<PAGE> 1
As filed with the Securities and Exchange Commission on September 27, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
OLYMPIC CASCADE FINANCIAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
Delaware 6711
(State or other jurisdiction (Primary Standard Industrial Applied for
of incorporation or organization) Classification Code Number) (I.R.S. Employer Identification No.)
</TABLE>
1001 Fourth Avenue, Suite 2200
Seattle, Washington 98154
(206) 622-7200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Steven A. Rothstein
Chairman of the Board
1001 Fourth Avenue, Suite 2200
Seattle, Washington 98154
(206) 622-7200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy To:
Lawrence B. Fisher, Esq.
Orrick, Herrington & Sutcliffe LLP
666 Fifth Avenue
New York, New York 10103
(212) 506-5000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. [ ]
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount maximum maximum Amount of
Title of each class of to be offering price aggregate registration
securities to be registered registered (1) per unit offering price fee(2)
<S> <C> <C> <C> <C>
Common Stock, $.02 1,041,758 shares Not Applicable Not Applicable $2,918.72
par value per share
</TABLE>
(1) This Registration Statement relates to securities of the Registrant
issuable to holders of Common Stock of National Securities Corporation, a
Washington corporation ("NSC"), in the proposed merger of NSC with a
wholly owned subsidiary of the Registrant. Includes 196,510 shares
reserved for issuance to holders of registered stock options of NSC
in connection with the Registrant's adoption Of NSC's 1996 Stock Option
Plan and assumption of all then outstanding stock and stock option
awards previously granted by NSC under its 1996 Stock Option Plan and
similar option plans.
(2) Determined solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(f)(1) the registration fee has been calculated on the
basis of the average of the high and low bid prices of the Common Stock of
NSC on the Nasdaq SmallCap Market on September 26, 1996.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
OLYMPIC CASCADE FINANCIAL CORPORATION
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Form S-4
Item Location
- -------- --------
<S> <C>
1. Forepart of Registration Statement and Outside Front
Cover Page of Prospectus............................ Facing Page of Registration Statement;
Outside Front Cover Page of Proxy
Statement/Prospectus
2. Inside Front and Outside Back Cover Pages of
Prospectus.......................................... Inside Front Cover Page and Outside
Back Cover Page of Proxy
Statement/Prospectus
3. Risk Factors, Ratio of Earnings to Fixed Charges
and Other Information............................... Outside Front Cover Page of Proxy
Statement/Prospectus; General
Information; Risks and Adverse
Effects; Proposed Reorganization
4. Terms of the Transaction............................ Proposed Reorganization
5. Pro Forma Financial Information..................... Not Applicable
6. Material Contacts with the Company Being
Acquired............................................ Not Applicable
7. Additional Information Required for Reoffering by
Persons and Parties Deemed to Be Underwriters....... Not Applicable
8. Interests of Named Experts and Counsel.............. Proposed Reorganization
9. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities...... Not Applicable
10. Information with Respect to S-3 Registrants......... Not Applicable
11. Incorporation of Certain Information by Reference... Not Applicable
12. Information with Respect to S-2 or S-3 Registrants.. Not Applicable
13. Incorporation of Certain Information by Reference... Not Applicable
14. Information with Respect to Registrants Other Than
S-2 or S-3 Registrants.............................. Not Applicable
15. Information with Respect to S-3 Companies........... Not Applicable
16. Information with Respect to S-2 or S-3 Companies.... Not Applicable
17. Information with Respect to Companies Other Than
S-2 or S-3 Companies................................ Not Applicable
18. Information if Proxies, Consents or Authorizations
are to be solicited................................. General Information; Proposed
Reorganization; Security Ownership of
Certain Beneficial Owners and
Management
19. Information if Proxies, Consents or Authorizations
are not to be Solicited, or in an Exchange Offer.... Not Applicable
</TABLE>
<PAGE> 3
NATIONAL SECURITIES CORPORATION
1001 Fourth Avenue, Suite 2200
Seattle, Washington 98154
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS To be Held
On November 20, 1996
To the Stockholders of National Securities Corporation:
A Special Meeting of Stockholders of National Securities
Corporation, a Washington corporation (the "Company"), will be held at the
Company's office at 1001 Fourth Avenue, Suite 2200, Seattle, Washington 98154 at
1:30 p.m., local time, on November 20, 1996, for the following purposes:
1. To approve the creation of a holding company by approving
the Agreement and Plan of Merger described in the
accompanying Proxy Statement/Prospectus;
2. To transact such other business as properly may come
before the meeting.
Every holder of record of common stock, par value $0.02 per share
("Common Stock") of the Company at the close of business on October 18, 1996 is
entitled to notice of the meeting and any adjournments or postponements thereof
and to vote, in person or by proxy, one vote for each share of Common Stock held
by such holder. A proxy statement and form of proxy with respect to the Special
Meeting are enclosed herewith. In addition, holders of Common Stock may be
entitled to assert dissenter's rights under Revised Code of Washington
23B.13.020. A copy of such chapter is enclosed with the Proxy
Statement/Prospectus.
By Order of the Board of Directors
STEVEN A. ROTHSTEIN
Chairman of the Board, President
Seattle, Washington
________________, 1996
<PAGE> 4
NATIONAL SECURITIES CORPORATION
OLYMPIC CASCADE FINANCIAL CORPORATION
1001 Fourth Avenue, Suite 2200
Seattle, Washington 98154
PROXY STATEMENT/PROSPECTUS FOR
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON NOVEMBER 20, 1996
This Proxy Statement/Prospectus is being furnished in connection
with the solicitation by the Board of Directors of National Securities
Corporation (the "Company") of proxies to be voted at a special meeting of
stockholders, to be held on November 20, 1996 (the "Special Meeting"), and at
any adjournments thereof. This Proxy Statement/Prospectus is first being sent to
stockholders on or about October 18, 1996.
At the Special Meeting, the Company's stockholders will be asked
to approve the Agreement and Plan of Merger attached as Appendix A hereto (the
"Agreement"). The Board of Directors of the Company is recommending approval of
the Agreement in connection with a proposed corporate reorganization that will
create a holding company structure for the Company (the "Reorganization").
Olympic Cascade Financial Corporation ("Olympic"), a wholly owned subsidiary of
the Company that has been newly formed to effect the Reorganization will become
the parent holding company of the Company. All outstanding shares of the
Company's common stock, $.02 par value per share (the "Company Common Stock")
will be converted on a share-for-share basis into shares of common stock of
Olympic, $.02 par value per share (the "Olympic Common Stock"). As a result, the
owners of Company Common Stock will become the owners of Olympic Common Stock.
Subsequent to the Reorganization, the Company will continue to carry on its
present business as a subsidiary of Olympic. See "Proposed Reorganization."
This Proxy/Prospectus also serves as the Prospectus of Olympic
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the issuance of up to 1,041,758 shares of Olympic Common Stock in
connection with the Reorganization.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATION NOT CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY EITHER OLYMPIC OR THE COMPANY. THIS PROXY
STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY SHARES OF OLYMPIC COMMON STOCK, NOR DOES IT CONSTITUTE THE
SOLICITATION OF A PROXY, IN ANY JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM,
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROXY STATEMENT/PROSPECTUS NOR ANY DISTRIBUTION OF SECURITIES MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
<PAGE> 5
--------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS INFORMATION STATEMENT/PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Proxy Statement/Prospectus is October 18, 1996.
2
<PAGE> 6
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy and information
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington DC 20549, and at the
Commission's New York Regional Office, Seven World Trade Center, Suite 1300, New
York, New York 10048, and the Chicago Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the Commission at its Washington address. Such material may also be
accessed electronically by means of the Commission's home page on the Internet
at http://www.sec.gov.
Following completion of the Reorganization described in this
Proxy Statement/Prospectus, Olympic will file such reports and other information
under the Exchange Act, and Olympic will send its stockholders annual reports
containing financial information that has been examined and reported upon, with
an opinion represented by, independent public accountants, and quarterly reports
with condensed financial information that has been reported on by independent
public accountants. Upon completion of the Reorganization, Olympic Common Stock
will be listed on the Nasdaq SmallCap Market.
A registration statement on Form S-4 under the Securities Act has
been filed with the Commission with respect to Olympic Common Stock offered by
this Proxy Statement/Prospectus. This Proxy Statement/Prospectus does not
contain all information set forth in such registration statement, certain
portions of which may have been omitted pursuant to rules and regulations
promulgated by the Commission. The omitted information may be obtained from the
Commission as indicated above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This Proxy Statement/Prospectus incorporates documents by
reference which are not presented herein or delivered herewith. These documents
(other than exhibits thereto) are available upon request from National
Securities Corporation, 1001 Fourth Avenue, Suite 2200 Seattle, Washington
98154, telephone (206) 622-7200. In order to ensure timely delivery of the
documents, any request should be made by November 1, 1996.
The following documents filed with the Commission by the Company
are incorporated in this Proxy Statement/Prospectus by reference:
(a) Annual Report on Form 10-K of the Company for the
fiscal year ended September 29, 1995;
(b) Quarterly Reports on Form 10-Q of the Company for the
quarters ended December 29, 1995, March 29, 1996 and June 28,
1996, respectively; and
3
<PAGE> 7
(c) Information Statement for the Annual Meeting of
Stockholders for the Company held on February 17, 1996.
(d) the description of the Company's common stock set
forth in the Company's registration statements filed pursuant to
Section 12 of the Exchange Act, and any amendment or report filed
for the purpose of updating any such description.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for all purposes to the
extent that a statement contained in this Proxy Statement/Prospectus modifies
and replaces such statement. All documents filed by the Company pursuant to the
Exchange Act, subsequent to the date hereof and prior to the Special Meeting
shall be deemed to be incorporated herein by reference and to be a part of this
Proxy Statement/Prospectus from the date of the filing of such documents.
4
<PAGE> 8
TABLE OF CONTENTS
Page
----
AVAILABLE INFORMATION .................................................... 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE .......................... 3
GENERAL INFORMATION ...................................................... 6
RISKS AND ADVERSE EFFECTS ................................................ 8
PROPOSED REORGANIZATION .................................................. 8
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT ........................................................... 14
Appendix A - Agreement and Plan of Merger
Appendix B - Certificate of Incorporation of Olympic
5
<PAGE> 9
GENERAL INFORMATION
Voting Rights and Solicitation of Proxies
The Board knows of no matters likely to be brought before the
Special Meeting other than those described in this Proxy Statement/Prospectus.
If any other matters, not now known or determined, properly come before the
Special Meeting or any adjournment thereof, the persons named in the enclosed
form of proxy will vote such proxy in accordance with their best judgement in
such matters pursuant to discretionary authority granted in the proxy.
Any stockholder giving a proxy in the form accompanying this
proxy statement has the power to revoke the proxy prior to its exercise. A proxy
can be revoked by an instrument of revocation delivered at or prior to the
Special Meeting to the Secretary or Assistant Secretary of the Company, by a
duly executed proxy bearing a date or time later than the date or time of the
proxy being revoked, or at the Special Meeting if the stockholder is present and
elects to vote in person. Mere attendance at the Special Meeting will not serve
to revoke a proxy. Abstentions and "broker non-votes" (shares held by a broker
or nominee as to which a broker or nominee indicates on the proxy that it does
not have the authority, either express or discretionary, to vote on a particular
matter) are counted for purposes of determining the presence or absence of a
quorum.
All proxies received and not revoked will be voted as directed.
If no directions are specified, such proxies will be voted FOR approval of the
Agreement. An affirmative vote of the majority of votes present at the meeting
is necessary for approval of the Agreement. In all cases, shares with respect to
which authority is withheld, abstentions and broker non-votes that are not voted
will not be included in determining the number of votes cast.
The costs of solicitation of proxies will be borne by the
Company. In addition, the Company may reimburse brokerage houses and other
custodians, nominees and fiduciaries for expenses incurred in forwarding
solicitation materials to the beneficial owners of Company Common Stock. It is
contemplated that proxies will be solicited principally through the mail, but
directors, officers and regular employees of the Company may, without additional
compensation, solicit proxies personally or by telephone, telecopy, telex or
special delivery.
Record Date and Beneficial Ownership
Only holders of record of Company Common Stock at the close of
business on October 18, 1996 (the "Record Date") are entitled to notice of and
to vote at the Special Meeting. At the Record Date, the Company had outstanding
845,248 shares of Company Common Stock (excluding treasury shares), each of
which is entitled to one vote. Of that total, 343,794 (or approximately 34.0%)
is beneficially owned by Steven A. Rothstein, the Company's Chairman of the
Board. Mr. Rothstein has informed the Company that he will vote in favor of the
approval of the Agreement.
