<PAGE>
File No. 811-07637
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-5
REGISTRATION STATEMENT OF SMALL BUSINESS INVESTMENT
COMPANY UNDER THE INVESTMENT COMPANY ACT OF 1940
TRANSPORTATION CAPITAL CORP.
------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
205 East 42nd Street
Suite 2020
New York, New York 10017
-----------------------------------
(Address of Principal Executive Offices)
Alvin Murstein
Chief Executive Officer
Edwards Capital Corp.
205 East 42nd Street
Suite 2020
New York, New York 10017
-------------------------------------
(Name and Address of Agent for Service)
<PAGE>
PART I
Item 1. Organization and Business.
Transporation Capital Corp. (the "Company") is a corporation organized
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under the laws of the State of New York on December 5, 1979 under the name
Transportation SBIC, Inc. and is a wholly-owned subsidiary of Medallion
Financial Corp. ("Medallion"). The Company proposes to operate as a non-
---------
diversified, closed-end, management investment company and has obtained a
license from the Small Business Administration ("SBA") to operate as a
---
specialized small business investment company ("SSBIC") under the Small Business
-----
Investment Act of 1958, as amended. Further information regarding the business
of the Company is set forth in Medallion's Registration Statement on Form N-2
(File No. 33-31670), which became effective on May 22, 1996 (see "The Company";
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "Business").
Items 2 and 3. Fundamental Policies of the Registrant; Policies with Respect to
Security Investments.
Incorporated by reference from Medallion's Registration Statement on Form
N-2 (see "Investment Objectives, Policies and Restrictions"; "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
"Business").
Item 4. Ownership of Voting and Convertible Securities of Other Issuers.
Not applicable.
Item 5. Special Tax Provisions Applicable to Registrant.
Incorporated by reference from Medallion's Registration Statement on Form
N-2 (see "Distributions" and "Federal Income Tax Considerations").
Item 6. Pending Legal Proceedings.
None.
Item 7. Summary of Earnings.
Incorporated by reference from (i) Medallion's Registration Statement on
Form N-2 (see "Prospectus Summary"; "Selected Financial Data" and "Financial
Statements"); (ii) Medallion's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") filed with the Securities and Exchange Commission (the
------------
"Commission") on July 15, 1996; and (iii) Medallion's Quarterly Report on Form
- -----------
10-Q for the quarter ended June 30, 1996 under the Exchange Act filed with the
Commission on August 14, 1996.
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<PAGE>
Item 8. Persons in Control Relationship with Registrant.
-------------------------------------
Medallion Financial Corp.
("Medallion")
. RIC
. BDC
-------------------------------------
-------------------------------------------------------------------
- ----------------- --------------- ----------------------- --------------
Medallion Funding Edwards Capital Transportation Capital Medallion Taxi
Corp. Corp. Corp. Media, Inc.
("MFC") ("Edwards") (the "Company") ("Media")
.RIC .RIC .RIC .Taxicab
.SSBIC .SBIC .SSBIC advertising
business
.C Corporation
- ----------------- --------------- ----------------------- ---------------
.. BDC -Business Development Company under the Investment Company Act of
1940, as amended (the "1940 Act").
.. RIC -Regulated Investment Company under the Internal Revenue Code of 1986,
as amended.
.. SBIC -Small Business Investment Company registered under the 1940 Act and
licensed by the SBA.
.. SSBIC -Specialized Small Business Investment Company registered under the
1940 Act and licensed by the SBA.
Medallion owns 100% of the voting securities of the Company, MFC, Edwards and
Media. Medallion and Edwards are corporations organized under the laws of the
State of Delaware. Media is a corporation organized under the laws of the State
of New York.
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<PAGE>
Item 9. Persons Owning Equity Securities of Registrant.
Name and Title of Type of Amount Percentage
Address Class Ownership Owned of Class
- ------- -------- --------- ------ --------
Medallion Financial Corp. Common Of Record and 100 100%
205 East 42nd Street Stock Beneficially
Suite 2020
New York, New York 10017
Officers, directors and members of the advisory board as a group own no
securities of the Company.
Item 10. Number of Holders of Equity Securities.
Title of Class Number of Holders
-------------- -----------------
Common Stock 1
Item 11. Directors and Executive Officers.
Incorporated by reference from Medallion's Registration Statement on Form
N-2 (see "Management").
Item 12. Members of Advisory Board of Registrant.
Not applicable.
Item 13. Remuneration of Directors, Officers and Members of Advisory Board.
Incorporated by reference from Medallion's Registration Statement on Form
N-2 (see "Management").
Item 14. Indemnification of Directors and Officers.
Incorporated by reference from Medallion's Registration Statement on Form
N-2 (see "Management" and "Information Not Required In Prospectus"). The
directors and officers of the Company are indemnified against liability under
the provisions of the Delaware General Corporation Law and pursuant to certain
provisions of Medallion's Certificate of Incorporation and By-Laws. In addition,
the Certificate of Incorporation and By-Laws of the Company contain
indemnification provisions substantially similar to those contained in
Medallion's Certificate of Incorporation and By-Laws and described in
Medallion's Registration Statement on Form N-2.
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<PAGE>
Item 15. Custodians of Portfolio Securities.
The Company is currently in the process of negotiating custodial
arrangements with respect to the promissory notes held in its portfolio.
Items 16 and 17. Investment Advisers; Business and Other Connections of
Investment Advisers and Their Managements.
The Company does not have an investment adviser. However, the Company's
parent, Medallion, has entered into a sub-advisory agreement with FMC Advisers,
Inc (see Medallion's Registration Statement on Form N-2: "Prospectus Summary"
and "Investment Objectives, Policies and Restrictions").
Item 18. Interest of Affiliated Persons in Certain Transactions.
Not applicable.
Item 19. Capital Stock.
The Company has only one class of capital stock, the common stock, all of
which is held by Medallion.
Item 20. Long-Term Debt.
Incorporated by reference from Medallion's Registration Statement on Form
N-2 (see "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Business").
Item 21. Other Securities.
Not applicable.
Item 22. Financial Statements.
Incorporated by reference from (i) Medallion's Registration Statement on
Form N-2 (see "Prospectus Summary"; "Selected Financial Data" and "Financial
Statements"); (ii) Medallion's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996; and (iii) Medallion's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1996.
Part III
Item 35. Financial Statements and Exhibits.
(a) Financial Statements
--------------------
Incorporated by reference from (i) Medallion's Registration Statement on
Form N-2 (see "Prospectus Summary"; "Selected Financial Data" and "Financial
Statements"); (ii) Medallion's
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<PAGE>
Quarterly Report on Form 10-Q for the quarter ended March 31, 1996; and (iii)
Medallion's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996.
(b) Exhibits
--------
(1) Certificate of Incorporation of Transportation
Capital Corp., as amended................... Filed Herewith
(2) By-Laws of Transportation Capital Corp...... Filed Herewith
(3) Documents Defining Rights of Holders
of Securities............................... Not Applicable
(4) Custodian Agreement......................... Not Applicable
(5) Indemnification Contracts................... Not Applicable
(6) Investment Advisory Contracts............... Not Applicable
(7) Bonus, Profit-Sharing, Pension
or Similar Contracts........................ Previously Filed*
(8) Small Business Administration
License..................................... Filed Herewith
(9) Material Contracts Not Made in
the Ordinary Course of Business............. Previously Filed**
(10) Underwriting Contracts...................... Not Applicable
(11) Opinion of Counsel.......................... Not Applicable
(12) Contracts with Investors.................... Not Applicable
(13) Financial Data Schedule..................... Previously Filed***
(14) Consent of Arthur Andersen LLP.............. Filed Herewith
(15) Consent of Coopers & Lybrand LLP............ Filed Herewith
*Incorporated by reference from Medallion's Registration Statement on Form
N-2 (see Exhibits i.1, i.2 and i.3).
