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Securities and Exchange Commission
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
June 10, 1999 0-21845
Date of report (Date of earliest event reported) Commission File Number
Wilshire Financial Services Group Inc.
(Exact name of registrant as specified in its charter)
Delaware 93-1223879
(State or other jurisdiction of incorporation) (I.R.S. Employer
Identification Number)
1776 SW Madison Street, Portland, OR 97205
(Address of principal executive offices)(Zip Code)
(503) 223-5600
Registrant's telephone number, including area code
Not Applicable
(Former name or former address, if changed since last report)
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Item 1. CHANGES IN CONTROL OF THE REGISTRANT
Emergence from Bankruptcy/Change in Control
In order to address liquidity concerns and to improve the financial
condition of Wilshire Financial Services Group Inc. ("WFSG" which, along with
its subsidiaries, is referred to herein as the "Company"), the Company and an
unofficial committee of holders of a majority of the Company's $184.2 million in
outstanding publicly issued notes agreed to a restructuring of the Company
whereby (i) the noteholders would exchange their notes for new common stock in
the Company; (ii) the Company's existing common stock and options would be
canceled; (iii) noteholders would reallocate up to 0.6% of the new common stock
to holders of old common stock; and (iv) the servicing operations conducted by
Wilshire Credit Corporation, an affiliate of the Company, would be transferred
to a newly formed, majority-owned subsidiary of WFSG.
In connection with the restructuring, the Company filed a voluntary
petition for relief under Chapter 11 of the U.S. Bankruptcy Code in the Federal
Court of Wilmington, Delaware on March 3, 1999. On April 12, 1999, the
restructuring plan was approved by the bankruptcy court. On June 10, 1999, the
plan became effective.
Pursuant to the restructuring plan, the holders of the Company's $184.2
million in outstanding publicly issued notes will receive approximately 96.16
shares of new common stock for every $1,000 of notes, including accrued interest
through March 2, 1999. A portion of the new common stock will be reallocated by
the noteholders so that shareholders of the old common stock will receive up to
0.6% of the outstanding shares of new common stock, equivalent to approximately
1 share of new common stock for every 77.28 shares of old common stock. The
distribution of the new shares is expected to occur in June 1999. The Company
also will acquire, through a majority-owned subsidiary, the loan servicing
operations of Wilshire Credit Corporation, which will allow the Company to
service its own assets and provide third party servicing.
During the quarter ended March 31, 1999, Wilshire Real Estate Investment
Trust Inc. ("WREIT"), an affiliate of the Company, agreed to provide the Company
debtor-in-possession financing of up to $10.0 million (the "DIP Facility") as
part of a compromise and settlement of a $17.0 million obligation payable to
WREIT. The DIP Facility bears interest at 12% and is secured by the stock of
First Bank of Beverly Hills, FSB, WFSG's savings bank subsidiary. WREIT funded
$5.0 million of the DIP Facility on March 3, 1999, but decided not to provide
the Company with the remaining balance. Accordingly, 50%, or approximately $8.5
million, of the note payable was treated pari passu with WFSG's noteholders and
converted to newly issued common stock of WFSG on the effective date of the plan
of reorganization.
The Company has requested that its new common stock succeed to the listing
of its old common stock and that the suspension of trading in the old common
stock be lifted. Nasdaq is currently reviewing this matter, but there can be no
assurance that the new common stock will be approved for trading on Nasdaq.
New Directors of WFSG
Pursuant to the restructuring plan, effective June 10, 1999, Andrew A.
Wiederhorn, Lawrence A. Mendelsohn, Elizabeth Aaroe, Robert M. Deutschman, Larry
B. Faigin, Edward A. Foehl and Daniel A. Markee became directors of WFSG. See
"Item 5. Resignation of Director." Effective June 10, 1999, David Dale-Johnson,
Don H. Coleman and Phillip G. Forte resigned as directors of WFSG. Set forth
below is information concerning each of the directors of WFSG:
Andrew A. Wiederhorn, age 33, has been the Chairman of the Board of
Directors and Chief Executive Officer of the Company since its formation. Mr.
Wiederhorn founded the Wilshire group of companies in 1987.
Lawrence A. Mendelsohn, age 38, has been a director and the President of
the Company since its formation. Mr. Mendelsohn was the Executive Vice
President of the Wilshire group of companies from February 1993 until December
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1996. From January 1992 until February 1993 Mr. Mendelsohn was Vice President,
Principal and Head of CapitalM arkets for Emerging Markets of Bankers Trust New
York Corporation/BT Securities Corporation. From August 1987 until January 1992,
Mr. Mendelsohn was the Vice President, Senior Options Principal and Head of
Proprietary Trading for Equities, Equity Options and Distressed Debt for J.P.
Morgan and Co./J.P. Morgan Securities.
Elizabeth Aaroe, age 40, has been President of Fisher Consulting Services,
Inc., a provider of general business and specialized real estate advisory and
disposition services since 1993. Ms. Aaroe received a B.A. Degree from Bowdoin
College.
Robert M. Deutschman, age 40, is Managing Director of Cappello Capital
Corp., a finance company which engages in merchant banking, venture capital and
investment banking. Prior to joining Cappello, Mr. Deutschman was a Managing
Director of Saybrook Capital Corp. From 1991 until 1994, Mr. Deutschman was a
Senior Vice President and Director of Principal Investments in the Public
Finance Group of Houlihan Lokey Howard & Zukin. Mr. Deutschman received his
undergraduate degree in Political Science at Harvard College and his J.D. degree
from Columbia University School of Law.
Larry B. Faigin, age 56, is President and Chief Executive Officer of
GreenPark Group, LLC, a company that specializes in acquiring
environmentally-impacted land and remediating and improving the property for
further development. Prior to joining the company, he was Chief Executive
Officer of Home Capital Corporation, a subsidiary of HomeFed Bank. He also has
served as a consultant to Chevron Corporation, and Chief Executive Officer and
Director of Wood Bros. Homes, Inc. Mr. Faigin received his B.A. and J.D. degrees
from Western Reserve University.