6
<PAGE> 10
Market Price of National Securities Corporation Common Stock
The Company's Common Stock is traded on the Nasdaq SmallCap
Market. On September 26, 1996, the high and low bid prices for Company Common
Stock on the Nasdaq SmallCap Market prior to public announcement of the proposed
reorganization were $8.25 and $8.00, respectively.
7
<PAGE> 11
RISKS AND ADVERSE EFFECTS
Risks Associated with Increase in Authorized Capital Stock. The
articles of incorporation of the Company authorize 5,000,000 shares of Common
Stock, $.02 par value (the "Common Stock"). The certificate of incorporation of
Olympic authorizes 10,000,000 shares of Common Stock, $.02 par value and
2,000,000 shares of Preferred Stock, $.01 par value (the "Preferred Stock").
The increase in the number of shares of Common Stock authorized allows Olympic
to issue a greater amount of Common Stock than would otherwise be the case under
the Company's articles of incorporation which may have the effect of diluting
the stockholders of Olympic. In addition, the certificate of incorporation of
Olympic authorizes the Board of Directors to fix the rights, preferences,
privileges and restrictions of one or more series of the authorized shares of
Preferred Stock without further vote or action by the stockholders. Issuance of
the authorized Preferred Stock by the Board of Directors of Olympic could have
the effect of (i) delaying, deferring or preventing a change in control of the
Company or (ii) otherwise modifying the rights of holders of the Common Stock of
Olympic under Delaware law.
PROPOSED REORGANIZATION
General. The Board of Directors of the Company has unanimously
approved, and recommended that the stockholders approve, a proposed corporate
reorganization pursuant to the Agreement. The Reorganization will create a
parent holding company and convert the Company Common Stock into Olympic Common
Stock on a share-for-share basis. The affirmative vote of a majority of the
outstanding shares of Company Common Stock is required for approval of the
Agreement.
Business of the Company and Olympic. The Company conducts a
national securities brokerage business through its main office in Seattle,
Washington, and through its 37 branch offices located in 16 states. The
Company's business includes securities brokerage for individual clients,
market-making trading activities and corporate finance services. The Company's
principal executive offices are located at 1001 Fourth Avenue, Suite 2200,
Seattle, Washington 98154, telephone number (206) 622-7200. Olympic, a newly
formed, wholly-owned subsidiary of the Company, was organized under the laws of
the State of Delaware specifically for the purpose of becoming the new parent
holding company in the Reorganization. Its executive offices are located at the
Company's principal executive offices referred to above. Olympic has newly
formed a wholly-owned subsidiary, MergerSub, Inc. ("MergerSub"), specifically to
effect the Reorganization. Neither Olympic nor MergerSub has any significant
assets or capitalization nor has engaged in any business or prior activities
other than in connection with the Reorganization. The current business of the
Company and its subsidiaries will be operated by Olympic and its subsidiaries,
including the Company, after the Reorganization.
If the Agreement is approved by the stockholders and not
terminated by the Board of Directors of Olympic, the Reorganization will become
effective at the close of business on the date that an appropriate articles of
merger is filed with the Washington Secretary of State as required by Washington
law. The Company anticipates that the Reorganization will become effective
promptly following the Special Meeting.
8
<PAGE> 12
Immediately following the Reorganization, Olympic will have the
same consolidated assets, liabilities and stockholders' equity and the same
directors and executive officers as the Company had immediately prior to such
date. However, there will be a change in the state of incorporation from the
Company to Olympic since the Company is now a Washington corporation and Olympic
is a Delaware corporation.
The Company's Certificate of Incorporation authorizes the
issuance of 5,000,000 shares of Company Common Stock and no shares of preferred
stock. As of the date hereof, 845,248 shares of Company Common Stock are issued
and outstanding.
Terms and Conditions of the Reorganization. The following is a
summary of the terms and conditions of the Agreement. This summary does not
purport to be complete and is qualified in its entirety by reference to the
Agreement, incorporated in this Proxy Statement/Prospectus by reference and
attached hereto as Appendix A, and to the Certificate of Incorporation of
Olympic attached to this Proxy Statement/Prospectus as Appendix B.
The formation of the holding company structure contemplated by
the Agreement will be accomplished through the Reorganization pursuant to which
MergerSub will be merged with and into the Company. The Reorganization, pursuant
to the terms and conditions of the Agreement, is scheduled to become effective
at 12:01 a.m., Eastern Standard Time, on November 21, 1996 (the "Effective
Time"), at which time the separate existence of MergerSub will cease and the
Company, as the surviving corporation in the Reorganization, will become a
wholly-owned subsidiary of Olympic. Following the Reorganization, the Company
will continue to operate under the name "National Securities Corporation" and
Olympic will be known as "Olympic Cascade Financial Corporation".
Under the Agreement, by virtue of the Reorganization, (i) in
exchange for shares of MergerSub Common Stock, Olympic will transfer to
MergerSub the numbers of shares of Olympic Common Stock equal to the number of
shares of Company Common Stock, respectively, issued and outstanding or held in
treasury of the Company; (ii) each share of Company Common Stock issued and
outstanding or held in treasury prior to the Effective Time will be exchanged
for Olympic Common Stock, respectively, upon the merger of MergerSub into the
Company; (iii) each share of Olympic Common Stock owned by the Company prior to
the Effective Time will be automatically cancelled and retired; and (iv) each
share of MergerSub Common Stock issued and outstanding immediately prior to the
Effective Time will be automatically converted into one share of Company Common
Stock. As a result of the transactions described above, Olympic will in effect
replace the Company as the publicly held corporation, and each stockholder of
the Company immediately before the Effective Time will own, immediately after
the Effective Time, the same number of shares of the same class of Olympic
Common Stock as such stockholder owned of Company Common Stock immediately
before the Effective Time.
Stock certificates representing Company Common Stock will, at the
Effective Time, automatically represent Olympic Common Stock. Stockholders of
Company Common Stock will not be required to exchange their stock certificates
as a result of the Reorganization. Following the Reorganization, certificates
bearing the name of Olympic will be issued in the
9
<PAGE> 13
normal course upon surrender of outstanding Company Common Stock certificates
for transfer or exchange. If any stockholder surrenders a certificate
representing shares of Company Common Stock for transfer or exchange and the new
certificate to be issued is to be issued in a name other than that appearing on
the surrendered certificate theretofore representing Company Common Stock, it
will be a condition to such transfer and that the person requesting such
transfer or exchange that the surrendered certificate be properly endorsed and
otherwise be in proper form for transfer and that the person requesting such
transfer or exchange either (i) pay Olympic or its agents any taxes or other
governmental charges required by reason of the issuance of a certificate
registered in a name other than that appearing on a surrendered certificate or
(ii) establish to the satisfaction of Olympic or its agents that such taxes or
other governmental charges have been paid.
The Reorganization will not be consummated unless the following
conditions are satisfied: (i) approval of the Agreement by the requisite vote of
stockholders of the Company; receipt of an opinion of Orrick, Herrington &
Sutcliffe LLP, counsel to Olympic and the Company, with respect to the federal
income tax consequences of the Reorganization; (ii) approval for quotation of
the shares of Olympic Common Stock issuable in the Reorganization on the Nasdaq
SmallCap Market; and (iii) effectiveness of the Registration Statement covering
the shares of Olympic Common Stock issuable in the Reorganization.
Reasons for the Reorganization. The Board has unanimously
approved the Agreement. In determining to approve the Agreement, the Board
concluded that the formation of a holding company structure for the Company will
provide a framework that can better accommodate future growth from internal
operations, will broaden the alternatives available for future financing and
will generally provide greater administrative and operational flexibility. In
the course of its review, the Board concluded that a holding company structure
would better reflect the managerial responsibilities for the different
businesses in which the Company is engaged and in which subsidiaries may one day
be engaged. The Board also believes that a holding company structure would
broaden future financing alternatives by allowing the operating subsidiaries of
Olympic to borrow funds from financial institutions and securing such borrowings
by either pledging capital stock of the holding company or causing the holding
company to guarantee the borrowings of the subsidiaries.
Certificate of Incorporation, Bylaws, and Rights of Stockholders
of Olympic. The Certificate of Incorporation and Bylaws of Olympic are
substantially identical to the Restated Certificate of Incorporation and Bylaws
of the Company. Holders of Olympic Common Stock immediately after the
Reorganization will have essentially the same rights as holders of Company
Common Stock immediately before the Reorganization except the authorized capital
stock of Olympic will consist of 10,000,000 shares of Common Stock, $.02 par
value and 2,000,000 shares of Preferred Stock, $.01 par value, as compared to
5,000,000 shares of Common Stock, $.02 par value and no shares of Preferred
Stock of the Company. The Company's Certificate of Incorporation and Bylaws are
included in the materials incorporated by reference in this Proxy
Statement/Prospectus and Olympic's Certificate of Incorporation and Bylaws are
included as exhibits to the Registration Statement of which this Proxy
Statement/Prospectus forms a part.
10
<PAGE> 14
Dividends. It is anticipated that the current dividend policy of
the Company will be maintained as the dividend policy of Olympic following the
Reorganization and related transactions, subject to future earnings and the
financial condition of Olympic and its subsidiaries and other factors.
Indebtedness. All of the Company's currently outstanding debt
obligations will continue to be obligations of the Company after the
Reorganization.
Stock Option Plans. Pursuant to the Agreement, Olympic will
adopt, as of the Effective Time, the Company's 1996 Stock Option Plan, and will
assume all the then outstanding stock and stock option awards previously granted
by the Company under the 1996 Stock Option Plan and other similar Stock Option
Plans (collectively, the "Stock Option Plans") so that after the Effective Time
all such stock options will be exercisable, and all such awards granted, for
Olympic Common Stock on the same terms and conditions as applied to the Company
Common Stock before the Effective Time. Olympic will, after the Effective Time,
be able to grant awards to acquire Olympic Common Stock pursuant to the Stock
Option Plans on the same terms and conditions as the Company was able to grant
such awards before the Effective Time. A vote in favor of the Agreement will
also constitute stockholder approval of the adoption by Olympic of the Stock
Option Plans in connection with the Reorganization.
Exchange Act Filings. Following the Effective Time, Olympic will
file reports and other information under the Exchange Act, and it is expected
that the Company will cease to be a reporting company under the Exchange Act
upon consummation of the Reorganization.
Nasdaq SmallCap Market Quotation. The Company anticipates that
the Olympic Common Stock will be approved for quotation on the Nasdaq SmallCap
Market under the same symbol ("NATS") as the Company Common Stock. At the
Effective Time, the Company Common Stock will cease to be quoted on the Nasdaq
SmallCap Market. As a practical matter, current owners of the Company Common
Stock will continue to be able to sell their shares of Company Common Stock (or,
after the Effective Time, Olympic Common Stock) on the Nasdaq SmallCap Market
without interruption.
Regulatory Approvals. The consummation of the transactions
described herein do not require the approval of, or compliance with rules
promulgated by, any federal or state regulatory authority.
Amendment or Termination of the Agreement. The Agreement may be
terminated or abandoned at any time prior to the Effective Time, whether before
or after stockholder approval, by action of the Board of Directors of Olympic.
The Company, Olympic and MergerSub, by action of their respective Boards of
Directors, may amend, modify or supplement the Agreement at any time before or
after its approval by the stockholders of the Company. After such approval, no
such amendment, modification or supplement may be made or effected that by law
requires further approval by such stockholders without the further approval of
such stockholders.
11
<PAGE> 15
Federal Income Tax Consequences. The Company and Olympic have
been advised by their counsel, Orrick, Herrington & Sutcliffe LLP, New York, New
York, that, in their opinion, for United States federal income tax purposes,
assuming that the Reorganization will take place as described in the Agreement:
(i) No gain or loss will be recognized by the Company, Olympic
or the stockholders of the Company upon the conversion or
exchange of the Company Common Stock for Olympic Common
Stock pursuant to the Agreement;
(ii) The tax basis of Olympic Common Stock received by the
Company's stockholders pursuant to the Agreement will be
the same as their tax basis in the Company Common Stock
converted or exchanged; and
(iii) The holding period of Olympic Common Stock to be received
by the Company's stockholders in connection with the
Agreement will include the period during which the Company
Common Stock being converted or exchanged was held,
provided that the Company Common Stock is held as a
capital asset in the hands of the stockholder at the
Effective Time.
Although it is not anticipated that state or local income tax
consequences to stockholders will vary substantially from the federal income tax
consequences described above, stockholders of the Company are urged to consult
with their own tax advisors with respect thereto, as well as with respect to any
foreign taxes applicable to foreign stockholders.
Appraisal Rights. Holders of Company Common Stock may be entitled
to asset dissenters' rights under Revised Code of Washington 23B.13.020.
