SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C
(RULE 14C-101)
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of
the Securities Exchange Act of 1934
Check the appropriate box:
[X] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-5(d) (1))
[ ] Definitive Information Statement
EYE CARE INTERNATIONAL, INC.
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(Name of Registrant as Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
[ ] Fee previously paid with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a) (2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the form or schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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EYE CARE INTERNATIONAL, INC.
1511 NORTH WESTSHORE BOULEVARD, SUITE 925
TAMPA, FLORIDA 33607
(813) 289-5552
August ___, 2004
Dear Stockholder:
This Information Statement is furnished to holders of shares of Class A
common stock, par value $.001 per share ("Class A Common Stock"), and holders of
shares of Class B common stock, par value $.001 per share ("Class B Common
Stock"). The purpose of this Information Statement is to notify the stockholders
that on August 5, 2004, the Company received written consent (the "Written
Consent") from certain principal stockholders of the Company (identified in the
section entitled "Voting Securities and Principal Holders Thereof") holding
approximately 4,350,000 shares of Class A Common Stock, and 4,383,162 shares of
Class B Common Stock, representing in the aggregate approximately 58.08% of the
total issued and outstanding voting stock of the Company, adopting the Company's
Restated Certificate of Incorporation (the "Restated Certificate"), and
ratifying the following actions: (i) the June 2003 one-for-five reverse stock
split of the issued and outstanding shares of our Class A Common Stock and Class
B Common Stock by changing each five shares into one share, and (ii) the June
2004 increase in the number of authorized shares of the Company to one hundred
twenty million (120,000,000) shares consisting of eighty million (80,000,000)
shares of Class A Common Stock, twenty million (20,000,000) shares of Class B
Common Stock, and twenty million (20,000,000) shares of Class A convertible
preferred stock ("Preferred Stock"). Each share of Class A Common Stock is
entitled to one vote and each share of Class B Common Stock is entitled to five
votes.
The Board believes that the June 2003 one-for-five reverse stock split
and the June 2004 increase in the number of authorized shares were beneficial to
the Company and the stockholders. Pursuant to Section 245 of the Delaware
General Corporation Law, the Company desires to integrate the previous
amendments as set forth in the Restated Certificate. The full text of the
Restated Certificate is attached as Annex I to this Information Statement.
The enclosed Information Statement is being furnished to you to inform
you that the foregoing action has been approved by the holders of a majority of
the outstanding shares of all voting stock of the Company. The Board is not
soliciting your proxy in connection with the adoption of the Restated
Certificate and the ratification of the actions described above, and proxies are
not requested from stockholders. You are urged to read the Information Statement
in its entirety for a description of the action taken by the majority
stockholders of the Company.
This Information Statement is being mailed on or about August ___, 2004
to stockholders of record on July 1, 2004 (the "Record Date").
/s/ Clark A. Marcus
Chairman, President, Chief
Executive Officer and Director
EYE CARE INTERNATIONAL, INC.
1511 NORTH WESTSHORE BOULEVARD, SUITE 925
TAMPA, FLORIDA 33607
(813) 289-5552
---------------------------------
INFORMATION STATEMENT
PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND RULE 14C-2 THEREUNDER
-------------------------------------
NO VOTE OR OTHER ACTION OF THE COMPANY'S STOCKHOLDERS IS REQUIRED IN
CONNECTION WITH THIS INFORMATION STATEMENT.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
---------------------------------------------------------------
We are sending you this Information Statement to inform you of the
adoption of the Restated Certificate of Incorporation (the "Restated
Certificate") of the Company on July 29, 2004 by consent (the "Written Consent")
from the Board of Directors (the "Board") and certain principal stockholders of
the Company (identified in the section entitled "Voting Securities and Principal
Holders Thereof") holding approximately 4,350,000 shares of Class A Common
Stock, and 4,383,162 shares of Class B Common Stock, representing in the
aggregate approximately 58.08% of the total issued and outstanding voting stock
of the Company, and the ratification of the following actions: (i) the June 2003
one-for-five reverse stock split of the issued and outstanding shares of our
Class A Common Stock and Class B Common Stock by changing each five shares into
one share, and (ii) the June 2004 increase in the number of authorized shares of
the Company to one hundred twenty million (120,000,000) shares consisting of
eighty million (80,000,000) shares of Class A Common Stock, twenty million
(20,000,000) shares for Class B Common Stock, and twenty million (20,000,000)
shares of Preferred Stock.
