shall be deemed for all
purposes to represent the Merger Consideration and the associated
rights.
(b) The registered owners of WSFU Common Stock on the books and records of
WSFU immediately prior to the Effective Date of the Merger (excluding
14
Annex A
registered owners who perfect their dissenters' rights of appraisal as
provided in Section 3.2 of this Agreement) shall be the registered
owners of ProIndia Common Stock on the books and records of ProIndia
immediately after the Effective Time of the Merger, and the holders of
shares of WSFU Common Stock, until such certificates shall have been
surrendered for transfer or conversion or otherwise accounted for by
the Surviving Corporation, shall be entitled to exercise any voting
and other rights with respect to, and receive dividends and other
distributions upon, the shares of ProIndia Common Stock that the
holders of WSFU Common Stock would be entitled to receive pursuant to
the Merger.
(c) Each certificate representing ProIndia Common Stock so issued in the
Merger shall bear the same legends, if any, with respect to the
restrictions on transfer that appeared on the certificates
representing WSFU Common Stock so converted and given in exchange
therefore, unless otherwise determined by the Board of Directors of
the Surviving Corporation in compliance with applicable laws.
(d) If any certificate representing shares of ProIndia Common Stock is to
be issued in a name other than the name in which the certificate
surrendered in exchange therefor is registered, the following
conditions must be satisfied before the issuance thereof: (i) the
certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer; (ii) such transfer shall otherwise be
proper; and (iii) the person requesting such transfer shall pay to the
Exchange Agent any transfer or other taxes payable by reason of
issuance of such new certificate in a name other than the name of the
registered holder of the certificate surrendered or shall establish to
the satisfaction of the Surviving Corporation that such tax has been
paid or is not payable.
ARTICLE III
GENERAL PROVISIONS
3.1. Covenants of WSFU. WSFU covenants and agrees that it will on or before the
Effective Date of the Merger take all such other actions as may be required
by the Delaware General Corporation Law and the Florida Business
Corporation Act to effect the Merger.
3.2. Covenants of ProIndia. ProIndia covenants and agrees that it will on or
before the Effective Date of the Merger:
(a) take such action as may be required to qualify to do business as a
foreign corporation in the states in which WSFU is qualified to do
business immediately before the Effective Date of the Merger and in
connection therewith irrevocably appoint an agent for service of
process as required under the applicable provisions of the relevant
state laws;
(b) take all such other actions as may be required by the Delaware General
Corporation Law and the Florida Business Corporation Act to effect the
Merger.
15
Annex A
3.3. Conditions to the Obligations of the Constituent Corporations to Effect the
Merger. The respective obligation of each Constituent Corporation to effect
the Merger shall be subject to the satisfaction at or prior to the
Effective Date of the Merger of the following conditions:
(a) The Agreement shall have been approved by a majority of the
outstanding shares of WSFU Common Stock entitled to vote on the
Agreement, and the Agreement shall have been adopted by the
affirmative vote of a majority of the outstanding shares of ProIndia
Common Stock entitled to vote on the Agreement.
(b) No statute, rule, regulation, executive order, decree, ruling,
injunction or other order (whether temporary, preliminary or
permanent) shall have been enacted, entered, promulgated or enforced
by any court or governmental authority of competent jurisdiction which
prohibits, restrains, enjoins or restricts the consummation of the
Merger; provided, however that the Constituent Corporations shall use
their reasonable best efforts to cause any such decree, ruling,
injunction or other order to be vacated or lifted.
(c) Holders of shares of WSFU Common Stock holding no more than one
percent (1%) of the outstanding WSFU Common Stock shall continue to
have a right to exercise appraisal, dissenters' or similar rights
under applicable law with respect to their WSFU Common Stock by virtue
of the Merger.
3.4. Further Assurances. From time to time, as and when required by ProIndia,
WSFU shall execute and deliver or shall cause to be executed and delivered
such deeds and other instruments, and WSFU shall take or cause to be taken
any actions as shall be appropriate or necessary, (a) to vest or perfect in
ProIndia or confirm that ProIndia shall have record ownership of or
otherwise own the title to and possession of all the property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of
WSFU on the Effective Date of the Merger or shortly thereafter and (b) to
carry out the purposes of or to effectuate this Agreement by the Effective
Date of the Merger or shortly thereafter, unless a specific deadline is
established by this Agreement.
3.5. Abandonment. At any time before the Effective Date of the Merger, this
Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of any Constituent Corporation,
notwithstanding the approval or adoption, as the case may be, of this
Agreement by the shareholders or stockholder, as the case may be, of any or
both of the Constituent Corporations.
3.6. Registered Office. The registered office of the Surviving Corporation in
the State of Delaware is located at 2711 Centerville Road, Suite 400,
Wilmington, Delaware 19808 and Corporation Service Company is the
registered agent of the Surviving Corporation at such address.
3.7. Agreement. Executed copies of this Agreement will be on file at the
16
Annex A
principal place of business of the Surviving Corporation in Melbourne,
Victoria, Australia, and copies thereof will be furnished to any
shareholder or stockholder, as the case may be, of either Constituent
Corporation, upon request and without cost.
3.8. Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware (without giving effect to principles of conflicts of
laws) and, so far as applicable, the merger provisions of the Florida
Business Corporation Act.