Description of Olympic Capital Stock. The authorized number of
shares of capital stock of Olympic is identical to that of the Company. At the
Effective Time, the number of outstanding shares of Olympic Common Stock will in
each case be identical to the number of corresponding shares of the Company
outstanding prior to the Effective Time. At the Effective Time, the number of
shares of Olympic Common Stock held in Olympic's treasury will similarly be
identical to the number of corresponding shares held in the Company's treasury.
As is now the case with the Company Common Stock, no holder of
Olympic Common Stock has any preemptive rights. The shares of Olympic Common
Stock to be issued pursuant to the Reorganization or any shares of Olympic
Common Stock to be issued upon exercise of stock options under the Stock Option
Plans of the Company as they will be assumed by Olympic will be validly issued,
fully paid and nonassessable.
Holders of Olympic Common Stock are entitled to receive such
dividends as are declared by the Board of Directors of Olympic and are entitled
to cast one vote for each share on all matters voted upon by stockholders. Upon
liquidation of Olympic, holders of Olympic Common Stock are entitled to share
equally and ratably in any assets available for distribution to them.
12
<PAGE> 16
The registrar and transfer agent for Olympic Common Stock and
Company Common Stock is TranSecurities International, Spokane, Washington.
Legal Opinions. The validity of the shares of Olympic Common
Stock to which this Proxy Statement/Prospectus relates will be passed upon for
the Company and Olympic by Orrick, Herrington & Sutcliffe LLP, New York, New
York, counsel for each of the Company and Olympic.
13
<PAGE> 17
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
The following table sets forth, as of September 26, 1996, the
beneficial ownership of Company Common Stock by each (i) director and executive
officer of the Company who is a beneficial owner of any shares of Common Stock,
(ii) person known to the Company to be the beneficial owner of more than 5% of
the outstanding Company Common Stock and (iii) by all executive officers and
directors as a group.
<TABLE>
<CAPTION>
NAME AND ADDRESS TITLE OF CLASS NUMBER OF SHARES PERCENT OF CLASS
- ---------------- -------------- ---------------- ----------------
<S> <C> <C> <C>
Steven A. Rothstein Common Stock 343,794(1) 34.0%(2)
2737 Illinois Road
Wilmette, IL 60091
Norman S. Lynn Common Stock 93,713(3) 10.1%(2)
P.O. Box 1675
Highland Park, IL 60035
Robert I. Kollack Common Stock 82,688 8.9%(2)
1001 Fourth Avenue, Suite 2200
Seattle, WA 98154
Mark McCloskey Common Stock 22,050 2.5%(2)
1001 Fourth Avenue, Suite 2200
Seattle, WA 98154
Alexander H. Slivka Common Stock 1,654 0.2%(2)
1001 Fourth Avenue, Suite 2200
Seattle, WA 98154
Larry Wells Common Stock 55,125(4) 6.5%
10600 N. DeAnza Boulevard
Cupertino, CA 95014
A. Richards Rule Common Stock 54,190 6.4%
7770 El Camino Real
Carlsbad, CA 92009
Maynard Mall Realty Trust Common Stock 63,000 7.5%
95 Main Street
Maynard, MA
All executive officers and directors Common Stock 543,899 45.3%
as a group (5 persons)(1)(2)(3)
</TABLE>
- ------------------------
(1) Includes shares owned directly by spouse and children. Also includes
vested but unexercised options.
(2) Assumes exercise of all vested options.
(3) Includes vested but unexercised options.
(4) Includes shares owned by Anacapa Venture Partners and Sundance Venture
Partners.
14
<PAGE> 18
APPENDIX A
OH&S DRAFT
09/09/96
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of the
[______] day of, 1996, is entered into among NATIONAL SECURITIES CORPORATION, a
Washington corporation ("NSC"), OLYMPIC CASCADE FINANCIAL CORPORATION, a
Delaware corporation and a wholly-owned subsidiary of NSC ("Olympic"), and
MERGERSUB, INC., a Washington corporation and a wholly-owned subsidiary of
Olympic ("MergerSub") (NSC and MergerSub is each, individually, a "Constituent
Corporation" and are, collectively, the "Constituent Corporations").
W I T N E S S E T H:
WHEREAS, the board of directors of NSC has determined that it is in
the best interests of NSC and its stockholders to reorganize the corporate
structure of NSC by creating a holding company structure and, in order to effect
such reorganization, NSC has caused the incorporation of Olympic and Olympic has
caused the incorporation of MergerSub for the purpose of merging MergerSub with
and into NSC (the "Merger") in accordance with the applicable provisions of the
Washington Business Corporation Act (the "WBCA"), pursuant to which Merger all
outstanding shares of common stock of NSC will be converted into an equal number
of shares of common stock of Olympic, with the result and effect that present
stockholders of NSC will become stockholders of Olympic, NSC will become a
wholly-owned subsidiary of Olympic, and the corporate existence of MergerSub
will terminate;
WHEREAS, the authorized capital stock of NSC consists of 10,000,000
shares of common stock, par value $.02 per share ("NSC Common Stock"). As of the
date hereof, [___________] shares of NSC Common Stock are issued and
outstanding;
WHEREAS, the authorized capital stock of Olympic consists of
5,000,000 shares of common stock, par value $.02 per share ("Olympic Common
Stock") of which 100 shares are issued and outstanding and held by NSC;
WHEREAS, the authorized capital stock of MergerSub consists of 100
shares of common stock, no par value ("MergerSub Common Stock"), all of which
shares are issued and outstanding and held by Olympic;
WHEREAS, in accordance with the applicable provisions of the WBCA,
the board of directors of NSC has approved this Agreement and the Merger, and
the other transactions contemplated hereby, such Merger and other transactions
to be on the terms and conditions set forth in this Agreement, and has directed
that this Agreement be submitted to
<PAGE> 19
the holders of NSC Common Stock at a meeting of such stockholders for the
purpose of considering and voting on the adoption of this Agreement; and
WHEREAS, the respective boards of directors of Olympic and MergerSub
have approved this Agreement and the other transactions contemplated hereby.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Merger. Upon the terms and subject to the conditions set forth in
this Agreement, and in accordance with the WBCA, MergerSub shall be merged with
and into NSC at the Effective Time (as defined in Section 3). Following the
Effective Time, the separate corporate existence of MergerSub shall cease and
NSC shall continue as the surviving corporation (the "Surviving Corporation")
and shall succeed to and assume all the rights and obligations of MergerSub in
accordance with the WBCA.
2. Closing. The closing of the Merger (the "Closing") will take
place at 10:00 a.m. on a date to be specified by the parties (the "Closing
Date"), which shall be no later than the second business day after satisfaction
of the conditions set forth in Section 9 at the offices of Orrick, Herrington &
Sutcliffe LLP, 666 Fifth Avenue, New York, New York 10103, unless another date
or place is agreed to in writing by the parties hereto.
3. Effective Time. Subject to the provisions of this Agreement, as
soon as practicable following the satisfaction or waiver of the conditions set
forth in Section 9, the parties shall file articles of merger or other
appropriate documents (the "Articles of Merger") executed in accordance with the
relevant provisions of the WBCA and shall make all other filings or recording
required under the WBCA. The Merger shall become effective at such time as the
Articles of Merger is duly filed with the Washington Secretary of State, or at
such other time as MergerSub and the Company shall agree should be specified in
the Articles of Merger (the time the Merger becomes effective being hereinafter
referred to as the "Effective Time").
4. Certificate of Incorporation and Bylaws. At the Effective Time,
the Articles of Incorporation and the Bylaws of NSC, as in effect at the
Effective Time, shall be the articles of incorporation and bylaws of the
Surviving Corporation, and each shall thereafter remain in full force and effect
from and after the Effective Time until repealed, altered or amended, in each
case in accordance with its terms and the WBCA.
5. Directors and Officer. The directors and officers of NSC
immediately prior to the Effective Time (including, without limitation, the
members of committees of the board of directors of NSC) shall be the directors
and officers of the Surviving Corporation immediately after the Effective Time
(including, without limitation, the members of committees of the board of
directors of the Surviving Corporation). Such directors and officers of the
Surviving Corporation shall hold office from and after the Effective Time until
their respective successors are duly elected or appointed, as the case may be,
and take office.
2
<PAGE> 20
6. Conversion of Shares. Subject to the terms and conditions of this
Agreement, at the Effective Time:
(a) Olympic will issue and transfer [___________] shares of
Olympic Common Stock to MergerSub in exchange for 100 shares of MergerSub
Common Stock;
(b) Upon the merger of MergerSub into NSC, each share of NSC
Common Stock issued and outstanding or held in the treasury of NSC at the
Effective Time shall be converted into one fully paid and nonassessable
share of Olympic Common Stock, it being understood that, by virtue of the
Merger, no shares of NSC Common Stock shall be issued or outstanding after
the Effective Time, except as set forth in clause (c) of this Paragraph 6,
and, except as set forth in clause (c) of this Paragraph 6, each holder of
a certificate representing any shares of NSC Common Stock shall, after the
Effective Time, cease to have any rights with respect to such shares,
except the right to receive one share of Olympic Common Stock for each
share of NSC Common Stock represented by such certificate;
(c) Each of the 100 shares of Olympic Common Stock issued and
outstanding immediately prior to the Effective Time shall be cancelled and
retired and shall cease to exist, and each holder of a certificate
representing any such shares shall thereafter cease to have any rights
with respect thereto; and
(d) Each of the 100 shares of MergerSub Common Stock issued
and outstanding immediately prior to the Effective Time shall be converted
into one share of NSC Common Stock.
7. Exchange of Certificates. Following the Effective Time, each
holder of an outstanding certificate or certificates representing shares of NSC
Common Stock may, but shall not be required to, surrender the same to Olympic
for cancellation or transfer, and each such holder or transferee will be
entitled to receive certificates representing the same number of shares of
Olympic Common Stock as the shares of NSC Common Stock previously represented by
the stock certificates surrendered. If any certificate representing shares of
Olympic Common Stock is to be issued in a name other than that in which the
certificate representing NSC Common Stock surrendered is registered, it shall be
a condition to such issuance that the certificate surrendered shall be properly
endorsed and otherwise in proper form for transfer and the person requesting
such issuance shall either:
(i) pay NSC or its agents any taxes or other governmental charges
required by reason of the issuance of certificates representing shares of
Olympic Common Stock in a name other than that of the registered holder of
the certificate so surrendered; or
(ii) establish to the satisfaction of Olympic or its agents that
such taxes or governmental charges have been paid.
3
<PAGE> 21
Until so surrendered or presented for transfer, each outstanding
certificate which, prior to the Effective Time, represented NSC Common Stock
shall be deemed and treated for all corporate purposes to represent the
ownership of the same number of shares of Olympic Common Stock as though such
surrender or transfer and exchange had taken place.
8. Assumption of Obligations. Effective as of the Effective Time,
NSC's 1996 Stock Option Plan (the "Stock Option Plan"), shall be adopted by
Olympic without any further action by Olympic, and Olympic will thereafter
assume all the then outstanding stock and stock option awards previously granted
by NSC and the Stock Option Plan so that after the Effective Time all such stock
options will be exercisable, and all such awards granted, for Olympic Common
Stock on the same terms and conditions as applied to the NSC Common Stock before
the Effective Time. Olympic will, after the Effective Time, be able to grant
awards to acquire Olympic Common Stock pursuant to the Stock Option Plan on the
same terms and conditions as NSC was able to grant such awards before the
Effective Time.
9. Conditions Precedent. The obligations of each of the Constituent
Corporations and Olympic to consummate the Merger and the other transactions
contemplated in this Agreement are subject to the fulfillment of each of the
following conditions at or prior to the Effective Time:
(a) Consents of Third Parties. NSC shall have received all
requisite consents, approvals and agreements of third parties necessary to
ensure that neither this Agreement nor the Merger contemplated herein
shall violate any provision of any material agreement, instrument, order,
arbitration award, judgement or decree, to which NSC, Olympic or MergerSub
is a party or by which it is bound, or give rise to any right to
accelerate any material indebtedness of NSC, Olympic or MergerSub or any
of their subsidiaries. All persons who have the right to acquire, or are
parties to any agreement providing that they shall receive, shares of NSC
Common Stock, which rights or agreements are not by operation of the terms
of this Agreement and without any action on the part of such persons
converted at the Effective Time into the right to acquire or an agreement
to receive shares of Olympic Common Stock in lieu of shares of NSC Common
Stock shall have entered into arrangements, satisfactory to NSC and
Olympic, providing for the substitution of Olympic Common Stock for NSC
Common Stock under such rights and agreements.