The Board of Directors is not soliciting your proxy in connection with
the adoption of the Restated Certificate and the ratification of the actions
described above, and proxies are not requested from stockholders.
The Company is distributing this Information Statement to its
stockholders in full satisfaction of any notice requirements it may have under
the Delaware General Corporation Law ("DGCL"). No additional action will be
undertaken by the Company with respect to the receipt of written consents, and
no dissenters' rights with respect to the receipt of the written consents, and
no dissenters' rights under the DGCL are afforded to the Company's stockholders
as a result of the adoption of these resolutions.
Expenses in connection with the distribution of this Information
Statement, which are anticipated to be less than $ 10,000, will be paid by the
Company.
RESTATED CERTIFICATE OF INCORPORATION
GENERAL
As of July 19, 2004, there were 22,912,698 shares of Class A Common
Stock issued and outstanding, 4,462,802 shares of Class B Common Stock issued
and outstanding, and 155 shares of Preferred Stock issued and outstanding. The
Board of Directors believes that the Restated Certificate is in the best
interests of both the Company and its stockholders and believed that the June
2003 one-for-five reverse stock split and the June 2004 increase in the number
of authorized shares of the Company were in the best interests of the Company
and its stockholders. The Board recommends the adoption of the Restated
Certificate and the ratification of the actions described in the previous
sentence.
The Restated Certificate has been approved by the Board of Directors of
the Company and the stockholders holding more than approximately 58.08% of the
outstanding voting shares.
VOTE REQUIRED; MANNER OF APPROVAL
Approval to restate the current Certificate of Incorporation of the
Company under DGCL Section 245 requires either the adoption by the board of
directors without a vote of the stockholders or the restated certificate may be
proposed by the directors and submitted by them to the stockholders for
adoption. The Company has no class of voting stock outstanding other than the
Class A Common Stock and the Class B Common Stock.
Section 228 of the DGC provides in substance that, unless the Company's
Certificate of Incorporation provides otherwise, stockholders may take action
without a meeting of stockholders and without prior notice if a consent or
consents in writing, setting forth the action so taken, is signed by the holders
of outstanding voting stock holding not less than the minimum number of votes
that would be necessary to approve such action at a stockholders meeting. Under
the applicable provisions of the DGC, this action is effective when written
consents from holders of record of a majority of the outstanding shares of
voting stock are executed and delivered to the Company.
In accordance with the DGC, the Board of Directors of the Company and
the affirmative vote of at least a majority of the outstanding shares on the
adoption of the Restated Certificate and the ratification of the June 2003
one-for-five reverse stock split and the June 2004 increase in the number of
authorized shares has been obtained. As a result, no vote or proxy is required
by the stockholders to approve the adoption of the Restated Certificate and the
ratification of the June 2003 one-for-five reverse stock split and the June 2004
increase in the number of authorized shares. The Restated Certificate will
become effective upon its filing with the Secretary of State of the State of
Delaware.
Under Rule 14c-2 promulgated under the Securities Exchange Act of 1934,
as amended (the "Act"), the Restated Certificate cannot take effect until 20
days after this Information Statement is sent to the Company's stockholders. As
mentioned earlier, the Restated Certificate will become effective upon its
filing with the Secretary of State of the State of Delaware which is anticipated
to be on or about September __, 2004, 20 days after the mailing of this
Information Statement.
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INCREASE IN AUTHORIZED UNISSUED SHARES
The following table shows how the June 2003 one-for-five reverse stock
split and the June 2004 increase in the amount of authorized shares of Class A
Common Stock increased the number of shares of common stock available for
issuance by our Board of Directors. The information presented in the table is as
of April 14, 2003, the record date for the reverse stock split.