Edward A. Foehl, age 56, has been President and Chief Executive Officer of
Systran Financial Services Corporation, a company which provides billing and
collection services nationwide to the trucking industry and other businesses
since 1988. Mr. Foehl received a B.S. degree in Engineering at the United States
Military Academy and an MBA from George Washington University (For information
regarding Mr. Foehl's resignation as a director, see Item 5. Resignation of
Director).
Daniel A. Markee, age 42, is a principal of LendSource, Inc., a firm
specializing in origination of first mortgage, home equity and consumer
installment debt. From 1993 until 1997, Mr. Markee was involved in the real
estate investment business as President of Ferterra, Inc., and as a principal of
Euro-American Partners, Inc. Mr. Markee received a B.S. degree in Finance from
the University of Colorado.
Share Ownership of WFSG
The following table sets forth information regarding the ownership of the
Company's new common stock as of June 9, 1999 by (1) any person who is known to
the Company to be the beneficial owner of more than five percent of the new
common stock and (2) each director:
Name Shares Percent
Andrew Wiederhorn 24,047 *
Lawrence Mendelsohn 9,553 *
Elizabeth Aaroe 0 --
Robert M. Deutschman 0 --
Larry B. Faigin 0 --
Edward A. Foehl(1) 0 --
Daniel A. Markee 0 --
The Income Fund of America, Inc.(2) 2,150,571 10.7
The Bond Fund of America, Inc.(2) 1,602,007 8.0
Grantchester Securities 1,027,891 5.2
High Yield Portfolio(3) 2,412,063 12.0
Lindner Dividend(4) 1,045,662 5.2
Wilshire Real Estate Partnership L.P. 2,874,791 14.4
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* Less than one percent.
(1) Effective June 14, 1999, Mr. Foehl resigned as a director.
(2) Capital Research and Management Company is the investment advisor for
the fund.
(3) American Express Financial Corporation is the investment advisor for the
fund.
(4) Ryback Management Corporation is the investment advisor for the fund.
Item 5. OTHER EVENT.
Resignation of Directors
Edward A. Foehl, by letter dated June 14, 1999, informed WFSG that he was
resigning as a director of WFSG, effective June 14, 1999. Mr. Foehl indicated
that he was resigning because of new professional commitments that were not
anticipated at the time he joined the Board of Directors of WFSG. As a result,
Mr. Foehl stated that he no longer had the necessary time required to properly
execute his responsibilities in a situation that requires high levels of
involvement.
Resignation of Chief Executive Officer of First Bank
The Chief Executive Officer of First Bank of Beverly Hills, F.S.B. ("First
Bank"), the Company's thrift subsidiary has announced her resignation to join
another institution. Until her replacement is found, Kevin Kelly, chairman of
First Bank's Board, and former president of the U.S. Bank of Oregon, will assume
the responsibilities of First Bank's chief executive officer. The Company has
engaged a search firm to find a suitable replacement for its chief executive
officer.
Imposition of Restrictions on First Bank
As a result of the resignation of the Chief Executive Officer of First
Bank, the Company's bankruptcy and the fact that First Bank was not operating
under an approved Business Plan, the Office of Thrift Supervision issued a
directive on June 3 that indicates that it considers First Bank to be in
"troubled condition" under 12 CFR 563.555. As a result, First Bank must obtain
OTS approval before First Bank takes any of the following actions:
o increase total assets during any quarter in excess of an amount
equal to net interest credited on deposit liabilities (or earnings
credited on share accounts);
o make or commit to make any new loans or investments, including but
not limited to, the funding of, or investment in mortgage loans or
securities, nonmortgage loans and leases, U.S. government
securities, mortgage derivative products, interest rate swaps and
caps, financial futures and options, and financial guarantees,
except: (i) new loans on owner-occupied single family residences
with balances not exceeding $500,000 per loan with a loan-to-value
ratio of 80% (maximum value ratio of 70% for cash-out refinances);
and (ii) to provide for essential liquidity or to fund legally
binding commitments and loans-in-process existing on or before the
receipt of the letter from the OTS;
o release any borrower or guarantor from liability on any loan or
extension of credit granted by First Bank unless the recorded
investment of the loan has been paid in full, except for
foreclosures;
o make or commit to make any investment in real estate, or investment
in any service corporation or operating subsidiary, except that: (i)
First Bank may make reasonable and necessary expenditures of $40,000
per property in order to preserve the value of its interest in and
maintain real estate owned, whether held by First Bank or a
subsidiary; (ii) First Bank may foreclose upon any real property on
which First Bank has a first lien position that is in default or
take a deed in lieu of foreclosure either directly or through a
subsidiary, and (iii) First Bank may make reasonable and necessary
net cash expenditures up to $100,000 per annum with regard to each
subsidiary;
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o sell, transfer, modify or exchange any loan, participation,
investment, security, or other asset except where the counterparty
is a U.S. government agency or government-sponsored enterprise;
o enter into, renew, extend, or materially revise or modify any
contract or agreement to purchase, or lease, real estate, goods,
materials, equipment, supplies, services, or capital assets, or any
interest therein, except that this restriction does not apply to
contracts, agreement or leases (i) containing a price or payments
exceeding $100,000 over the life of the contract, agreement or lease
and (ii) entered into in the ordinary course of business;
o make or commit to make any capital expenditure in excess of
$100,000;
o pay or commit to pay a dividend to any class of stock; or make any
capital distribution; except for the payment of interest on deposit
accounts;
o retain or hire senior executive officers, directors, or consultants;
and
o increase the cash base salary of any executive officer; pay or agree
to pay any bonus to any officer, director, or employee; make any
golden parachute payment; make any purchase of or payment for an
item or service intended to benefit any officer, employee, or
director costing more than $500 that: (i) is not reasonably
necessary for the performance of such individual's duties,
and (ii) is not available to all employees performing similar
duties, except that expenses of $5,000 for educational purposes
(including travel costs) shall not require the non-objection of
the ARD; make any payment relating to indemnification of any
current or former officer, director or employee.
First Bank does not agree with the "troubled institutions" designations
and intends to appeal the restrictions imposed by the OTS directive.
There can be no assurance as to whether any such appeal will be
successful.
