Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2 Registration Statement 110 527K
2: EX-1.1 Underwriting Agreement 39 132K
3: EX-1.2 Dealers Agreement 7 24K
4: EX-3.1 Articles of Incorporation 7 31K
5: EX-3.2 By-Laws 12 52K
6: EX-4.3 Warrant Agreement 34 102K
7: EX-4.4 Purchase Option 16 48K
8: EX-10.1 1996 Non-Employee Director Stock Option Plan 7 31K
11: EX-10.16 Lease Agreement 16 57K
12: EX-10.17 Lease Agreement 15 55K
13: EX-10.18 Lease Agreement 15 55K
9: EX-10.2 1996 Employee and Consultant Stock Option Plan 10 40K
14: EX-10.29 Agency and Sales Agreement 9 31K
15: EX-10.30 Requirments Agreement 9 22K
10: EX-10.5 Executive Employment Agreement Re: Benson Zinbarg 11 48K
16: EX-23.1 Consent of Independent Certified Public 1 8K
Accountants
17: EX-23.2 Consent of Law Offices of David Gordon 1 7K
State of Delaware
Office of the Secretary of State
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "SUN HILL INDUSTRIES, INC.", FILED IN THIS OFFICE ON THE NINTH
DAY OF OCTOBER, A.D. 1996, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
-----------------------------------
GREAT SEAL OF THE STATE OF DELAWARE
LOGO
1793 - 1847 - 1907
-----------------------------------
[SEAL] /s/ Edward J. Freel
-------------------
Edward J. Freel, Secretary of State
2671794 8100 AUTHENTICATION: 8142019
960294900 DATE: 10-10-96
CERTIFICATE OF INCORPORATION
OF
SUN HILL INDUSTRIES, INC.
FIRST: The name of the corporation (the "Corporation") is SUN HILL
INDUSTRIES, INC.
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801
and the name of the registered agent at such address is The Corporation Trust
Company.
THIRD: The nature of the business and purposes to be conducted, promoted
and carried on are:
a. To engage in the design, manufacture, storage, distribution and sale of
holiday, seasonal and novelty merchandise items as well as pet and stationery
products of every kind and character.
b. In connection with the foregoing, to engage in any similar business
which, in the judgment of the board of directors may be of use or advantage to
the Corporation.
c. To acquire, construct, maintain, develop, improve, rent, use, mortgage
and dispose of real property and interests and estates and rights therein.
d. To guarantee, purchase, or otherwise acquire, hold, sell, assign,
transfer, mortgage, pledge or otherwise dispose of the shares of the capital
stock, bonds, or other evidence of indebtedness created by other corporations,
and while the holder of such stock, to exercise all the rights and privileges of
ownership, including the right to vote therein, to the same extent as a natural
person might or could do.
e. To enter into, make and perform contracts of every kind for any lawful
purpose, without limit as to amount, with any person, firm, association or
corporation, town, city, county, state, territory or government.
f. To borrow money, issue bonds, debentures or obligations, and to secure
the same by mortgage, pledge, deed of trust or otherwise.
g. To purchase, hold, sell and transfer the shares of its capital stock.
h. To have one or more officers and to conduct any or all of its operations
and business and to promote its objects within or without the State of Delaware,
without restrictions as to place or amount.
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i. To do any or all of the things set forth as principal, agent,
contractor, trustee, or otherwise, alone or in the company with others.
j. To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware, now or hereinafter in
effect.
FOURTH: The total number of shares of capital stock which the Corporation
shall have the authority to issue is 25,000,000 shares, of which 20,000,000
shares shall be designated "Common Stock" and have a par value of $.001 per
share, and 5,000,000 shares shall be designated "Preferred Stock" and have a par
value of $.001 per share.
All shares of Common Stock will be equal to each other, and each holder of
record of Common Stock shall have one vote for each share outstanding in his
name on the books of the Corporation and shall be entitled to vote said stock.