NUMBER OF SHARES
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PRIOR TO REVERSE STOCK SPLIT AFTER REVERSE STOCK SPLIT
---------------------------- -------------------------
CLASS A CLASS B CLASS A CLASS B
COMMON STOCK COMMON STOCK COMMON STOCK COMMON STOCK
------------ ------------ ------------ ------------
Authorized 20,000,000 10,000,000 80,000,000 20,000,000
Outstanding 12,213,610 1,277,700 2,442,722 255,540
Reserved for issuance
Warrants 5,634,718 0 1,126,944 0
Preferred stock 2,025,720 0 405,144 0
Options that may be granted in 500,000 0 100,000 0
future under existing option plan
Available for future issuance (374,048) 8,722,300 75,925,190 19,744,460
Following the reverse stock split and increase in the number of
authorized common stock, the Board of Directors became able to issue 75,925,190
shares of Class A Common Stock and 19,744,460 shares of Class B Common Stock
without further stockholder approval. We do not presently have any agreement,
understanding, or arrangement which would result in the issuance of any of the
additional shares of our authorized and unissued common stock. Our Board of
Directors does not intend to seek stockholder approval prior to any issuance of
additional shares of our common stock, except as otherwise required by law or
regulation. Our outstanding shares of common stock have no pre-emptive rights;
accordingly, if we issue additional shares of common stock, our stockholders
will not have any preferential right to purchase any of the additional shares.
Although our Board of Directors believed the increase in authorized unissued
shares was in the best interests of our company and our stockholders, the
issuance of additional shares of common stock may, depending on the
circumstances under which such shares are issued, reduce the stockholders'
equity per share and may reduce the percentage ownership of common stock of
existing stockholders.
The increase in the number of shares available for issuance by our
Board of Directors could, under certain circumstances, have the effect of
deterring unsolicited tender offers for our common stock. In the event of a
hostile takeover attempt, it might be possible for us to try to impede such
attempt by issuing shares of common stock to a friendly party, thereby diluting
the voting power of the other outstanding shares and increasing the potential
cost to acquire control of our Company. Although the overall effect of such a
course of action may be to deter unwanted takeover offers, our Board of
Directors did not approve the reverse split and the increase in the amount of
authorized shares of common stock for that purpose and believed the reverse
split and the increase in the amount of authorized shares of Class A Common
Stock was in the best interests of our Company and our stockholders and that the
advantages of the reverse stock split, including the increase in the number of
shares available for issuance by the Board of Directors, outweigh any potential
disadvantages. Our management is not aware of any attempts to obtain control or
take over our Company.
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IMPLEMENTATION OF REVERSE STOCK SPLIT AND INCREASE IN AUTHORIZED CLASS
A COMMON STOCK
The Board and the stockholders have adopted of the Restated Certificate
and ratified the June 2003 reverse stock split and the June 2004 increase in the
number of authorized shares. We filed amendments to the Certificate of
Incorporation with the Secretary of State of Delaware in June 2003 authorizing
the reverse stock split and in June 2004 increasing to the number of authorized
shares of Class A Common Stock and Class B Common Stock. Each certificate
representing shares of Class A Common Stock or Class B Common Stock outstanding
immediately prior to the reverse stock split was deemed automatically, without
any action on the part of the stockholders, to represent one-fifth of the
pre-split number of shares. However, no fractional shares were issued as a
result of the reverse stock split. Each stockholder of record owning shares of
Class A Common Stock or Class B Common Stock prior to the reverse stock split
which was not evenly divisible by five (5) received one additional share for the
fractional share that such stockholder would otherwise have been entitled to
receive as a result of the reverse stock split. After the reverse stock split
became effective, stockholders were asked to surrender their stock certificates
in accordance with the procedures set forth in a letter of transmittal. Upon
such surrender, a new certificate representing the number of shares owned as a
result of the reverse stock split were issued and forwarded to stockholders.
However, each certificate representing the number of shares owned prior to the
reverse stock split continue to be valid and represent a number of shares equal
to one- fifth of the pre-split number of shares.
EXCHANGE OF STOCK CERTIFICATES
The exchange of shares of Class A Common Stock and Class B Common Stock
resulting from the reverse stock split occurred on June 6, 2003, the date we
filed the amendment to the Certificate of Incorporation effecting the reverse
stock split, without any further action on the part of our stockholders and
without regard to the date or dates certificates formerly representing shares of
Class A Common Stock or Class B Common Stock were physically surrendered for
certificates representing the post-split number of shares such stockholders were
entitled to receive. We appointed American Stock Transfer & Trust Company,
transfer agent for our Class A Common Stock, exchange agent to act for
stockholders in effecting the exchange of their certificates.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information concerning the
beneficial ownership of our common stock as of July 19, 2004 by (i) each
stockholder known by us to be a beneficial owner of more than five percent of
the outstanding common stock; (ii) each executive officer and director; and
(iii) all directors and officers as a group. Information relating to beneficial
ownership of common stock by our principal stockholders and management is based
upon information furnished by each person using "beneficial ownership" concepts
under the rules of the Securities and Exchange Commission. Under these rules, a
person is deemed to be a beneficial owner of a security if that
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person has or shares voting power, which includes the power to vote or direct
the voting of the security, or investment power, which includes the power to
vote or direct the voting of the security. The person is also deemed to be a
beneficial owner of any security of which that person has a right to acquire
beneficial ownership within 60 days. Under the Securities and Exchange
Commission rules, more than one person may be deemed to be a beneficial owner of
the same securities, and a person may be deemed to be a beneficial owner of
securities as to which he or she may not have any pecuniary beneficial interest.