3.9. Counterparts. In order to facilitate the filing and recording of this
Agreement, this Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together
shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
17
IN WITNESS WHEREOF, WSFU and ProIndia have caused this Agreement to be executed
as of the day and year first above written by their respective duly authorized
officers.
WE SELL FOR U CORP.
a Florida corporation
By: /s/ Peter Lee
-------------------------------------
Peter Lee
Chief Financial Officer and Secretary
ProIndia International Inc.
a Delaware corporation
By: /s/ Joseph Gutnick
-------------------------------------
Joseph Gutnick
President
18
Annex B
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CERTIFICATE OF INCORPORATION
OF
PROENERGY INTERNATIONAL INC.
The undersigned, for the purpose of organizing a corporation
for conducting the business and promoting the purposes hereinafter stated, under
the provisions and subject to the requirements of the laws of the State of
Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts
amendatory thereof and supplemental thereto, and known, identified, and referred
to as the `General Corporation Law of the State of Delaware'), hereby certifies
that:
FIRST: The name of the corporation is ProEnergy
International Inc. (hereinafter called the "Corporation").
SECOND: The address, including street, number, city, and
county, of the registered office of the Corporation in the State of Delaware is
2711 Centerville Road, Suite 400, City of Wilmington 19808, County of New
Castle; and the name of the registered agent of the Corporation in the State of
Delaware at such address is Corporation Service Company.
THIRD: The nature of the business and the purposes to be
conducted and promoted by the Corporation are as follows:
To conduct any lawful business, to promote any lawful purpose,
and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of the State of Delaware.
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 that the Corporation is authorized to issue is five
hundred twenty million (520,000,000) shares. Five hundred million (500,000,000)
shares shall be Common Stock and twenty million (20,000,000) shares shall be
Preferred Stock, each with a par value of $.0001 per share. Except as otherwise
required by statute, the designations and the powers, preferences and rights,
and the qualifications or restrictions thereof, of any class or classes of stock
or any series of any class of stock of the Corporation may be determined from
time to time by resolution or resolutions of the Board of Directors.
FIFTH: The name and the mailing address of the incorporator
is as follows:
NAME MAILING ADDRESS
---- ------- -------
Alex Chung Phillips Nizer LLP
666 Fifth Avenue, 28th Floor
New York, NY 10103-0084
Annex B
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extent permitted by the
provisions of paragraph (7) of subsection (b) of ss. 102 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented. Without limiting the generality of the foregoing, a director of
the Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except to the
extent such exemption from liability or limitation thereof is not permitted
under the General Corporation Law of the State of Delaware as the same exists or
may hereafter be amended. Any amendment, modification or repeal of this Article
SEVENTH shall not adversely affect any right or protection of a director of the
Corporation hereunder in respect of any act or omission occurring prior to the
time of such amendment, modification or repeal.
EIGHTH: The Corporation shall, to the fullest extent permitted
by the provisions of ss. 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of such
person.
NINTH: The Board of Directors of the Corporation is authorized
and empowered form time to time in its discretion to make, alter, amend or
repeal the By-laws of the Corporation.
TENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the Corporation by
this certificate of incorporation are granted subject to the provisions of this
Article TENTH.
Dated as of May 11, 2009.
/s/Alex Chung
---------------------------
Alex Chung
Incorporator
c/o Phillips Nizer LLP
666 Fifth Avenue, 28th Floor
New York, N0084
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Annex C
-------
BY-LAWS
OF
ProIndia International Inc.
(the "Corporation")
ARTICLE I
OFFICES
-------
Section 1. The registered office shall be in the city of Wilmington, County of
New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
Section 1. All meetings of the stockholders for the election of directors shall
be held at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders shall be held at such date and time
as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting, at which they shall elect by a plurality vote a board
of directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote at such
meeting not fewer than ten (10) nor more than sixty (60) days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Annex C
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute or by the certificate of incorporation,
shall be called by the president or secretary at the request in writing of a
majority of the Board of Directors.
Section 6. Written notice of a special meeting stating the place, date and hour
of the meeting and the purpose or purposes for which the meeting is called,
shall be given not fewer than ten (10) nor more than sixty (60) days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 8. The holders of fiftypercent (50%) of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall
have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the meeting.
Section 9. All questions (other than the election of directors) shall, unless
otherwise provided by the certificate of incorporation, these by-laws, the rules
or regulations of any stock exchange applicable to the Corporation, or
applicable law or pursuant to any regulation applicable to the Corporation or
its securities, be decided by the affirmative vote of the holders of a majority
in voting power of the shares of stock of the Corporation which are present in
person or by proxy and entitled to vote thereon.
Section 10. Unless otherwise provided in the certificate of incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such stockholder, but no proxy shall be voted on after three years from
its date, unless the proxy provides for a longer period.
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Annex C
Section 11.
A. Annual Meetings of Stockholders
1. Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders only (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving of notice provided for in this Section 11, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this Section
11.
