SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
------------------
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
---------- ----------
Commission File No. 814-29
ACORN VENTURE CAPITAL CORPORATION
- -----------------------------------------------------------------
(Exact name of small business issuer as specified in its charter)
Delaware 59-2332857
- ------------------------------- -----------------------
(State or other jurisdiction of (IRS Employer Identifi-
incorporation or organization) cation No.)
522 Park Street, Jacksonville, Florida 32204
- -------------------------------------------------------------
(Address of principal executive offices) (Zip code)
Issuer's telephone number, including area code (904) 359-8624
--------------
N/A
- --------------------------------------------------------------
Former name, former address and former fiscal year, if changed
since last report.
Check whether the issuer (1) filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the past 12 months (or for such shorter period that the
issuer was required to file such reports) and (2) has been subject
to such filing requirements for the past 90 days.
Yes X No
---------- ----------
APPLICABLE ONLY TO CORPORATE ISSUERS: State the number of shares
outstanding of each of the issuer's classes of common equity, as of
the latest practicable date: 5,538,906 shares of common stock, $.01
par value, as of November 6, 1996.
<PAGE>
Acorn Venture Capital Corporation
Condensed Interim Balance Sheets
(Unaudited)
<TABLE>
<CAPTION>
September 30, December 31,
1996 1995
---------------------------
(Unaudited) (Note 1)
<S> <C> <C>
Assets:
Investments at market or fair value:
Investments in and advances to subsidiaries:
Investment in Recticon Enterprises, Inc.
(100% owned) $15,000,000 $12,500,000
Investment in Automotive Industries, Inc.
(100% owned) 2,900,000 2,900,000
Investment in ServiceMax Tire & Auto
Centers, Inc. (100.0% owned) 0 0
--------------------------
17,900,000 15,400,000
Other common stock and warrants 12,981 12,981
Certificate of Deposit 100,000 0
U.S. Treasury bills 247,328 199,093
--------------------------
Total investments (cost $13,215,531 and
$14,288,138 at September 30, 1996 and
December 31, 1995, respectively) 18,260,309 15,612,074
Cash and cash equivalents 165,754 383,563
Accounts and management fee receivable 88,950 100,000
Other assets 4,962 6,183
--------------------------
Total assets 18,519,975 16,101,820
Liabilities:
Accounts payable 0 4,392
Note payable to Recticon Enterprises, Inc. 760,000 760,000
Capital contribution payable to Automotive
Industries, Inc. 0 460,330
Accrued interest and other payables to
affiliates 83,283 43,544
Deferred income taxes 1,342,000 650,000
--------------------------
Net assets $16,334,692 $14,183,554
==========================
Net Assets:
Common Stock, par value $.01 per share -
authorized 20,000,000 shares, issued
5,538,906 at September 30, 1996 and $ 55,389 $ 55,889
5,588,906 at December 31, 1995,
and outstanding 5,538,906 at
September 30, 1996 and December 31,
1995, respectively
Additional paid-in capital 14,090,156 14,128,656
Treasury stock (50,000 shares in 1995) 0 (39,000)
Accumulated:
Net investment losses (526,389) (907,527)
Net realized losses on investments (911,921) (911,921)
Net unrealized appreciation of
investments (net of deferred
income taxes of $1,342,000 and
$650,000 at September 30, 1996 and
December 31, 1995, respectively) 3,627,457 1,857,457
--------------------------
2,189,147 38,009
--------------------------
Net assets applicable to outstanding
common shares (equivalent to $2.95
per share in 1996 and $2.56 per share
in 1995, based on outstanding common
shares of 5,538,906 in 1996 and 5,538,906
in 1995) $16,334,692 $14,183,554
==========================
</TABLE>
See accompanying notes.
<PAGE>
Acorn Venture Capital Corporation
Condensed Interim Statements of Operations
(Unaudited)
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30 September 30
1996 1995 1996 1995
----------------------------------------------
<S> <C> <C> <C> <C>
Investment Income:
Interest $ 4,066 $ 21,709 $ 10,649 $ 80,931
Dividends from affiliates 178,300 335,000 583,300 430,000
Consulting and management fees
from subsidiaries 150,000 30,000 450,000 92,500
Other income 0 0 0 10,000
----------------------------------------------
332,366 386,709 1,043,949 613,431
----------------------------------------------
Expenses:
Consulting fees 2,642 49,309 9,926 162,927
Compensation 132,653 88,966 396,958 257,562
Legal and accounting 28,957 20,126 73,896 59,707
Registration fees 1,605 3,727 8,730 11,500
Interest and other 36,256 18,235 173,301 55,401
----------------------------------------------
202,113 180,363 662,811 547,097
Net investment income (loss) 130,253 206,346 381,138 66,334
----------------------------------------------
Realized and unrealized gains
(losses) on investments:
Realized (losses) from sales
of investments 0 0 0 (119,061)
----------------------------------------------
Net change in unrealized
appreciation (depreciation)
of investments 0 3,615,437 2,500,000 3,473,311
Less deferred taxes
applicable to unrealized
appreciation (depreciation)
of investments 0 0 (730,000) 0
----------------------------------------------
0 3,615,437 1,770,000 3,473,311
----------------------------------------------
Net realized and unrealized
gains (losses) on investments 0 3,615,437 1,770,000 3,354,250
----------------------------------------------
Net increase (decrease) in net
assets resulting from
operations $ 130,253 $3,821,783 $2,151,138 $3,420,584
==============================================
Per-share amounts:
Net investment income (loss) $0.02 $0.04 $0.07 $0.01
Net realized gains on
investments $0.00 $0.00 $0.00 ($0.02)
Net unrealized gain investments $0.00 $0.65 $0.31 $0.62
----------------------------------------------
$0.02 $0.68 $0.38 $0.60
==============================================
Weighted average number of
shares in per share
computation 5,769,409 5,588,906 5,769,409 5,588,906
===============================================
</TABLE>
See accompanying notes.