The Preferred Stock shall be issued from time to time in one or more series
with such distinctive serial designations and (1) may have such voting powers,
full or limited, or may be without voting powers; (2) may be subject to
redemption at such time or times and at such prices; (3) may be entitled to
receive dividends (which may be cumulative or noncumulative) at such rate or
rates, on such conditions, and at such times, and payable on any other class or
classes of stock; (4) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation; and (5) may be made convertible
into, or exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes of stock of the Corporation, at
such price or prices or at such rates of exchange and with such adjustments; all
as shall hereafter be stated and expressed in the resolution or resolutions
providing for the issue of such Preferred Stock from time to time adopted by the
board of directors pursuant to the authority so to do which is hereby granted
and expressly vested in the board of directors.
The Board of Directors shall have authority to cause the Corporation to
issue from time to time, without any vote or other action by the shareholders,
any or all shares of stock of the Corporation of any class or series at any time
authorized, and any securities convertible into or exchangeable for any such
shares, and any options, rights or warrants to purchase or acquire any such
shares, in each case to such persons and on such terms (including as a dividend
or distribution on or with respect to, or in connection with a split or
combination of, the outstanding shares of stock of the same or any other class
or series) as the board of directors from time to time in its discretion
lawfully may determine; provided, that the consideration for the issuance of
shares of stock of the Corporation (unless issued as such a dividend or
distribution or in connection with such a split or combination) shall not be
less than the par value of such shares. Shares so issued shall be fully-paid
stock, and the holders of such stock shall not be liable to any further calls or
assessments thereon.
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FIFTH: The name and mailing address of the incorporator is as follows:
Mr. Benson Zinbarg
Sun Hill Industries, Inc.
48 Union Street
Stamford, Connecticut 06906-1329
SIXTH: Unless otherwise provided in the resolution or resolutions of the
board of directors providing for the issue of any series of the Preferred Stock,
cumulative voting of shares of the Corporation's capital stock shall not be
permitted or allowed.
SEVENTH: No stockholder of this Corporation shall, because of his ownership
of stock, have a pre-emptive or other right to purchase, subscribe for, or take
any part of any issue of stock or any security convertible into or carrying
options or warrants to purchase stock of this Corporation.
EIGHTH: The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors consisting of not less than three
nor more than twelve directors. The exact number of directors shall be
determined from time to time by resolution adopted by the Board of Directors.
Any additional director elected to fill a newly created directorship resulting
from an increase in the number of directors shall hold office only until the
next annual meeting of shareholders and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office.
Directors shall be elected by the affirmative vote of the holders of shares
of stock representing a plurality of the total number of shares present in
person or by proxy at the meeting entitled to vote in such election. Any vacancy
on the board of directors, whether resulting from an increase in the number of
directors or otherwise, may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall hold office for the unexpired term for which his predecessor
was elected.
No director shall be removed from office except for cause, and only upon
the affirmative vote of the holders of two-thirds (2/3) of the shares then
entitled to vote at an election of directors.
NINTH: Meetings of the board of directors and of the stockholders may be
held from time to time within or without the State of Delaware at such times and
places as may be designated in the by-laws or resolutions of the board of
directors.
TENTH: In furtherance and not in limitation of the powers hereinabove
conferred, or conferred by the statutes and laws of the State of Delaware, the
board of directors shall have the following powers:
a. To make, alter, amend, or repeal the by-laws for the Corporation.
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b. To designate by resolution passed by a majority of the whole board of
directors, an executive committee and such other committees as the board of
directors shall deem desirable, each committee to consist of at least one (1)
member of the board of directors, which committee or committees, to the extent
provided in such resolution or in the by-laws, shall have and may exercise the
powers of the board of directors in the intervals between meetings of the board,
in the management of the business and affairs of the Corporation.
ELEVENTH: No contract or transaction between the Corporation and one (1) or
more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one (1) or
more of its directors or officers, are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if:
a. The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the board of directors or
the committee, and the board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
b. The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
c. The contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the board of directors, a committee
or the shareholders.
d. For purposes of this Article ELEVENTH, common or disinterested directors
may be counted in determining the presence of a quorum at a meeting of the board
of directors or of a committee which authorizes the contract or transaction.