The OTS on June 3, 1999, also issued a letter to WFSG and Wilshire
Acquisitions Corporation ("WAC") reminding WFSG and WAC that they are in
"troubled condition" due to the "unsatisfactory" rating and the existence of the
Cease & Desist Order stipulated to in January, 1999, which required WFSG and WAC
to (i) comply with all OTS transaction with affiliates regulations and (ii) to
provide the OTS with 30 days notice prior to appointing senior officers and
directors at First Bank. As a result, WFSG and WAC must obtain OTS approval
before electing new directors and senior executive officers.
The Private Securities Litigation Reform Act of 1995 provides a safe
harbor for forward-looking statements so long as those statements are identified
as forward-looking and are accompanied by meaningful cautionary statements
identifying important factors that could cause actual results to differ
materially from those projected in such statements. All of the statements
contained in this release which are not identified as historical should be
considered forward-looking. In connection with certain forward-looking
statements contained in this release and those that may be made in the future by
or on behalf of the Company which are identified as forward-looking, the Company
notes that there are various factors that could cause actual results to differ
materially from those set forth in any such forward-looking statements. Such
factors include, but are not limited to, the real estate market, the
availability of pools of loans at acceptable prices, the availability and
conditions of financing for loan pool acquisitions and mortgage-backed
securities, interest rates and overseas expansion. Accordingly, there can be no
assurance that the forward-looking statements contained in this release will be
realized or that actual results will not be significantly higher or lower.
Readers of this release should consider these facts in evaluating the
information contained herein. The inclusion of the forward-looking statements
contained in this release should not be regarded as a representation by the
Company or any other person that the forward-looking statements contained in
this release will be achieved. In light of the foregoing, readers of this
release are cautioned not to place undue reliance on the forward-looking
statements contained herein.
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Item 7 FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
The following exhibits are filed as part of this report:
3.1 New Certificate of Incorporation of WFSG
3.2 New Bylaws of WFSG
99.1 Letter of Resignation from Edward Foehl
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
WILSHIRE FINANCIAL SERVICES
GROUP INC.
Date: June 15, 1999 By: /s/ Lawrence A. Mendelsohn
Lawrence A. Mendelsohn
President
By: /s/ Chris Tassos
Chris Tassos
Executive Vice President and
Chief Financial Officer
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WILSHIRE FINANCIAL SERVICES GROUP INC.
On December 25, 1996 a Certificate of Incorporation of Wilshire Financial
Services Group Inc. was filed with the Secretary of State of Delaware. Pursuant
to Sections 242 and 245 of the Delaware General Corporation Law, the Certificate
of Incorporation is hereby amended and restated as follows:
ARTICLE I.
The name of the corporation is:
Wilshire Financial Services Group Inc.
ARTICLE II.
The address of the corporation's registered office in the State of Delaware
is 1013 Centre Road, in the City of Wilmington, County of New Castle, 19805. The
name of its registered agent at such address is the Corporation Service Company.
ARTICLE III.
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE IV.
The Corporation is authorized to issue two classes of shares to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the Corporation shall have authority to issue is One Hundred
Million (100,000,000) shares. The total number of shares of Common Stock which
the Corporation shall have authority to issue is Ninety Million (90,000,000)
shares, and the par value of each share of Common Stock is One Cent ($0.01). The
total number of shares of Preferred Stock which the Corporation shall have
authority to issue is Ten Million (10,000,000) shares, and the par value of each
share of Preferred Stock is One Cent ($0.01). The Corporation is prohibited from
issuing any nonvoting equity
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securities. The Preferred Stock and Common Stock, respectively shall have the
following characteristics:
(a) Preferred Stock
The Preferred Stock may be issued from time to time by the Board of
Directors in one or more series, each series to be appropriately designated by a
distinguishing letter or title, prior to the issue of any shares thereof. The
Preferred Stock shall be preferred to the Common Stock as to dividends and
distribution of assets of the corporation upon the voluntary or involuntary
liquidation, dissolution or winding up of the corporation, as hereinafter
provided, and shall have such designations as may be stated in the resolution or
resolutions providing for the issuance of such stock adopted by the Board of
Directors, provided, however, that such Preferred Stock shall provide for an
appropriate distribution of voting power among all classes of equity securities
and, with respect to dividends, shall provide adequate provisions for the
election of directors representing such preferred class in the event of default
in the payment of such dividends.
In such resolutions providing for the issuance of such Preferred Stock, the
Board of Directors is hereby authorized subject to the provisions contained in
this Article IV, to fix or alter the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions, if any), the redemption price or prices, the liquidation
preferences, any other designations, preferences and relative, participating,
optional or other special rights, and any qualifications, limitations or
restrictions thereof, of any wholly unissued series of Preferred Stock, and the
number of shares constituting any such unissued series and the designation
thereof, or any of them; and to increase or decrease the number of shares of any
series subsequent to the issue of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease shall
resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
(b) Common Stock
Voting Rights. Subject to the rights of the Preferred Stock, if any, the
holders of shares of Common Stock shall be entitled to one vote for each share
so held with respect to all matters voted on by the stockholders of the
Corporation.
Dividends. Subject to the rights of the Preferred Stock, if any, Dividends
may be paid on the Common Stock as and when declared by the Board of Directors.
Liquidation Rights. Subject to the prior and superior right of the
Preferred Stock, if any, upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the corporation, the holders of
Common Stock shall be entitled to receive that portion of the remaining funds to
be distributed in accordance with the provisions of this Certificate of
Incorporation, as it may from time to time be amended or supplemented, including
without limitation, any supplement effected pursuant to a certificate of
designations, setting forth such
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prior and superior rights. Such funds shall be paid to the holders of Common
Stock pro rata on the basis of the number of shares of Common Stock held by each
of them.
ARTICLE V.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, repeal, alter, amend
and rescind Bylaws of the Corporation, subject to the power of the stockholders
of the Corporation to alter or repeal any Bylaw whether adopted by them or
otherwise.
ARTICLE VI.
Notwithstanding Article V hereof, the Bylaws may be rescinded, altered,
amended or repealed in any respect by the affirmative vote of the holders of a
majority of the outstanding voting stock of the corporation, voting together as
a single class.
ARTICLE VII.
The Board of Directors shall have that number of Directors set out in the
Bylaws of the Corporation as adopted or as set from time to time by a duly
adopted amendment thereto by the Directors or stockholders of the Corporation.