**Incorporated by reference from Medallion's Registration Statement on Form
N-2 (see Exhibits f.9, f.10, k.1, k.1(i) and k.29).
***Incorporated by reference from (i) Medallion's Registration Statement on
Form N-2; (ii) Medallion's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996; and (iii) Medallion's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
on the 11th day of October, 1996.
TRANSPORTATION CAPITAL CORP.
(Registrant)
By:/s/ Daniel F. Baker
--------------------------------------
Daniel F. Baker
Chief Financial Officer and Treasurer
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<PAGE>
CERTIFICATE OF MERGER
OF
TCC PURCHASE CO.
(a Delaware Corporation)
INTO
TRANSPORTATION CAPITAL CORP.
(a New York Corporation)
UNDER SECTION 904 OF THE BUSINESS CORPORATION LAW
OF THE STATE OF NEW YORK
*******************************
We, the undersigned Joseph Sartin and Ruth Klindtworth being, respectively,
a Vice President and the Secretary of TCC Purchase Co., a corporation organized
and existing under the laws of the State of Delaware, and Mark Hornstein and
Jonathan Hirsch being, respectively, the President and the Secretary of
Transportation Capital Corp., a corporation organized and existing under the
laws of the State of New York, hereby certify the following information relating
to the merger of TCC Purchase Co. with and into Transportation Capital Corp.
(the "Merger"):
1. (a) The name of each of the constituent corporations of the Merger
(the "Constituent Corporations") is as follows:
TCC Purchase Co.
Transportation Capital Corp. (formed under the name
"Transportation SBIC, Inc.")
(b) The name of the corporation surviving the Merger is Transportation
Capital Corp. (the "Surviving Corporation") and following the Merger its name
shall remain Transportation Capital Corp.
2. As to each of the Constituent Corporations, the designation and number
of outstanding shares of each class and series and the voting rights thereof are
as follows:
<PAGE>
<TABLE>
<CAPTION>
Designation and Shares
number of shares entitled
in each class or Class or Series to vote as a
series outstand- of Shares en- class or
Name of Corporation ing titled to Vote series
- ------------------- ---------------- --------------- ------------
<S> <C> <C> <C>
Transportation 2,486,804 shares, Common Stock Common Stock,
Capital Corp. Common Stock, 1 vote per
$.125 par value share
TCC Purchase Co. 100 shares, Common Stock Common Stock,
Common Stock, $1 1 vote per
par value share
</TABLE>
3. The Cerficates of Incorporation of Transportation Capital Corp., as
in effect at the effective time of the Merger, shall be the Certificate of
Incorporation of the Surviving Corporation.
4. (a) The jurisdiction and date of incorporation of each of the
Constituent Corporations is as follows:
<TABLE>
<CAPTION>
Jurisdiction Date of
Name of Corporation of Incorporation Incorporation
- ------------------- ---------------- -------------
<S> <C> <C>
Transportation
Capital Corp. New York 12/5/79
TCC Purchase Co. Delaware 11/19/92
</TABLE>
(b) TCC Purchase Co. has not filed an application for authority
to do business in New York.
5. The Merger was authorized by the unanimous written consent of the
stockholders of TCC Purchase Co. and the affirmative vote of at least two-thirds
of the issued and outstanding shares of Transportation Capital Corp. entitled to
vote thereon.
IN WITNESS WHEREOF, we have signed this certificate on the 29th day of August,
1994 and we affirm the statements contained therein as true under penalties of
perjury.
TCC PURCHASE CO.
By: /s/ Joseph Sartin
--------------------
Name: Joseph Sartin
Vice President
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<PAGE>
By: /s/ Ruth Klindtworth
-----------------------
Name: Ruth Klindtworth
Secretary
TRANSPORTATION CAPITAL CORP.
By: /s/ Mark Hornstein
------------------------
Name: Mark Hornstein
President
By: /s/ Jonathan Hirsch
------------------------
Name: Jonathan Hirsch
Secretary
-3-
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
TRANSPORTATION SBIC, INC.
------------------------------
Pursuant to Section 805 of the
Business Corporation Law
------------------------------
The undersigned, the President and Secretary of TRANSPORTATION SBIC, INC.,
do hereby certify:
FIRST: The name of the Corporation is TRANSPORTATION SBIC, INC.
-----
SECOND: The Certificate of Incorporation was filed by the Secretary of
------
State on December 5, 1979.
THIRD: The Certificate of Incorporation is amended to increase the total
-----
number of shares which may be issued by the Corporation from 1,200 to 6,000.
There is no change of issued shares and no reduction of stated capital.
"FOURTH: To accomplish the foregoing, the first paragraph in article
------
numbered "FOURTH" reading: The total number of shares which may be issued by the
Corporation is Twelve Hundred (1,200) of which 600 shares of the par value of
$1,000 each shall be preferred and 600 shares shall be common, without par
value. All of the preferred shares shall be sold and issued to the Small
Business Administration." is amended to read:
<PAGE>
"FOURTH: The total number of shares which may be issued by the Corporation
------
is Six Thousand (6,000) of which 3,000 shares of the par value of $1,000 each
shall be preferred and 3,000 shares shall be common, without par value. All of
the preferred shares shall be sold and issued to the Small Business
Administration."
FIFTH: The above Amendment of the Certificate of Incorporation was
-----
authorized by vote of the holders of a majority of all the outstanding shares
entitled to vote thereon at a meeting of the shareholders duly called and held
on the 13th day of May, 1983.
The undersigned affirm that the statements made herein are true under the
penalties of perjury, and have signed this Certificate this 5th day of December,
1983.
/s/ Melvin L. Hirsch
------------------------------
Melvin L. Hirsch, President
/s/ Dorothy T. Hirsch
-------------------------------
Dorothy T. Hirsch, Secretary
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<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
TRANSPORTATION CAPITAL CORP.
----------------------------
Under Section 805 of the Business Corporation Law
The undersigned, Melvin L. Hirsch and Dorothy T. Hirsch, being respectively
the President and Secretary of Transportation Capital Corp., pursuant to the
provisions of the Business Corporation Law of the State of New York, do hereby
certify:
1. The name of the corporation is Transportation Capital Corp.
(hereinafter sometimes called the "Corporation"). The name under which the
Corporation was formed is Transportation SBIC, Inc.
2. The Certificate of Incorporation of the Corporation was filed by the
Department of State on December 5, 1979.
3. The Certificate of Incorporation of the Corporation is hereby amended
by deleting the first paragraph of Article FOURTH thereof, which sets forth the
number, classes and par value of the authorized shares of the Corporation, and
inserting in lieu thereof the following:
FOURTH: The total number of shares which may be issued by the
------
Corporation is five million nine thousand (5,009,000), of which nine
thousand (9,000) shares of the par value of $1,000 per share shall be
preferred and five million (5,000,000) shares of the par value of
12-1/2 cents per share shall be common. All of the preferred shares
shall be sold and issued to the Small Business Administration.
4. The amendment set forth in the preceding paragraph 3 hereof provides
for the following change and increase of common shares, and increase of
preferred shares.