TWELFTH: The officers and directors of the Corporation shall be subject to
the doctrine of corporate opportunities only insofar as it applies to business
opportunities in which the Corporation has expressed an interest as determined
from time to time by the Corporation's board of directors as evidenced by
resolutions appearing in the Corporation's minute book and as otherwise properly
evidenced and provided for in contracts of employment or similar agreements
between the Corporation and its executive officers. When such areas of interest
are delineated, all such business opportunities within such areas of interest
which come to the attention of the officers, directors and other members of
management of the Corporation shall be disclosed promptly to the Corporation and
made available to it. The board of directors may reject any business opportunity
presented to it and thereafter, any officer, or director, or other member of
management may avail himself of such opportunity. Until such time as the
Corporation, through its board of directors, has designated an area of interest,
the officers, directors and other members of management of the Corporation shall
be free to engage in such areas of interest on their own and the provisions
hereof shall not limit the rights of any officer, director or other member of
management of the Corporation to continue a business existing prior to the time
that such area of
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interest is designated by the Corporation. This Article TWELFTH shall not be
construed to release any employee of the Corporation (other than an officer,
director, or a member of management) from any duties which he may have to the
Corporation.
THIRTEENTH: A. No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit.
B. The Corporation shall, to the full extent permitted by, and in all
manners permissible under the laws of the State of Delaware indemnify any person
made, or threatened to be made, a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that he
or she is or was a director, officer, employee or agent of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan, and such indemnification shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of his
or her heirs, executors and administrators. As used in this Article THIRTEENTH,
the term Corporation shall include each wholly-owned subsidiary of any
predecessor of the Corporation and the Corporation or any predecessor of this
Corporation.
FOURTEENTH: If the Delaware General Corporation Law or other applicable law
requires that a vote or other action to be taken by stockholders of the
Corporation to authorize or approve any merger or consolidation of the
Corporation with or into any other business entity or any sale, lease or
exchange of all or substantially all of the Corporation's property or assets or
the dissolution of the Corporation, no such vote or other action shall be of any
force and effect unless such transaction shall be approved by the affirmative
vote of the holders of two-thirds (2/3) of the outstanding shares, or any class
or series thereof, entitled to vote thereon, unless such transaction shall have
first been approved by the Board of Directors, in which event such action may be
taken upon the affirmative vote of a majority of such shares or any class or
series thereof.
FIFTEENTH: A. Elections of directors need not be by ballot unless the
Bylaws of the Corporation shall so provide.
B. Any action required to be taken at any annual or special meeting of
stockholders of the Corporation may only be taken without a meeting by written
consent setting forth the action so taken if such written consent shall be
dated, signed and delivered to the Corporation's Secretary by the holders of not
less than all of the issued and outstanding shares entitled to vote on such
matter or any class or series thereof.
SIXTEENTH: A. The Corporation may purchase or redeem its own shares in the
manner and on the conditions permitted and provided in Section 160 of the
Delaware General Corporation Law or other applicable law, and as may be
authorized by the board of directors. Shares so purchased shall be considered
treasury shares, and may be reissued and disposed of as authorized
5
by law, or may be canceled and the capital stock reduced, as the Board of
Directors may, from time to time, determine in accordance with applicable law.
B. The board of directors shall have such power and authority with respect
to capital, surplus and dividends, including allocation, increase, reduction,
utilization, distribution and payment, as is permitted and provided in Sections
154, 170 and 244 of the Delaware General Corporation Law or other applicable
law.
SEVENTEENTH: Except as otherwise provided in this Certificate of
Incorporation, amendments to this Certificate of Incorporation, including,
without limitation, any increase or reduction of capital stock, shall require
the affirmative vote of the holders of two-thirds (2/3) of the outstanding
shares, or any class or series thereof, entitled to vote thereon, unless such
amendments shall have first been approved by the Corporation's Board of
Directors, in which event such amendments may be adopted upon the affirmative
vote of a majority of such shares or any class or series thereof.
EIGHTEENTH: Except as may be otherwise required by applicable law, the sale
and any other transfer of fully paid stock of the Corporation shall be free from
any restrictions or all liens imposed by the Corporation.
NINETEENTH: 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 Section 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 Section 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 stockholders 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 organization shall,
if sanctioned by the court to which 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.
IN WITNESS WHEREOF, THE UNDERSIGNED, being the sole incorporator
hereinbefore named, for the purpose of forming a corporation pursuant to
Delaware General Corporation Law, does sign this certificate, hereby declaring
that the facts herein are true, this 6th day of October, 1996.
/s/ Benson Zinbarg
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Benson Zinbarg
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