The percentages below are calculated based on 27,375,500 shares of
common stock issued and outstanding, representing 22,912,698 Class A shares plus
4,462,802 Class B shares. The Company has no options, warrants or other
securities convertible into shares of common stock which are owned by the
persons listed below.
Amount and Nature
Of Beneficial Percentage of Common Stock
Ownership (1) Beneficially Owned (2)
-------------------------------- ----------------------------------------------------
Class A Class B As a % As a % As a %
Common Common of All of All of All
Name Stock Stock Common Stock Class A Class B
-------------------------------- ------------------------ ------------- ------------
38.3
Clark Marcus (3) (4) _ 1,709,280 6.2 _
*
Sharon Kay Ray (3) 69,600 24,640 * *
15.1
James L. Koenig (3) _ 673,882 _ _
Arthur Yeap (3) 78,096 -- * * --
William Koch (3) 87,548 5,000 * * *
John A. Schild (3) 67,800 -- -- * --
Arnold Finestone (3) 46,390 -- * * --
Omnifirst Capital 2,500,000 -- 9.1 10.9 --
Jana Corp. 1,850,000 2,000,000 14.1 8.1 44.8
All officers and directors 349,434 2,412,802 10.1% 1.5% 54.1%
as a group (8 persons)
-------------------------------
* Less than 1%
(1) Unless otherwise indicated, each person has sole investment and voting power
with respect to the shares indicated, subject to community property laws, where
applicable. For purposes of this table, a person or group of persons is deemed
to beneficially own any shares that such person has the right to acquire within
60 days after July 19, 2004.
(2) Calculated as a percentage of the total number of shares of common stock
issued and outstanding without respect to voting power. Each share of class B
common stock is entitled to five votes per share, as compared to one vote per
share
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of class A common stock. For purposes of computing the percentage of
outstanding shares held by each person or group of persons named above on July
19, 2004, any shares, which such person or group of persons has the right to
acquire within 60 days after such date is deemed to be outstanding for the
purpose of computing the percentage ownership of such person. As of July 19,
2004, we had 22,912,698 shares of class A common stock outstanding and 4,462,802
shares of class B common stock outstanding, or a total of 27,375,500 shares of
common stock outstanding.
(3) Address is c/o Eye Care International, Inc., 1511 North Westshore Boulevard,
Suite 925, Tampa, Florida 33607.
(4) Includes 758,240 shares of class B common stock owned by Mr. Marcus'
children.
INTEREST OF CERTAIN PERSONS IN OR IN
OPPOSITION TO MATTERS TO BE ACTED UPON
No person has any interest, direct or indirect, by security holdings or
otherwise, in the Restated Certificate which is not shared by all other
stockholders.
OTHER MATTERS
The Board knows of no other matters other than those described in this
Information Statement which have been approved or considered by the holders of a
majority of the shares of the Company's voting stock.
IF YOU HAVE ANY QUESTIONS REGARDING THIS INFORMATION STATEMENT AND/OR
THE RESTATED CERTIFICATE, PLEASE CONTACT:
Clark Marcus
EYE CARE INTERNATIONAL, INC.
1511 North Westshore Boulevard, Suite 925
Tampa, Florida 33607
Telephone: (813) 289-5552
By order of the Board of Directors of
EYE CARE INTERNATIONAL, INC.
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EXHIBITS
ANNEX I RESTATED CERTIFICATE OF INCORPORATION
RESTATED
CERTIFICATE OF INCORPORATION
OF
EYE CARE INTERNATIONAL, INC.
------------
It is hereby certified that:
1. (a) The present name of the corporation (hereinafter called the
"corporation") is Eye Care International, Inc.
(b) The name under which the corporation was originally
incorporated is Eye Care International, Inc.; and the date of
filing the original certificate of incorporation of the
corporation with the Secretary of State of the State of
Delaware was May 31, 1994.