Issued Shares: 452,908 common shares of par value 50 cents per share
shall be changed. Resulting from such change shall be, and hereby are,
1,811,632 common shares of par value 12-1/2 cents per share. The terms of
such change shall be that each one (1) share of common stock, par value 50
cents per share, issued and outstanding on the effective day of this
amendment ("Old Common") shall be and become, ipso facto by operation
----------
hereof, and without any action on the part of the holder thereof, four (4)
shares of common stock, par value 12-1/2 cents per share ("New Common").
Each certificate representing shares of Old Common need not be exchanged or
surrendered but, upon the effectiveness hereof, shall be deemed to
represent the same number of shares of New Common, and each holder of
record of Old Common shall be entitled to receive an additional certificate
or certificates
<PAGE>
representing in the aggregate three (3) shares of New Common for each one
(1) share of Old Common so held.
Unissued Shares: 347,092 common shares of par value 50 cents per
share shall be changed. Resulting from such change shall be, and hereby
are, 1,388,368 common shares of par value 12-1/2 cents per share in the
ratio of four (4) shares with a par value 12-1/2 cents per share for each
share with a par value 50 cents per share. The total unissued shares are
3,188,368 shares of par value 12-1/2 cents per share.
Authorized Shares: 1,800,000 additional common shares of par value
12-1/2 cents per share are being authorized hereunder and 1,000 additional
preferred shares of par value $1,000 per share.
5. The Certificate of Incorporation of the Corporation is hereby further
amended by adding thereto the following Article:
SIXTH: The Board of Directors of the Corporation shall be, and
-----
hereby is, authorized and empowered, to the extent and under such
circumstances as may from time to time be permissible by law and
determined by the Board of Directors, to indemnify and/or advance
expenses on behalf of the Corporation, who are made or threatened to
be made a party to any claim, action or proceeding, whether such
claim, action or proceeding is brought by or in the right of the
Corporation or otherwise or is civil or criminal, against any and all
judgments, fines, amounts paid in settlement and reasonable expenses,
including attorneys' fees. The personal liability of a director or
officer to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director or officer shall be, and
hereby is, limited to the fullest extent (including elimination of
such liability) permissible by the law in effect from time to time;
provided, however, that the foregoing clause shall not eliminate or
limit the liability of a director or officer (i) for willful
misfeasance or any breach of his duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions in bad faith or which
involve gross negligence or reckless disregard of the duties involved
in the conduct of his office, (iii) for intentional misconduct, a
knowing violation of the law, or a violation specified in Section 719
of the Business Corporation Law or (iv) for any transaction from which
the director or officer derived an improper personal benefit. The
Corporation shall be, and hereby is, authorized and empowered upon the
approvals of its Board of Directors to amend the Bylaws of the
Corporation and/or to enter into such agreement or agreements as it
shall from time to time deem advisable and in furtherance of the
foregoing provisions of this Article SIXTH.
- 2 -
<PAGE>
6. This Certificate of Amendment and the amendments set forth herein were
authorized by majority vote of the Board of Directors of the Corporation
followed by the affirmative vote of the holders of a majority of all outstanding
shares of the Corporation entitled to vote thereon at a duly held meeting of
shareholders. The Small Business Administration has approved the amendments set
forth herein.
IN WITNESS WHEREOF, we have signed this Certificate of Amendment on the
30th day of March, 1987 and we affirm the statements contained herein as true
under penalties of perjury.
/s/ Melvin L. Hirsch
----------------------------
Melvin L. Hirsch, President
/s/ Dorothy T. Hirsch
----------------------------
Dorothy T. Hirsch, Secretary
- 3 -
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
TRANSPORTATION SBIC, INC.
---------------------------------
Pursuant to Section 805 of the
Business Corporation Law
---------------------------------
The undersigned, the President and Secretary of TRANSPORTATION SBIC, INC.,
do hereby certify:
FIRST: The name of the corporation is TRANSPORTATION SBIC, INC.
-----
SECOND: The Certificate of Incorporation was filed by the Secretary of
------
State on December 5, 1979.
THIRD: The Certificate of Incorporation is amended with respect to the
-----
dividends that may be paid to its common shareholders.
FOURTH: To accomplish the foregoing, the following paragraph in article
------
numbered "FOURTH" reading:
"Whenever the full dividend upon the preferred shares for the then
current dividend period shall have been paid or declared and a sum
sufficient for payment thereof set apart, the holders of the common shares
shall be entitled to receive out of the remaining surplus or net profits of
the Corporation such per share amounts as the directors, in the exercise of
their discretion, may determine to be attributable as
<PAGE>
dividends. After the full dividend shall have been declared and paid on
the preferred shares and the dividend shall have been paid on the common
shares, the balance of the earnings of the Corporation shall be added to
its surplus."
is amended to read:
"Whenever the full dividend upon the preferred shares for the then
current dividend period and all prior periods shall have been paid or
declared and a sum sufficient for payment thereof set apart, the holders of
the common shares shall be entitled to receive out of the remaining
retained earnings of the Corporation such per share amounts as the
directors, in the exercise of their discretion, may determine to be
distributable as dividends, but no dividend distribution may be paid to the
common shareholders in reduction of capital or paid in surplus. After the
full dividend shall have been declared and paid on the preferred shares and
the dividend shall have been paid on the common shares, the balance of the
earnings of the Corporation shall be added to its surplus."
FIFTH: The above Amendment of the Certificate of Incorporation was
-----
authorized by vote of the holders of a majority of all the outstanding
shares entitled to vote thereon at a meeting of the shareholders duly
called and held on the 31st day of March, 1980.
- 2 -
<PAGE>
The undersigned affirm that the statements made herein are true under
the penalties of perjury, and have signed this Certificate this 1st day of
April, 1980.
/s/ Melvin L. Hirsch
----------------------------
Melvin L. Hirsch, President
/s/ Dorothy T. Hirsch
----------------------------
Dorothy T. Hirsch, Secretary
- 3 -
<PAGE>
RESTATED
CERTIFICATE OF INCORPORATION
----------------------------
-of-
TRANSPORTATION SBIC, INC.
-------------------------
Under Section 807 of the Business
Corporation Law of the State of
New York
The undersigned, Melvin L. Hirsch and Dorothy T. Hirsch, being respectively
the President and the Secretary of Transportation SBIC, Inc., pursuant to the
provisions of the Business Corporation Law of the State of New York do hereby
certify:
1. The name of the Corporation is Transportation SBIC, Inc. (hereinafter
sometimes called the "Corporation").
2. The Certificate of Incorporation of the Corporation was filed by the
Department of State on December 5, 1979.
3. The Certificate of Incorporation of the Corporation is hereby amended
and changed to effect the following amendments and changes authorized by the
Business Corporation Law:
(a) The authorized capital stock of the corporation is changed as follows:
(1) The authorized number of shares of 50c par value common stock is
increased from 400,000 to 800,000; and
(2) The authorized number of shares of $1000 par value preferred
stock is increased from 4,000 to 8,000.
<PAGE>
(b) The location of the principal office of the Corporation is changed to
60 E. 42nd Street, City, County and State of New York.
(c) The address to which the Secretary of State is directed to mail
process served upon him on the Corporation's behalf is changed to
"Tanner Gilbert Propp & Sterner, 99 Park Avenue, 25th Floor, New York,
New York 10016."
(d) Article FIFTH, setting the fiscal year of the Corporation, being no
longer required or permitted to be specified in the Certificate of
Incorporation, is deleted without thereby intending any change in such
fiscal year, and Article SIXTH is accordingly renumbered.
(e) The name of the Corporation is changed to TRANSPORTATION CAPITAL CORP.