<PAGE>
Acorn Venture Capital Corporation
Condensed Interim Statements of Changes in Net Assets
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
1996 1995
---------------------------
<S> <C> <C>
Net investment income $ 381,138 $ 66,334
Net realized (losses) from sales
of investments 0 ( 119,061)
Net change in unrealized appreciation
of investments 1,770,000 3,473,311
---------------------------
Net increase in assets
resulting from operations 2,151,138 3,420,584
Net assets at beginning of period 14,183,554 10,394,209
---------------------------
Net assets at end of period $16,334,692 $13,814,793
===========================
</TABLE>
See accompanying notes.
<PAGE>
Acorn Venture Capital Corporation
Condensed Interim Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
Septmeber 30,
1996 1995
---------------------------
<S> <C> <C>
Net cash provided by (used) in operating
activities $ 388,474 $ 388,582
---------------------------
Investing activities:
Investment in Automotive Industries, Inc. (460,330) 0
Investment in Recticon Enterpries, Inc. 0 700,000
Investment in ServiceMax Tire & Auto
Centers, Inc. 0 (1,200,000)
Purchase of U.S. Treasury bill (444,419) 0
Redemption of U.S. Treasury bill 398,466 384,687
Purchase of certificate of deposit (100,000) 100,000
Redemption of certificate of deposit 0 0
Redemption of convertible debenture 0 100,000
---------------------------
Net cash provided (used) by investing
activities (606,283) 84,687
---------------------------
Increase in cash and cash equivalents (217,809) 473,269
Cash and cash equivalents at beginning
of period 383,563 55,976
---------------------------
Cash and cash equivalents at end of period $ 165,754 $ 529,245
===========================
</TABLE>
See accompanying notes.
<PAGE>
Acorn Venture Capital Corporation
Notes to Condensed Interim Financial
Statements (Unaudited)
September 30, 1996
1. Basis of Presentation
The accompanying unaudited condensed financial statements have been
prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form
10-QSB and Item 310 of Regulation S-B. Accordingly, they do not
include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In
the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the nine-month period ended September
30, 1996, are not necessarily indicative of the results that may be
expected for the year ending December 31, 1996. For further
information, refer to the financial statements and footnotes thereto
included in the Company's annual report on Form 10-KSB for the year
ended December 31, 1995.
2. Investments
Securities for which no market exists are valued at fair market value as
determined by the Board of Directors. At September 30, 1996, the value of
investments is as follows:
Number
of
Shares Type of Issue and Name of User Cost Value
- ---------------------------------------------------------------
100 Common stock, Recticon Enter-
prises, Inc. 100% owned. $3,195,750 $15,000,000
In July 1993, the Company acquired Recticon Enterprises, Inc., a
Pennsylvania corporation ("Recticon"), by issuing 800,000 shares of its
Common Stock (the transaction was recorded at the net asset value of the
Company's Stock, which was $2.71 per share as of such date) to the
stockholders of Recticon in exchange for all the outstanding shares of
stock of Recticon. Such shares are restricted securities and are not
registered under either the Securities Act of 1933 or the Investment
Company Act of 1940. Recticon manufacturers monocrystalline silicon
wafers which are used in the microelectronics industry.
In 1993 and 1994, the Company made capital contributions to Recticon
totaling $1,027,750. During 1995, Recticon advanced funds and issued a
promissory note to the Company in the amount of $760,000, accruing
interest at 10-1/4% and due July 15, 1997. Considering a number of
factors influencing the value of the Company's investment in Recticon,
including its current and expected future operating performance, among
other factors, the Board of Directors approved increases in the
valuation of the investment in Recticon from $3,195,750 at December 31,
1994 to $12,500,000 at December 31, 1995, and to $15,000,000 at June 30, 1996.
As of September 30, 1996, the Board of Directors valued the investment in
Recticon at $15,000,000.