2. For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this Section 11, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
ninetieth (90th) day nor earlier than the close of business on the one hundred
twentieth (120th) day prior to the first anniversary of the preceding year's
annual meeting; provided, however, that if the date of the annual meeting is
more than thirty (30) days before or more than sixty (60) days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the one hundred twentieth (120th) day
prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or the close of
business on the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made by the Corporation. 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. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such
business includes a proposal to amend the by-laws of the Corporation, the
language of the proposed amendment), the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; and (c) as
to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of capital stock of the Corporation
23
Annex C
that are owned beneficially and held of record by such stockholder and such
beneficial owner, (iii) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting to propose such business or
nomination, and (iv) a representation as to whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends (a) to
deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (b) otherwise to solicit proxies
from stockholders in support of such proposal or nomination. The Corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the Corporation.
3. Notwithstanding anything in the second sentence of paragraph (A)(2)
of this Section 11 to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation at an annual meeting is
increased and there is no public announcement by the Corporation naming the
nominees for additional directorships at least seventy (70) days prior to the
first anniversary of the preceding year's annual meeting (or, if the annual
meeting is held more than thirty (30) days before or sixty (60) days after such
anniversary date, at least seventy (70) days prior to such annual meeting), a
stockholder's notice required by this Section 11 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 office of the
Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
Corporation.
B. Special Meetings of Stockholders.
Only such business shall be conducted at a special meeting of stockholders as
shall have been brought before the meeting pursuant to the Corporation's notice
of meeting. 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 (a) by or at the direction of
the Board of Directors or (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time of giving of
notice provided for in this Section 11(B), who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this Section
11. If 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 entitled to vote in such election of directors may nominate a person
or persons (as the case may be) for election to such position(s) as specified in
the Corporation's notice of meeting, if the stockholder's notice required by
paragraph (A)(2) of this Section 11 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the one hundred
twentieth (120th) day prior to such special meeting and not later than the later
of (x) the close of business on the ninetieth (90th) day prior to such special
meeting or (y) the close of business on the tenth (10th) day following the day
on which public announcement is first made of the date of such 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.
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Annex C
C. General.
1. Only such persons who are nominated in accordance with the procedures set
forth in this Section 11 shall be eligible to be elected at an annual or special
meeting of stockholders of the Corporation to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section 11. Except as otherwise provided by law, the certificate of
incorporation or these by-laws, the chairperson of the meeting shall have the
power and duty (a) to determine whether a nomination or any business proposed to
be brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 11 (including whether
the stockholder or beneficial owner, if any, on whose behalf the nomination or
proposal is made solicited (or is part of a group which solicited) or did not so
solicit, as the case may be, proxies in support of such stockholder's nominee or
proposal in compliance with such stockholder's representation as required by
clause (A)(2)(c)(iv) of this Section 11) and (b) if any proposed nomination or
business is not in compliance herewith, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
2. For purposes of this Section 11, "public announcement" shall include
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 and 15(d) of the Exchange Act.
3. Notwithstanding the foregoing provisions of this Section 11, 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 herein.
Nothing in this Section 11 shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock to elect directors pursuant to any applicable
provisions of the certificate of incorporation. Notwithstanding any other
provision of law, the certificate of incorporation or these by-laws, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least two thirds of the votes which all
the stockholders would be entitled to cast at any annual election of directors
shall be required to amend or repeal, or to adopt any provision inconsistent
with, this Section 11.
Section 12. The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting by the person presiding over the meeting. The Board of
Directors may adopt by resolution such rules and regulations for the conduct of
the meeting of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairperson of any meeting of stockholders shall have the right
and authority to convene and to adjourn the meeting, to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairperson, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairperson of the meeting, may include, without limitation,
the following: (i) the establishment of an agenda or order of business for the
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Annex C
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairperson of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. Unless and to the extent determined by
the Board of Directors or the chairperson of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
ARTICLE III
DIRECTORS
---------
Section 1. The property and business of the corporation shall be managed and
controlled by its board of Directors which initially shall consist of one
person, the exact number of which shall be as fixed from time to time by
resolution of the Board of Directors. The directors need not be stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
----------------------------------
Section 2. The Board of Directors of the Corporation may hold meetings, both
regular and special, either within or without the State of Delaware.
Section 3. The first meeting of each newly elected Board of Directors shall be
held immediately after the annual meeting of stockholders and no notice of such
meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event such
meeting is not held at such time and place, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 4. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as shall from time to time be determined by the
Board.
Section 5. Special meetings of the Board may be called by the president on three
(3) days' notice to each director by mail or two (2) days' notice to each
director either personally or by telegram, facsimile or other lawful means of
communication (including electronic mail); special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of two (2) directors unless the Board consists of only one (1) director,
in which case special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
Section 6. At all meetings of the Board a majority of the directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
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Annex C
at any meeting of the Board of Directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 7. Unless otherwise restricted by the certificate of incorporation or
these by-laws, any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 8. Unless otherwise restricted by the certificate of incorporation or
these by-laws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors,
or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
COMMITTEES OF DIRECTORS
-----------------------
Section 9. The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. 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 thereof present at any meeting and not disqualified from
voting, whether or not he or she 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. Except as otherwise required by
law, any such committee, to the extent provided in the resolution of the Board
of Directors, 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. Such committee or committees shall have such name
or names as may be determined from time to time by resolution adopted by the
Board of Directors.
Section 10. Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
-------------------------
Section 11. Unless otherwise restricted by the certificate of incorporation or
these by-laws, the Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
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Annex C
ARTICLE IV
NOTICES
-------
Section 1. Whenever, under the provisions of the statutes or of the certificate
of incorporation or of these by-laws, notice is required to be given to any
director or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
stockholders and directors may also be given by all other lawful means.