ARTICLE VIII.
The Board of Directors shall consist of a single class. Each director shall
serve for a term of one year until the next annual meeting or until his
successor is elected and qualified or until his death, retirement, resignation
or removal. Should a vacancy occur or be created, the remaining directors (even
though less than a quorum) may fill the vacancy for the full term of the class
in which the vacancy occurs or is created.
ARTICLE IX.
Elections of directors at an annual or special meeting of stockholders need
not be by written ballot unless the Bylaws of the Corporation shall so provide.
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ARTICLE X.
Any action which may or is required to be taken by the stockholders at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, by written consent setting forth the
action so taken and signed by the holders of outstanding stock having no less
than the minimum number of votes that would be necessary to authorize or take
such action.
ARTICLE XI.
Special meetings of the stockholders of the Corporation for any purpose or
purposes may be called at any time by the Board of Directors, or by a majority
of the members of the Board of Directors, or by a committee of the Board of
Directors which has been duly designated by the Board of Directors and whose
powers and authority, as provided in a resolution of the Board of Directors or
in the Bylaws of the Corporation, include the power to call such meetings, or by
the Chairman of the Board upon written demand of holders of not less than
one-fourth of all votes entitled to be cast, but such special meetings may not
be called by any other person or persons; provided, however, that if and to the
extent that any special meeting of stockholders may be called by any other
person or persons specified in any provisions of the Certificate of
Incorporation or any amendment thereto or any certificate filed under Section
151(g) of the Delaware General Corporation Law, then such special meeting may
also be called by the person or persons, in the manner, at the times and for the
purposes so specified.
ARTICLE XII.
Each reference in this Certificate of Incorporation to any provision of the
Delaware General Corporation Law refers to the specified provision of the
General Corporation Law of the State of Delaware, as the same now exists or as
it may hereafter be amended or superseded.
ARTICLE XIII.
A director shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that this Article shall not eliminate or limit the liability of a
director (i) for any breach of his 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 the law, (iii) under Section
174 of the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derives an improper personal benefit.
If the General Corporation Law of the State of Delaware is hereafter
amended to authorize corporate action further limiting or eliminating the
personal liability of directors, then the liability of the director to the
Corporation shall be limited or eliminated to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended from time to
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time. Any repeal or modification of this Article by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
The undersigned Chief Executive Officer makes, files and records this
Amended and Restated Certificate of Incorporation and acknowledges that the
foregoing Amended and Restated Certificate of Incorporation is his act and deed
on this __ day of May, 1999.
------------------------------
Andrew A. Wiederhorn,
Chief Executive Officer
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AMENDED AND RESTATED
BYLAWS
OF
WILSHIRE FINANCIAL SERVICES GROUP INC.
ARTICLE I.
STOCKHOLDERS MEETINGS AND VOTING
1.1. Annual Meeting. The annual meeting of the stockholders shall be
held on the second Monday in April of each year at 10:00 a.m., unless a
different date or time is fixed by the Board of Directors and stated in the
notice of the meeting. Failure to hold an annual meeting on the stated date
shall not affect the validity of any corporate action.
1.2. Special Meetings. Special meetings of the stockholders, for any
purposes, unless otherwise prescribed by statute, may be called by the Chairman
of the Board or the Board of Directors and shall be called by the Chairman of
the Board upon the written demand of the holders of not less than one-fourth of
all the votes entitled to be cast on any issue proposed to be considered at the
meeting. The demand shall describe the purposes for which the meeting is to be
held and shall be signed, dated and delivered to the Secretary.
1.3. Place of Meetings. Meetings of the stockholders shall be held at any
place in or out of Delaware designated by the Board of Directors. If a meeting
place is not designated by the Board of Directors, the meeting shall be held at
the Corporation's principal office.
1.4. Notice of Meetings. Written or printed notice stating the date, time
and place of the stockholders meeting and, in the case of a special meeting or a
meeting for which special notice is required by law, the purposes for which the
meeting is called, shall be delivered by the Corporation to each stockholder
entitled to vote at the meeting and, if required by law, to any other
stockholders entitled to receive notice, not earlier than 60 days nor less than
10 days before the meeting date. Notice shall be deemed given at the time it is
(a) personally delivered to the recipient, (b) deposited in the mail or
delivered to a common carrier or courier with regularly scheduled deliveries
with first-class postage or delivery charges prepaid, addressed to the
stockholder's address shown in the Corporation's stockholder records, or (c)
actually transmitted to the recipient using electronic means.
1.5. Waiver of Notice. A stockholder may at any time waive any notice
required by law, these Bylaws or the Certificate of Incorporation. The waiver
shall be in writing, be signed by the stockholder entitled to the notice and be
delivered to the Corporation for inclusion in the minutes for filing with the
corporate records. A stockholder's attendance at a meeting waives objection to
(i) lack of notice or defective notice of the meeting, unless the stockholder at
the beginning of the meeting objects to holding the meeting or transacting
business at the meeting, and (ii) consideration of a particular matter at the
meeting that is not within the purposes
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described in the meeting notice, unless the stockholder objects to considering
the matter when it is presented.
1.6. Fixing of Record Date. In order that the corporation may determine the
stockholders entitled to notice of 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 change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more than
sixty nor less than ten days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than sixty
days prior to such other action. If no record date is fixed: (1) the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (2) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting when no prior action of the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation in accordance with applicable law, or, if prior action by the Board
of Directors is required by law, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action; and
(3) the record date for determining stockholders for any other purpose shall be
at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of 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.
1.7. Stockholders List for Meeting. After a record date for a meeting is
fixed, the Corporation shall prepare an alphabetical list of all stockholders
entitled to notice of the stockholders meeting. The list shall be arranged by
voting group and, within each voting group, by class or series of shares, and it
shall show the address of and number of shares held by each stockholder. The
stockholders list shall be available for inspection by any stockholder, upon
proper demand as may be required by law, beginning two business days after
notice of the meeting is given and continuing through the meeting, at the
Corporation's principal office or at a place identified in the meeting notice in
the city where the meeting will be held. The Corporation shall make the
stockholders list available at the meeting, and any stockholder or the
stockholder's agent or attorney shall be entitled to inspect the list at any
time during the meeting or any adjournment. Refusal or failure to prepare or
make available the stockholders list does not affect the validity of action
taken at the meeting.