On July 26, 1996, the Company entered into a Guaranty Agreement on behalf of
Recticon for (1) a line of credit in the amount of five hundred fifty thousand
dollars ($550,000), (2) a term loan in the amount of two hundred twenty five
thousand dollars ($225,000) and (3) a line of credit in the amount of two
hundred thousand dollars ($200,000).
During the quarter ended September 30, 1996, Recticon paid the Company
management fees totaling $150,000, and declared and paid a cash divided
of $100,000.
The following selected financial data of Recticon has been derived from
unaudited financial statements provided by Recticon. The financial
information is of September 30, 1996, and September 30, 1995.
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30 September 30
Income Statement Data: 1996 1995 1996 1995
----------------------------------------------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Net Sales $2,483,265 $1,626,407 $7,248,360 $4,556,748
Cost of goods sold 1,768,656 1,174,827 4,717,234 3,429,153
---------- ---------- ---------- ----------
Gross Profit 714,609 451,580 2,531,126 1,127,595
Tax Expense 142,600 211,250 409,554 544,319
---------- ---------- ---------- ----------
Net income $ 572,009 $ 240,330 $2,121,572 $ 583,276
========== ========== ========== ==========
</TABLE>
Note: Above figures DO NOT include taxes or Management Fees of $150,000 for
the quarter ended September 30, 1996 and $45,000 for the quarter ended
September 30, 1995.
<TABLE>
<CAPTION>
As of September 30
Balance Sheet Data: 1996 1995
---------------------
(Unaudited)
<S> <C> <C>
Total assets $6,787,316 $4,147,578
---------- ----------
Total current liabilities 1,853,446 955,302
Total long term debt 1,906,355* 2,375,000
Stockholders equity/deficit 3,027,515 817,276
----------------------
$6,787,316 $4,147,578
======================
</TABLE>
* Includes Deferred Income of $1,833,320 from Customer Supply Agreements for
the period ending September 30, 1996 and $2,300,000 for the period ending
September 30, 1995.
Number
of
Shares Type of Issue and Name of User Cost Value
- ---------------------------------------------------------------
142 Common stock, Automotive
Industries, Inc., 100% owned.
$3,577,335 $2,900,000
On December 22, 1993, the Company acquired Automotive Industries,
Inc., a Delaware corporation ("Automotive"), by purchasing 100% of
the outstanding common stock of Automotive for $2,400,000. Such
shares are restricted securities and are not registered under
either the Securities Act of 1933 or the Investment Company Act of
1940. Through December 31, 1995, the Company has made additional
contributions to Automotive totaling $1,177,335. Automotive owns
and operates twenty-nine (29) full-service automotive retail centers
in northern Florida and southeast Georgia.
During the quarter ended June 30, 1996, the Company guaranteed a
term loan obtained by Automotive in the amount of $387,900. In
addition, as part of this guarantee, a letter of credit, supported
by a Certificate of Deposit, in the amount of $100,000, was issued
by the Company on behalf of Automotive. A new Point of Sale
computer system was purchased with the proceeds of this term loan.
The term loan is due in monthly installments through October 1,
2000.
During the quarter ended September 30, 1996, Automotive declared
dividends to the Company totaling $78,300.
At September 30, 1996, the Board of Directors valued the investment at
$2,900,000.
The following selected financial data of Automotive has been
derived from unaudited financial statements as of September 30, 1996 and
September 30, 1995.
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
Income Statement Data: 1996 1995 1996 1995
----------------------------------------------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Net Sales $5,661,542 $5,208,476 $16,037,848 $14,479,930
Cost of goods sold 2,294,016 2,404,086 7,156,847 6,496,400
---------- ---------- ----------- -----------
Gross margin 3,367,526 2,804,390 8,881,001 7,983,530
Total Expense 3,473,699 2,824,865 8,911,053 7,741,344
Discontinued Operations 65,946 0 59,502 0
---------- ---------- ----------- -----------
Net income ($ 172,119) ($ 20,475)($ 89,554) $ 242,186
========== ========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
Balance Sheet Data: September 30
1996 1995
---------------------
(Unaudited)
<S> <C> <C>
Total assets $ 5,468,785 $ 7,135,271
=========== ===========
Total current liabilities $ 2,912,239 $ 3,255,711
Total long term debt 1,250,000 1,212,124
Stockholders' equity 1,306,546 2,667,436
-----------------------
$ 5,468,785 $ 7,135,271
=======================
</TABLE>
Number
of
Shares Type of Issue and Name of User Cost Value
- ---------------------------------------------------------------
23,210 Common stock, ServiceMax Tire
& Auto Centers, Inc., 100%
owned
$5,580,503 $ 0
========== ==========
The investment in ServiceMax Tire & Auto Centers, Inc.
("ServiceMax") was made on June 1, 1992. ServiceMax operates tire
and service facilities at gas station and convenience store
locations in Michigan. The Company made an original investment of
$1,000,000 in exchange for 75% of ServiceMax shares. Through
December 31, 1993, the Company contributed an additional $2,179,279
to ServiceMax in exchange for an additional 9,900 shares of common
stock.