Section 2. Whenever any notice is required to be given under the provisions of
the statutes or of the certificate of incorporation or of these by-laws, 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.
ARTICLE V
OFFICERS
--------
Section 1. The officers of the Corporation shall be chosen by the Board of
Directors and shall be a president, treasurer and a secretary. The Board of
Directors may elect from among its members a Chairman of the Board and a Vice
Chairman of the Board. The Board of Directors may also choose one or more
vice-presidents, assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
Section 2. The Board of Directors at its first meeting after each annual meeting
of stockholders shall choose a chief executive officer, a president, a chief
financial officer, a treasurer and a secretary and may choose vice presidents.
Section 3. The Board of Directors may appoint such other officers and agents as
it shall deem necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board.
Section 4. The salaries of all officers and agents of the Corporation shall be
fixed by the Board of Directors.
Section 5. The officers of the Corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the Board
of Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
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Annex C
THE CHAIRMAN OF THE BOARD
-------------------------
Section 6. The Chairman of the Board, if any, shall preside at all meetings of
the Board of Directors and of the stockholders at which he or she shall be
present. He or she shall have and may exercise such powers as are, from time to
time, assigned to him by the Board and as may be provided by law.
Section 7. In the absence of the Chairman of the Board, the Vice Chairman of the
Board, if any, shall preside at all meetings of the Board of Directors and of
the stockholders at which he or she shall be present. He or she shall have and
may exercise such powers as are, from time to time, assigned to him by the Board
and as may be provided by law.
THE PRESIDENT AND VICE-PRESIDENTS
---------------------------------
Section 8. The president shall be the chief executive officer of the
Corporation; and in the absence of the Chairman and Vice Chairman of the Board
he or she shall preside at all meetings of the stockholders and the Board of
Directors; he or she shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
Section 9. He or she shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
Section 10. In the absence of the president or in the event of his inability or
refusal to act, the vice-president, if any, (or in the event there be more than
one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
-------------------------------------
Section 11. The secretary shall attend all meetings of the Board of Directors
and all meetings of the stockholders and record all the proceedings of the
meetings of the Corporation and of the Board of Directors in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. He or she shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
president, under whose supervision he or she shall be. He or she shall have
custody of the corporate seal of the Corporation and he or she, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The Board of Directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
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Annex C
Section 12. The assistant secretary, or if there be more than one, the assistant
secretaries in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in the absence
of the secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
--------------------------------------
Section 13. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors.
Section 14. He or she shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and the Board of Directors, at
its regular meetings or when the Board of Directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
Corporation.
Section 15. If required by the Board of Directors, he or she shall give the
Corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 16. The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
--------------------
Section 1. Shares of capital stock of the Corporation may be certificated or
uncertificated, as provided under the General Corporation Law of the State of
Delaware. Shares of capital stock of the Corporation shall be issued in such
form as shall be approved by the Board of Directors. Certificated shares shall
be signed by, or in the name of the Corporation by, the chairperson or
vice-chairperson 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, certifying the number of shares owned by him in
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Annex C
the Corporation. Certificates may be issued for partly paid shares and in such
case upon the face or back of the certificate issued to represent any such
partly paid shares, the total amount of the consideration to be paid therefor,
and the amount paid thereon shall be specified. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualification, limitations or restrictions or such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock,
provided that, except as otherwise provided in section 202 of the General
Corporation Law of the State of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, a statement
that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on certificated shares may be facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
-----------------
Section 3. The Board of Directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed; provided, however, that if such shares have ceased
to be certificated, a new certificate shall be issued only upon written request
to the transfer agent or registrar of the Corporation. The Board of Directors
may require such owner to satisfy other reasonable requirements as it deems
appropriate under the circumstances.
TRANSFER OF STOCK
-----------------
Section 4. Transfers of stock shall be made only upon the books of the
Corporation, if such shares are certificated, by the holder, in person or by
duly authorized attorney, and on the surrender of the certificate or
certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof of
the authenticity of the signature as the Corporation or its agents may
reasonably require, or upon proper instructions from the holder of
uncertificated shares. The Board of Directors shall have the power to make all
such rules and regulations, not inconsistent with the certificate of
incorporation and these by-laws and the General Corporation Law of the State of
Delaware, as the Board of Directors may deem appropriate concerning the issue,
transfer and registration of certificates for stock of the Corporation. The
Board of Directors may appoint one or more transfer agents or registrars of
transfers, or both, and may require all certificated shares to bear the
signature of either or both.
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Annex C
FIXING RECORD DATE
------------------
Section 5. In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which 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. 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.
REGISTERED STOCKHOLDERS
-----------------------
Section 6. The Corporation shall be entitled to recognize the exclusive right of
a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
------------------
DIVIDENDS
---------
Section 1. Dividends upon the capital stock of the Corporation, subject to the
provisions of the certificate of incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purposes as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
FISCAL YEAR
-----------
Section 3. The fiscal year of the Corporation shall end of December 31 of each
calendar year.
