Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2 Spongetech Registration Statement 44 201K
3: EX-3 Certificate of Amendment 1 7K
4: EX-3 Spongetech Bylaws 12± 45K
2: EX-3.(I) Certificate of Incorporation 7± 27K
5: EX-4 Common Stock Certificate 2 8K
6: EX-10 Share Exchange Agreement 20 78K
8: EX-23 Auditor's Consent 1 5K
7: EX-23 Consent of Counsel 1 5K
EX-3.(I) — Certificate of Incorporation
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CERTIFICATE OF INCORPORATION
OF
NEXGEN ACQUISITIONS VIII, INC.
ARTICLE I
Name
The name of the Corporation is Nexgen VIII Acquisitions, Inc.
ARTICLE II
Duration
The Corporation is to have perpetual existence.
ARTICLE III
Registered Office and Agent
The address of its registered office in the State of Delaware is the 15
Loockerman Street, in the City of Dover, County of Kent, State of Delaware. The
name of its registered agent at such address is Agents for Delaware Corporations
Inc.
ARTICLE IV
Purposes
The purpose for which the Corporation is organized is to transact all
lawful business for which corporations may be incorporated pursuant to the laws
of the State of Delaware. The Corporation shall have all the powers of a
corporation organized under the General Corporation Law of the State of
Delaware.
ARTICLE V
Capital Stock
A. Number and Designation. The Corporation shall have authority to issue 55
million shares of capital stock, of which 50 million shall be shares of
common stock, par value $0.001 per share ("Common Stock") and 5 million
shall be shares of preferred stock, par value $0.001 per share ("Preferred
Stock"). The shares may be issued by the Corporation from time to time as
approved by the board of directors of the Corporation without the approval
of the stockholders. Upon payment of consideration such shares shall be
deemed to be fully paid and nonassessable. In the case of a stock dividend,
the part of the surplus of the Corporation which is transferred to stated
capital upon the issuance of shares as a stock dividend shall be deemed to
be the consideration for their issuance.
A description of the different classes and series of the Corporation's
capital stock, and a statement of the relative powers, designations,
preferences and rights of the shares of each class and series of capital
stock, and the qualifications, limitations or restrictions thereof, are as
follows:
B. Common Stock. The holders of Common Stock shall have the respective rights
and preferences set forth in this Article V.
(1) Rights and Privileges. Except as provided in this Certificate, the
holders of the Common Stock shall exclusively possess all voting
power.
(2) Voting Rights. Except as otherwise required by law, the holders of
Common Stock will be entitled to one vote per share on all matters to
be voted on by the Corporation's shareholders.
C. Serial Preferred Stock. Except as provided in this Certificate, the board
of directors of the Corporation is authorized, by resolution or resolutions
from time to time adopted, to provide for the issuance of serial preferred
stock in series and to fix and state the powers, designations, preferences
and relative, participating, optional or other special rights of the shares
of each such series, and the qualifications, limitation or restrictions.
ARTICLE VI
Preemptive Rights
No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive right
to purchase or subscribe for any unissued stock of any class or series, or any
unissued bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock or carrying any right to purchase
stock which may be issued pursuant to resolution of the board of directors of
the Corporation to such persons, firms, corporations or associations, whether or
not holders thereof, and upon such terms as may be deemed advisable by the board
of directors in the exercise of its sole discretion.
ARTICLE VII
Repurchase of Shares
The Corporation may from time to time, pursuant to authorization by the
board of directors of the Corporation and without action by the stockholders,
purchase or otherwise acquire shares of any class, bonds, debentures, notes,
scrip, warrants, obligations, evidences or indebtedness, or other securities of
the Corporation in such manner, upon such terms, and in such amounts as the
board of directors shall determine; subject, however, to such limitations or
restrictions, if any, as are contained in the express terms of any class of
shares of the Corporation outstanding at the time of the purchase or acquisition
in question or as are imposed by law.
ARTICLE VIII
Meetings of Stockholders; No Cumulative Voting
A. Action by Written Consent.
No action that is required or permitted to be taken by the stockholders of
the Corporation at any annual or special meeting of stockholders may be effected
by written consent of stockholders in lieu of a meeting of stockholders, unless
the action to be effected by written consent of stockholders and the taking of
such action by such written consent have expressly been approved in advance by
the board of directors of the Corporation.
B. Special Meetings.
Special meeting of the stockholders of the Corporation for any purpose or
purposes may be called at any time by the board of directors of the Corporation,
or by a committee of the board of directors which has been duly designated by
the board of directors and whose powers and authorities, as provided in a
resolution of the board of directors or in the bylaws of the Corporation,
include the power and authority to call such meetings but such special meetings
may not be called by another person or persons.
C. No Cumulative Voting.
There shall be no cumulative voting by stockholders of any class or series
in the election of directors of the Corporation.