In March 1994, the Company purchased 580 shares of ServiceMax
common stock from a member of ServiceMax's management (representing
a 2.5% equity interest in ServiceMax) in exchange for 25,000
restricted shares of the Company's Common Stock. The Board of
Directors has assigned a value of $2.54 per share to the 25,000
restricted shares issued. In April 1994, the Company reached a
settlement with former management pursuant to which Acorn issued
150,000 restricted shares of the Company's Common Stock in exchange
for the 5,230 ServiceMax shares held by former management, giving
the Company a 100% ownership interest in ServiceMax. Such shares
are restricted securities and are not registered under either the
Securities Act of 1933 or the Investment Company Act of 1940. The
Board of Directors has assigned a value of $2.54 per share to the
150,000 restricted shares issued. Also, as part of the settlement,
the Company purchased certain notes payable totaling $68,229, which
was contributed to the capital of ServiceMax.
During 1995 and 1994, the Company made an additional capital
contribution aggregating $1,200,000 and $764,994, respectively. As
of September 30, 1996, the Company's investment amounted to $5,580,503.
As of June 15, 1996, all operations at ServiceMax were terminated.
As of September 30, 1996, the Board of Directors maintained a valuation
of ServiceMax at zero, due to continued losses and a significant
liability, and the uncertainty of successfully seeking
indemnification for any or all of the liability from applicable
third parties.
Investments in Common Stock, Warrants, and Notes Receivable
Number
of
Shares Type of Issue and Name of User Cost Value
- ---------------------------------------------------------------
Common stocks - Restricted:
49,565 Amerinex Artificial
Intelligence, Inc. $ 12,040 $ 9,913
24 Cardiac Control
Systems, Inc. 68 68
Common stock warrants - Restricted:
30,000 Aqua Care Systems,
Inc., each entitling
the holder to purchase
one (1) common share
at $3 per share, exer-
cisable through April 17,
1997. $ 3,000 $ 3,000
-------- --------
$ 15,108 $ 12,981
======== ========
Face
Value Type of Issue and Name of Issuer Cost Value
- ----------------------------------------------------------
Notes receivable - Restricted
$500,000 Note receivable from
Digital Products Cor-
poration, 10%, sub-
ordinated convertible
note, principal due on
November 22, 1996;
interest due semi-
annually commencing
May 22, 1994. $500,000 $ 0
-------- --------
$500,000 $ 0
======== ========
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
As of September 30, 1996, the Company had cash and cash equivalents
of $165,754, United States Treasury Bills of $247,328, and a
Certificate of Deposit of $100,000, as compared to cash and cash
equivalents of $383,563, and United States Treasury Bills of
$199,093, at December 31, 1995. The decline in capital resources
of $69,574 from December 31, 1995, was primarily the funding of
the capital contribution payable to Automotive. As of September 30,
1996, the Company had liabilities of $2,185,283 as compared to
liabilities of $1,918,266 at December 31, 1995. The increase in
liabilities is due to an increase in deferred income tax.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
3. By-Laws, as amended, effective November 7, 1996.
(b) Reports on Form 8-K:
There were no reports on Form 8-K filed by the Company during the
quarter ended September 30, 1996.
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, thereunto duly authorized.
ACORN VENTURE CAPITAL CORPORATION
Date: November 7, 1996 Larry V. Unterbrink
----------------------------------
Larry V. Unterbrink, Treasurer
(Principal Financial and
Accounting Officer)
Stephen A. Ollendorff
----------------------------------
Stephen A. Ollendorff,
Chairman, Chief Executive Officer,
and Secretary
<TABLE> <S> <C>
<ARTICLE> 6
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ACORN
VENTURE CAPITAL CORPORATION'S FINANCIAL STATEMENTS FOR THE QUARTER ENDED
SEPTEMBER 30, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> SEP-30-1996
<INVESTMENTS-AT-COST> 13,215,531
<INVESTMENTS-AT-VALUE> 18,260,309
<RECEIVABLES> 88,950
<ASSETS-OTHER> 4,962
<OTHER-ITEMS-ASSETS> 259,666
<TOTAL-ASSETS> 18,519,975
<PAYABLE-FOR-SECURITIES> 0
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 2,185,283
<TOTAL-LIABILITIES> 2,185,283
<SENIOR-EQUITY> 55,389
<PAID-IN-CAPITAL-COMMON> 14,090,156
<SHARES-COMMON-STOCK> 5,538,906
<SHARES-COMMON-PRIOR> 5,538,906
<ACCUMULATED-NII-CURRENT> (526,389)
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> (911,921)
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 3,627,457
<NET-ASSETS> 16,334,692
<DIVIDEND-INCOME> 583,300
<INTEREST-INCOME> 10,649
<OTHER-INCOME> 450,000
<EXPENSES-NET> 662,811
<NET-INVESTMENT-INCOME> 381,138
<REALIZED-GAINS-CURRENT> 0
<APPREC-INCREASE-CURRENT> 1,770,000
<NET-CHANGE-FROM-OPS> 2,151,138
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 0
<NUMBER-OF-SHARES-REDEEMED> 0
<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> 0
<ACCUMULATED-NII-PRIOR> (907,527)
<ACCUMULATED-GAINS-PRIOR> (911,921)
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 0
<INTEREST-EXPENSE> 58,425
<GROSS-EXPENSE> 662,811
<AVERAGE-NET-ASSETS> 15,669,359
<PER-SHARE-NAV-BEGIN> 2.56
<PER-SHARE-NII> 0.07
<PER-SHARE-GAIN-APPREC> 0.32
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 2.95
<EXPENSE-RATIO> 0.04
<AVG-DEBT-OUTSTANDING> 760,000
<AVG-DEBT-PER-SHARE> 0.14
</TABLE>
EXHIBIT 3
Effective Date: November 7, 1996
ACORN VENTURE CAPITAL CORPORATION
BY-LAWS
ARTICLE I
OFFICES
The location 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, and the
name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
The Corporation shall in addition to its registered
office in the State of Delaware establish and maintain an
office or offices at such place or places as the Board of
Directors may from time to time find necessary or desirable.