2. The provisions of the certificate of incorporation of the corporation
as heretofore amended and/or supplemented, are hereby restated and
integrated into the single instrument which is hereinafter set forth,
and which is entitled Restated Certificate of Incorporation of Eye Care
International, Inc., without further amendment and without any
discrepancy between the provisions of the certificate of incorporation
as heretofore amended and supplemented and the provisions of the said
single instrument hereinafter set forth.
3. The Board of Directors of the corporation has duly adopted this
Restated Certificate of Incorporation pursuant to the provisions of
Section 245 of the General Corporation Law of the State of Delaware in
the form set forth as follows:
"Restated Certificate of Incorporation
Of
Eye Care International, Inc.
FIRST: The name of the corporation is Eye Care International,
Inc. (the "Corporation").
SECOND: The address, including street, number, city, and county,
of the registered office of the Corporation in the State of Delaware is 32
Lockerman Square, Suite L-100, City of Dover 19901, County of Kent; and the name
of the registered agent of the corporation in the State of Delaware at such
address is The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business and the purposes to be
conducted and promoted
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by the Corporation, which shall be in addition to the authority of the
Corporation to conduct any lawful business, to promote any lawful purpose and to
engage in any lawful act or activity for which the corporations may be organized
under the General Corporation Law of the State of Delaware, are as follows:
To purchase, receive, take by grant, gift, devise, bequest, or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use, and
otherwise deal in and with real or personal property, or any interest therein,
wherever situated, and to sell, convey, lease, exchange, transfer, or otherwise
dispose of, or mortgage or pledge, all or any of its property and assets, or any
interest therein, wherever situated.
To apply for, register, obtain, purchase, lease, take licenses in
respect of or otherwise acquire, and to hold, own, use, operate, develop, enjoy,
turn to account, grant licenses and immunities in respect of, manufacture under
and to introduce, sell, assign, mortgage, pledge, or otherwise dispose of, and,
in any manner deal with and contract with reference to:
(a) inventions, devices, formulae, processes, and any improvements and
modifications thereof;
(b) letters patent, patent rights, patented processes, copyrights,
designs, and similar rights, trademarks, trade names, trade symbols, and other
indications of origin and ownership granted by or recognized under the laws of
the United States of America, the District of Columbia, any state or subdivision
thereof, and any commonwealth, territory, possession, dependency, colony, agency
or instrumentality of the United states of America and of any foreign country,
and all rights connected therewith or appertaining thereunto;
(c) franchises, licenses, grants, and concessions.
To guarantee, purchase, take, receive, subscribe for, and otherwise
acquire, own, hold, use, and otherwise employ, sell, lease, exchange, transfer,
and otherwise dispose of, mortgage, lend, pledge, and otherwise deal in and
with, securities (which term, for the purpose of this Article THIRD, includes,
without limitation of the generality thereof, any shares of stock, bonds,
debentures, notes, mortgages, other obligations, and any certificates, receipts,
or other instruments representing rights to receive, purchase, or subscribe for
the same, or representing any other rights or interests therein or in any
property or assets) of any persons, domestic and foreign firms, associations,
and corporations, and of any government or agency or instrumentality thereof; to
make payment therefore in any lawful manner; and, while owner of any such
securities, to exercise any and all rights, powers, and privileges in respect
thereof, including the right to vote.
To make, enter into, perform, and carry out contracts of every kind and
description with any person, firm, association, corporation, or government or
agency or instrumentality thereof.
To acquire by purchase, exchange, or otherwise, all, or any part of, or
any interest in, the properties, assets, business, and good will of any one or
more persons, firm, associations, or corporations heretofore or hereafter
engaged in any business for which a corporation may now or hereafter be
organized under the laws of the State of Delaware; to pay for the same in cash,
property, or its own or other securities; to hold, operate, reorganize,
liquidate, sell, or in any
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manner dispose of the whole or any part thereof; and in connection therewith, to
assume or guarantee performance of any liabilities, obligations, or contracts of
such persons, firms, associations, or corporations, and to conduct the whole or
any part of any business thus acquired.
To lend money in furtherance of its corporate purposes and to invest
and reinvest its funds from time to time to such extent, to such persons, firms,
associations, corporations, governments or agencies or instrumentalities
thereof, and an such terms and on such security, if any, as the Board of
Directors of the corporation may determine.