(b) Stockholder Approval. The Merger contemplated herein shall
have received the approval of holders of Common Stock of each of the
Constituent Corporations to the extent required by the WBCA and the
respective Articles of Incorporation of the Constituent Corporations.
(c) Registration of Olympic Common Stock; Nasdaq SmallCap
Market Quotation. A registration statement relating to the shares of
Olympic Common Stock to be issued or reserved for issuance pursuant to the
Merger and the other transactions contemplated herein shall be effective
under the Securities Act of 1933, as amended, and shall not be the subject
of any "stop order" thereunder. The Olympic Common Stock to be issued or
reserved for issuance pursuant to the Merger
4
<PAGE> 22
and the other transactions contemplated herein shall have been approved
for listing, subject to official notice of issuance, by the Nasdaq
SmallCap Market.
(d) Tax Opinion. NSC shall have received an opinion from
Orrick, Herrington & Sutcliffe LLP in form and substance satisfactory to
NSC stating that, for federal income tax purposes. [ADD TAX OPINION, IF
ANY].
(e) Litigation. There shall be no litigation, proceeding or
actions pending or threatened concerning the Merger which in the judgment
of the Board of Directors of NSC renders consummation of the Merger
inadvisable.
(f) Reservation of Authorized Shares. At the Effective Time,
Olympic shall have reserved and set aside from authorized but unissued
shares of Olympic Common Stock or shares of Olympic Common Stock held in
Olympic's treasury the number of shares of Olympic Common Stock necessary
to satisfy the obligations assumed by Olympic hereunder to issue and
deliver such shares in connection with the Merger, the Stock Option Plan
and any other agreements or rights providing for the issuance of shares of
NSC Common Stock, such reservation to continue so long as and to the
extent required to satisfy such obligations assumed by Olympic.
NSC has the right to waive any of the conditions set forth in this
Paragraph 9.
10. Termination, Amendment and Waiver. The Merger and this Agreement
may be terminated or abandoned at any time prior to the Effective Time, whether
before or after approval of this Agreement by the stockholders of NSC, or by
action of the board of directors of NSC. The terms and conditions of this
Agreement may be amended by the respective boards of directors of the parties
without any further action or consent by the stockholders of NSC at any time
prior to the Effective Time; provided, however, that no such amendment after the
approval of this Agreement by the stockholders of NSC in accordance with the
WBCA shall (a) alter or change the amount or kind of consideration to be
received in exchange for all or any of the NSC Common Stock or the MergerSub
Common Stock, (b) alter or change any terms of the Articles of Incorporation of
NSC, or (c) alter or change any of the terms and conditions of this Agreement
if, in any such case, such alteration or change would adversely affect the
holders of NSC Common Stock or MergerSub Common Stock. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties. At any time prior to the Effective Time, the respective boards of
directors of the parties may waive compliance by the other parties with any of
the agreements or conditions contained in this Agreement. Any agreement on the
part of a party to any such waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of any party
to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
5
<PAGE> 23
11. Miscellaneous.
(a) Assignment and Binding Effect. Neither Olympic nor any
Constituent Corporation may assign its rights or obligations under this
Agreement without the prior written consent of the other parties hereto.
The respective rights and obligations under this Agreement shall be
binding upon and inure to the benefit of Olympic and each of the
Constituent Corporations, and their respective successors and assigns.
(b) Governing Law. This Agreement shall be governed as to its
validity, interpretation and effect by the laws of the State of Washington
without regard to principles of conflicts of laws, and so far as
applicable, the merger provisions of the Delaware General Corporation Law.
(c) Captions. All captions and heading used herein are for
convenient reference only and do not form part of this Agreement.
(d) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which, when
taken together, shall constitute one and the same Agreement.
6
<PAGE> 24
IN WITNESS OF, NSC, Olympic and MergerSub, pursuant to the approval
and authority duly given by resolutions adopted by their respective Boards of
Directors, have each caused this Agreement to be executed and delivered by a
duly authorized officer thereof as of the date and year first above written.
NATIONAL SECURITIES CORPORATION
By:_______________________________________________
Steven A. Rothstein
Chairman of the Board
OLYMPIC CASCADE FINANCIAL CORPORATION
By:_______________________________________________
MERGERSUB, INC.
By:_______________________________________________
<PAGE> 25
APPENDIX B
CERTIFICATE OF INCORPORATION
OF
OLYMPIC CASCADE FINANCIAL CORPORATION
The undersigned incorporator, for the purpose of incorporating or
organizing a corporation under the General Corporation Law of the State of
Delaware, as amended, certifies:
FIRST. The name of the Corporation is "Olympic Cascade Financial
Corporation".
SECOND. The address of the registered office of the Corporation in
the State of Delaware is 32 Loockerman Square, Suite L-100 in the City of Dover,
County of Kent. The name of its registered agent at that address is the
Prentice-Hall Corporation System, Inc.
THIRD. The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware.
FOURTH. The total number of shares of capital stock which the
Corporation shall have authority to issue is 10,000,000 shares of Common Stock,
par value $.02 per share (the "Common Stock") and 2,000,000 shares of Preferred
Stock, par value $.01 per share (the "Preferred Stock").
The powers, preferences and rights of the shares of Preferred Stock
and the Common Stock, and the qualifications, limitations or restrictions
thereof are as follows:
A. Preferred Stock
Authority is hereby vested in the Board of Directors of the
Corporation to provide for the issuance of Preferred Stock and in connection
therewith to fix by resolution providing for the issue of such series, the
number of shares to be included and such of the preferences and relative
participating, optional or other special rights and limitations of such series,
including, without limitation, rights of redemption or conversion into Common
Stock, to the fullest extent now or hereafter permitted by the Delaware General
Corporation Law.
B. Common Stock
(a) Each share of Common Stock issued and outstanding shall be
identical in all respects one with the other, and no dividends shall be paid on
any shares of Common Stock unless the same dividend is paid on all shares of
Common Stock outstanding at the time of such payment.
<PAGE> 26
(b) Except for and subject to those rights expressly granted to the
holders of the Preferred Stock, or except as may be provided by the Delaware
General Corporation Law, the holders of Common Stock shall have exclusively all
other rights of stockholders including, but not by way of limitation, (i) the
right to receive dividends, when, as and if declared by the Board of Directors
out of assets lawfully available therefor, and (ii) in the event of any
distribution of assets upon liquidation, dissolution or winding up of the
Corporation or otherwise, the right to receive ratably and equally all the
assets and funds of the Corporation remaining after payment to the holders of
the Preferred Stock of the Corporation of the specific amounts which they are
entitled to receive upon such liquidation, dissolution or winding up of the
Corporation as herein provided.
(c) In the event that the holder of any share of Common Stock shall
receive any payment of any dividend on, liquidation of, or other amounts payable
with respect to, any shares of Common Stock, which he is not then entitled to
receive, he will forthwith deliver the same in the form received to the holders
of shares of the Preferred Stock as their respective interests may appear, or
the Corporation if no shares of Preferred Stock are then outstanding, and until
so delivered will hold the same in trust for such holders or the Corporation.
(d) Each holder of shares of Common Stock shall be entitled to one
vote for each share of such Common Stock held by him, and voting power with
respect to all classes of securities of the Corporation shall be vested solely
in the Common Stock, other than as specifically provided in the Corporation's
Certificate of Incorporation, as it may be amended, with respect to the
Preferred Stock.
(e) No stockholder shall be entitled to any preemptive right to
purchase or subscribe for any unissued stock of any class or any additional
shares of any class to be issued by reason of any increase in the authorized
capital stock of the Corporation.
FIFTH. The name and mailing address of the incorporator are as
follows:
Name Mailing Address
SIXTH. The Board of Directors is expressly authorized to adopt,
amend or repeal the By-laws of the Corporation.
SEVENTH. Elections of directors need not be by written ballot except
and to the extent provided in the By-laws of the Corporation.
EIGHTH. The number of directors constituting the Board of Directors
shall be determined by the Board of Directors, subject to the by-laws of the
Corporation. Any vacancy in the Board of Directors, whether arising from death,
resignation, removal (with or without cause), an increase in the number of
directors or any other cause, may be filled by the vote of either a majority of
the directors then in office, though less than a quorum, or by the
2
<PAGE> 27
stockholders at the next annual meeting thereof or at a special meeting called
for such purpose. Stockholders may not apply to request that the Delaware Court
of Chancery summarily order an election to be held to fill any vacancies in the
Board of Directors whether or not, at the time of filling any vacancy or any
newly created directorship, the directors then in office shall constitute less
than a majority of the whole Board of Directors as constituted immediately prior
to any such vacancy or increase. Each director so elected shall hold office
until the next meeting of the stockholders in which the election of directors is
in the regular order of business and until his successor shall have been elected
and qualified.
NINTH. 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; provided, however, that the foregoing shall not
eliminate or limit the liability of a director (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 General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. If the General Corporation Law of the
State of Delaware is amended after the date hereof to further limit the personal
liability of directors to the Corporation or its stockholders, the liability of
directors will be limited or eliminated to the maximum extent permitted by law
as so amended.
TENTH. 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 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 a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization 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 of the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ELEVENTH. The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
TWELFTH. Special meetings of the stockholders of the Corporation may
only be called by the board of directors of the Corporation upon the request of
any two directors, by
3
<PAGE> 28
the holders of one-third or more of the outstanding Common Stock, or by the duly
elected officers of the Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________, 1996 and I affirm that the foregoing certificate is my act and deed
and that the facts stated herein are true.
______________________________________
By:___________________________________
4
<PAGE> 29
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law and Article VI of
Olympic's Bylaws provide for indemnification of Olympic's directors and officers
in a variety of circumstances, which may include liabilities under the Act.
Section 102 of the Delaware General Corporation Law allows a corporation
to eliminate the personal liability of a director of a corporation to the
corporation or to any of its stockholders for monetary damage for a breach of
his fiduciary duty as a director, except in the case where the director (i)
breaches his duty of loyalty, (ii) fails to act in good faith, engages in
intentional misconduct or knowingly violates a law, (iii) authorized the payment
of a dividend or approves a stock repurchase in violation of the Delaware
General Corporation Law or (iv) obtains an improper benefit. Article Ninth of
Olympic's Certificate of Incorporation includes a provision which eliminates
directors' personal liability to the full extent permitted under the Delaware
General Corporation Law, as the same exists or may hereafter be amended.
Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits
Exhibit
Number Description
2. Form of Agreement and Plan of Merger among Olympic, MergerSub, and
National Securities Corporation (included as Appendix A to the Proxy
Statement/Prospectus).
3.1 Form of Certificate of Incorporation of Olympic (included as Appendix
B to the Proxy Statement/Prospectus).
3.2 Form of By-Laws of Olympic.
3.3 Form of Articles of Incorporation of MergerSub, Inc.
3.4 Form of By-Laws of MergerSub, Inc.
5. Form of Opinion of Orrick, Herrington & Sutcliffe LLP, counsel to
Olympic, relating to the legality of Olympic Common Stock.
8.* Opinion of Orrick, Herrington & Sutcliffe LLP as to certain tax
matters.
23. Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibits 5
and 8).
24. Power of Attorney (contained on Signature Page).
- ---------------------
* To be filed by amendment.
<PAGE> 30
99.1 Form of proxy card for special meeting of stockholders of National
Securities Corporation on November 20, 1996.
(b) Financial Statement Schedules
Not Applicable.
Item 22. Undertakings.
(1) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of Olympic pursuant to the provisions described under Item 20 above, or
otherwise, Olympic has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by Olympic of
expenses incurred or paid by a director, officer or controlling person of
Olympic in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, Olympic will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(2) The undersigned registrant hereby undertakes to supply by
means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(3) The undersigned registrant hereby undertakes that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to information called for by
the other Items of the applicable form.
(4) The undersigned registrant hereby undertakes that every
prospectus (i) that is filed pursuant to the paragraph immediately preceding, or
(ii) that purports to meet the requirements of Section 10(a)(3) of the Act and
is used in connection with an offering of securities subject to Rule 415, will
be filed as a part of an amendment to the registration statement and will not be
used until such amendment is effective, and that, for purposes of determining
any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the bona fide offering thereof.
II-2
<PAGE> 31
(5) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(6) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11 or 13 of this form, within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to the request.
II-3
<PAGE> 32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Seattle, State of Washington, on the 26th day of September, 1996.