D. Place of Meetings.
Meetings of stockholders may be held at such place as the bylaws may
provide.
ARTICLE IX
Notice for Nominations and Proposals
Nominations for the election of directors and proposals for any new business to
be taken up at any annual or special meeting of stockholders may be made by the
board of directors of the Corporation or by any stockholder of the Corporation
entitled to vote generally in the election of directors.
ARTICLE X
Directors
A. Number.
The number of directors of the Corporation shall be such number, not less
than one nor more than nine (exclusive of directors, if any, to be elected by
holders of preferred stock of the Corporation), as shall be provided from time
to time in a resolution adopted by the board of directors, provided that no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director, and provided further that no action shall be taken to
decrease or increase the number of directors from time to time unless at least
two-thirds of the directors then in office shall concur in said action.
Exclusive of directors, if any, elected by holders of preferred stock, vacancies
in the board of directors of the Corporation, however caused, and newly created
directorships shall be filled by a vote of two-thirds of the directors then in
office, whether or not a quorum, and any director so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term of
the class to which the director has been chosen expires and when the director's
successor is elected and qualified.
B. Classified Board.
The board of directors of the Corporation (other than directors which may
be elected by the holders of preferred stock), shall be divided into three
classes of directors which shall be designated Class I, Class II and Class III.
The members of each class shall be elected for a term of three years and until
their successors are elected and qualified. Such classes shall be as nearly
equal in number as the then total number of directors constituting the entire
board of directors shall permit, exclusive of directors, if any, elected by
holders of preferred stock, with the terms of office of all members of one class
expiring each year. Should the number of directors not be equally divisible by
three, the excess director or directors shall be assigned to Classes I or II as
follows: (1) if there shall be an excess of one directorship over the number
equally divisible by three, such extra directorship shall be classified in Class
I; and (2) if there be an excess of two directorships over a number equally
divisible by three, one shall be classified in Class I and the other in Class
II. At the organizational meeting of the Corporation, directors of Class I shall
be elected to hold office for a term expiring at the first annual meeting of
stockholders, directors of Class II shall be elected to hold office for a term
expiring at the second succeeding annual meeting of stockholders and directors
of Class III shall be elected to hold office for a term expiring at the third
succeeding annual meeting thereafter. Thereafter, at each succeeding annual
meeting, directors of each class shall be elected for three year terms.
Notwithstanding the foregoing, the director whose term shall expire at any
annual meeting shall continue to serve until such time as his successor shall
have been duly elected and shall have qualified unless his position on the board
of directors shall have been abolished by action taken to reduce the size of the
board of directors prior to said meeting. Should the number of directors of the
Corporation be reduced, the directorship(s) eliminated shall be allocated among
classes as appropriate so that the number of directors in each class is as
specified in the position(s) to be abolished. Notwithstanding the foregoing, no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director. Should the number of directors of the Corporation be
increased, other than directors which may be elected by the holders of preferred
stock, the additional directorships shall be allocated among classes as
appropriate so that the number of directors in each class is as specified in the
immediately preceding paragraph.
C. Directors Elected by Preferred Stockholders.
Whenever the holders of any one or more series of preferred stock of the
Corporation shall have the right, voting separately as a class, to elect one or
more directors of the Corporation, the board of directors shall include said
directors so elected and not be in addition to the maximum number of directors
fixed as provided in this Article X. Notwithstanding the foregoing, and except
as otherwise may be required by law, whenever the holders of any one or more
series of preferred stock of the Corporation elect one or more directors of the
Corporation, the terms of the director or directors elected by such holders
shall expire at the next succeeding annual meeting of stockholders.
ARTICLE XI
Removal of Directors
Notwithstanding any other provision of this Certificate or the bylaws of
the Corporation, any director or all the directors of a single class (but not
the entire board of directors) of the Corporation may be removed, at any time,
but only for cause and only by the affirmative vote of the holders of at least
2/3 of the voting power of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as one class) cast at a meeting of the stockholders called for
that purpose. Notwithstanding the foregoing, whenever the holders of any one or
more series of preferred stock of the Corporation shall have the right, voting
separately as a class, to elect one or more directors of the Corporation, the
preceding provisions of this Article XI shall not apply with respect to the
director or directors elected by holders of preferred stock. I think a greater
than majority vote for the removal of a director is a good idea as it flies in
the face of the shareholders' wills.
ARTICLE XII
Approval of Certain Business Combinations
The stockholder vote required to approve Business Combinations (as
hereinafter defined) shall be as set forth in this section.