ARTICLE II
CORPORATE SEAL
The corporate seal of the Corporation shall have
inscribed thereon the name of the Corporation and may be in
such form as the Board of Directors may determine. Such seal
may be used by causing it or a facsimile thereof to be
impressed, affixed or otherwise reproduced.
ARTICLE III
MEETINGS OF STOCKHOLDERS
1. All meetings of the stockholders shall be held
at the registered office of the Corporation in the State of
Delaware or at such other place as shall be determined from
time to time by the Board of Directors.
2. (a) The annual meeting of stockholders shall be
held on such day and at such time as may be determined from
time to time by resolution of the Board of Directors, when
they shall elect by plurality vote, a Board of Directors to
hold office until the annual meeting of stockholders held next
after their election and their successors are respectively
elected and qualified or until their earlier resignation or
removal.
(b) At an annual meeting of the stockholders, only
such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an
annual meeting, business must be: (A) specified in the notice
of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (B) otherwise properly
brought before the meeting by or at the direction of the Board
of Directors, or (C) otherwise properly brought before the
meeting by a stockholder. 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 offices of the corporation not later than
the close of business on the sixtieth (60th) day nor earlier
than the close of business on the ninetieth (90th) day prior
to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that no annual
meeting was held in the previous year or the date of the
annual meeting has been changed by more than thirty (30) days
from the date contemplated at the time of the previous year's
proxy statement, notice by the stockholder to be timely must
be so received not earlier than the close of business on the
ninetieth (90th) day prior to such annual meeting and not
later than the close of business on the later of the sixtieth
(60th) day prior to such annual meeting or, in the event
public announcement of the date of such annual meeting is
first made by the corporation fewer than seventy (70) days
prior to the date of such annual meeting, not later than the
later of (I) the close of business on the tenth (10th) day
following the day on which public announcement of the date of
such meeting is first made by the corporation or (II) in
respect of the 1996 annual meeting of stockholders, on or
before November 21, 1996. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting: (i) a brief
description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at
the annual meeting, (ii) the name and address, as they appear
on the corporation's books, of the stockholder proposing such
business, (iii) the class and number of shares of the
corporation which are beneficially owned by the stockholder,
(iv) any material interest of the stockholder in such business
and (v) any other information that is required to be provided
by the stockholder pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "1934 Act"),
in his capacity as a proponent to a stockholder proposal.
Notwithstanding the foregoing, in order to include information
with respect to a stockholder proposal in the proxy statement
and form of proxy for a stockholder's meeting, stockholders
must provide notice as required by the regulations promulgated
under the 1934 Act and subject to the provisions of the 1934
Act. Notwithstanding anything in these By-laws to the
contrary, no business shall be conducted at any annual meeting
except in accordance with the procedures set forth in this
paragraph (b). The chairman of the annual meeting shall, if
the facts warrant, determine and declare at the meeting that
business was not properly brought before the meeting and in
accordance with the provisions of this paragraph (b), and, if
he should so determine, he shall so declare at the meeting
that any such business not properly brought before the meeting
shall not be transacted.