OLYMPIC CASCADE FINANCIAL CORPORATION
By: /s/ Steven A. Rothstein
-----------------------------------
Steven A. Rothstein
Chairman of the Board
Each person whose signature appears below constitutes and
appoints Steven A. Rothstein, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution in him, for him and in his
name, place and stead, and in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-4 of Olympic, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as full to all intents and purposes as he
might or could do in person hereby ratifying and confirming all that said
attorney-in-fact and agent or him or his substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
II-4
<PAGE> 33
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ Steven A. Rothstein Chairman of the Board September 26, 1996
- ------------------------ and Director
Steven A. Rothstein
/s/ Robert I. Kollack Chief Executive Officer, September 26, 1996
- ------------------------ President and Director
Robert I. Kollack
/s/ Jay W. Hanville Chief Financial Officer September 26, 1996
- ------------------------ and Treasurer
Jay W. Hanville
/s/ Norman S. Lynn Director September 26, 1996
- ------------------------
Norman S. Lynn
II-5
<PAGE> 34
EXHIBIT INDEX
Exhibit
Number Description
2. Form of Agreement and Plan of Merger among Olympic, MergerSub, and
National Securities Corporation (included as Appendix A to the Proxy
Statement/Prospectus).
3.1 Form of Certificate of Incorporation of Olympic (included as Appendix
B to the Proxy Statement/Prospectus).
3.2 Form of By-Laws of Olympic.
3.3 Form of Articles of Incorporation of MergerSub, Inc.
3.4 Form of By-Laws of MergerSub, Inc.
5. Form of Opinion of Orrick, Herrington & Sutcliffe LLP, counsel to
Olympic, relating to the legality of Olympic Common Stock.
8.* Opinion of Orrick, Herrington & Sutcliffe LLP as to certain tax
matters.
23. Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibits 5
and 8).
24. Power of Attorney (contained on Signature Page).
99.1 Form of proxy card for special meeting of stockholders of National
Securities Corporation on November 20, 1996.
- ------------
* To be filed by amendment.
<PAGE> 1
EXHIBIT 3.2
BY-LAWS OF
OLYMPIC CASCADE FINANCIAL CORPORATION
(A Delaware Corporation)
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of the
Corporation within the State of Delaware shall be in the City of Wilmington,
County of New Castle.
SECTION 2. Other Offices. The Corporation may also have an office or
offices other than said registered office at such place or places, either within
or without the State of Delaware, as the Board of Directors shall from time to
time determine or the business of the Corporation may require.
ARTICLE II
Meeting of Stockholders
SECTION 1. Place of Meetings. All meetings of the stockholders for
the election of directors or for any other purpose shall be held at any such
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of meeting
or in a duly executed waiver thereof.
SECTION 2. Annual Meeting. The annual meeting of stockholders, shall
be held at such date and time as shall be designated from time to time by the
Board of Directors and stated in the notice of meeting or in a duly executed
waiver thereof. At such annual meeting, the stockholders shall elect a Board of
Directors and transact such other business as may properly be brought before the
meeting.
SECTION 3. Special Meetings. Special meetings of stockholders,
unless otherwise prescribed by statute, may be called at any time by the Board
of Directors or the Chairman of the Board, if one shall have been elected, or
the President and shall be called by the Secretary upon the request in writing
of a stockholder or stockholders holding of record at least 33 1/3% of the
voting power of the issued and outstanding shares of stock of the Corporation
entitled to vote at such meeting.
SECTION 4. Notice of Meetings. Except as otherwise expressly
required by statute, written notice of each annual and special meeting of
stockholders stating the date, place and hour of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given to each stockholder of record entitled to vote thereat
<PAGE> 2
not less than ten nor more than sixty days before the date of the meeting.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice. Notice shall be given personally or by mail
and, if by mail, shall be sent in a postage paid envelope, addressed to the
stockholder at his address as it appears on the records of the Corporation.
Notice by mail shall be deemed given at the time when the same shall be
deposited in the United States mail, postage prepaid. Notice of any meeting
shall not be required to be given to any person who attends such meeting, except
when such person attends the meeting in person or by proxy for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened, or who, either
before or after the meeting, shall submit a signed written waiver of notice, in
person or by proxy. Neither the business to be transacted at, nor the purpose
of, an annual or special meeting of stockholders need be specified in any
written waiver of notice.
SECTION 5. List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days before
each meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, showing the address of and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city, town or village where the
meeting is to be held, which place shall be specified in the notice of meeting,
or, if not specified, at the place where the meeting is to be held. The list
shall be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present.
SECTION 6. Quorum, Adjournments. The holders of a majority of the
voting power of the issued and outstanding stock of the Corporation entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum for the transaction of business at all meetings of stockholders, except
as otherwise provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented by proxy at any meeting
of stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented by proxy. At such adjourned meeting at which a
quorum shall be present or represented by proxy, any business may be transacted
which might have been transacted at the meeting as originally called. If the
adjournment is for more than thirty days, or, if after adjournment a new record
date is set, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 7. Organization. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, or, in his absence or if
one shall not have been elected, the President shall act as chairman of the
meeting. The Secretary, or, in his absence or inability to act, the person whom
the chairman of the meeting shall appoint secretary of the meeting shall act as
secretary of the meeting and keep the minutes thereof.
SECTION 8. Order of Business. The order of business at all meetings
of the stockholders shall be as determined by the chairman of the meeting.
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SECTION 9. Voting. Except as otherwise provided by statute or the
Certificate of Incorporation, each stockholder of the Corporation shall be
entitled at each meeting of stockholders to one vote for each share of capital
stock of the Corporation standing in his name on the record of stockholders of
the Corporation:
(a) on the date fixed pursuant to the provisions of Section 7 of
Article V of these By-Laws as the record date for the determination of the
stockholders who shall be entitled to notice of and to vote at such
meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice
thereof shall be given, or, if notice is waived, at the close of business
on the date next preceding the day on which the meeting is held.
Each stockholder entitled to vote at any meeting of stockholders may authorize
another person or persons to act for him by a proxy signed by such stockholder
or his attorney-in-fact, but no proxy shall be voted after three years from its
date, unless the proxy provides for a longer period. Any such proxy shall be
delivered to the secretary of the meeting at or prior to the time designated in
the order of business for so delivering such proxies. When a quorum is present
at any meeting, the vote of the holders of a majority of the voting power of the
issued and outstanding stock of the Corporation entitled to vote thereon,
present in person or represented by proxy, shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of statute or of the Certificate of Incorporation or of these By-Laws, a
different vote is required, in which case such express provision shall govern
and control the decision of such question. Unless required by statute, or
determined by the chairman of the meeting to be advisable, the vote on any
question need not be by ballot. On a vote by ballot, each ballot shall be signed
by the stockholder voting, or by his proxy, if there by such proxy, and shall
state the number of shares voted.
SECTION 10. Inspectors. The Board of Directors may, in advance of
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof If any of the inspectors so appointed shall
fail to appear or act, the chairman of the meeting shall, or if inspectors shall
not have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the results, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors. Inspectors
need not be stockholders.
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<PAGE> 4
SECTION 11. Action by Consent. Whenever the vote of stockholders at
a meeting thereof is required or permitted to be taken for or in connection with
any corporate action, by any provision of statute or of the Certificate of
Incorporation or of these By-Laws, the meeting and vote of stockholders may be
dispensed with, and the action taken without such meeting and vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares of
stock of the Corporation entitled to vote thereon were present and voted.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. The Board of Directors may exercise all such authority and powers of
the Corporation and do all such lawful acts and things as are not by statute or
the Certificate of Incorporation directed or required to be exercised or done by
the stockholders.
SECTION 2. Number, Qualifications, Election and Term of Office. The
number of directors may be fixed, from time to time, by the affirmative vote of
a majority of the entire Board of Directors or by action of the stockholders of
the Corporation. Any decrease in the number of directors shall be effective at
the time of the next succeeding annual meeting of stockholders unless there
shall be vacancies in the Board of Directors, in which case such decrease may
become effective at any time prior to the next succeeding annual meeting to the
extent of the number of such vacancies. Directors need not be stockholders.
Except as otherwise provided by statute or these By-Laws, the directors shall be
elected at the annual meeting of stockholders. Each director shall hold office
until his successor shall have been elected and qualified, or until his death,
or until he shall have resigned, or have been removed, as hereinafter provided
in these By-Laws.
SECTION 3. Place of Meetings. Meetings of the Board of Directors
shall be held at such place or places, within or without the State of Delaware,
as the Board of Directors may from time to time determine or as shall be
specified in the notice of any such meeting.
SECTION 4. Annual Meeting. The Board of Directors shall meet for the
purpose of the election of officers and the transaction of other business, as
soon as practicable after each annual meeting of stockholders, on the same day
and at the same place where such annual meeting shall be held. Notice of such
meeting need not be given. In the event such annual meeting is not so held, the
annual meeting of the Board of Directors may be held at such other time or place
(within or without the State of Delaware) as shall be specified in a notice
thereof given as hereinafter provided in Section 7 of this Article III.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors may
fix. If any day fixed for a regular meeting shall be a legal holiday at the
place where the meeting is to be held, then the
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<PAGE> 5
meeting which would otherwise be held on that day shall be held at the same hour
on the next succeeding business day. Notice of regular meetings of the Board of
Directors need not be given except as otherwise required by statute or these
By-Laws.
SECTION 6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if one shall have been
elected, or by two or more directors of the Corporation or by the President.
SECTION 7. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 7, in which notice shall be stated the time and place of the meeting.
Except as otherwise required by these By-Laws, such notice need not state the
purposes of such meeting. Notice of each such meeting shall be mailed, postage
prepaid, to each director, addressed to him at his residence or usual place of
business, by first class mail, at least two days before the day on which such
meeting is to be held, or shall be sent addressed to him at such place by
telegraph, cable, telex, telecopier or other similar means, or be delivered to
him personally or be given to him by telephone or other similar means, at least
twenty-four hours before the time at which such meeting is to be held. Notice of
any such meeting need not be given to any director who shall, either before or
after the meeting, submit a signed waiver of notice or who shall attend such
meeting, except when he shall attend for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
SECTION 8. Quorum and Manner of Acting. A majority of the entire
Board of Directors shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, and, except as otherwise expressly
required by statute or the Certificate of Incorporation or these By-Laws, the
act of a majority of the directors present at any meeting of the Board of
Directors, a majority of the directors present thereat may adjourn such meeting
to another time and place. Notice of the time and place of any such adjourned
meeting shall be given to all of the directors unless such time and place were
announced at the meeting at which the adjournment was taken, in which case such
notice shall only be given to the directors who were not present thereat. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called. The
directors shall act only as a Board and the individual directors shall have not
power as such.
SECTION 9. Organization. At each meeting of the Board of Directors,
the Chairman of the Board, if one shall have been elected, or, in the absence of
the Chairman of the Board or if one shall not have been elected, the President
(or, in his absence, another director chosen by a majority of the directors
present) shall act as chairman of the meeting and preside thereat. The Secretary
or, in his absence, any person appointed by the chairman shall act as secretary
of the meeting and keep the minutes thereof.
SECTION 10. Resignations. Any director of the Corporation may resign
at any time by giving written notice of his resignation to the Corporation. Any
such resignation shall take effect at the time specified therein or, if the time
when it shall become effective shall not
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be specified therein, immediately upon its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 11. Vacancies. Any vacancy in the Board of Directors,
whether arising from death, resignation, removal (with or without cause), an
increase in the number of directors or any other cause, may be filled by the
vote of a majority of the directors then in office, though less than a quorum,
or by the sole remaining director or by the stockholders at the next annual
meeting thereof or at a special meeting thereof. Each director so elected shall
hold office until his successor shall have been elected and qualified.
SECTION 12. Removal of Directors. Any director may be removed,
either with or without cause, at any time, by the holders of a majority of the
voting power of the issued and outstanding capital stock of the Corporation
entitled to vote at an election of directors.
SECTION 13. Compensation. The Board of Directors shall have
authority to fix the compensation, including fees and reimbursement of expenses,
of directors for services to the Corporation in any capacity.
SECTION 14. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or more
committees, including an executive committee, each committee to consist of one
or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
addition, in the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may act at the meeting in
the place of any such absent or disqualified member. Except to the extent
restricted by statute or the Certificate of Incorporation, each such committee,
to the extent provided in the resolution creating it, shall have and may
exercise all, the powers and authority of the Board of Directors and may
authorize the seal of the Corporation to be affixed to all papers which require
it. Each such committee shall serve at the pleasure of the Board of Directors
and have such name as may be determined from time to time by resolution adopted
by the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors.
SECTION 15. Action by Consent. Unless restricted by the Certificate
of Incorporation, any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if any members
of the Board of Directors or such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors or such committee, as the case may be.
SECTION 16. Telephonic Meeting. Unless restricted by the Certificate
of Incorporation, any one or more members of the Board of Directors or any
committee thereof may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons
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participating in the meeting can hear each other. Participation by such means
shall constitute presence in person at a meeting.