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1.8. Quorum; Adjournment.
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(1) Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. A majority of the votes entitled to be cast on the
matter by the voting group constitutes a quorum of that voting group for action
on that matter.
(2) A majority of votes represented at the meeting,
although less than a quorum, may adjourn the meeting from time to time to a
different time and place without further notice to any stockholder of any
adjournment, except that notice is required if a new record date is or must be
set for the adjourned meeting. At an adjourned meeting at which a quorum is
present, any business may be transacted that might have been transacted at the
meeting originally held.
(3) Once a share is represented for any purpose at a
meeting, it shall be present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is or
must be set for the adjourned meeting. A new record date must be set if the
meeting is adjourned to a date more than 30 days after the date fixed for the
original meeting.
1.9. Voting Requirements; Action Without Meeting.
-------------------------------------------
(1) If a quorum exists, action on a matter, other than
the election of directors, by a voting group is approved if the votes cast
within the voting group favoring the action exceed the votes cast opposing the
action unless a greater number of affirmative votes is required by law or the
Certificate of Incorporation and except as provided in Section 1.9(2). Unless
otherwise provided in the Certificate of Incorporation, directors are elected by
a plurality of the votes cast by the shares entitled to vote in the election at
a meeting at which a quorum is present.
(2) The provisions set forth in Section 2.2, below, and in this
Section 1.9(2) may not be amended, altered, changed or repealed in any respect
unless such action is approved by the affirmative vote of the holders of not
less than two-thirds of the outstanding shares of Common Stock and the
outstanding shares of Preferred Stock entitled to vote on each matter on which
the holders of record of Common Stock shall be entitled to vote, such Common
Stock and Preferred Stock voting together and not by separate classes.
(3) Action required or permitted by law to be taken at
a stockholders meeting may be taken without a meeting, without prior notice and
without a vote by the written consent of the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
such action at a meeting at which all shares entitled to vote thereon were
present. The action must be evidenced by one or more written consents describing
the action taken, signed by all the stockholders entitled to vote on the action
and delivered to the Secretary for inclusion in the minutes for filing with the
corporate records. Stockholder action taken by written consent is effective when
the last stockholder signs the consent, unless the consent specifies an earlier
or later effective date.
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1.10. Proxies. A stockholder may vote shares in person or by proxy. A
stockholder may appoint a proxy by signing an appointment form either personally
or by the stockholder's attorney-in-fact. An appointment of a proxy is effective
when received by the Secretary or other officer of the Corporation authorized to
tabulate votes. An appointment is valid for 11 months unless a different period
is provided in the appointment form. An appointment is revocable by the
stockholder unless the appointment form conspicuously states that it is
irrevocable and the appointment is coupled with an interest that has not been
extinguished.
1.11. Meeting by Telephone Conference. Stockholders may participate in an
annual or special meeting by, or conduct the meeting through, use of any means
of communications by which all stockholders participating may simultaneously
hear each other or communicate with each other during the meeting, except that
no meeting for which a written notice is sent to stockholders may be conducted
by this means unless the notice states that participation in this manner is
permitted and describes how any stockholder desiring to participate in this
manner may notify the Corporation. Participation in a meeting by this means
shall constitute presence in person at the meeting.
1.12. Proper Business for Stockholders' Meeting. To be properly brought
before the meeting, business must be either (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (ii) otherwise properly brought before a meeting by or at the
direction of the Board of Directors, or (iii) otherwise properly brought before
the meeting by a stockholder. In addition to any other applicable requirements
contained in the Certificate of Incorporation, these Bylaws, or under law, for
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive office of the Corporation not
less than 50 days nor more than 75 days prior to the meeting; provided, however
that in the event that less than 65 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure was made, whichever
first occurs. A stockholder's notice to the Secretary shall set forth (i) one or
more matters appropriate for stockholder action that the stockholder proposes to
bring before the meeting, (ii) a brief description of the matters desired to be
brought before the meeting and the reasons for conducting such business at the
meeting, (iii) the name and record address of the stockholder, (iv) the class
and number of shares of the Corporation that the stockholder owns or is entitled
to vote and (v) any material interest of the stockholder in such matters.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at the annual meeting except in accordance with the procedure set
forth in this Section 1.12; provided, however, that nothing in this Section 1.12
shall be deemed to preclude discussion by any stockholder of any business
properly brought before the annual meeting. The Chairman of the Board, or the
Vice Chairman of the Board in the absence of the Chairman of the Board, shall,
if the facts warrant, determine and declare to the meeting that the business was
not properly brought before the meeting in accordance with the provisions of
this Section 1.12 and if the Chairman of the Board, or the Vice Chairman of the
Board in the absence of the Chairman of the Board, should so determine, shall so
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declare to the meeting any such business not properly brought before the
meeting shall not be transacted.
1.13. Stockholder Nomination of Directors.
-----------------------------------
(1) Not less than 50 days nor more than 75 days prior
to the date of any annual meeting of stockholders, any stockholder who intends
to make a nomination at the annual meeting shall deliver a notice to the
Secretary of the Corporation setting forth (i) as to each nominee whom the
stockholder proposes to nominate for election or reelection as a director, (a)
the name, age, business address and residence address of the nominee, (b) the
principal occupation or employment of the nominee, (c) the class and number of
shares of capital stock of the, Corporation that are beneficially owned by the
nominee of shares of capital stock of the Corporation that are beneficially
owned by the nominee and (d) any other information concerning the nominee that
would be required, under the rules of the Securities and Exchange Commission, in
a proxy statement soliciting proxies for the election of such nominee; and (ii)
as to the stockholder giving the notice, (a) the name and record address of the
stockholder and (b) the class and number of shares of capital stock of the
Corporation that are beneficially owned by the stockholder, provided, however,
that in the event that less than 65 days' notice or prior public disclosure of
the date of the annual meeting is given or made to stockholders, notice by the
stockholder to be timely must be so delivered not later than the close of
business on the 10th day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made, whichever first
occurs. Such notice shall include a signed consent to serve as a director of the
Corporation, if elected, of each such nominee. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be required
by the Corporation to determine the eligibility of such proposed nominee to
serve as a director of the Corporation.