To make contracts of guaranty and suretyship of all kinds and endorse
or guarantee the payment of principal, interest, or dividends upon, and to
guarantee the performance of sinking fund or other obligations of, any
securities, and to guarantee in any way permitted by law the performance of any
of the contracts or other undertakings in which the Corporation may otherwise be
or become interested, of any person, firm, association, corporation, government
or agency or instrumentality thereof, or of any other combination, organization,
or entity whatsoever.
To borrow money without limit as to amount and at such rates of
interest as it may determine; from time to time to issue and sell its own
securities, including its shares of stock, notes, bonds, debentures, and other
obligations, in such amounts, on such terms and conditions, for such purposes
and for such prices, now or hereafter permitted by the laws of the State of
Delaware and by this certificate of incorporation, as the Board of Directors of
the Corporation may determine; and to secure any of its obligations by mortgage,
pledge, or other encumbrance of all or any of its property, franchises, and
income.
To be a promoter or manager of other corporations of any type or kind;
and to participate with others in any corporation, partnership, limited
partnership, joint venture, or other association of any kind or in any
transaction, undertaking, or arrangement which the Corporation would have power
to conduct by itself, whether or not such participation involves sharing or
delegation of control with or to others.
To draw, make, accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds, debentures; and other
negotiable or transferable instruments and evidences of indebtedness whether
secured by mortgage or otherwise, as well as to secure the same by mortgage or
otherwise, so far as may be permitted by the laws of the State of Delaware.
To purchase, receive, take, reacquire, or otherwise acquire, own and
hold, sell, lend, exchange, reissue, transfer, or otherwise dispose of, pledge,
use, cancel, and otherwise deal in and with its own shares and its other
securities from time to time to such an extent and in such manner and upon such
terms as the Board of Directors of the Corporation shall determine; provided
that the Corporation shall not use its funds or property for the purchase of its
own shares of capital stock when its capital is impaired or when such use would
cause any impairment of its capital, except to the extent permitted by law.
To organize, as an incorporator, or cause to be organized under the
laws of the State of Delaware, or of any other State of the United States of
America, or of the District of Columbia, or of any commonwealth, territory,
dependency, colony, possession, agency, or instrumentality of
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the United States of America, or of any foreign country, a corporation or
corporations for the purpose of conducting and promoting any business or purpose
for which corporations may be organized, and to dissolve, wind up, liquidate,
merge, or consolidate any such corporation or corporations or to cause the same
to be dissolved, wound up, liquidated, merged, or consolidated.
To conduct its business, promote its purposes, and carry on its
operations in any and all of its branches and maintain offices both within and
without the State of Delaware, in any and all States of the United States of
America, in the District of Columbia, and in any or all commonwealths,
territories, dependencies, colonies, possessions, agencies, or instrumentalities
of the United States of America and of foreign governments.
To promote and exercise all or any part of the foregoing purposes and
powers in any and all parts or the world, and to conduct its business in all or
any of its branches as principal, agent, broker, factor, contractor, and in any
other lawful capacity, either alone or through or in conjunction with any
corporations, associations, partnerships, firms, trustees, syndicates,
individuals, organizations, and other entities in any part of the world, and, in
conducting its business and promoting any of its purposes, to maintain offices,
branches, and agencies in any part of the world, to make and perform any
contracts and to do any acts and things, and to carry on any business, and to
exercise any powers and privileges suitable, convenient, or proper for the
conduct, promotion, and attainment of any of the business and purposes herein
specified or which at any time may be incidental thereto or may appear conducive
to or expedient for the accomplishment of any of such business and purposes and
which might be engaged in or carried on by a corporation incorporated or
organized under the General Corporation Law of the State of Delaware, and to
have and exercise all of the powers conferred by the laws of the State of
Delaware upon corporations incorporated or organized under the General
Corporation Law of the State of Delaware.
The foregoing provisions of this Article THIRD shall be construed both
as purposes and powers and each as an independent purpose and power. The
foregoing enumeration of specific purposes and powers shall not be held to limit
or restrict in any manner the purposes and powers of the Corporation, and the
purposes and powers herein specified shall, except when otherwise provided in
this Article THIRD, be in no wise limited or restricted by reference to, or
inference from, the terms of any provision of this or any other Article of this
certificate of incorporation; provided, that the corporation shall not conduct
any business, promote any purpose, or exercise any power or privilege within or
without the State of Delaware which, under the laws thereof , the corporation
may not lawfully conduct, promote, or exercise.