4. The text of the Certificate of Incorporation, as herein amended and
changed, is hereby restated to read in full as follows:
FIRST: The name of the Corporation is TRANSPORTATION CAPITAL CORP.
-----
SECOND: Corporation is being formed for the following purposes:
------
This corporation is organized and chartered solely for
the purpose of performing the functions and conducting the
activities contemplated under the Small Business Investment Act
of 1958, as amended from time to time, and will provide
assistance solely to small business concerns which will
contribute to a well-balanced national economy by facilitating
ownership in such concerns by persons whose participation in the
free enterprise system is hampered because of social or economic
disadvantages.
- 2 -
<PAGE>
The Corporation's powers and authority shall be as follows:
(a) To operate under the name set forth above;
(b) To issue in consideration for cash or such other
consideration permitted by the Regulations of the Small Business
Administration the number of shares of stock indicated in ARTICLE
FOURTH:
(c) To borrow money and issue its debenture bonds,
promissory notes, or other obligations under such general
conditions and subject to such limitations and regulations as the
Small Business Administration may prescribe;
(d) To provide equity capital to small business concerns
(as defined by the Small Business Administration) under
conditions authorized by section 304 of the Small Business
Investment Act of 1958, as amended, (the "Act") and pertinent
sections of the Regulations, with the right to sell or dispose of
securities so acquired in such manner and under such terms and
conditions as the Corporation shall determine;
(e) To make long-term loans (as defined by the Small
Business Administration) to small business concerns (as defined
by the Small Business Administration) for the purposes and in the
manner and subject to the conditions described in section 305 of
the Act; with the right to sell or dispose of such loans in such
manner and under such terms and conditions as the Corporation
shall determine;
(f) To acquire and make commitments for obligations and
securities of a single enterprise only within the limitations
established by section 306 of the Act, unless such limitations
are waived by the Small Business Administration;
(g) To undertake its operations in cooperation with
banks or other financial institutions, as contemplated under
section 308 (a) of the Act;
(h) To provide consulting and advisory services to small
business concerns on a fee basis;
- 3 -
<PAGE>
(i) To invest funds not reasonably needed for its current operations
only in direct obligations of, or obligations guaranteed as to
principal and interest by, the United States Government;
(j) To conduct its operation in accordance with and
subject to regulations prescribed by the Small Business
Administration;
(k) To submit to and pay for examinations made by
direction of the Small Business Administration by examiners
selected, employed, or approved by the Small Business
Administration;
(l) To make reports to the Small Business Administration
at such times and in such form as the Small Business
Administration may require;
(m) To conduct its operations under the Act in the State
of New York and in other areas within the United States as may
from time to time be approved by the Small Business
Administration, without limitation, however, as to the residence,
domicile, or place of business of parties with which it transacts
its business or otherwise deals, in accordance with regulations
issued by SBA:
(n) To regulate its business and conduct its affairs in
a manner not inconsistent with the Act and regulations prescribed
by the Small Business Administration thereunder;
(o) To adopt and use a corporate seal;
(p) To have duration for a perpetual period, subject to
dissolution in accordance with the laws of the State of New York
and subject to forfeiture of its License from the Small Business
Administration for violation of law or of regulations issued
under the Act;
(q) To make contracts;
(r) To sue and be sued, complain, and defend in any
court of law or equity;
- 4 -
<PAGE>
(s) By its Board of Directors, to appoint such officers
and employees as may be deemed proper, define their authority and
duties, fix their compensation, require bonds of such of them as
it deems advisable and fix the penalty thereof, dismiss such
officers and employees, or any thereof, at pleasure, and appoint
others to fill their places;
(t) to adopt by-laws regulating the manner in which its
stock shall be transferred, its officers and employees appointed,
its property transferred, and the privileges granted to it by law
exercised and enjoyed;
(u) To maintain its principal office at 60 East 42nd
Street, New York, N.Y. 10017 and to establish branch offices or
agencies within its operating territory, subject to the approval
of the Small Business Administration;
(v) To acquire, hold, operate, and dispose of any
property (real, personal, or mixed) whenever necessary or
appropriate to the carrying out of its lawful functions;
(w) To exercise such incidental powers as may reasonably
be necessary to carry out the business for which the corporation
is established.
To have as part of the corporate purposes, all of the powers conferred
upon corporations organized under the Business Corporation Law subject
to any limitations thereof contained in this Certificate of
Incorporation or in the laws of the State of New York.
THIRD: The city, incorporated village or town and the county within
-----
the State of New York in which the office of the Corporation is to be located
are as follows:
CITY COUNTY
---- ------
New York New York
FOURTH: The total number of shares which may be issued by the
------
Corporation is Eight Hundred Eight Thousand (808,000) of which 8,000 shares of
the par value of $1,000 each shall be preferred and 800,000 shares shall be
Common Stock, par
- 5 -
<PAGE>
value 50c per share. All of the preferred shares shall be sold and issued to
the Small Business Administration.
The designations, preferences, privileges and voting powers or
restrictions or qualifications of the shares of each class are as follows:
The holders of the preferred shares shall be entitled to receive from
the surplus or the net profits of the corporation, as and when declared by the
board of directors, an annual dividend of 3% of the par value of its preferred
stock, payable on a preferred and cumulative basis so that no amount shall be
set aside for or paid to any other class of stock until the full amount of
dividends due at the annual rate of 3%, cumulative to the intended date of
payment, shall have been paid to the Small Business Administration. Before any
redemption of stock not purchased by the Small Business Administration or
liquidation in whole or in part, or any distribution of assets to other
stockholders, the Small Business Administration shall be entitled to the
preferred payment in full of the annual 3% dividend referred to above and the
par value of its preferred stock. Such par value need not be paid to the Small
Business Administration before the distribution f ordinary dividends from
retained earnings to other shareholders.
The Corporation may, at its option, redeem in whole or any part the
Small Business Administration's outstanding preferred stock on any dividend
payment date where at least 30 days prior written notice has been given to the
Small Business Administration. The Corporation shall pay the Small Business
Administration the par value of the shares to be redeemed ($50,000 minimum per
transaction), and accumulated dividends.
Whenever the full dividend upon the preferred shares for the then
current dividend period and all prior periods shall have been paid or declared
and a sum sufficient for payment thereof set apart, the holders of the common
shares shall be entitled to receive
- 6 -
<PAGE>
out of the remaining retained earnings of the Corporation such per share amounts
as the directors, in the exercise of their discretion, may determine to be
distributable as dividends, but no dividend distribution may be paid to the
common shareholders in reduction of capital or paid in surplus. After the full
dividend shall have been declared and paid on the preferred shares and the
dividend shall have been paid on the common shares, the balance of the earnings
of the Corporation shall be added to its surplus.
The Small Business Administration, as the holder of the preferred
shares, shall not be entitled to vote on any matters for which a vote of the
shareholders of the Corporation may be sought. All voting rights shall be
vested in the common shares, except as may be provided by the laws of the State
of New York.
This charter shall not be amended without the prior written approval
of the Small Business Administration.
FIFTH: The Secretary of State is designated as the agent of the
-----
Corporation upon whom process against the Corporation may be served. The post
office address within or without the State of New York to which the Secretary of
State shall mail a copy of any process against the Corporation served upon him
is care of Tanner Gilbert Propp & Sterner, 99 Park Avenue, New York, New York
10016.
5. The Restatement of the Certificate of Incorporation effected hereby
was authorized by majority vote of the Board of Directors of the Corporation
followed by affirmative vote of the holders of a majority of the issued and
outstanding shares of each class of stock issued and outstanding of the
Corporation.