(2) Any stockholder who intends to make a nomination at any special
meeting of stockholders held for the purpose of electing directors shall deliver
a timely notice to the Secretary of the Corporation setting forth (i) as to each
nominee whom the stockholder proposes to nominate for election or reelection as
a director, (a) the name, age, business address and residence address of the
nominee, (b) the principal occupation or employment of the nominee, (c) the
class and number of shares of capital stock of the corporation that are
beneficially owned by the nominee and (d) any other information concerning the
nominee that would be required, under the rules of the Securities and Exchange
Commission, in a proxy statement soliciting proxies for the election of such
nominee; and (ii) as to the stockholder giving the notice, (a) the name and
record address of the stockholder and (b) the class and number of shares of
capital stock of the Corporation that are beneficially owned by the stockholder.
To be timely for these purposes, such notice must be given (i) if given by the
stockholder (or any of the stockholders) who or that made a demand for a meeting
pursuant to which such meting is to be held, concurrently with the delivery of
such demand, and (ii) otherwise, not later than the close of business on the
10th day following the date on which the notice of the special meeting was
mailed. Such notice shall include a signed consent to serve as a director of the
Corporation, if elected, of each such nominee. The Corporation may require any
proposed nominee to furnish such other information
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as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a director of the Corporation.
(3) The Chairman of the Board, or the Vice Chairman of
the Board in the absence of the Chairman of the Board, shall, if the facts
warrant, determine and declare that a nominee was not properly nominated in
accordance with the provisions of this Section 1.13 and if the Chairman of the
Board, or the Vice Chairman of the Board in the absence of the Chairman of the
Board, should so determine, shall so declare to the meeting any such nominee
shall not be considered by stockholders.
ARTICLE II.
BOARD OF DIRECTORS
2.1. Duties of Board of Directors. All corporate powers of the Corporation
shall be exercised by or under the authority of its Board of Directors; the
business and affairs of the Corporation shall be managed under the direction of
its Board of Directors.
2.2. Number, Term and Qualification. The number of directors of the
Corporation shall be seven. Directors shall hold office for one year until the
next annual meeting or until their successors shall be elected and shall
qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the board of Directors,
however resulting, may be filled by the affirmative vote of a majority of the
remaining directors then in office, even if less than a quorum. Any director
elected to fill a vacancy shall hold office only until the next election of
directors by the stockholders. Directors need not be residents of the State of
Delaware or stockholders of the Corporation.
2.3. Regular Meetings. A regular meeting of the Board of Directors shall
be held without notice other than this Bylaw immediately after, and at the same
place as, the annual meeting of stockholders. The Board of Directors may provide
by resolution the time and place for the holding of additional regular meetings
in or out of Delaware without notice other than the resolution.
2.4. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board, Chief Executive
Officer or a majority of the directors. The person or persons authorized to call
special meetings of the Board of Directors may fix any place in or out of
Delaware as the place for holding any special meeting of the Board of Directors
called by them.
2.5. Notice. Notice of the date, time and place of any special meeting of
the Board of Directors shall be given at least 24 hours prior to the meeting by
notice communicated in person, by telephone, telegraph, teletype, facsimile,
electronic mail, other form of wire or wireless communication, mail or private
carrier. If written, notice shall be effective at the earliest of (a) when
received, (b) three days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly addressed, or (c) on
the date shown on the return
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receipt, if sent by registered or certified mail, return receipt requested and
the receipt is signed by or on behalf of the addressee. Notice by all other
means shall be deemed effective when received by or on behalf of the director.
Notice of any regular or special meeting need not describe the purposes of the
meeting unless required by law or the Certificate of Incorporation.
2.6. Waiver of Notice. A director may at any time waive any notice
required by law, these Bylaws or the Certificate of Incorporation. Except as set
forth below, the waiver must be in writing, be signed by the director entitled
to the notice, specify the meeting for which notice is waived and be filed with
the minutes or corporate records. A director's attendance at or participation in
a meeting waives any required notice to the director of the meeting unless the
director at the beginning of the meeting, or promptly upon the director's
arrival, objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
2.7. Quorum. A majority of the number of directors set forth in Section
2.2 of these Bylaws shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors. If less than a quorum is present at a
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice.
2.8. Manner of Acting. The act of the majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors, unless a different number is provided by law, the Certificate of
Incorporation or these Bylaws.
2.9. Meeting by Telephone Conference: Action Without Meeting.
-------------------------------------------------------
(1) Directors may participate in a regular or special meeting
by, or conduct the meeting through, use of any means of communications by which
all directors participating may simultaneously hear each other or communicate
with each other during the meeting. Participation in a meeting by this means
shall constitute presence in person at the meeting.
(2) Any action that is required or permitted to be taken at a
meeting of the Board of Directors may be taken without a meeting if one or more
written consents describing the action taken are signed by all of the directors
entitled to vote on the matter and included in the minutes or filed with the
corporate records reflecting the action taken. The action shall be effective
when the last director signs the consent, unless the consent specifies an
earlier or later effective date.
2.10. Vacancies. Any vacancy on the Board of Directors, including a
vacancy resulting from an increase in the number of directors, may be filled by
the stockholders, the Board of Directors, the remaining directors if less than a
quorum (by the vote of a majority thereof) or by a sole remaining director. Any
vacancy not filled by the directors shall be filled by election at an annual
meeting or at a special meeting of stockholders called for that purpose. A
vacancy that will occur at a specified later date, by reason of a resignation or
otherwise, may be filled before the vacancy occurs, but the new director may not
take office until the vacancy occurs.
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2.11. Compensation. By resolution of the Board of Directors, the directors
may be paid reasonable compensation for services as directors and their expenses
of attending meetings of the Board of Directors.
2.12. Presumption of Assent. A director who is present at a meeting of the
Board of Directors or a committee of the Board of Directors shall be deemed to
have assented to the action taken at the meeting unless (a) the director's
dissent or abstention from the action is entered in the minutes of the meeting,
(b) the director delivers a written notice of dissent or abstention to the
action to the presiding officer of the meeting before any adjournment or to the
Corporation immediately after the adjournment of the meeting or (c) the director
objects at the beginning of the meeting or promptly upon the director's arrival
to the holding of the meeting or transacting business at the meeting. The right
to dissent or abstain is not available to a director who voted in favor of the
action.