(c) Only persons who are nominated in accordance
with the procedures set forth in this paragraph (c) shall be
eligible for election as directors. Nominations of persons
for election to the Board of Directors of the corporation may
be made at a meeting of stockholders by or at the direction of
the Board of Directors or by any stockholder of the
corporation entitled to vote in the election of directors at
the meeting who complies with the notice procedures set forth
in this paragraph (c). Such nominations, other than those
made by or at the direction of the Board of Directors, shall
be made pursuant to timely notice in writing to the Secretary
of the corporation in accordance with the provisions of
paragraph (b) of this Section 2. Such stockholder's notice
shall set forth (i) as to each person, if any, whom the
stockholder proposes to nominate for election or re-election
as a director: (A) the name, age, business address and
residence address of such person, (B) the principal occupation
or employment of such person, (C) the class and number of
shares of the corporation which are beneficially owned by such
person, (D) a description of all arrangements or
understandings between the stockholder and each nominee and
any other person or persons (naming such person or persons)
pursuant to which the nominations are to be made by the
stockholder, and (E) any other information relating to such
person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the 1934 Act
(including without limitation such person's written consent to
being named in the proxy statement, if any, as a nominee and
to serving as a director if elected); and (ii) as to such
stockholder giving notice, the information required to be
provided pursuant to paragraph (b) of this Section 2. At the
request of the Board of Directors, any person nominated by a
stockholder for election as a director shall furnish to the
Secretary of the corporation that information required to be
set forth in the stockholder's notice of nomination which
pertains to the nominee. No person shall be eligible for
election as a director of the corporation unless nominated in
accordance with the procedures set forth in this paragraph
(c). The chairman of the meeting shall, if the facts warrant,
determine and declare at the meeting that a nomination was not
made in accordance with the procedures prescribed by these By-
laws, and if he should so determine, he shall so declare at
the meeting, and the defective nomination shall be
disregarded.
(d) For purposes of this Section 2, "public
announcement" shall mean disclosure in a press release
reported by the Dow Jones New Service, Associated Press or
comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
3. The holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at
all meetings or the stockholders for the transaction of
business, except as otherwise expressly provided by statute,
by the Certificate of Incorporation or by these By-laws. If,
however, such majority shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or by proxy, shall have power
to adjourn the meeting from time to time, without notice other
than announcement at the meeting (except as otherwise provided
by statute). At such adjourned meeting at which the requisite
amount of voting stock shall be represented any business may
be transacted which might have been transacted at the meeting
as originally notified.
4. At all meetings of the stockholders each
stockholder having the right to vote shall be entitled to vote
in person, or by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more
than three years prior to said meeting, unless such instrument
lawfully provides for a longer period.
5. At each meeting of the stockholders each
stockholder shall have one vote for each share of capital
stock having voting power, registered in his name on the books
of the Corporation at the record date fixed in accordance with
these By-laws, or otherwise determined, with respect to such
meeting. Except as otherwise expressly provided by statute,
by the Certificate of Incorporation or by these By-laws, all
matters coming before any meeting of the stockholders shall be
decided by the vote of a majority of the number of shares of
stock present in person or represented by proxy at such
meeting and entitled to vote thereat, a quorum being present.
6. Notice of each meeting of the stockholders shall
be mailed to each stockholder entitled to vote thereat not
less than 10 nor more than 60 days before the date of the
meeting. Such notice shall state the place, date and hour of
the meeting and, in the case of a special meeting, the
purposes for which the meeting is called.
7. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute,
may be called by the President or by the Board of Directors,
and shall be called by the Secretary at the request in writing
of stockholders owning a majority of the amount of the entire
capital stock of the Corporation issued and outstanding and
entitled to vote. Such request by stockholders shall state
the purpose or purposes of the proposed meeting.
8. Business transacted at each special meeting
shall be confined to the purpose or purposes stated in the
notice of such meeting.
9. The order of business at each meeting of
stockholders shall be determined by the presiding officer.
ARTICLE IV
DIRECTORS
1. The business and affairs of the Corporation
shall be managed under the direction of a Board of Directors,
which may exercise all such powers and authority for and on
behalf of the Corporation as shall be permitted by law, the
Certificate of Incorporation or these By-laws. Each of the
directors shall hold office until the next annual meeting of
stockholders and until his successor has been elected and
qualified or until his earlier resignation or removal.
2. The Board of Directors may hold their meetings
within or outside of the State of Delaware, at such place or
places as it may from time to time determine.
3. The number of directors comprising the Board of
Directors shall be such number as may be from time to time
fixed by resolution of the Board of Directors (but at least
one). In case of any such increase, the Board shall have
power to elect each additional director to hold office until
the next annual meeting of stockholders and until his
successor is elected and qualified or his earlier resignation
or removal. Any such decrease in the number of directors
shall take effect at the time of such action by the Board only
to the extent that vacancies then exist; to the extent that
such decrease exceeds the number of such vacancies, the
decrease shall not become effective, except as further
vacancies may thereafter occur, until the time of and in
connection with the election of directors at the next
succeeding annual meeting of the stockholders.
4. If the office of any director becomes vacant, by
reason of death, resignation, disqualification or otherwise,
a majority of the directors then in office, although less than
a quorum, may fill the vacancy by electing a successor who
shall hold office until the next annual meeting of
stockholders and until his successor is elected and qualified
or his earlier resignation or removal.
5. Any director may resign at any time by giving
written notice of his resignation to the Board of Directors.
Any such resignation shall take effect upon receipt thereof by
the Board, or at such later date as may be specified therein.