ARTICLE IV
Officers
SECTION 1. Number and Qualifications. The officers of the
Corporation shall be elected by the Board of Directors and shall include the
President, one or more Vice-Presidents, the Secretary and the Treasurer. If the
Board of Directors wishes, it may also elect as an officer of the Corporation a
Chairman of the Board and may elect other officers (including one or more
Assistant Treasurers and one or more Assistant Secretaries) as may be necessary
or desirable for the business of the Corporation. Any two or more offices may be
held by the same person, and no officer except the Chairman of the Board need be
a director. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified, or until his death, or until he shall
have resigned or have been removed, as hereinafter provided in these By-laws.
SECTION 2. Resignations. Any officer of the Corporation may resign
at any time by giving written notice of his resignation to the Corporation. Any
such resignation shall take effect at the time specified therein or, if the time
when it shall become effective shall not be specified therein, immediately upon
receipt. Unless otherwise specified therein, the acceptance of any such
resignation shall not be necessary to make it effective.
SECTION 3. Removal. Any officer of the Corporation may be removed,
either with or without cause, at any time, by the Board of Directors at any
meeting thereof.
SECTION 4. Chairman of the Board. The Chairman of the Board, if one
shall have been elected, shall be a member of the Board, an officer of the
Corporation and, if present, shall preside at each meeting of the Board of
Directors or the stockholders. He shall advise and counsel with the President,
and in his absence with other executives of the Corporation, and shall perform
such other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 5. The President. The President shall be the chief executive
officer of the Corporation. He shall, in the absence of the Chairman of the
Board or if a Chairman of the Board shall not have been elected, preside at each
meeting of the Board of Directors or the stockholders. He shall perform all
duties incident to the office of President and chief executive officer and such
other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 6. Vice President. Each Vice-President shall perform all
such duties as from time to time may be assigned to him by the Board of
Directors or the President. At the request of the President or in his absence or
in the event of his inability or refusal to act, the Vice-President, or ff there
shall be more than one, the Vice-Presidents in the order determined by the Board
of Directors or ff there be no such determination, then the Vice Presidents in
the
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order of their election), shall perform the duties of the President, and, when
so acting, shall have the powers of and be subject to the restrictions placed
upon the President in respect of the performance of such duties.
SECTION 7. Treasurer. The Treasurer shall
(a) have charge and custody of, and be responsible for, all the
funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investments of its funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board of
Directors may require, an account of the financial condition of the
Corporation; and
(g) in general, perform all duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to
him by the Board of Directors.
SECTION 8. Secretary. The Secretary shall
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board of Directors, the
committees of the Board of Directors and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and
affix and attest the seal to all certificates for shares of the
corporation (unless the seal of the Corporation on such certificates shall
be a facsimile, as hereinafter provided) and affix and attest the seal to
all other documents to be executed on behalf of the Corporation under its
seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly
kept and filed; and
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(e) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to
him by the Board of Directors.
SECTION 9. The Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there be no such determination, then in order
of their election), shall, in the absence of the Treasurer or in the event of
his inability or refusal to act, perform the duties and exercise the powers of
the Treasurer and shall perform such other duties as from time to time may be
assigned by the Board of Directors.
SECTION 10. The Assistant Secretary. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties as from time to time may be
assigned by the Board of Directors.
SECTION 11. Officers' Bonds or other Security. If required by the
Board of Directors, any officer of the Corporation shall give a bond or other
security for the faithful performance of his duties, in such amount and with
such surety as the Board of Directors may require.
SECTION 12. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board of Directors. An officer of the Corporation shall not be prevented
from receiving compensation by reason of the fact that he is also a director of
the Corporation.
ARTICLE V
Stock Certificates and Their Transfer
SECTION 1. Stock Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate , signed by, or in the name
of the Corporation by, the Chairman of the Board or the President or a
Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation, certifying the number of shares
owned by him in the Corporation. If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the General Corporation Law
of the State of Delaware, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the
designations, preferences and relative,
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participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
SECTION 2. Facsimile Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
SECTION 3. Lost Certificates. The Board of Directors may direct a
new certificate or certificates to be issued in place or any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum as it may direct sufficient to indemnify it
against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 4. Transfers of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its records; provided, however, that the Corporation shall be
entitled to recognize and enforce any lawful restriction on transfer. Whenever
any transfer of stock shall be made for collateral security, and not absolutely,
it shall be so expressed in the entry of transfer if, when the certificates are
presented to the Corporation, for transfer, both the transferor and the
transferee request the Corporation to do so.
SECTION 5. Transfer Agents and Registrars. The Board of Directors
may appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
SECTION 6. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-Laws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation.
SECTION 7. Fixing the Record Date. In order that the Corporation may
determine the stockholders entitled to notice or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any rights, or entitled to exercise any rights
in respect of any change, conversion of exchange or stock or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days before the date
of such meeting, nor more than sixty stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
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adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
SECTION 8. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its records
as the owner of shares of the stock to receive dividends to vote as such owner,
shall be entitled to hold liable for calls and assessments a person registered
on its records as the owner of shares of stock, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares of
stock on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VI
Indemnification of Directors and Officers
SECTION 1. General. The Corporation shall indemnify 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 (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
employee or agent or another corporation, partnership, joint venture, trust or
other enterprise or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, ff he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination or any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. Derivative Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become a director, officer, employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against costs,
charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the defense or settlement of
such action or suit and any appeal therefrom, ff he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such
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person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the Court of Chancery of the State of Delaware or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
costs, charges and expenses which the Court of Chancery or such other court
shall deem proper.
SECTION 3. Indemnification in Certain Cases. Notwithstanding the
other provisions of this Article VI, to the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise, including without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to in Sections
I and 2 of this Article VI, or in defense of any claim, issue or matter therein,
he shall be indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection therewith.
SECTION 4. Procedure. Any indemnification under Sections 1 and 2 of
this Article VI (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
such Sections I and 2. Such determination shall be made (a) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding (the "Continuing Directors"), or (b)
ff such a quorum of disinterested Continuing Directors is not obtainable, or,
even ff obtainable a quorum of disinterested Continuing Directors so directs, by
independent legal counsel in a written opinion, or (c) by the stockholders.
SECTION 5. Advances for Expenses. Costs, charges and expenses
(including attorneys' fees) incurred by a person referred to in Sections 1 and 2
of this Article VI in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay all amounts so advanced in the
event that it shall ultimately be determined that such director, officer,
employee or agent is not entitled to be indemnified by the Corporation as
authorized in this Article VI. Such costs, charges and expenses incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the majority of the Continuing Directors may, in the manner set forth
above, and upon approval of such director, officer, employer, employee or agent
of the Corporation, authorize the Corporation's counsel to represent such
person, in any action, suit or proceeding, whether or not the Corporation is a
party to such action, suit or proceeding.
SECTION 6. Procedure for Indemnification. Any indemnification under
Sections 1, 2 and 3, or advance of costs, charges and expenses under Section 5
of this Article VI, shall be made promptly, and in any event within 60 days upon
the written request of the director, officer, employee or agent. The right to
indemnification or advances as granted by this Article VI shall be enforceable
by the director, officer, employee or agent in any court of competent
jurisdiction, if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within 60 days. Such person's costs and expenses
incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such action shall
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also be indemnified by the Corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for the advance of costs,
charge and expenses under Section 5 of this Article VI where the required
undertaking, if any, has been received by the Corporation) that the claimant has
not met the standard of the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 1 and 2 of this Article VI, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
SECTION 7. Other Rights; Continuation of Right to Indemnification.
The indemnification and advancement of expenses provided by this Article VI
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law (common
or statutory), by-law, 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 office or while employed by or acting
as agent for the Corporation, 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 estate, heirs, executors and administrators of such person. If the Delaware
Corporation Law is hereafter amended to permit the Corporation to indemnify
directors and officers to a greater extent than otherwise permitted by this
Article VI, the Corporation shall indemnify directors and officers to such
greater extent. All rights to indemnification under this Article VI shall be
deemed to be a contract between the Corporation and each director, officer,
employee or agent of the Corporation who serves or served in such capacity at
any time while this Article VI or any repeal or modification of relevant
provisions of Delaware Corporation law or any other applicable laws shall not in
any way diminish any rights to indemnification of such director, officer,
employee or agent of the Corporation who serves or served in such capacity at
any time while this Article VI is in effect. Any repeal or modification of this
Article VI or any repeal or modification of relevant provisions of Delaware
Corporation Law or any other applicable laws shall not in any way diminish any
rights to indemnification of such director, officer, employee or agent or the
obligations of the Corporation arising hereunder with respect to any action,
suit or proceeding arising out of, or relating to, any actions, transactions or
facts occurring prior to the final adoption of such modification or repeal. For
the purposes of this Article VI, references to "the Corporation" include all
constituent corporations absorbed in a consolidation or merger as well as the
resulting or surviving corporation, so that any person who is or was a director,
officer, employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation, partnership, joint
venture, trust or other enterprise shall stand in the same position under the
provisions of this Article VI, with respect to the resulting or surviving
corporation, as he would ff he had served the resulting or surviving corporation
in the same capacity.
SECTION 8. Insurance. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was or has agreed to
become a director, officer, employee or agent of another corporation as a
director, officer, employee or agent of
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another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him or on his behalf
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article VI; provided, however, that such insurance is
available on acceptable terms, which determination shall be made by a vote of a
majority of the Continuing Directors.
SECTION 9. Savings Clause. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director, officer, employee
and agent of the Corporation as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
fun extent permitted by any applicable portion of this Article VI that shall not
have been invalidated and to the full extent permitted by applicable law.
ARTICLE VII
General Provisions
SECTION 1. Dividends. Subject to the provisions of statute and the
Certificate of Incorporation, dividends upon the shares of capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of stock of the
Corporation, unless otherwise provided by statute or the Certificate of
Incorporation.
SECTION 2. Reserves. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors may, from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may think
conducive to the interests of the Corporation. The Board of Directors may modify
or abolish any such reserves in the manner in which it was created.
SECTION 3. Seal. The seal of the Corporation shall be in such form
as shall be approved by the Board of Directors.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall be
fixed, and once fixed, may thereafter be changed, by resolution of the Board of
Directors.
SECTION 5. Checks, Notes, Drafts, Etc. AH checks, notes, drafts or
other orders for the payment of money of the Corporation shah be signed,
endorsed or accepted in the name of the Corporation by such officer, officers,
person or persons as from time to time may be designated by the Board of
Directors or by an officer or officers author@ by the Board of Directors to make
such designation.
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SECTION 6. Execution of Contracts, Deeds, Etc. The Board of
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the Corporation to enter into or execute and deliver any and
all deeds, bonds, mortgages, contracts and other obligations or instruments, and
such authority may be general or confined to specific instances.
SECTION 7. Voting of Stock in Other Corporations. Unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board or
the President, from time to time, may (or may appoint one or more attorneys or
agents to) cast the votes which the Corporation may be entitled to cast as a
shareholder or otherwise in any other corporation, any of whose shares or
securities may be held by the Corporation, at meetings of the holders of the
shares or other securities of such other corporation. In the event one or more
attorneys or agents are appointed, the Chairman of the Board or the President
may instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent. The Chairman of the Board or the President may, or
may instruct the attorneys or agents appointed to, execute or cause to be
executed in the name and on behalf of the Corporation and under its seal or
otherwise, such written proxies, consents, waivers or other instruments as may
be necessary or proper in the circumstances.
ARTICLE VIII
Amendments
These By-Laws may be amended or repealed or new by-laws adopted (a)
by action of the stockholders entitled to vote thereon at any annual or special
meeting of stockholders or (b) if the Certificate or Incorporation so provided,
by action of the Board of Directors at a regular or special meeting thereof. Any
by-law made by the Board of Directors may be amended or repealed by action of
the stockholders at any annual or special meeting of stockholders.
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EXHIBIT 3.3
ARTICLES OF INCORPORATION
OF
MERGERSUB, INC.
FIRST. The name of this corporation is "MergerSub, Inc."
SECOND. The corporation is authorized to issue one class of share,
designated "Common Stock". 100 shares of Common Stock, $.01 par value per share
may be issued.
THIRD. The street address of the corporation's initial registered
office and the name of its initial registered agent at that office is Mark Roth,
Suite 2200, 1001 Fourth Avenue, Seattle, Washington 98154.
FOURTH. The name and address of the sole incorporator of the
corporation is Mark Roth, Suite 2200, 1001 Fourth Avenue, Seattle, Washington
98154.
FIFTH. The liability of the directors of the corporation for
monetary damages shall be eliminated to the fullest extent permissible under
Washington law.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation on this day of September, 1996.
By:__________________________
Mark Roth
Sole Incorporator
<PAGE> 1
EXHIBIT 3.4
BY-LAWS OF
MERGERSUB, INC.