FOURTH: (a) Subject to adjustment pursuant to subparagraph (b),
below, the total number of shares which the Corporation is authorized to issue
shall be One Hundred Twenty Million (120,000,000) shares of which Eighty Million
(80,000,000) shares shall be designated as Class A common stock with a par value
of One Tenth of One Cent ($.001) per share and Twenty Million (20,000,000)
shares shall be designated as Class B common stock with a par value of One Tenth
of One Cent ($.001) per share. The remaining Twenty Million (20,000,000) shares
shall be Preferred Stock with a par value of One Tenth of One Cent ($.001) per
share.
(b) Each share of Class A common stock shall be entitled to one vote
per share on all matters required by law to be submitted to a vote of the
holders of the common shares, and
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each share of Class B common stock shall be entitled to vote at the rate of five
(5) votes per share on all matters required by law to be submitted to a vote of
the holders of the common shares. Holders of the shares of Class A common stock
and Class B common stock shall vote together on all matters except as may
otherwise be required under the Delaware General Corporation Law. The rights of
the shares of Class A common stock and Class B common stock otherwise shall be
identical in all respects. Each share of Class B common stock is convertible
into one share of Class A common stock at any time at the option of the holder
thereof. Upon the transfer of shares of Class B common stock by the initial
holders thereof, each of said shares, without any action on the part of the
holders thereof, automatically shall be converted into one share of Class A
common stock on the stock record books of the Corporation.
(c) The Corporation is authorized to issue the shares of preferred
stock from time to time in one or more series with such designations, relative
rights, preferences and limitations of qualifications as shall be fixed by the
Board of Directors in the resolution or resolutions providing for the issue of
such shares. The Board of Directors is expressly authorized to adopt such
resolution or resolutions providing for the issue of such shares from time to
time as the Board of Directors, in its discretion, may deem desirable
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
---- ---------------
Ann M. Jones One Biscayne Tower
2 S. Biscayne Blvd., Suite 1880
Miami, Florida 33131
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of S 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
corporation under the provisions of S 279 of Title 8 of the Delaware Code order
a meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number representing
three fourths in value of the creditors or class of creditors, and/or of the
stockholder or class of stockholders of this Corporation as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
EIGHTH: For the management of the business and for the conduct
of the affairs of
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the Corporation, and in further definition, limitation, and regulation of the
powers of the Corporation and of its directors and of its stockholders or any
class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed by, or in the
manner provided in the ByLaws. The phrase "whole Board" and the phrase "total
number of directors" shall be deemed to have the same meaning, to wit, the total
number of directors which the corporation would have if there were no vacancies.
No election of directors need be by written ballot.
2. After the original or other ByLaws of the Corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of S 109 of the General Corporation Law of the State of Delaware,
and, after the Corporation has received any payment for any of its stock, the
power to adopt, amend, or repeal the ByLaws of the Corporation may be exercised
by the Board of Directors of the Corporation; provided, however, that any
provision for the classification of directors of the Corporation for staggered
terms pursuant to the provision of subsection (d) of S 141 of the General
Corporation Law of the State of Delaware shall be set forth in an initial ByLaw
or in a ByLaw adopted by the stockholders entitled to vote of the Corporation
unless provisions for such classification shall be set forth in this certificate
of incorporation.
3. Whenever the Corporation shall be authorized to issue only one class
of stock, each outstanding share shall entitle the holder thereof to notice of,
and the right to vote at, any meeting of stockholders. Whenever the Corporation
shall be authorized to issue more than one class of stock, no outstanding share
of any Class of stock which is denied voting power under the provisions of the
certificate of incorporation shall entitle the holder thereof to the right to
vote at any meeting of stockholders except as the provisions of paragraph (2) of
subsection (b) of S 242 of the General Corporation Law of the State of Delaware
shall otherwise require; provided, that no share of any such class which is
otherwise denied voting power shall entitle the holder thereof to vote upon the
increase or decrease in the number of authorized shares of said class.
NINTH: 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 ? S 102 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented.
TENTH: The Corporation shall, to the fullest extent permitted by
the provisions of ? S 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 his 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.
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ELEVENTH: 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 ELEVENTH."
IN WITNESS WHEREOF, the undersigned, being the incorporator herein
before named, has executed and acknowledged this Restated Certificate of
Incorporation.
Date: August ___, 2004
/S/ CLARK A. MARCUS
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Name: Clark A. Marcus
Title: Chief Executive Officer
and President