Annual Report — Small Business — Form 10-KSB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10KSB Annual Report -- Small Business 63 338K
2: EX-3.(I) Exhibit 3.6 1 6K
3: EX-3.(I) Exhibit 3.7 5 22K
4: EX-10 Exhibit 10.62 Registration Rights Agreement 6 24K
5: EX-10 Exhibit 10.63 Voting Agreement 7 32K
6: EX-21 Exhibit 21.1 1 4K
7: EX-23 Exhibit 23.1 1 7K
EX-3.(I) — Exhibit 3.7
| EX-3.(I) | 1st Page of 5 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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ARTICLES OF AMENDMENT
OF THE ARTICLES OF INCORPORATION
OF
E-SAT, INC.
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is E-Sat, Inc.
SECOND: The following amendment to the Articles of Incorporation was
adopted on December 29, 2000, as prescribed by the Colorado Business Corporation
Act, in the manner marked with an X below:
_____ No shares have been issued or Directors elected-Action by Incorporators
_____ No shares have been issued but Directors elected-Action by Directors
_____ Such amendment was adopted by the board of directors where shares have
been issued and shareholder action was not required
__X__ Such amendment was adopted by a vote of the shareholders. The number of
shares voted for the amendment was sufficient for approval
THIRD: If changing the corporate name, the new name of the corporation is:
N/A
FOURTH: The manner, if not set forth in such amendment, in which any
exchange, reclassification, or cancellation of issued shares provided for in the
amendment shall be effected, is as follows: N/A
If these amendments are to have a delayed effective date, please list that
date: N/A (Not to exceed ninety (90) days from the date of filing)
E-Sat, Inc.
By: _________________________
Fred W. Thompson on behalf of DBS Industries, Inc., a shareholder
By: _________________________
David K. Moskowitz on behalf of EchoStar DBS Corporation, a shareholder
CERTIFICATE OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
E-SAT, INC.
E-Sat, Inc., a corporation duly organized and existing under the provisions
of the Colorado Business Corporation Act (the "Corporation") does hereby
certify:
FIRST: The name of the Corporation is E-Sat, Inc.
SECOND: The amendment to the Articles of Incorporation of the Corporation
set forth in the following resolutions is hereby unanimously ratified, adopted,
approved and consented to by DBS Industries, Inc., and EchoStar DBS Corporation,
which entities constitute all of the shareholders of the Corporation, effective
as of December 29, 2000, and, pursuant to ss. 7-107-104 of the Colorado Business
Corporation Act and Section 2.11 of the bylaws of the Corporation, this
Certificate of Amendment to the Articles of Incorporation of E-Sat, Inc. shall
have the same effect as action taken at a meeting of shareholders:
NOW THEREFORE BE IT RESOLVED, that the Articles of Incorporation of the
Corporation be amended by adding the following to ARTICLE IV:
4.3. In the event that the Corporation issues any securities in addition to
the shares of common stock of the Corporation issued and outstanding as of
December 29, 2000, the Corporation shall take any and all action (including, but
not limited to, issuing additional shares of equity securities to EchoStar DBS
Corporation, a Colorado corporation, ("EchoStar") for no consideration)
necessary to maintain EchoStar's (i) ownership of the total number of
outstanding equity securities of the Corporation (with respect to both voting
power and economic benefit); and (ii) control of the total voting power in the
Corporation, in each case, equal to 19.9%.
AND RESOLVED FURTHER, that the Articles of Incorporation of the Corporation
be amended by replacing the existing ARTICLE V in its entirety with the
following:
Except as specifically set forth in bylaws adopted by the shareholders
providing for a greater quorum requirement and except as specifically set forth
below in this Article V with respect to Significant Corporate Actions, a
majority of the outstanding shares shall constitute a quorum at any meeting of
the shareholders. Except as specifically set forth in bylaws adopted by the
shareholders providing for a greater voting requirement, except as specifically
set forth below in this Article V with respect to Significant Corporate Actions
and except as otherwise provided by the Act, action on a matter other than the
election of directors is approved if a quorum exists and if the votes cast
favoring the action exceed the votes cast opposing the action. Any bylaw adding,
changing, or deleting a greater quorum or voting requirement for shareholders
shall meet the same quorum requirements and be adopted by the same vote required
to take action under the quorum and voting requirements then in effect or
proposed to be adopted, whichever are greater. Notwithstanding the foregoing,
greater than eighty and one-tenth percent (80.1%) of the outstanding shares of
the Corporation shall be required to approve
Significant Corporate Action, and action with respect to a Significant Corporate
Action is approved if a quorum consisting of all of the outstanding shares (and
not less than all of the outstanding shares) exists and if the votes cast
favoring the action represent greater than eighty and one-tenth percent (80.1%)
of the outstanding shares of the Corporation. For purposes of these Articles of
Incorporation, "Significant Corporate Action" means any one of the following:
1. amending or modifying the Articles of Incorporation or By-laws of the
Corporation;
2. entering into any merger, consolidation or similar transaction in which
the Corporation is a constituent corporation, acquiring all or
substantially all of the assets or capital stock of another person or
entity (or a division or other business unit of another person or entity),
consummating any other business combination, or dissolving and winding up
the Corporation, in each case whether in a single transaction or a series
of related transactions; provided that DBS Industries, Inc., a Delaware
corporation, may lease or otherwise alienate its eighty percent (80%) of
the Corporation's satellite capacity;
3. adopting or modifying or amending in any material respect any budget or
business plan of the Corporation;