(A Washington Corporation)
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of the
Corporation within the State of Washington shall be in
[_________________________].
SECTION 2. Other Offices. The Corporation may also have an office or
offices other than said registered office at such place or places, either within
or without the State of Washington, as the Board of Directors shall from time to
time determine or the business of the Corporation may require.
ARTICLE II
Meeting of Stockholders
SECTION 1. Place of Meetings. All meetings of the stockholders for
the election of directors or for any other purpose shall be held at any such
place, either within or without the State of Washington, as shall be designated
from time to time by the Board of Directors and stated in the notice of meeting
or in a duly executed waiver thereof.
SECTION 2. Annual Meeting. The annual meeting of stockholders, shall
be held at such date and time as shall be designated from time to time by the
Board of Directors and stated in the notice of meeting or in a duly executed
waiver thereof. At such annual meeting, the stockholders shall elect a Board of
Directors and transact such other business as may properly be brought before the
meeting.
SECTION 3. Special Meetings. Special meetings of stockholders,
unless otherwise prescribed by statute, may be called at any time by the Board
of Directors or the Chairman of the Board, if one shall have been elected, or
the President and shall be called by the Secretary upon the request in writing
of a stockholder or stockholders holding of record at least 10% of the voting
power of the issued and outstanding shares of stock of the Corporation entitled
to vote at such meeting.
SECTION 4. Notice of Meetings. Except as otherwise expressly
required by statute, written notice of each annual and special meeting of
stockholders stating the date, place and hour of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given to each stockholder of record entitled to vote thereat
<PAGE> 2
not less than ten nor more than sixty days before the date of the meeting.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice. Notice shall be given personally or by mail
and, if by mail, shall be sent in a postage paid envelope, addressed to the
stockholder at his address as it appears on the records of the Corporation.
Notice by mail shall be deemed given at the time when the same shall be
deposited in the United States mail, postage prepaid. Notice of any meeting
shall not be required to be given to any person who attends such meeting, except
when such person attends the meeting in person or by proxy for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened, or who, either
before or after the meeting, shall submit a signed written waiver of notice, in
person or by proxy. Neither the business to be transacted at, nor the purpose
of, an annual or special meeting of stockholders need be specified in any
written waiver of notice.
SECTION 5. List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days before
each meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, showing the address of and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city, town or village where the
meeting is to be held, which place shall be specified in the notice of meeting,
or, if not specified, at the place where the meeting is to be held. The list
shall be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present.
SECTION 6. Quorum, Adjournments. The holders of a majority of the
voting power of the issued and outstanding stock of the Corporation entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum for the transaction of business at all meetings of stockholders, except
as otherwise provided by statute or by the Articles of Incorporation. If,
however, such quorum shall not be present or represented by proxy at any meeting
of stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented by proxy. At such adjourned meeting at which a
quorum shall be present or represented by proxy, any business may be transacted
which might have been transacted at the meeting as originally called. If the
adjournment is for more than thirty days, or, if after adjournment a new record
date is set, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 7. Organization. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, or, in his absence or if
one shall not have been elected, the President shall act as chairman of the
meeting. The Secretary, or, in his absence or inability to act, the person whom
the chairman of the meeting shall appoint secretary of the meeting shall act as
secretary of the meeting and keep the minutes thereof.
SECTION 8. Order of Business. The order of business at all meetings
of the stockholders shall be as determined by the chairman of the meeting.
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SECTION 9. Voting. Except as otherwise provided by statute or the
Articles of Incorporation, each stockholder of the Corporation shall be entitled
at each meeting of stockholders to one vote for each share of capital stock of
the Corporation standing in his name on the record of stockholders of the
Corporation:
(a) on the date fixed pursuant to the provisions of Section 7 of
Article V of these By-Laws as the record date for the determination of the
stockholders who shall be entitled to notice of and to vote at such
meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice
thereof shall be given, or, if notice is waived, at the close of business
on the date next preceding the day on which the meeting is held.
Each stockholder entitled to vote at any meeting of stockholders may authorize
another person or persons to act for him by a proxy signed by such stockholder
or his attorney-in-fact, but no proxy shall be voted after three years from its
date, unless the proxy provides for a longer period. Any such proxy shall be
delivered to the secretary of the meeting at or prior to the time designated in
the order of business for so delivering such proxies. When a quorum is present
at any meeting, the vote of the holders of a majority of the voting power of the
issued and outstanding stock of the Corporation entitled to vote thereon,
present in person or represented by proxy, shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of statute or of the Articles of Incorporation or of these By-Laws, a different
vote is required, in which case such express provision shall govern and control
the decision of such question. Unless required by statute, or determined by the
chairman of the meeting to be advisable, the vote on any question need not be by
ballot. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by his proxy, if there by such proxy, and shall state the number of
shares voted.
SECTION 10. Inspectors. The Board of Directors may, in advance of
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so appointed shall
fail to appear or act, the chairman of the meeting shall, or if inspectors shall
not have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the results, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors. Inspectors
need not be stockholders.
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SECTION 11. Action by Consent. Whenever the vote of stockholders at
a meeting thereof is required or permitted to be taken for or in connection with
any corporate action, by any provision of statute or of the Articles of
Incorporation or of these By-Laws, the meeting and vote of stockholders may be
dispensed with, and the action taken without such meeting and vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares of
stock of the Corporation entitled to vote thereon were present and voted.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. The Board of Directors may exercise all such authority and powers of
the Corporation and do all such lawful acts and things as are not by statute or
the Articles of Incorporation directed or required to be exercised or done by
the stockholders.
SECTION 2. Number, Qualifications, Election and Term of Office. The
number of directors may be fixed, from time to time, by the affirmative vote of
a majority of the entire Board of Directors or by action of the stockholders of
the Corporation. Any decrease in the number of directors shall be effective at
the time of the next succeeding annual meeting of stockholders unless there
shall be vacancies in the Board of Directors, in which case such decrease may
become effective at any time prior to the next succeeding annual meeting to the
extent of the number of such vacancies. Directors need not be stockholders.
Except as otherwise provided by statute or these By-Laws, the directors shall be
elected at the annual meeting of stockholders. Each director shall hold office
until his successor shall have been elected and qualified, or until his death,
or until he shall have resigned, or have been removed, as hereinafter provided
in these By-Laws.
SECTION 3. Place of Meetings. Meetings of the Board of Directors
shall be held at such place or places, within or without the State of
Washington, as the Board of Directors may from time to time determine or as
shall be specified in the notice of any such meeting.
SECTION 4. Annual Meeting. The Board of Directors shall meet for the
purpose of the election of officers and the transaction of other business, as
soon as practicable after each annual meeting of stockholders, on the same day
and at the same place where such annual meeting shall be held. Notice of such
meeting need not be given. In the event such annual meeting is not so held, the
annual meeting of the Board of Directors may be held at such other time or place
(within or without the State of Washington) as shall be specified in a notice
thereof given as hereinafter provided in Section 7 of this Article III.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors may
fix. If any day fixed for a
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<PAGE> 5
regular meeting shall be a legal holiday at the place where the meeting is to be
held, then the meeting which would otherwise be held on that day shall be held
at the same hour on the next such business day. Notice of regular meetings of
the Board of Directors need not be given except as otherwise required by statute
or these By-Laws.
SECTION 6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if one shall have been
elected, or by two or more directors of the Corporation or by the President.
SECTION 7. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 7, in which notice shall be stated the time and place of the meeting.
Except as otherwise required by these By-Laws, such notice need not state the
purposes of such meeting. Notice of each such meeting shall be mailed, postage
prepaid, to each director, addressed to him at his residence or usual place of
business, by first class mail, at least two days before the day on which such
meeting is to be held, or shall be sent addressed to him at such place by
telegraph, cable, telex, telecopier or other similar means, or be delivered to
him personally or be given to him by telephone or other sun ar means, at least
twenty-four hours before the time at which such meeting is to be held. Notice of
any such meeting need not be given to any director who shall, either before or
after the meeting, submit a signed waiver of notice or who shall attend such
meeting, except when he shall attend for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
SECTION 8. Quorum and Manner of Acting. A majority of the entire
Board of Directors shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, and, except as otherwise expressly
required by statute or the Articles of Incorporation or these By-Laws, the act
of a majority of the directors present at any meeting of the Board of Directors,
a majority of the directors present thereat may adjourn such meeting to another
time and place. Notice of the time and place of any such adjourned meeting shall
be given to all of the directors unless such time and place were announced at
the meeting at which the adjournment was taken, in which case such notice shall
only be given to the directors who were not present thereat. At any adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the meeting as originally called. The directors shall
act only as a Board and the individual directors shall have not power as such.
SECTION 9. Organization. At each meeting of the Board of Directors,
the Chairman of the Board, if one shall have been elected, or, in the absence of
the Chairman of the Board or if one shall not have been elected, the President
(or, in his absence, another director chosen by a majority of the directors
present) shall act as chairman of the meeting and preside thereat. The Secretary
or, in his absence, any person appointed by the chairman shall act as secretary
of the meeting and keep the minutes thereof.
SECTION 10. Resignations. Any director of the Corporation may resign
at any time by giving written notice of his resignation to the Corporation. Any
such resignation shall take effect at the time specified therein or, if the time
when it shall become effective shall not
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be specified therein, immediately upon its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 11. Vacancies. Any vacancy in the Board of Directors,
whether arising from death, resignation, removal (with or without cause), an
increase in the number of directors or any other cause, may be filled by the
vote of a majority of the directors then in office, though less than a quorum,
or by the sole remaining director or by the stockholders at the next annual
meeting thereof or at a special meeting thereof. Each director so elected shall
hold office until his successor shall have been elected and qualified.
SECTION 12. Removal of Directors. Any director may be removed,
either with or without cause, at any time, by the holders of a majority of the
voting power of the issued and outstanding capital stock of the Corporation
entitled to vote at an election of directors.
SECTION 13. Compensation. The Board of Directors shall have
authority to fix the compensation, including fees and reimbursement of expenses,
of directors for services to the Corporation in any capacity.
SECTION 14. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or more
committees, including an executive committee, each committee to consist of one
or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
addition, in the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may act at the meeting in
the place of any such absent or disqualified member.
Except to the extent restricted by statute or the Articles of Incorporation,
each such committee, to the extent provided in the resolution creating it, shall
have and may exercise all, the powers and authority of the Board of Directors
and may authorize the seal of the Corporation to be affixed to all papers which
require it. Each such committee shall serve at the pleasure of the Board of
Directors and have such name as may be determined from time to time by
resolution adopted by the Board of Directors. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors.
SECTION 15. Action by Consent. Unless restricted by the Articles of
Incorporation, any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if any members
of the Board of Directors or such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors or such committee, as the case may be.
SECTION 16. Telephonic Meeting. Unless restricted by the Articles of
Incorporation, any one or more members of the Board of Directors or any
committee thereof may participate in a meeting of the Board of Directors or such
committee by means of a
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conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation by such
means shall constitute presence in person at a meeting.
ARTICLE IV
Officers
Section 1. Number and Qualifications. The officers of the
Corporation shall be elected by the Board of Directors and shall include the
President, one or more Vice-Presidents, the Secretary and the Treasurer. If the
Board of Directors wishes, it may also elect as an officer of the Corporation a
Chairman of the Board and may elect other officers (including one or more
Assistant Treasurers and one or more Assistant Secretaries) as may be necessary
or desirable for the business of the Corporation. Any two or more offices may be
held by the same person, and no officer except the Chairman of the Board need be
a director. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified, or until his death, or until he shall
have resigned or have been removed, as hereinafter provided in these By-laws.
SECTION 2. Resign. Any officer of the Corporation may resign at any
time by giving written notice of his resignation to the Corporation. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, immediately upon
receipt. Unless otherwise specified therein, the acceptance of any such
resignation shall not be necessary to make it effective.
SECTION 3. Removal. Any officer of the Corporation may be removed,
either with or without cause, at any time, by the Board of Directors at any
meeting thereof.
SECTION 4. Chairman of the Board. The Chairman of the Board, if one
shall have been elected, shall be a member of the Board, an officer of the
Corporation and, if present, shall preside at each meeting of the Board of
Directors or the stockholders. He shall advise and counsel with the President,
and in his absence with other executives of the Corporation, and shall perform
such other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 5. The President. The President shall be the chief executive
officer of the Corporation. He shall, in the absence of the Chairman of the
Board or if a Chairman of the Board shall not have been elected, preside at each
meeting of the Board of Directors or the stockholders. He shall perform all
duties incident to the office of President and chief executive officer and such
other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 6. Vice President. Each Vice-President shall perform all
such duties as from time to time may be assigned to him by the Board of
Directors or the President. At the request of the President or in his absence or
in the event of his inability or refusal to act, the Vice-President, or if there
shall be more than one, the Vice-Presidents in the order determined by the Board
of Directors or if there be no such determination, then the Vice Presidents in
the
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order of their election), shall perform the duties of the President, and, when
so acting, shall have the powers of and be subject to the restrictions placed
upon the President in respect of the performance of such duties.