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Annex C
SEAL
----
Section 4. The Board of Directors may adopt a corporate seal having inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
----------
These by-laws may be altered, amended or repealed or new by-laws may be adopted
by the stockholders or by the Board of Directors, when such power is conferred
upon the Board of Directors by the certificate of incorporation, at any regular
meeting of the stockholders or of the Board of Directors or at any special
meeting of the stockholders or of the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new by-laws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal by- laws
is conferred upon the Board of Directors by the certificate of incorporation it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal by-laws.
33
Annex D
-------
PROVISIONS OF FLORIDA BUSINESS CORPORATION ACT RELATING TO
APPRAISAL RIGHTS
607.1301 APPRAISAL RIGHTS; DEFINITIONS.
The following definitions apply to Sections 607.1302-607.1333:
(1) "Affiliate" means a person that directly or indirectly through one or more
intermediaries controls, is controlled by, or is under common control with
another person or is a senior executive thereof. For purposes of Section
607.1302(2)(d), a person is deemed to be an affiliate of its senior
executives.
(2) "Beneficial stockholder" means a person who is the beneficial owner of
shares held in a voting trust or by a nominee on the beneficial owner's
behalf.
(3) "Corporation" means the issuer of the shares held by a stockholder
demanding appraisal and, for matters covered in Section 607.1322-607.1333,
includes the surviving entity in a merger.
(4) "Fair value" means the value of the corporation's shares determined:
(a) Immediately before the effectuation of the corporate action to which
the stockholder objects.
(b) Using customary and current valuation concepts and techniques
generally employed for similar businesses in the context of the
transaction requiring appraisal, excluding any appreciation or
depreciation in anticipation of the corporate action unless exclusion
would be inequitable to the corporation and its remaining
stockholders.
(5) "Interest" means interest from the effective date of the corporate action
until the date of payment, at the rate of interest on judgments in this
state on the effective date of the corporate action.
(6) "Preferred shares" means a class or series of shares the holders of which
have preference over any other class or series with respect to
distributions.
(7) "Record stockholder" means the person in whose name shares are registered
in the records of the corporation or the beneficial owner of shares to the
extent of the rights granted by a nominee certificate on file with the
corporation.
(8) "Senior executive" means the chief executive officer, chief operating
officer, chief financial officer, or anyone in charge of a principal
business unit or function.
(9) "Shareholder" means both a record stockholder and a beneficial stockholder.
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607.1302 RIGHT OF STOCKHOLDERS TO APPRAISAL.
(1) A stockholder is entitled to appraisal rights, and to obtain payment of the
fair value of that stockholder's shares, in the event of any of the
following corporate actions:
(a) Consummation of a merger to which the corporation is a party if
stockholder approval is required for the merger by Section 607.1103
and the stockholder is entitled to vote on the merger or if the
corporation is a subsidiary and the merger is governed by Section
607.1104;
(b) Consummation of a share 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 exchange, except that appraisal rights shall
not be available to any stockholder of the corporation with respect to
any class or series of shares of the corporation that is not
exchanged;
(c) Consummation of a disposition of assets pursuant to Section 607.1202
if the stockholder is entitled to vote on the disposition, including a
sale in dissolution but not including a sale pursuant to court order
or a sale for cash pursuant to a plan by which all or substantially
all of the net proceeds of the sale will be distributed to the
stockholders within 1 year after the date of sale;
(d) Any other amendment to the articles of incorporation, merger, share
exchange, or disposition of assets to the extent provided by the
articles of incorporation, by-laws, or a resolution of the board of
directors, except that no by-law or board resolution providing for
appraisal rights may be amended or otherwise altered except by
stockholder approval; or
(e) With regard to shares issued prior to October 1, 2003, any amendment
of the articles of incorporation if the stockholder is entitled to
vote on the amendment and if such amendment would adversely affect
such stockholder by:
1. Altering or abolishing any preemptive rights attached to any of
his or her shares;
2. Altering or abolishing the voting rights pertaining to any of his
or her shares, except as such rights may be affected by the
voting rights of new shares then being authorized of any existing
or new class or series of shares;
3. Effecting an exchange, cancellation, or reclassification of any
of his or her shares, when such exchange, cancellation, or
reclassification would alter or abolish the stockholder's voting
rights or alter his or her percentage of equity in the
corporation, or effecting a reduction or cancellation of accrued
dividends or other arrearages in respect to such shares;
4. Reducing the stated redemption price of any of the stockholder's
redeemable shares, altering or abolishing any provision relating
to any sinking fund for the redemption or purchase of any of his
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or her shares, or making any of his or her shares subject to
redemption when they are not otherwise redeemable;
5. Making noncumulative, in whole or in part, dividends of any of
the stockholder's preferred shares which had theretofore been
cumulative;
6. Reducing the stated dividend preference of any of the
stockholder's preferred shares; or
7. Reducing any stated preferential amount payable on any of the
stockholder's preferred shares upon voluntary or involuntary
liquidation.
(2) Notwithstanding subsection (1), the availability of appraisal rights under
paragraphs (1)(a), (b), (c), and (d) shall be limited in accordance with
the following provisions:
(a) Appraisal rights shall not be available for the holders of shares of
any class or series of shares which is:
1. Listed on the New York Stock Exchange or the American Stock
Exchange or designated as a national market system security on an
interdealer quotation system by the National Association of
Securities Dealers, Inc.; or
2. Not so listed or designated, but has at least 2,000 stockholders
and the outstanding shares of such class or series have a market
value of at least $10 million, exclusive of the value of such
shares held by its subsidiaries, senior executives, directors,
and beneficial stockholders owning more than 10 percent of such
shares.