A. Required Affirmative Vote.
(1) Except as otherwise expressly provided in this Article XIII, and in
addition to any other vote required by law, the affirmative vote
required by law, the affirmative vote of the holders of (i) at least
60% of the voting power of the outstanding shares entitled to vote
thereon (and, if any class or series of shares is entitled to vote
thereon separately the affirmative vote of the holders of at least 60%
of the outstanding shares of each such class or series), and (ii) at
least a majority of the outstanding shares entitled to vote thereon,
not including shares deemed beneficially owned by a Related Person (as
hereinafter defined), shall be required in order to authorize any of
the following:
(a) any merger or consolidation of the Corporation or a subsidiary of
the Corporation with or into a Related person (as hereinafter
defined);
(b) any sale, lease, exchange, transfer or other disposition,
including without limitation, a mortgage or pledge, of all or any
Substantial Part (as hereinafter defined) of the assets of the
Corporation (including without limitation any voting securities
of a subsidiary) or of a subsidiary, to a Related Person;
(c) any merger or consolidation of a Related Person with or into the
Corporation or a subsidiary of the Corporation;
(d) any sale, lease, exchange, transfer or other disposition of all
or any Substantial Part of the assets of a Related Person to the
Corporation or a subsidiary of the Corporation;
(e) the issuance of any securities of the Corporation or a subsidiary
of the Corporation to a Related Person.
B. Exceptions.
The provisions of paragraph A shall not be applicable to any particular
Business Combination, and such Business Combination shall require only such
affirmative vote as is required by any other provision of this Certificate, any
provision of law, or any agreement with any regulatory agency or national
securities exchange, if the Business Combination shall have been approved in
advance by a two-thirds vote of the Continuing Directors (as hereinafter
defined; provided, however, that such approval shall only be effective if
obtained at a meeting at which a continuing Director Quorum (as hereinafter
defined) is present.
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ARTICLE XIII
Indemnification
Any person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (whether or not by or in the right of
the corporation) by reason of the fact that he is or was a director, officer,
incorporator, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, incorporator, employee,
partner, trustee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise (including an employee benefit plan), shall be
entitled to be indemnified by the corporation to the full extent then permitted
by law against expenses (including counsel fees and disbursements), judgments,
fines (including excise taxes assessed on a person with respect to an employee
benefit plan), and amounts paid in settlement incurred by him in connection with
such action, suit, or proceeding. Such right of indemnification shall inure
whether or not the claim asserted is based on matters which antedate the
adoption of this Article XV. Such right of indemnification shall continue as to
a person who has ceased to be a director, officer, incorporator, employee,
partner, trustee, or agent and shall inure to the benefit of the heirs and
personal representatives of such a person. The indemnification provided by this
Article XV shall not be deemed exclusive of any other rights which may be
provided now or in the future under any provision currently in effect or
hereafter adopted of the bylaws, by any agreement, by vote of stockholders, by
resolution of disinterested directors, by provisions of law, or otherwise.
ARTICLE XIV
Limitations on Directors' Liability
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except: (A) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (B) for acts or omissions that are not
in good faith or that involve intentional misconduct or a knowing violation of
law, (C) under Section 174 of the General Corporation Law of the State of
Delaware, or (D) for any transaction from which the director derived any
improper personal benefit. If the General Corporation law of the State of
Delaware is amended after the date of filing of this Certificate to further
eliminate or limit the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE XV
Amendment of Bylaws
In furtherance and not in limitation of the powers conferred by statute,
the board of directors of the Corporation is expressly authorized to adopt,
repeal, alter, amend and rescind the bylaws of the Corporation by a vote of
two-thirds of the board of directors. Notwithstanding any other provision of
this Certificate or the bylaws of the Corporation, and in addition to any
affirmative vote required by law (and notwithstanding the fact that some lesser
percentage may be specified by law), the bylaws shall be adopted, repealed,
altered, amended or rescinded by the stockholders of the Corporation only by the
vote of the holders of not less than 2/3 of the voting power of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose (provided that notice of
such proposed adoption, repeal, alteration, amendment or rescission is included
in the notice of such meeting), or, as set forth above, by the board of
directors.
ARTICLE XVI
Amendment of Certificate of Incorporation
Subject to the provisions hereof, the Corporation reserves the right to
repeal, alter, amend or rescind any provision contained in this Certificate in
the manner now or hereafter prescribed by law, and all rights conferred on
stockholders herein are granted subject to this reservation. Notwithstanding the
foregoing at any time and from time to time, the provisions set forth in
Articles VIII, IX, X, XI, XII, XIII, XIV, XV and this Article XVI may be
repealed, altered, amended or rescinded in any respect only if the same is
approved by the affirmative vote of the holders of not less than 2/3 of the
voting power of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors.
ARTICLE XVII
INCORPORATOR
The name and address of the incorporator is:
Karen R. Slacum
P. O. B 841
Dover, Delaware 19903-0841
I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation pursuant to the General Corporation Law of Delaware, do make and
file this Certificate of Incorporation, hereby declaring and certifying that the
facts herein stated are true, and accordingly have hereunto set my hand this 5th
day of February, 2002.
/s/Karen R. Slacum
Karen R. Slacum,
Incorporator
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