SECTION 7. Treasurer. The Treasurer shall
(a) have charge and custody of, and be responsible for, all the
funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investments of its funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board of
Directors may require, an account of the financial condition of the
Corporation; and
(g) in general perform all duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to
him by the Board of Directors.
SECTION 8. Secretary. The Secretary shall
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board of Directors, the
committees of the Board of Directors and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and
affix and attest the seal to all certificates for shares of the
corporation (unless the seal of the Corporation on such certificates shall
be a facsimile, as hereinafter provided) and affix and attest the seal to
all other documents to be executed on behalf of the Corporation under its
seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly
kept and filed; and
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(e) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the Board of Directors.
SECTION 9. The Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there be no such determination, then in order
of their election), shall, in the absence of the Treasurer or in the event of
his inability or refusal to act, perform the duties and exercise the powers of
the Treasurer and shall perform such other duties as from time to time may be
assigned by the Board of Directors.
SECTION 10. The Assistant Secretary. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties as from time to time may be
assigned by the Board of Directors.
SECTION 11. Officers' Bonds or Other Security. If required by the
Board of Directors, any officer of the Corporation shall give a bond or other
security for the faithful performance of his duties, in such amount and with
such surety as the Board of Directors may require.
SECTION 12. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board of Directors. An officer of the Corporation shall not be prevented
from receiving compensation by reason of the fact that he is also a director of
the Corporation.
ARTICLE V
Stock Certificates and Their Transfer
SECTION 1. Stock Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the Chairman of the Board or the President or a
Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation, certifying the number of shares
owned by him in the Corporation. If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock.
SECTION 2. Facsimile Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer,
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transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
SECTION 3. Lost Certificates. The Board of Directors may direct a
new certificate or certificates to be issued in place or any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum as it may direct sufficient to indemnify it
against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 4. Transfers of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its records; provided, however, that the Corporation shall be
entitled to recognize and enforce any lawful restriction on transfer. Whenever
any transfer of stock shall be made for collateral security, and not absolutely,
it shall be so expressed in the entry of transfer if, when the certificates are
presented to the Corporation, for transfer, both the transferor and the
transferee request the Corporation to do so.
SECTION 5. Transfer Agents and Registrars. The Board of Directors
may appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
SECTION 6. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-Laws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation.
SECTION 7. Fixing the Record Date. In order that the Corporation may
determine the stockholders entitled to notice or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any rights, or entitled to exercise any rights
in respect of any change, conversion of exchange or stock or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days before the date
of such meeting, nor more than sixty stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 8. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its records
as the owner of shares of the stock to receive dividends to vote as such owner,
shall be entitled to hold liable for calls and
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assessments a person registered on its records as the owner of shares of stock,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares of stock on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Washington.
ARTICLE VI
Indemnification of Directors and Officers
SECTION 1. General. The Corporation shall indemnify 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 (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
employee or agent or another corporation, partnership, joint venture, trust or
other enterprise or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination or any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. Derivative Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become A director, officer, employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against costs,
charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the defense or settlement of
such action or suit and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the court shall deem proper.
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SECTION 3. Indemnification in Certain Cases. Notwithstanding the
other provisions of this Article VI, to the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise, including without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to in Sections
1 and 2 of this Article VI, or in defense of any claim, issue or matter therein,
he shall be indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection therewith.
SECTION 4. Procedure. Any indemnification under Sections 1 and 2 of
this Article VI (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
such Sections I and 2. Such determination shall be made (a) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding (the "Continuing Directors"), or (b)
if such a quorum of disinterested Continuing Directors is not obtainable, or,
even if obtainable a quorum of disinterested Continuing Directors so directs, by
independent legal counsel in a written opinion, or (c) by the stockholders.
SECTION 5. Advances for Expenses. Costs, charges and expenses
(including attorneys' fees) incurred by a person referred to in Sections 1 and 2
of this Article VI in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay all amounts so advanced in the
event that it shall ultimately be determined that such director, officer,
employee or agent is not entitled to be indemnified by the Corporation as
authorized in this Article VI. Such costs, charges and expenses incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the majority of the Continuing Directors may, in the manner set forth
above, and upon approval of such director, officer, employer, employee or agent
of the Corporation, authorize the Corporation's counsel to represent such
person, in any action, suit or proceeding, whether or not the Corporation is a
party to such action, suit or proceeding.
SECTION 6. Procedure for Indemnification. Any indemnification under
Sections 1, 2 and 3, or advance of costs, charges and expenses under Section 5
of this Article VI, shall be made promptly, and in any event within 60 days upon
the written request of the director, officer, employee or agent. The right to
indemnification or advances as granted by this Article VI shall be enforceable
by the director, officer, employee or agent in any court of competent
jurisdiction, if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within 60 days. Such person's costs and expenses
incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advance of costs, charge and
expenses under Section 5 of this Article VI where the required undertaking, if
any, has been received by the Corporation) that the claimant has not met the
standard of the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the
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circumstances because he has met the applicable standard of conduct set forth in
Sections 1 and 2 of this Article VI, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
SECTION 7. Other Rights; Continuation of Right to Indemnification.
The indemnification and advancement of expenses provided by this Article VI
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law (common
or statutory), by-law, 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 office or while employed by or acting
as agent for the Corporation, 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 estate, heirs, executors and administrators of such person. If the Revised
Code of Washington is hereafter amended to permit the Corporation to indemnify
directors and officers to a greater extent than otherwise permitted by this
Article VI, the Corporation shall indemnify directors and officers to such
greater extent. All rights to indemnification under this Article VI shall be
deemed to be a contract between the Corporation and each director, officer,
employee or agent of the Corporation who serves or served in such capacity at
any time while this Article VI or any repeal or modification of relevant
provisions of the Revised Code of Washington or any other applicable laws shall
not in any way diminish any rights to indemnification of such director, officer,
employee or agent of the Corporation who serves or served in such capacity at
any time while this Article VI is in effect. Any repeal or modification of this
Article VI or any repeal or modification of relevant provisions of the Revised
Code of Washington or any other applicable laws shall not in any way diminish
any rights to indemnification of such director, officer, employee or agent or
the obligations of the Corporation arising hereunder with respect to any action,
suit or proceeding arising out of, or relating to, any actions, transactions or
facts occurring prior to the final adoption of such modification or repeal. For
the purposes of this Article VI, references to "the Corporation" include all
constituent corporations absorbed in a consolidation or merger as well as the
resulting or surviving corporation, so that any person who is or was a director,
officer, employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation, partnership, joint
venture, trust or other enterprise shall stand in the same position under the
provisions of this Article VI, with respect to the resulting or surviving
corporation, as he would if he had served the resulting or surviving corporation
in the same capacity.
8. Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was or has agreed to become
a director, officer, employee or agent of another corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against him and
incurred by him or on his behalf in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article VI; provided,
however, that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the Continuing Directors.
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SECTION 9. Savings Clause. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director, officer, employee
and agent of the Corporation as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, c , administrative or
investigative, including an action by or in the right of the Corporation, to the
fun extent permitted by any applicable portion of this Article VI that shall not
have been invalidated and to the full extent permitted by applicable law.
ARTICLE VII
General Provisions
SECTION 1. Dividends. Subject to the provisions of statute and the
Articles of Incorporation, dividends upon the shares of capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of stock of the
Corporation, unless otherwise provided by statute or the Articles of
Incorporation.
SECTION 2. Reserves. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors may, from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may @ conducive
to the interests of the Corporation. The Board of Directors may modify or
abolish any such reserves in the manner in which it was created.
SECTION 3. Seal. The seal of the Corporation shall be in such form
as shall be approved by the Board of Directors.
SECTION 4. Fiscal Year. The fiscal year of the Corporation shall be
fixed, and once fixed, may thereafter be changed, by resolution of the Board of
Directors.
SECTION 5. Checks, Notes, Drafts, Etc., All checks, notes, drafts or
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by such officer, officers,
person or persons as from time to time may be designated by the Board of
Directors or by an officer or officers author by the Board of Directors to make
such designation.
SECTION 6. Execution of Contracts, Deeds, Etc. The Board of
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the Corporation to enter into or execute and deliver any and
all deeds, bonds, mortgages, contracts and other obligations or instruments, and
such authority may be general or confirmed to specific instances.
SECTION 7. Voting of Stock in Other Corporations. Unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board or
the President, from time
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to time, may (or may appoint one or more attorneys or agents to) cast the votes
which the Corporation may be entitled to cast as a shareholder or otherwise in
any other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of the shares or other securities of
such other corporation. In the event one or more attorneys or agents are
appointed, the Chairman of the Board or the President may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent. The Chairman of the Board or the President may, or may instruct the
attorneys or agents appointed to, execute or cause to be executed in the name
and on behalf of the Corporation and under its seal or otherwise, such written
proxies, consents, waivers or other instruments as may be necessary or proper in
the circumstances.
ARTICLE VIII
Amendments
These By-Laws may be amended or repealed or new by-laws adopted (a)
by action of the stockholders entitled to vote thereon at any annual or special
meeting of stockholders or (b) if the Articles of Incorporation so provided, by
action of the Board of Directors at a regular or special meeting thereof Any
by-law made by the Board of Directors may be amended or repealed by action of
the stockholders at any annual or special meeting of stockholders.
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EXHIBIT 5
[LETTERHEAD OF ORRICK, HERRINGTON & SUTCLIFFE LLP]
, 1996
Olympic Cascade Financial Corporation
1001 Fourth Avenue
Suite 2200
Seattle, Washington 98154
Ladies and Gentlemen:
We have acted as counsel to Olympic Cascade Financial Corporation, a
Delaware, corporation (the "Company"), in connection with the registration on
Form S-4 (File No. 333- _____________) under the Securities Act of 1933, as
amended of 845,248 shares of the Company's common stock, par value $.02 per
share (the "Common Stock") to be offered in connection with the proposed
reorganization described in the proxy statement/prospectus forming a part of
such registration statement (the "Registration Statement").
In that connection, we have examined the Company's Certificate of
Incorporation; the Company's By-Laws; minutes of the Company's corporate
proceedings, as made available to us by officers of the Company; an executed
copy of such Registration Statement, as amended through the date hereof, and all
exhibits thereto in the form filed with the Securities and Exchange Commission;
and such matters of law deemed necessary by us in order to deliver the within
opinion. In the course of our examination, we have assumed the genuineness of
all signatures, the authority of all signatories to sign on behalf of their
principals, if any; the authenticity of all documents submitted to us as
original documents and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to certain factual
matters, we have relied upon information furnished to us by officers of the
Company.
Based on the foregoing and solely in reliance thereon, it is our
opinion that the Common Stock has been duly authorized and, when issued and paid
for as contemplated by such Registration Statement, will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this letter as an exhibit to such
Registration Statement and to the reference to it in the "Proposed
Reorganization-Legal Opinions" section of the proxy statement/prospectus
included therein.
Very truly yours,
Orrick, Herrington & Sutcliffe LLP
<PAGE> 1
EXHIBIT 99.1
OH&S DRAFT
09/09/96
PROXY
NATIONAL SECURITIES CORPORATION
This proxy is solicited on behalf of the Board of Directors of
National Securities Corporation.
The undersigned stockholder of National Securities Corporation
(the "Company") hereby constitutes and appoints [______________],
attorney and proxy of the undersigned, with power of substitution,
to attend, vote and act for the undersigned at the special meeting
of stockholders of the Company, a Washington corporation, to be held
at the _________________ on ______________, 1996 at 1:30 p.m. local
time, at any adjournments thereof, with respect to the following on
the reverse side of this proxy card:
(To be continued and signed on reverse side.)
/X/ Please mark your votes as in this example.
1. Approve the proposed corporate reorganization of the Company
creating a holding company.
FOR AGAINST ABSTAIN
/ / / / / /
If not otherwise directed, this proxy will be voted FOR the proposed
corporation reorganization.
The Board of Directors recommends voting in favor of this matter.
PLEASE DATE, SIGN AND MAIL AT ONCE IN THE ENCLOSED
POSTPAID ENVELOPE.
Signature_________ Date_____________ Signature_______________ Date____________
(If held jointly)
NOTE: Please sign exactly as your name appears hereon. If signing as
attorney, executor, administrator, trustee, guardian or the like,
please give your full title