- 7 -
<PAGE>
IN WITNESS WHEREOF, we have signed our names and affirmed that the
statements made herein are true under the penalties of perjury, this 1st day of
May, 1985.
/s/ Melvin L. Hirsch
----------------------------
Melvin L. Hirsch, President
/s/ Dorothy T. Hirsch
-----------------------------
Dorothy T. Hirsch, Secretary
- 8 -
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
TRANSPORTATION CAPITAL CORP.
Under Section 805 of the Business Corporation Law
-------------------------------------------------
It is hereby certified that:
FIRST: The name of the corporation is Transportation Capital Corp.
------
The name under which the corporation was formed is Transportation SBIC, Inc.
SECOND: The Certificate of Incorporation of the corporation was filed
-------
with the Department of State on December 5, 1979.
THIRD: The Certificate of Incorporation of the corporation is to be
------
amended by adding provisions authorizing the corporation's creation of a
Restricted Contributed Capital Surplus account and the corporation's granting to
the United States Small Business Administration of a liquidating interest in
such account in the event the corporation repurchases from the United States
Small Business Administration the corporation's 3% Preferred shares outstanding
at a discount from their par value.
FOURTH: To accomplish the foregoing amendment, new paragraphs
-------
relating to the corporation's creation of a Restricted Contributed Capital
Surplus account and the corporation's granting to the United States Small
Business Administration of a liquidating interest in such account in the event
the corporation repurchases from the United States Small Business Administration
the corporation's 3% Preferred shares outstanding at a discount from their par
value shall be added to paragraph FOURTH of the Certificate of Incorporation of
<PAGE>
the corporation, and Article "FOURTH" of the Certificate of Incorporation is
hereby amended to read in its entirety as follows:
"FOURTH": The total number of shares which the Corporation shall have
--------
authority to issue is five million eighteen thousand (5,018,000),
which shall be divided into three classes, as follows: nine thousand
(9,000) shares of the par value of $1,000 each shall be designated as
"Preferred"; nine thousand (9,000) shares of the par value of $1,000
each shall be designated as "Redeemable Preferred"; and five million
(5,000,000) shares of the par value of 12-1/2 cents each shall be
designated as "Common". All of the Preferred and Redeemable Preferred
shares shall be sold and issued to the Small Business Administration.
The designations, preferences, privileges and voting powers or
restrictions or qualifications of the shares of each class are as
follows:
The holders of the Preferred and Redeemable Preferred shares
shall be entitled to receive from the surplus or the net profits of
the corporation, as and when declared by the board of directors, an
annual dividend, payable on a preferred and cumulative basis so that
no account shall be set aside for or paid to the holders of the Common
shares until the full amount of dividends due with respect to both the
Preferred and Redeemable Preferred shares, cumulative to the intended
date of payment, shall have been paid to the Small Business
Administration. The annual dividend with respect to the Preferred
shares shall be three percent (3%) of its par value. The annual
dividend with respect to the Redeemable Preferred shares shall be four
percent (4%) of its par value. Of the Preferred and Redeemable
Preferred shares, the accumulated unpaid dividends shall be declared
and paid in the time sequence in which they accumulated, starting with
the oldest accumulated unpaid dividend. Before any redemption of
shares not purchased by the Small Business Administration, or any
liquidation in whole or in part, or any distribution of assets to
other shareholders, the Small Business Administration shall be
entitled to the preferred payment in full of the annual dividends
referred to above and the par value of its Preferred and Redeemable
Preferred shares. Such par value need not be paid to the Small
Business Administration before the distribution of ordinary dividends
from retained earnings to other shareholders.
The Corporation may, at its option, redeem in whole or any part
the Small Business Administration's outstanding Preferred or
Redeemable Preferred shares on any dividends payment date where at
least 30 days prior written notice has been given to the Small
Business Administration. The corporation shall pay the Small Business
Administration the par value of the
-2-
<PAGE>
shares to be redeemed ($50,000 minimum per transaction), and
accumulated unpaid dividends with respect to such shares.
Each share of Redeemable Preferred issued to the Small Business
Administration shall be redeemed by the Corporation on the fifteenth
(15) anniversary following its issue date, such redemption being
mandatory on both the Corporation and the Small Business
Administration. On the redemption of such Redeemable Preferred
shares, the Corporation shall pay the Small Business Administration
the par value of the shares to be redeemed and all accumulated unpaid
dividends with respect to such shares.
Whenever the full dividends upon the Preferred and Redeemable
Preferred shares for the then current dividends period and all prior
periods shall have been paid or declared and a sum sufficient for
payment thereof set apart, the holders of the Common shares shall be
entitled to receive out of the remaining retained earnings of the
Corporation such per share amounts as the directors, in the exercise
of their discretion, may determine to be distributable as dividends,
but no dividend distribution may be paid to the Common shareholders in
reduction of capital or paid in surplus. After the full dividends
shall have been declared and been paid on the Preferred and Redeemable
Preferred shares and the dividend shall have been paid on the Common
shares, the balance of the earnings of the Corporation shall be added
to its surplus.
The Small Business Administration, as the holder of the Preferred
and Redeemable Preferred shares, shall not be entitled to vote on any
matters for which a vote of the shareholders of the corporation may be
sought. All voting rights shall be vested in the Common shares,
except as may be provided by the laws of the State of New York.
This charter shall not be amended without the prior written
approval of the Small Business Administration.
Creation of "Restricted Contributed Capital Surplus Account" and Grant of
-------------------------------------------------------------------------
"Liquidating Interest" to the United States Small Business Administration.
- -------------------------------------------------------------------------
(i) For the purposes of this Article FOURTH the following terms shall have
the meaning hereinafter set forth:
"Liquidating Interest" shall mean a preferential limited ownership interest
----------------------
in a new capital surplus account to be created by the corporation and to be
known as the Restricted Contributed Capital Surplus Account. The
"Liquidating Interest" may only be granted to the United States Small
Business Administration and only in conjunction with the corporation's
repurchase from the United States Small Business Administration at a
discount of the corporation's outstanding 3% Preferred shares
-3-
<PAGE>
held by the United States Small Business Administration, as contemplated
and authorized by Public Law 101-162, dated November 21, 1989.
"Restricted Contributed Capital Surplus Account" shall mean the new capital
------------------------------------------------
account which will be used solely for the purpose of recording on the
accounts of the corporation a credit representing the difference between
the purchase price to be paid for the corporation's repurchase from the
United States Small Business Administration of the corporation's 3%
Preferred shares and the par value of such 3% Preferred shares.
"The Shares" shall mean the aggregate number of the corporation's 3%
------------
Preferred shares to be repurchased.
"Purchase Price" shall mean the aggregate value of the consideration to be
----------------
paid to the United States Small Business Administration by the corporation
for The Shares.
"Discount" shall mean the amount by which the aggregate par value of the 3%
----------
Preferred shares to be repurchased exceeds the Purchase Price.
(ii) The corporation shall carry on its balance sheet a capital account
designated Restricted Contributed Capital Surplus. The corporation will
grant to the United States Small Business Administration a Liquidating
Interest in the "Restricted Contributed Capital Surplus Account pursuant to
a 3% Preferred Stock Repurchase Agreement (the "Agreement") to be executed
between the SBA and the corporation.
The initial value of the Liquidating Interest shall be equal to the amount
of the Discount and shall decline on a straight-line basis at the end of
each month by an amount equal to 1/60th (1.66%) of its original amount
beginning one month after the date of the Agreement. Upon the occurrence
of any Event of Default (as defined in the Agreement) the value of the
Liquidating Interest shall become fixed at the level immediately preceding
the Event of Default and shall not decline further until such time as the
default is cured or waived.