(b) The applicability of paragraph (a) shall be determined as of:
1. The record date fixed to determine the stockholders entitled to
receive notice of, and to vote at, the meeting of stockholders to
act upon the corporate action requiring appraisal rights; or
2. If there will be no meeting of stockholders, the close of
business on the day on which the board of directors adopts the
resolution recommending such corporate action.
(c) Paragraph (a) shall not be applicable and appraisal rights shall be
available pursuant to subsection (1) for the holders of any class or
series of shares who are required by the terms of the corporate action
requiring appraisal rights to accept for such shares anything other
than cash or shares of any class or any series of shares of any
corporation, or any other proprietary interest of any other entity,
that satisfies the standards set forth in paragraph (a) at the time
the corporate action becomes effective.
(d) Paragraph (a) shall not be applicable and appraisal rights shall be
available pursuant to subsection (1) for the holders of any class or
series of shares if:
Annex D
1. Any of the shares or assets of the corporation are being acquired
or converted, whether by merger, share exchange, or otherwise,
pursuant to the corporate action by a person, or by an affiliate
of a person, who:
a. Is, or at any time in the 1-year period immediately
preceding approval by the board of directors of the
corporate action requiring appraisal rights was, the
beneficial owner of 20 percent or more of the voting power
of the corporation, excluding any shares acquired pursuant
to an offer for all shares having voting power if such offer
was made within 1 year prior to the corporate action
requiring appraisal rights for consideration of the same
kind and of a value equal to or less than that paid in
connection with the corporate action; or
b. Directly or indirectly has, or at any time in the 1-year
period immediately preceding approval by the board of
directors of the corporation of the corporate action
requiring appraisal rights had, the power, contractually or
otherwise, to cause the appointment or election of 25
percent or more of the directors to the board of directors
of the corporation; or
2. Any of the shares or assets of the corporation are being acquired
or converted, whether by merger, share exchange, or otherwise,
pursuant to such corporate action by a person, or by an affiliate
of a person, who is, or at any time in the 1-year period
immediately preceding approval by the board of directors of the
corporate action requiring appraisal rights was, a senior
executive or director of the corporation or a senior executive of
any affiliate thereof, and that senior executive or director will
receive, as a result of the corporate action, a financial benefit
not generally available to other stockholders as such, other
than:
a. Employment, consulting, retirement, or similar benefits
established separately and not as part of or in
contemplation of the corporate action;
b. Employment, consulting, retirement, or similar benefits
established in contemplation of, or as part of, the
corporate action that are not more favorable than those
existing before the corporate action or, if more favorable,
that have been approved on behalf of the corporation in the
same manner as is provided in Section 607.0832; or
c. In the case of a director of the corporation who will, in
the corporate action, become a director of the acquiring
entity in the corporate action or one of its affiliates,
rights and benefits as a director that are provided on the
same basis as those afforded by the acquiring entity
generally to other directors of such entity or such
affiliate.
Annex D
(e) For the purposes of paragraph (d) only, the term "beneficial owner"
means any person who, directly or indirectly, through any contract,
arrangement, or understanding, other than a revocable proxy, has or
shares the power to vote, or to direct the voting of, shares, provided
that a member of a national securities exchange shall not be deemed to
be a beneficial owner of securities held directly or indirectly by it
on behalf of another person solely because such member is the
recordholder of such securities if the member is precluded by the
rules of such exchange from voting without instruction on contested
matters or matters that may affect substantially the rights or
privileges of the holders of the securities to be voted. When two or
more persons agree to act together for the purpose of voting their
shares of the corporation, each member of the group formed thereby
shall be deemed to have acquired beneficial ownership, as of the date
of such agreement, of all voting shares of the corporation
beneficially owned by any member of the group.
(3) Notwithstanding any other provision of this section, the articles of
incorporation as originally filed or any amendment thereto may limit or
eliminate appraisal rights for any class or series of preferred shares, but
any such limitation or elimination contained in an amendment to the
articles of incorporation that limits or eliminates appraisal rights for
any of such shares that are outstanding immediately prior to the effective
date of such amendment or that the corporation is or may be required to
issue or sell thereafter pursuant to any conversion, exchange, or other
right existing immediately before the effective date of such amendment
shall not apply to any corporate action that becomes effective within 1
year of that date if such action would otherwise afford appraisal rights.
(4) A stockholder entitled to appraisal rights under this chapter may not
challenge a completed corporate action for which appraisal rights are
available unless such corporate action:
(a) Was not effectuated in accordance with the applicable provisions of
this section or the corporation's articles of incorporation, by-laws,
or board of directors' resolution authorizing the corporate action; or
(b) Was procured as a result of fraud or material misrepresentation.
607.1303 ASSERTION OF RIGHTS BY NOMINEES AND BENEFICIAL OWNERS.
(1) A record stockholder may assert appraisal rights as to fewer than all the
shares registered in the record stockholder's name but owned by a
beneficial stockholder only if the record stockholder objects with respect
to all shares of the class or series owned by the beneficial stockholder
and notifies the corporation in writing of the name and address of each
beneficial stockholder on whose behalf appraisal rights are being asserted.