Any such notice to the Board shall be addressed to it in care
of the Secretary.
6. A director may be removed by a majority vote of
the Board for cause.
ARTICLE V
COMMITTEES OF DIRECTORS
1. By resolutions adopted by a majority of the
whole Board of Directors, the Board may designate an Executive
Committee and one or more other committees, each such
committee to consist of one or more directors of the
Corporation. The Executive Committee shall have and may
exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation
(except as otherwise expressly limited by statute), including
the power and authority to declare dividends and to authorize
the issuance of stock, and may authorize the seal of the
corporation to be affixed to all papers which may require it.
Each such committee shall have such of the powers and
authority of the Board as may be provided from time to time in
resolutions adopted by a majority of the whole Board.
2. The requirements with respect to the manner in
which the Executive Committee and each such other committee
shall hold meetings and take actions shall be set forth in the
resolutions of the Board of Directors designating the
Executive Committee or such other committee.
ARTICLE VI
COMPENSATION OF DIRECTORS
The directors shall receive such compensation for
their services as may be authorized by resolution of the Board
of Directors, which compensation may include an annual fee and
a fixed sum for expense of attendance at regular or special
meetings of the Board or any committee thereof. Nothing
herein contained shall be construed to preclude any director
from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE VII
MEETINGS OF DIRECTORS; ACTION WITHOUT A MEETING
1. Regular meetings of the Board of Directors may
be held without notice at such time and place, either within
or without the State of Delaware, as may be determined from
time to time by resolution of the Board.
2. Special meetings of the Board of Directors shall
be held whenever called by the President of the Corporation or
the Board of Directors on at least 24 hours' notice to each
director. Except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these
By-laws, the purpose or purposes of any such special meeting
need not be stated in such notice, although the time and place
of the meeting shall be stated.
3. At all meetings of the Board of Directors, the
presence in person of a majority of the members of the Board
of Directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and, except as
otherwise provided by statute, by the Certificate of
Incorporation or by these By-laws, if a quorum shall be
present the act of a majority of the directors present shall
be the act of the Board.
4. Any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if all the members of
the Board or such committee, as the case may be, consent
thereto in writing and the writing or writings are filed with
the minutes of proceedings of the Board or committee. Any
director may participate in a meeting of the Board, or any
committee designated by the Board, by means of a conference
telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this
sentence shall constitute presence in person at such meeting.
ARTICLE VIII
OFFICERS
1. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a President, and
Secretary, and such other officers as the Board shall deem
necessary, including but not limited to a Chairman, one or
more Vice Presidents, Treasurer, one or more Assistant
Secretaries and Assistant Treasurers. Any number of offices
may be held by the same person.
2. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors, or in such manner as
the Board may prescribe.
3. The officers of the Corporation shall hold
office until their successors are elected and qualified, or
until their earlier resignation or removal. Any officer may
be at any time removed from office by the Board of Directors,
with or without cause. If the office of any officer becomes
vacant for any reason, the vacancy may be filled by the Board
of Directors.
4. Any officer may resign at any time by giving
written notice of his resignation to the Board of Directors.
Any such resignation shall take effect upon receipt thereof by
the Board or at such later date as may be specified therein.
Any such notice to the Board shall be addressed to it in care
of the Secretary.
ARTICLE IX
CHAIRMAN
The Chairman shall have such powers and perform such
duties as shall be assigned to him by the Board of Directors.
He shall preside at meetings of the stockholders and of the
Board of Directors.
ARTICLE X
PRESIDENT
The President shall be the chief executive officer
of the Corporation, unless otherwise determined by the Board
of Directors. Subject to the supervision and direction of the
Board of Directors, he shall be responsible for managing the
affairs of the Corporation. He shall have supervision and
direction of all of the other officers of the Corporation and
shall have the powers and duties usually and customarily
associated with the office of chief executive officer. The
President may, but need not, be a director, and in the absence
or non-election of a Chairman, shall preside at all meetings
of the stockholders and the Board of Directors.
ARTICLE XI
VICE PRESIDENTS
The Vice Presidents shall have such powers and
duties as may be delegated to them by the chief executive
officer.
ARTICLE XII
SECRETARY AND ASSISTANT SECRETARY
1. The Secretary shall, unless otherwise directed
by the President or Chairman keep and record the minutes of
all meetings of the Board of Directors and of the stockholders
in a book to be kept for that purpose, and give, or cause to
be given, notice of meetings of the stockholders and of the
Board of Directors. He shall perform like duties for the
committees of the Board when required. He shall keep in safe
custody the seal of the Corporation, and when authorized by
the chief executive officer, President, an Executive Vice
President or a Vice President, shall affix the same to any
instrument requiring it, and when so affixed it shall be
attested by his signature or by the signature of an Assistant
Secretary. He shall have such other powers and duties as may
be delegated to him by the chief executive officer.
2. The Assistant Secretary shall, in case of the
absence of the Secretary, perform the duties and exercise the
powers of the Secretary, and shall have such other powers and
duties as may be delegated to them by the chief executive
officer.