The Liquidating Interest shall expire on the later of (i) the date sixty
(60) months from the date of the Agreement, or (ii) if an Event of Default
has occurred and such default has been cured or waived, such later date on
which the Liquidating Interest is fully amortized.
If, prior to the expiration of the Liquidating Interest as set forth above,
the corporation's board of directors or its shareholders authorizes the
liquidation of the corporation, or a judicial order is issued directing the
voluntary or involuntary liquidation of the corporation, or the Untied
States Small Business Administration initiates receivership or liquidation
proceedings, pursuant to the Small Business Administration Investment Act
of 1958 and the regulations adopted thereunder, any
-4-
<PAGE>
assets which are available, after the payment or the provision for the
payment of all debts of the corporation, shall be distributed first to the
Untied States Small Business Administration until the fair market value of
such assets is equal to the amount of the Liquidating Interest or all
remaining assets have been distributed to the Untied States Small Business
Administration."
FIFTH: The foregoing amendment of the Certificate of Incorporation of
-----
the corporation was authorized by the unanimous vote of the board of directors
of the corporation and was ap;roved by written consent of the holders of all the
outstanding shares of the corporation entitled to vote on the said amendment and
by the Untied States Small Business Administration.
IN WITNESS WHEREOF, this Certificate of Amendment to the Certificate of
Incorporation has been subscribed this 2nd day of May, 1995, by the undersigned
who affirm that the statements made herein are true under the penalties of
perjury.
/s/ Mark Hornstein
---------------------------
Mark Hornstein, President
/s/ Jonathan Hirsch
----------------------------
Jonathan Hirsch, Secretary
-5-
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
TRANSPORTATION CAPITAL CORP.
Under Section 805 of the Business Corporation Law
The undersigned, Melvin L. Hirsch, and Dorothy T. Hirsch, being
respectively the President and Secretary of Transportation Capital Corp. (the
"Corporation"), pursuant to the provisions of the Business Corporation Law of
the State of New York, do hereby certify that:
1. The name of the Corporation is Transportation Capital Corp. The name
under which the Corporation was formed is Transportation SBIC, Inc.
2. The Certificate of Incorporation of the Corporation was filed by the
Department of State on December 5, 1979.
3. The Certificate of Incorporation of the Corporation shall be amended to
increase the number of authorized shares and, to effect the foregoing, Article
"FOURTH", relating to the number of authorized shares, is hereby amended to read
as follows:
FOURTH: The total number of shares which the Corporation shall have
------
authority to issue is five million eighteen thousand (5,018,000), which
shall be divided into three classes, as follows: nine thousand (9,000)
shares of the par value of $1,000 each shall be designated as "Preferred";
nine thousand (9,000) shares of the par value of $1,000 each shall be
designated as "Redeemable Preferred"; and five million (5,000,000) shares
of the par value of 12-1/2 cents each shall be designated as "Common". All
of the Preferred and Redeemable Preferred shares shall be sold and issued
to the Small Business Administration.
The designations, preferences, privileges and voting powers or restrictions
or qualifications of the shares of each class are as follows:
The holders of the Preferred and Redeemable Preferred shares
shall be entitled to receive from the surplus or the net profits of
the corporation, as and when declared by the board of directors, an
annual dividend, payable on a preferred and cumulative basis so that
no amount shall be set aside for or paid to the holders of the Common
shares until the full amount of dividends due with respect to both the
Preferred and Redeemable Preferred shares, cumulative to the intended
date of payment, shall have been paid to the Small Business
Administration. The annual dividend with respect to the Preferred
shares shall be three percent (3%) of its par value. The annual
dividend with respect to the Redeemable Preferred shares shall be four
percent (4%) of its
<PAGE>
par value. Of the Preferred and Redeemable Preferred shares, the
accumulated unpaid dividends shall be declared and paid in the time
sequence in which they accumulated, starting with the oldest
accumulated unpaid dividend. Before any redemption of shares not
purchased by the Small Business Administration, or any liquidation in
whole or in part, or any distribution of assets to other shareholders,
the Small Business Administration shall be entitled to the preferred
payment in full of the annual dividends referred to above and the par
value of its Preferred and Redeemable Preferred shares. Such par
value need not be paid to the Small Business Administration before the
distribution of ordinary dividends from retained earnings to other
shareholders.
The Corporation may, at its option, redeem in whole or any part
the Small Business Administration's outstanding Preferred or
Redeemable Preferred shares on any dividends payment date where at
least 30 days prior written notice has been given to the Small
Business Administration. The corporation shall pay the Small Business
Administration the par value of the shares to be redeemed ($50,000
minimum per transaction), and accumulated unpaid dividends with
respect to such shares.
Each share of Redeemable Preferred issued to the Small Business
Administration shall be redeemed by the Corporation on the fifteenth
(15) anniversary following its issue date, such redemption being
mandatory on both the Corporation and the Small Business
Administration. On the redemption of such Redeemable Preferred
shares, the Corporation shall pay the Small Business Administration
the par value of the shares to be redeemed and all accumulated unpaid
dividends with respect to such shares.
Whenever the full dividend upon the Preferred and Redeemable
Preferred shares for the then current dividend period and all prior
periods shall have been paid or declared and a sum sufficient for
payment thereof set apart, the holders of the Common shares shall be
entitled to receive out of the remaining retained earnings of the
Corporation such per share amounts as the directors, in the exercise
of their discretion, may determine to be distributable as dividends,
but no dividend distribution may be paid to the Common shareholders in
reduction of capital or paid in surplus. After the full dividend
shall have been declared and paid on the Preferred and Redeemable
Preferred shares and the dividend shall have been paid on the Common
shares, the balance of the earnings of the Corporation shall be added
to its surplus.
The Small Business Administration, as the holder of the Preferred
and Redeemable Preferred shares, shall not be entitled to vote on any
matters for which a vote of the shareholders of the corporation may be
sought. All voting rights shall be vested in the Common shares,
except as may be provided by the laws of the State of New York.
<PAGE>
This charter shall not be amended without the prior written
approval of the Small Business Administration.
4. The amendment set forth in the preceding paragraph 3 will result in
the following increase of shares:
Issued Shares: The 3,383-1/3 Preferred shares and the 1,911,632 Common
shares presently issued shall remain unchanged by this amendment.
Unissued Shares: As a result of this amendment the unissued shares of the
Corporation shall be increased by 9,000 Redeemable Preferred shares of the par
value of $1,000 each.
The 5,616-2/3 Preferred shares and the 3,088,368 Common shares presently
unissued shall remain unchanged by this amendment.
5. This Certificate of Amendment and the amendments set forth herein were
authorized by a majority vote of the Board of Directors of the Corporation
followed by the affirmative vote of the holders of a majority of all outstanding
shares of the Corporation entitled to vote thereon at a duly held meeting of
shareholders. The Small Business Administration, which is the holder of all of
the outstanding shares of Preferred Stock, has approved the amendment set forth
herein.
IN WITNESS WHEREOF, the undersigned have executed and subscribed this
Certificate of Amendment and do each affirm the foregoing as true under the
penalties of perjury this 12th day of June, 1990.
/s/ Melvin L. Hirsch
--------------------------
Melvin L. Hirsch, President
/s/ Dorothy T. Hirsch
----------------------------
Dorothy T. Hirsch, President
<PAGE>
CERTIFICATE OF MERGER
of
COASTAL PLAN MANAGEMENT CORP.
into
TRANSPORTATION SBIC, INC.