2.13. Removal. The stockholders may remove one or more directors with
cause, only if such removal is approved by a vote of the holders of a majority
of the votes entitled to be cast on the matter, at a meeting called expressly
for that purpose.
2.14. Resignation. Any director may resign by delivering written notice to
the Board of Directors, its chairperson or the Corporation. Unless the notice
specifies a later effective date, a resignation notice shall be effective upon
the earlier of (a) receipt, (b) five days after its deposit in the United States
mails, if mailed postpaid and correctly addressed, or (c) on the date shown on
the return receipt, if sent by registered or certified mail, return receipt
requested, and the receipt is signed by addressee. Once delivered, a resignation
notice is irrevocable unless revocation is permitted by the Board of Directors.
ARTICLE III.
COMMITTEES OF THE BOARD
3.1. Committees. The Board of Directors may create one or more committees
and appoint members of the Board of Directors to serve on them. Each committee
shall have two or more members. The creation of a committee and appointment of
members to it must be approved by a majority of all directors in office when the
action is taken. Subject to any limitation imposed by the Board of Directors or
by law, each committee may exercise all the authority of the Board of Directors
in the management of the Corporation. A committee may not take any action that a
committee is prohibited from taking by the Delaware General Corporation Law.
3.2. Changes of Size and Function. Subject to the provisions of law, the
Board of Directors shall have the power at any time to change the number of
committee members, fill committee vacancies, change any committee members and
change the functions and terminate the existence of a committee.
3.3. Conduct of Meetings. Each committee shall conduct its meetings in
accordance with the applicable provisions of these Bylaws relating to meetings
and action without meetings
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of the Board of Directors. Each committee shall adopt any further rules
regarding its conduct, keep minutes and other records and appoint subcommittees
and assistants as it deems appropriate.
3.4. Compensation. By resolution of the Board of Directors, committee
members may be paid reasonable compensation for services on committees and their
expenses of attending committee meetings.
ARTICLE IV.
OFFICERS
4.1. Appointment. The Board of Directors at its first meeting following
its election each year shall appoint a Chairman of the Board of Directors
("Chairman of the Board"), a Vice Chairman of the Board of Directors to serve in
the absence of the Chairman of the Board ("Vice Chairman of the Board") and a
Secretary. The Board of Directors or the Chairman of the Board may appoint any
other officers, assistant officers and agents. Any two or more offices may be
held by the same person.
4.2. Compensation. The Corporation may pay its officers reasonable
compensation for their services as fixed from time to time by the Board of
Directors or by the Chairman of the Board with respect to officers appointed by
the Chairman of the Board.
4.3. Term. The term of office of all officers commences upon their
appointment and continues until their successors are appointed or until their
resignation or removal.
4.4. Removal. Any officer or agent appointed by the Board of Directors,
the Chairman of the Board or the Chief Executive Officer may be removed by the
Board of Directors at any time with or without cause. Any officer or agent
appointed by the Chairman of the Board may be removed by the Chairman of the
Board at any time with or without cause. Any officer or agent appointed by the
Chief Executive Officer may be removed by the Chief Executive Officer at any
time with or without cause.
4.5. Chief Executive Officer. The Chief Executive Officer shall in general
supervise and control all of the business and affairs of the Corporation. The
Chief Exectutive Officer may execute in behalf of the Corporation all contracts,
agreements, stock certificates and other instruments. The Chief Executive
Officer shall from time to time report to the Board of Directors all matters
within the Chief Executive Officer's knowledge which should be brought to the
attention of the Board of Directors. The Chief Executive Officer shall vote all
shares of stock in other corporations owned by the Corporation, and shall be
empowered to execute proxies, waivers of notice, consents and other instruments
in the name of the Corporation with respect to such stock. The Chief Executive
Officer shall preside at all meetings of the Board of Directors and shall
perform any duties and responsibilities prescribed from time to time by the
Board of Directors.
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4.6. President. The President shall be the chief operating officer of the
Corporation and shall supervise the operations of the Corporation, subject to
the discretion of the Board of Directors and the Chief Executive Officer. The
President shall have any other duties and responsibilities prescribed by the
Board of Directors.
4.7. Vice Presidents. Each Vice President shall perform duties and
responsibilities prescribed by the Board of Directors or the Chief Executive
Officer. The Board of Directors or the Chief Executive Officer may confer a
special title upon a Vice President.
4.8. Secretary.
---------
(1) The Secretary shall record and keep the minutes of all
meetings of the directors and stockholders in one or more books provided for
that purpose and perform any duties prescribed by the Board of Directors or the
Chief Executive Officer.
(2) Any assistant secretary shall have the duties prescribed
from time to time by the Board of Directors, the Chief Executive Officer or the
Secretary. In the absence or disability of the Secretary, the Secretary's duties
shall be performed by an assistant secretary.
4.9. Treasurer. The Treasurer, if that office is filled, shall have charge
and custody and be responsible for all funds and securities of the Corporation
and shall have other duties as prescribed from time to time by the Board of
Directors or the Chief Executive Officer.
ARTICLE V.
INDEMNIFICATION
5.1. Right to Indemnification. The Corporation shall indemnify to the
fullest extent not prohibited by law any current or former director or officer
of the Corporation, and may indemnify to the fullest extent not prohibited by
law any current or former employee or agent of the Corporation, who is made, or
threatened to be made, a party to an action, suit or proceeding, whether civil,
criminal, administrative, investigative or other (including an action, suit or
proceeding by or in the right of the Corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of the Corporation
or a fiduciary within the meaning of the Employee Retirement Income Security Act
of 1974 with respect to any employee benefit plan of the Corporation, or serves
or served at the request of the Corporation as a director, officer, employee or
agent, or as a fiduciary of an employee benefit plan, of another corporation,
partnership, joint venture, trust or other enterprise. The Corporation shall pay
for or reimburse the reasonable expenses incurred by any such current or former
director or officer, and may pay for or reimburse the reasonable expenses
incurred by any such current or former employee or agent, in any such proceeding
in advance of the final disposition of the proceeding if the person sets forth
in writing (i) the person's good faith belief that the person is entitled to
indemnification under this Article and (ii) the person's agreement to repay all
advances if it is ultimately determined that the person is not entitled to
indemnification. No amendment to these Bylaws that limits the Corporation's
obligation to indemnify any person shall have any effect on such
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obligation for any act or omission that occurs prior to the later to occur of
the effective date of the amendment or the date notice of the amendment is given
to the person. This Article shall not be deemed exclusive of any other
provisions for indemnification or advancement of expenses of directors,
officers, employees, agents and fiduciaries that may be included in the
Certificate of Incorporation or any statute, agreement, general or specific
action of the Board of Directors, vote of stockholders or other document or
arrangement.