ARTICLE XIII
TREASURER AND ASSISTANT TREASURER
1. The Treasurer shall have the custody of the
corporate funds and securities, and shall deposit or cause to
be deposited under his direction all moneys and other valuable
effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of
Directors or pursuant to authority granted by it. He shall
render to the chief executive officer and the Board whenever
they may require it an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
He shall have such other powers and duties as may be delegated
to him by the chief executive officer.
2. The Assistant Treasurer shall, in case of the
absence of the Treasurer, perform the duties and exercise the
powers of the Treasurer, and shall have such other powers and
duties as may be delegated to them by the chief executive
officer.
ARTICLE XIV
CERTIFICATES OF STOCK
The certificates of stock of the Corporation shall
be numbered and shall be entered in the books of the
Corporation as they are issued. They shall exhibit the
holder's name and number of shares and shall be signed by the
chief executive officer, President or an Executive Vice
President or Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant
Secretary.
ARTICLE XV
CHECKS
All checks, drafts and other orders for the payment
of money and all promissory notes and other evidences of
indebtedness of the Corporation shall be signed by such
officer or officers or such other person as may be designated
by the Board of Directors or pursuant to authority granted by
it.
ARTICLE XVI
FISCAL YEAR
The fiscal year of the Corporation shall be as
determined from time to time by resolution duly adopted by the
Board of Directors.
ARTICLE XVII
NOTICES AND WAIVERS
1. Whenever by statute, by the Certificate of
Incorporation or by these By-laws it is provided that notice
shall be given to any director or stockholder, such provision
shall not be construed to require personal notice, but such
notice may be given in writing, by mail, by depositing the
same in the United States mail, postage prepaid, directed to
such stockholder or director at his address as it appears on
the records of the Corporation, and such notice shall be
deemed to be given at the time when the same shall be thus
deposited. Notice of regular or special meetings of the Board
of Directors may also be given to any director by telephone or
by telex, telegraph or cable, and in the latter event the
notice shall be deemed to be given at the time such notice,
addressed to such director at the address hereinabove
provided, is transmitted by telex (with confirmed answerback),
or delivered to and accepted by an authorized telegraph or
cable office.
2. Whenever by statute, by the Certificate of
Incorporation or by these By-laws a notice is required to be
given, a written waiver thereof, signed by the person entitled
to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of any
stockholder or director at any meeting thereof shall
constitute a waiver of notice of such meeting by such
stockholder or director, as the case may be, except as
otherwise provided by statute.
ARTICLE XVIII
INDEMNIFICATION AND INSURANCE
1. The Corporation shall indemnify each 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
("Proceeding"), by reason of the fact that he is or was a
Director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with such Proceeding to the fullest extent
permitted by law, provided that:
(a) whether or not there is an adjudication of
liability in such Proceeding, the Corporation shall not
indemnify any person for any liability arising by reason
of such person's willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved
in the conduct of his office or under any contract or
agreement with the Corporation ("disabling conduct"); and
(b) the Corporation shall not indemnify any person
unless:
(1) the court of other body before which the
Proceeding was brought (i) dismisses the Proceeding
for insufficiency of evidence of any disabling
conduct, or (ii) reaches a final decision on the
merits that such person was not liable by reason of
disabling conduct; or
(2) absent such a decision, a reasonable
determination is made, based upon a review of the
facts, by (i) the vote of a majority of a quorum of
the Directors of the Corporation who are neither
interested persons of the Corporation, as defined
in the Investment Company Act of 1940, nor parties
to the Proceeding, or (ii) if such quorum is not
obtainable, or even if obtainable, if a majority of
a quorum of Directors described in paragraph
(b)(2)(i) above so directs, by independent legal
counsel in a written opinion,that such person was
not liable by reason of disabling conduct.
Expenses (including attorneys' fees) incurred in
defending a Proceeding will be paid by the Corporation in
advance of the final disposition thereof upon an undertaking
by such person to repay such expenses (unless it is ultimately
determined that he is entitled to indemnification), if:
(a) such person shall provide adequate security for
his undertaking;
(b) the Corporation shall lye insured against losses
arising by reason of such advance; or
(c) a majority of a quorum of the Directors of the
Corporation who are neither interested persons of the
Corporation as defined in the Investment Company Act of
1940 nor parties to the Proceeding, or independent legal
counsel in a written opinion, shall determine, based on
a review of readily available facts, that there is reason
to believe that such person will be found to be entitled
to indemnification.
2. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was a Director,
officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a Director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in or
arising out of his position. However, in no event with the
Corporation purchase insurance to indemnify any such person
for any act for which the Corporation itself is not permitted
to indemnify him.
ARTICLE XIX
ALTERATION OF BY-LAWS
The By-laws of the Corporation may be altered,
amended or repealed, and new By-laws may be adopted, by the
stockholders or by the Board of Directors.