(Under Section 904 of the Business Corporation Law)
We, the undersigned, LESTER J. TANNER and RAY GLANTZ being respectively the
president and the secretary of COASTAL PLAN MANAGEMENT CORP., and MELVIN L.
HIRSCH and DOROTHY TO HIRSCH being respectively the president and the secretary
of TRANSPORTATION SBIC, INC. hereby certify:
1. (a) The name of each constituent corporation is as follows: COASTAL
PLAN MANAGEMENT CORP. and TRANSPORTATION SBIC, INC., both New York corporations.
(b) The name of the surviving corporation is TRANSPORTATION SBIC, INC.
and following the merger its name shall be TRANSPORTATION SBIC, INC.
2. As to each constituent corporation, the designation and number of
outstanding shares of each class and the voting rights thereof are as follows:
<PAGE>
<TABLE>
<CAPTION>
Class of Shares
Shares Entitled to
Designation and number of shares Entitled Vote as
Name of Corporation in each class outstanding to Vote a Class
- ---------------------- -------------------------------- -------- -----------
<S> <C> <C> <C>
Coastal Plan Manage- Common Stock, par value $.02 per Common 120,000
ment Corp. per share; 120,000 shares out-
standing
Transportation SBIC, Common Shares, without par value Common 2,142
Inc. 2,142 shares outstanding
Preferred Shares, par value - -
$1,000 per share; 2,418-1/3
shares outstanding
</TABLE>
3. (a) The first paragraph of Article "FOURTH" of the Certificate of
Incorporation of Transportation SBIC, Inc. reading:
"FOURTH: The total number of shares which may be issued by the
------
Corporation is Six Thousand (6,000) of which 3,000 shares of the par value
of $1,000 each shall be preferred and 3,000 shares shall be common, without
par value. All of the preferred shares shall be sold and issued to the
Small Business Administration."
is amended to read as follows:
"FOURTH: The total number of shares which may be issued by the
------
Corporation is Four Hundred Four Thousand (404,000) of which 4,000 shares
of the par value of $1,000 each shall be preferred and 400,000 shares shall
be Common Stock, par value 50c per share. All of the preferred shares
shall be sold and issued to the Small Business Administration."
(b) Each of the 2,142 Common Shares, without par value, of
Transportation SBIC, Inc. presently authorized and outstanding shall be changed
into 130 shares of Common Stock, par value 50c per share, for a total of 278,460
shares.
<PAGE>
(c) Each of the 858 Common Shares, without par value, of
Transportation SBIC, Inc., presently authorized and unissued shall be changed
into 141 and 562/858ths shares of Common Stock, par value 50c per share, for a
total of 121,540 shares.
4. The date when the Certificate of Incorporation of each constituent
corporation was filed by the Department of State is as follows:
NAME OF CORPORATION DATE OF INCORPORATION
------------------- ---------------------
Coastal Plan Management Corp. October 28, 1971
Transportation SBIC, Inc. December 5, 1979
5. The merger was adopted by each constituent corporation by the
affirmative vote of at least two-thirds of the issued and outstanding shares
entitled to vote thereon.
6. The merger shall be effective on the day this Certificate of Merger is
filed by the Department of State of New York.
IN WITNESS WHEREOF, we have signed this Certificate of Merger on the 3rd
day of December 1984 and we affirm the statements contained therein as true
under penalties of perjury.
COASTAL PLAN MANAGEMENT CORP.
By /s/ Lester J. Tanner
-----------------------------
Lester J. Tanner, President
By /s/ Ray Glantz
-----------------------------
Ray Glantz, Secretary
<PAGE>
TRANSPORTATION SBIC, INC.
By /s/ Melvin L. Hirsch
----------------------------
Melvin L. Hirsch, President
By /s/ Dorothy T. Hirsch
-----------------------------
Dorothy T. Hirsch, Secretary
<PAGE>
CERTIFICATE OF CHANGE OF
TRANSPORTATION CAPITAL CORP.
UNDER SECTION 805-A OF THE
BUSINESS CORPORATION LAW
-----------------------------
The undersigned, being the President and the Secretary of Transportation
Capital Corp. (the "Corporation"), do hereby certify and set forth that:
(1) The name of the corporation is Transportation Capital Corp. The name
under which the Corporation was formed is Transportation SBIC, Inc.
(2) The date that the certificate of incorporation was filed by the
Department of State is the 5th day of December, 1979.
(3) Paragraph FIFTH of the certificate of incorporation, which provides
that the post office address within or without the State of New York to which
the Secretary of State shall mail a copy of any process against the Corporation
served upon him is c/o Tanner, Gilbert, Propp & Sterner, 99 Park Avenue, New
York, New York 10016, is hereby amended and changed and the following language
substituted therefor:
"FIFTH": The Secretary of State is designated as the agent of the
-------
Corporation upon whom process against the Corporation may be
served. The post office address to which the Secretary of
State shall mail a copy of any process against the
Corporation served upon him is c/o Butler, Fitzgerald &
Potter A Professional Corporation, 315 Park Avenue South,
New York, New York 10010."
(4) This change to the certificate of incorporation of the Corporation was
authorized by majority vote of the Corporation's Board of Directors on September
9, 1992.
<PAGE>
In Witness Whereof, the undersigned have signed this certificate and
affirm that it is true under the penalties of perjury this 23rd day of
September, 1992.
/s/ Paul J. Borden
--------------------------
PAUL J. BORDEN
President
/s/ Jonathan H. Hirsch
---------------------------
JONATHAN H. HIRSCH
Secretary
- 2 -
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
TRANSPORTATION CAPITAL CORP.
----------------------------
Under Section 805 of the Business Corporation Law
The undersigned, Melvin L. Hirsch and Dorothy T. Hirsch, being respectively
the President and Secretary of Transportation Capital Corp., pursuant to the
provisions of the Business Corporation Law of the State of New York, do hereby
certify:
1. The name of the corporation is Transportation Capital Corp. (the
"Corporation"). The name under which the Corporation was formed is
Transportation SBIC, Inc.
2. The Certificate of Incorporation of the Corporation was filed by the
Department of State on December 5, 1979.
3. The Certificate of Incorporation of the Corporation is hereby amended
by deleting in its entirety Article SIXTH, the subject matter of which is the
indemnification and liability of officers and directors, and inserting in lieu
thereof the following:
SIXTH: The Board of Directors of the Corporation shall be, and hereby is,
authorized and empowered, to the extent and under such circumstances as
may from time to time be permissible by law and determined by the Board
of Directors, to indemnify and/or advance expenses on behalf of the
Corporation to any persons, including without limitation, directors and
officers of the Corporation, who are made or threatened to be made a
party to any claim, action or proceeding, whether such claim, action or
proceeding is brought by or in the right of the Corporation or otherwise
or is civil or criminal, against any and all judgments, fines, amounts
paid in settlement and reasonable expenses, including attorneys' fees.
The personal liability of a director or officer to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director or officer shall be, and hereby is, limited to the fullest
extent (including elimination of such liability) permissible by the law
in effect from time to time; provided, however, that the foregoing clause
shall not eliminate or limit the liability of a director or officer (i)
for willful misfeasance or any breach of his duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions in bad faith
or which involve gross negligence or reckless disregard of the duties
involved in the conduct of his
<PAGE>
office, (iii) for intentional misconduct, a knowing violation of the law
or a violation of law specified in Section 314 of the Small Business
Corporation Law or (iv) for any transaction from which the director or
officer derived an improper personal benefit. The Corporation shall be,
and hereby is, authorized and empowered upon the approvals of its Board
of Directors to amend the Bylaws of the Corporation and/or to enter into
such agreement or agreements as it shall from time to time deem advisable
and in furtherance of the foregoing provisions of this Article SIXTH.