The rights of a record stockholder who asserts appraisal rights for only
part of the shares held of record in the record stockholder's name under
this subsection shall be determined as if the shares as to which the record
stockholder objects and the record stockholder's other shares were
registered in the names of different record stockholders.
Annex D
(2) A beneficial stockholder may assert appraisal rights as to shares of any
class or series held on behalf of the stockholder only if such stockholder:
(a) Submits to the corporation the record stockholder's written consent to
the assertion of such rights no later than the date referred to in
Section 607.1322(2)(b)2.
(b) Does so with respect to all shares of the class or series that are
beneficially owned by the beneficial stockholder.
607.1320 NOTICE OF APPRAISAL RIGHTS.
(1) If proposed corporate action described in Section 607.1302(1) is to be
submitted to a vote at a stockholders' meeting, the meeting notice must
state that the corporation has concluded that stockholders are, are not, or
may be entitled to assert appraisal rights under this chapter. If the
corporation concludes that appraisal rights are or may be available, a copy
of Sections 607.1301-607.1333 must accompany the meeting notice sent to
those record stockholders entitled to exercise appraisal rights.
(2) In a merger pursuant to Section 607.1104, the parent corporation must
notify in writing all record stockholders of the subsidiary who are
entitled to assert appraisal rights that the corporate action became
effective. Such notice must be sent within 10 days after the corporate
action became effective and include the materials described in Section
607.1322.
(3) If the proposed corporate action described in Section 607.1302(1) is to be
approved other than by a stockholders' meeting, the notice referred to in
subsection (1) must be sent to all stockholders at the time that consents
are first solicited pursuant to Section 607.0704, whether or not consents
are solicited from all stockholders, and include the materials described in
Section 607.1322.
607.1321 NOTICE OF INTENT TO DEMAND PAYMENT.
(1) If proposed corporate action requiring appraisal rights under Section
607.1302 is submitted to a vote at a stockholders' meeting, or is submitted
to a stockholder pursuant to a consent vote under Section 607.0704, a
stockholder who wishes to assert appraisal rights with respect to any class
or series of shares:
(a) Must deliver to the corporation before the vote is taken, or within 20
days after receiving the notice pursuant to Section 607.1320(3) if
action is to be taken without a stockholder meeting, written notice of
the stockholder's intent to demand payment if the proposed action is
effectuated.
(b) Must not vote, or cause or permit to be voted, any shares of such
class or series in favor of the proposed action.
(2) A stockholder who does not satisfy the requirements of subsection (1) is
not entitled to payment under this chapter.
Annex D
607.1322 APPRAISAL NOTICE AND FORM.
(1) If proposed corporate action requiring appraisal rights under Section
607.1302(1) becomes effective, the corporation must deliver a written
appraisal notice and form required by paragraph (2)(a) to all stockholders
who satisfied the requirements of Section 607.1321. In the case of a merger
under Section 607.1104, the parent must deliver a written appraisal notice
and form to all record stockholders who may be entitled to assert appraisal
rights.
(2) The appraisal notice must be sent no earlier than the date the corporate
action became effective and no later than 10 days after such date and must:
(a) Supply a form that specifies the date that the corporate action became
effective and that provides for the stockholder to state:
1. The stockholder's name and address.
2. The number, classes, and series of shares as to which the
stockholder asserts appraisal rights.
3. That the stockholder did not vote for the transaction.
4. Whether the stockholder accepts the corporation's offer as stated
in subparagraph (b)4.
5. If the offer is not accepted, the stockholder's estimated fair
value of the shares and a demand for payment of the stockholder's
estimated value plus interest.
(b) State:
1. Where the form must be sent and where certificates for
certificated shares must be deposited and the date by which those
certificates must be deposited, which date may not be earlier
than the date for receiving the required form under subparagraph
2.
2. A date by which the corporation must receive the form, which date
may not be fewer than 40 nor more than 60 days after the date the
subsection (1) appraisal notice and form are sent, and state that
the stockholder shall have waived the right to demand appraisal
with respect to the shares unless the form is received by the
corporation by such specified date.
3. The corporation's estimate of the fair value of the shares.
4. An offer to each stockholder who is entitled to appraisal rights
to pay the corporation's estimate of fair value set forth in
subparagraph 3.
5. That, if requested in writing, the corporation will provide to
the stockholder so requesting, within 10 days after the date
Annex D
specified in subparagraph 2., the number of stockholders who
return the forms by the specified date and the total number of
shares owned by them.
6. The date by which the notice to withdraw under Section 607.1323
must be received, which date must be within 20 days after the
date specified in subparagraph 2.
(c) Be accompanied by:
1. Financial statements of the corporation that issued the shares to
be appraised, consisting of a balance sheet as of the end of the
fiscal year ending not more than 15 months prior to the date of
the corporation's appraisal notice, an income statement for that
year, a cash flow statement for that year, and the latest
available interim financial statements, if any.
2. A copy of Sections 607.1301-607.1333.
607.1323 PERFECTION OF RIGHTS; RIGHT TO WITHDRAW.
(1) A stockholder who wishes to exercise appraisal rights must execute and
return the form received pursuant to Section 607.1322(1) and, in the case
of certificated shares, deposit the stockholder's certificates in
accordance with the terms of the notice by the date referred to in the
notice pursuant to Section 607.1322(2)(b)2. Once a stockholder deposits
that stockholder's certificates or, in the case of uncertificated shares,
returns the executed forms, that stockholder loses all rights as a
stockholder, unless the stockholder withdraws pursuant to subsection (2).