5.2. Claims. If a claim for indemnification or payment of expenses under
this Article is not paid in full within sixty days after a written claim
therefor has been received by the Corporation, the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification or payment of expenses under
applicable law.
5.3. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
ARTICLE VI.
ISSUANCE OF SHARES
6.1. Adequacy of Consideration. Before the Corporation issues shares, the
Board of Directors shall determine that the consideration received or to be
received for the shares to be issued is adequate. The authorization by the Board
of Directors of the issuance of shares for stated consideration shall evidence a
determination by the Board that such consideration is adequate.
6.2. Certificates for Shares.
-----------------------
(1) Certificates representing shares of the Corporation shall
be in any form determined by the Board of Directors consistent with the
requirements of the Delaware General Corporation Law and these Bylaws. The
certificates shall be signed, either manually or in facsimile, by the Chairman
or Vice Chairman of the Board, Chief Executive Officer, President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, and may be sealed with the seal of the Corporation, if any,
or a facsimile thereof. All certificates for shares shall be consecutively
numbered or otherwise identified. The signatures of officers upon a certificate
may be facsimiles if the certificate is countersigned by a transfer agent or any
assistant transfer agent or registered by a registrar, other than the
Corporation itself or an employee of the Corporation.
(2) Every certificate for shares of stock that are subject to any
restriction on transfer or registration of transfer pursuant to the Certificate
of Incorporation, the Bylaws,
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securities laws, a stockholders agreement or any agreement to which the
Corporation is a party shall have conspicuously noted on the face or back of the
certificate either the full text of the restriction or a statement of the
existence of the restriction and that the Corporation retains a copy of the full
text. Every certificate issued when the Corporation is authorized to issue more
than one class or series within a class of shares shall set forth on its face or
back either (a) a summary of the designations, relative rights, preferences and
limitations of the shares of each class and the variations in rights,
preferences and limitations for each series authorized to be issued and the
authority of the Board of Directors to determine variations for future series or
(b) a statement of the existence of those designations, relative rights,
preferences and limitations and a statement that the Corporation will furnish a
copy thereof to the holder of the certificate upon written request and without
charge.
(3) All certificates surrendered to the Corporation for transfer
shall be canceled. The Corporation shall not issue a new certificate for
previously issued shares until the former certificate or certificates for those
shares are surrendered and canceled; except that in case of a lost, destroyed or
mutilated certificate, a new certificate may be issued on terms prescribed by
the Board of Directors.
6.3. Transfer Agent and Registrar. The Board of Directors may from time to
time appoint one or more transfer agents and one or more registrars for the
shares of the Corporation, with powers and duties determined by the Board of
Directors.
6.4. Officer Ceasing to Act. If the person who signed a share certificate,
either manually or in facsimile, no longer holds office when the certificate is
issued, the certificate is nevertheless valid.
ARTICLE VII.
CONTRACTS, LOANS, CHECKS AND OTHER INSTRUMENTS
7.1. Contracts. Except as otherwise provided by law, the Board of
Directors may authorize any officers or agents to execute and deliver any
contract or other instrument in the name of and on behalf of the Corporation,
and this authority may be general or confined to specific instances.
7.2. Loans. The Corporation shall not borrow money and no evidence of
indebtedness shall be issued in its name unless authorized by the Board of
Directors. This authority may be general or confined to specific instances.
7.3. Checks, Drafts, Etc. All checks, drafts or other orders for the
payment of money and notes or other evidences of indebtedness issued in the name
of the Corporation shall be signed in the manner and by the officers or agents
of the Corporation designated by the Board of Directors.
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7.4. Deposits. All funds of the Corporation not otherwise employed shall
be deposited to the credit of the Corporation in those banks, trust companies or
other depositaries as the Board of Directors or officers of the Corporation
designated by the Board of Directors select, or be invested as authorized by the
Board of Directors.
ARTICLE VIII.
MISCELLANEOUS PROVISIONS
8.1. Severability. A determination that any provision of these Bylaws is
for any reason inapplicable, invalid, illegal or otherwise ineffective shall not
affect or invalidate any other provision of these Bylaws.
8.2. Amendments. These Bylaws may be amended or repealed and new Bylaws
may be adopted by the Board of Directors or the stockholders of the Corporation.
Adopted: June 10, 1999
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<PAGE>
Edward A. Foehl
3609 SE 177th Ave.
Vancouver, WA 98683
TO: Distribution Date: June 14, 1999
FROM: Edward A. Foehl
SUBJECT: Resignation From Wilshire Financial Services Group Board of Directors
Effective the above date, I resign my position as a member of the Board of
Directors of Wilshire Financial Services Group. Because of new professional
commitments that were not anticipated at the time I joined the Board, I no
longer have the necessary time required to properly execute my responsibilities
in a situation that requires high levels of involvement.
Please forward my outstanding directors fees of $4,500 for three personal
meetings and three telephone meetings as well as travel expenses for the June 2
meeting in Los Angeles (submitted shortly to the address shown above).
I appreciated the opportunity to make your acquaintance and wish you every
success with Wilshire Financial.
Sincerely,
/s/ Edward A. Foehl
Edward A. Foehl
Distribution:
Elizabeth Aaroe
Robert Deutschman
Larry B. Faigin
Daniel Markee
Geoffrey Hawkins
Brian Lavin
Jonathan B. Cleveland
Bennett J. Murphy
Andrew Wiederhorn
Larry Mendelsohn
Mark Peterman