4. selling, leasing, exchanging or otherwise disposing of any property,
asset or business with a value in excess of fifty thousand dollars
($50,000);
5. changing the Corporation's fiscal year, provided that it shall not be a
Significant Corporate Action to change the Corporation's fiscal year to be
the same as the fiscal year of the owner of the majority of the common
stock of the Corporation then issued and outstanding;
6. entering into any transaction, agreement or understanding with any other
person or entity with a value in excess of fifty thousand dollar ($50,000);
7. incurring any indebtedness for borrowed money which would result in the
total outstanding indebtedness of the Corporation for borrowed money
increasing by more than fifty thousand dollars ($50,000);
8. entering into, amending, granting any waiver with respect to,
terminating or extending any agreement outside of the Corporation's
ordinary course of business;
9. entering into any agreement or transaction which has a term in excess of
one (1) year and requires the payment of more than fifty thousand dollars
($50,000.00) per year;
10. entering into, amending, granting any waiver with respect to,
terminating or extending any employment or consulting agreement (or series
of related employment or consulting agreements with the same person or
entity) with, or hiring any officer or employee for, a term of more than
one (1) year or which agreement or arrangement provides for (or, pursuant
to its terms, could reasonably be expected to result in) payments to the
employee or consultant, or otherwise hiring any employee or consultant, at
a rate in excess of fifty thousand dollars ($50,000) per annum, or the
adoption of any amendment of material compensation policies;
11. entering into any transaction or agreement with a shareholder of the
Corporation or any affiliate of a shareholder of the Corporation;
12. electing or removing any of the Corporation's Chairman, President,
Chief Executive Officer, Chief Operating Officer or Chief Financial
Officer, provided that it shall not be a Significant Corporate Action to
change these officers of the Corporation to be the same as the officers of
the owner of the majority of the common stock of the Corporation then
issued and outstanding, unless such majority owner or any of the DBSI
Parties (as
defined in the following agreements) is in breach or default of: (a) the
Share Purchase Agreement entered into as of July 30, 1999, 2000, by and
among EchoStar DBS Corporation, a Colorado corporation, DBS Industries,
Inc., a Delaware corporation, E-Sat, Inc., a Colorado corporation, and
Newstar Limited, a Bermuda corporation; (b) the Voting Agreement made and
entered into as of December 29, 2000, by and among the same parties; and/or
(c) the Registration Rights Agreement made and entered into as of December
29, 2000, by and among the same parties, in which case any and all such a
changes shall be considered a Significant Corporate Action;
13. appointing or changing the Corporation's independent certified public
accountants, provided that it shall not be a Significant Corporate Action
to change the accountants of the Corporation to be the same as the
accountants of the owner of the majority of the common stock of the
Corporation then issued and outstanding, provided that the accountants of
such majority owner are a reputable, nationally-recognized accounting firm
(i.e., a "Big-4" accounting firm);
14. except as required by then-current generally accepted accounting
principles (GAAP) or applicable law, adopting or changing any of the
Corporation's material accounting principles;
15. commencing or settling any litigation, arbitration or governmental
proceeding that relates to more than fifty thousand dollars ($50,000) or is
reasonably likely to have a material impact on the Corporation or its
business;
16. making any loans, investments or advances to, or guaranteeing the
obligations of, any person or entity in excess of ten thousand dollars
($10,000);
17. incorporating, forming or otherwise organizing a subsidiary or any
other person or entity;
18. declaring any dividend or making any other distribution to any
shareholder of the Corporation;
19. filing a voluntary petition in bankruptcy or for reorganization or for
the adoption of any plan or arrangement with creditors or an admission
seeking relief therein provided under any existing or future law or any
jurisdiction relation to bankruptcy, insolvency, reorganization, relief of
debtors or similar matters; or
20. entering into any options, contingent agreements or other arrangements
which, if exercised or consummated in accordance with their terms, would
result in an action constituting a Significant Corporate Action as set
forth above.
AND RESOLVED FURTHER, that the Articles of Incorporation of the Corporation
be amended by adding the following after the end of last sentence of the
existing Paragraph 6.1 of ARTICLE VI:
EchoStar shall have the right to designate one (1) representative (the
"Representative") to be elected to the board of directors. Prior to the
designation of the Representative (and at any times that EchoStar declines to
place a Representative on the board of directors), EchoStar shall be notified of
all meetings of the board of directors in the same manner that directors are
entitled to notice of such meetings under Article III of the bylaws, and an
individual, selected by EchoStar, shall be permitted to attend and observe all
such meetings (the "Observer Rights").
While exercising Observer Rights, EchoStar will not disclose or otherwise
disseminate to third parties any confidential information gained as a result of
attendance at any meetings or received as a result of exercising its Observer
Rights.
IN WITNESS WHEREOF, E-Sat, Inc. has caused this Certificate to be signed
and attested by its sole shareholders, effective as of this 29th day of
December, 2000.
E-Sat, Inc.
By: _________________________
Fred W. Thompson on behalf of DBS Industries, Inc., a shareholder
By: _________________________
David K. Moskowitz on behalf of EchoStar DBS Corporation, a shareholder
Dates Referenced Herein and Documents Incorporated by Reference
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