(2) A stockholder who has complied with subsection (1) may nevertheless decline
to exercise appraisal rights and withdraw from the appraisal process by so
notifying the corporation in writing by the date set forth in the appraisal
notice pursuant to Section 607.1322(2)(b)6. A stockholder who fails to so
withdraw from the appraisal process may not thereafter withdraw without the
corporation's written consent.
(3) A stockholder who does not execute and return the form and, in the case of
certificated shares, deposit that stockholder's share certificates if
required, each by the date set forth in the notice described in subsection
(2), shall not be entitled to payment under this chapter.
607.1324 SHAREHOLDER'S ACCEPTANCE OF CORPORATION'S OFFER.
(1) If the stockholder states on the form provided in Section 607.1322(1) that
the stockholder accepts the offer of the corporation to pay the
corporation's estimated fair value for the shares, the corporation shall
make such payment to the stockholder within 90 days after the corporation's
receipt of the form from the stockholder.
(2) Upon payment of the agreed value, the stockholder shall cease to have any
interest in the shares.
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607.1326 PROCEDURE IF STOCKHOLDER IS DISSATISFIED WITH OFFER.--
(1) A stockholder who is dissatisfied with the corporation's offer as set forth
pursuant to Section 607.1322(2)(b)4. must notify the corporation on the
form provided pursuant to Section 607.1322(1) of that stockholder's
estimate of the fair value of the shares and demand payment of that
estimate plus interest.
(2) A stockholder who fails to notify the corporation in writing of that
stockholder's demand to be paid the stockholder's stated estimate of the
fair value plus interest under subsection (1) within the timeframe set
forth in Section 607.1322(2)(b) 2. waives the right to demand payment under
this section and shall be entitled only to the payment offered by the
corporation pursuant to Section 607.1322(2)(b)4.
607.1331 COURT COSTS AND COUNSEL FEES.
(1) The court in an appraisal proceeding commenced under 1 Section 607.1330
shall determine all costs of the proceeding, including the reasonable
compensation and expenses of appraisers appointed by the court. The court
shall assess the costs against the corporation, except that the court may
assess costs against all or some of the stockholders demanding appraisal,
in amounts the court finds equitable, to the extent the court finds such
stockholders acted arbitrarily, vexatiously, or not in good faith with
respect to the rights provided by this chapter.
(2) The court in an appraisal proceeding may also assess the fees and expenses
of counsel and experts for the respective parties, in amounts the court
finds equitable:
(a) Against the corporation and in favor of any or all stockholders
demanding appraisal if the court finds the corporation did not
substantially comply with Sections 607.1320 and 607.1322; or
(b) Against either the corporation or a stockholder demanding appraisal,
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 this chapter.
(3) If the court in an appraisal proceeding finds that the services of counsel
for any stockholder were of substantial benefit to other stockholders
similarly situated, and that the fees for those services should not be
assessed against the corporation, the court may award to such counsel
reasonable fees to be paid out of the amounts awarded the stockholders who
were benefited.
(4) To the extent the corporation fails to make a required payment pursuant to
Section 607.1324, the stockholder may sue directly for the amount owed and,
to the extent successful, shall be entitled to recover from the corporation
all costs and expenses of the suit, including counsel fees.
(5) Note.--Section 607.1330 does not exist. It was included in H.B. 1623 but
was deleted from the bill before it was passed. House Bill 1623 became ch.
2003-283.
Annex D
607.1332 DISPOSITION OF ACQUIRED SHARES.
Shares acquired by a corporation pursuant to payment of the agreed
value thereof or pursuant to payment of the judgment entered therefor, as
provided in this chapter, may be held and disposed of by such corporation as
authorized but unissued shares of the corporation, except that, in the case of a
merger or share exchange, they may be held and disposed of as the plan of merger
or share exchange otherwise provides. The shares of the surviving corporation
into which the shares of such stockholders demanding appraisal rights would have
been converted had they assented to the merger shall have the status of
authorized but unissued shares of the surviving corporation.
607.1333 LIMITATION ON CORPORATE PAYMENT.
(1) No payment shall be made to a stockholder seeking appraisal rights if, at
the time of payment, the corporation is unable to meet the distribution
standards of Section 607.06401. In such event, the stockholder shall, at
the stockholder's option:
(a) Withdraw his or her notice of intent to assert appraisal rights, which
shall in such event be deemed withdrawn with the consent of the
corporation; or
(b) Retain his or her status as a claimant against the corporation and, if
it is liquidated, be subordinated to the rights of creditors of the
corporation, but have rights superior to the stockholders not
asserting appraisal rights, and if it is not liquidated, retain his or
her right to be paid for the shares, which right the corporation shall
be obliged to satisfy when the restrictions of this section do not
apply.
(2) The stockholder shall exercise the option under paragraph (1)(a) or
paragraph (b) by written notice filed with the corporation within 30 days
after the corporation has given written notice that the payment for shares
cannot be made because of the restrictions of this section. If the
stockholder fails to exercise the option, the stockholder shall be deemed
to have withdrawn his or her notice of intent to assert appraisal rights.