4. The Certificate of Incorporation of the Corporation is hereby further
amended by adding thereto the following Article:
SEVENTH: In connection with any proposed issuance or issuances by the
Corporation of, or any proposed granting or grantings by the Corporation
of any rights or options to purchase, its equity shares of any class or
any shares or other securities convertible into or carrying rights or
options to purchase its equity shares of any class at any time
authorized, no shareholder of the Corporation shall have any preemptive
right because of such shareholding to purchase any such shares or
securities.
5. This Certificate of Amendment and the amendments set forth herein
were authorized by majority vote of the Board of Directors of the Corporation
followed by the affirmative vote of the holders of a majority of all outstanding
shares of the Corporation entitled to vote thereon at a duly held meeting of
shareholders. The Small Business Administration has approved in writing the
amendments set forth herein.
IN WITNESS WHEREOF, the undersigned have executed and subscribed this
Certificate of Amendment and do each affirm the foregoing as true under the
penalties of perjury, this 30th day of September, 1987.
/s/ Melvin L. Hirsch
---------------------------
Melvin L. Hirsch, President
/s/ Dorothy T. Hirsch
----------------------------
Dorothy T. Hirsch, Secretary
- 2 -
<PAGE>
CERTIFICATE OF INCORPORATION
----------------------------
-of-
TRANSPORTATION SBIC, INC.
-------------------------
Under Section 402 of the Business Corporation Law
==============================
The undersigned, being a natural person of at least 21 years and acting as
incorporator of the Corporation hereby being formed under the Business
Corporation Law, certifies that:
FIRST: The name of the Corporation is
-----
TRANSPORTATION SBIC, INC.
SECOND: The Corporation is being formed for the following purposes:
------
This corporation is organized and chartered solely for the
purpose of performing the functions and conducting the activities
contemplated under the Small Business Investment Act of 1958, as
amended from time to time, and will provide assistance solely to
small business concerns which will contribute to a well-balanced
national economy by facilitating ownership in such concerns by
persons whose participation in the free enterprise system is
hampered because of social or economic disadvantages.
The Corporation's powers and authority shall be as follows:
(a) To operate under the name set forth above;
(b) To issue in consideration for cash or such other consideration
permitted by the Regulations of the Small Business Administration
the number of shares of stock indicated in ARTICLE FOURTH:
<PAGE>
(c) To borrow money and issue its debenture bonds, promissory notes,
or other obligations under such general conditions and subject to
such limitations and regulations as the Small Business
Administration may prescribe;
(d) To provide equity capital to small business concerns (as defined
by the Small Business Administration) under conditions authorized
by section 304 of the Small Business Investment Act of 1958, as
amended (the "Act"), and pertinent sections of the Regulations,
with the right to sell or dispose of securities so acquired in
such manner and under such terms and conditions as the
Corporation shall determine;
(e) To make long-term loans (as defined by the Small Business
Administration) to small business concerns (as defined by the
Small Business Administration) for the purposes and in the
manner and subject to the conditions described in section 305 of
the Act; with the right to sell or dispose of such loans in such
manner and under such terms and conditions as the Corporation
shall determine;
(f) To acquire and make commitments for obligations and securities of
a single enterprise only within the limitations established by
section 306 of the Act, unless such limitations are waived by the
Small Business Administration;
(g) To undertake its operations in cooperation with banks or other
financial institutions, as contemplated under section 308(a) of
the Act;
(h) To provide consulting and advisory services to small business
concerns on a fee basis;
(i) To invest funds not reasonably needed for its current operations
only in direct obligations of, or obligations guaranteed as to
principal and interest by, the United States Government;
(j) To conduct its operations in accordance with and subject to
regulations prescribed by the Small Business Administration;
(k) To submit to and pay for examinations made by direction of the
Small Business Administration by examiners selected, employed, or
approved by the Small Business Administration;
-2-
<PAGE>
(l) To make reports to the Small Business Administration at such
times and in such form as the Small Business Administration may
require;
(m) To conduct its operations under the Act in the State of New York
and in other areas within the United States as may from time to
time be approved by the Small Business Administration, without
limitation, however, as to the residence, domicile, or place of
business of parties with which it transacts its business or
otherwise deals, in accordance with regulations issued by SBA;
(n) To regulate its business and conduct its affairs in a manner not
inconsistent with the Act and regulations prescribed by the Small
Business Administration thereunder;
(o) To adopt and use a corporate seal;
(p) To have duration for a perpetual period, subject to dissolution
in accordance with the laws of the State of New York and subject
to forfeiture of its License from the Small Business
Administration for violation of law or of regulation issued under
the Act;
(q) To make contracts;
(r) To sue and be sued, complain, and defend in any court of law or
equity;
(s) By its Board of Directors, to appoint such officers and employees
as may be deemed proper, define their authority and duties, fix
their compensation, require bonds of such of them as it deems
advisable and fix the penalty thereof, dismiss such officers or
employees, or any thereof, at pleasure, and appoint others to
fill their places;
(t) To adopt by-laws regulating the manner in which its stock shall
be transferred, its officers and employees appointed, its
property transferred, and the privileges granted to it by law
exercised and enjoined;
-3-
<PAGE>
(u) To maintain its principal office at 34 Wenwood Drive, Glen Head,
New York 11545 and to establish branch offices or agencies within
its operating territory, subject to the approval of the Small
Business Administration;
(v) To acquire, hold, operate, and dispose of any property (real,
personal, or mixed) whenever necessary or appropriate to the
carrying out of its lawful functions;
(w) To exercise such incidental powers as may reasonably be necessary
to carry out the business for which the corporation is
established.
To have as part of the corporate purposes all of the powers conferred
upon corporations organized under the Business Corporation Law subject
to any limitations thereof contained in this Certificate of
Incorporation or in the laws of the State of New York.
THIRD: The city, incorporated village or town and the county within
-----
the State of New York in which the office of the Corporation is to be located
are as follows:
CITY, INCORPORATED
VILLAGE OR TOWN COUNTY
------------------ ------
Glen Head Nassau
FOURTH: The total number of shares which may be issued by the
------
Corporation is Twelve Hundred (1,200), of which 600 shares of the par value of
$1,000 each shall be preferred and 600 shares shall be common, without par
value. All of the preferred shares shall be sold and issued to the Small
Business Administration.
The designations, preferences, privileges and voting powers or
restrictions or qualifications of the shares of each class are as follows:
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<PAGE>
The holders of the preferred shares shall be entitled to receive from
the surplus or the net profits of the corpora-tion, as and when declared by the
board of directors, an annual dividend of 3% of the par value of its preferred
stock, payable from the date of issuance. Such dividend shall be payable on a
preferred and cumulative basis so that no amount shall be set aside for or paid
to any other class of stock until the full amount of dividends due at the annual
rate of 3% cumulative to the intended date of payment shall have been paid to
the Small Business Administration. Before any redemption of stock not purchased
by the Small Business Administration or liquidation in whole or in part, or any
distribution of assets of other stock-holders, the Small Business Administration
shall be entitled to the preferred payment in full of the annual 3% dividend
referred to above and the par value of its preferred stock. Such par value need
not be paid to the Small Business Administration before the distribution of
ordinary dividends from retained earnings to other shareholders.
The Corporation may, at its option, redeem in whole or any part of the
Small Business Administration's outstanding preferred stock on any dividend
payment date where at least 30 days' prior written notice has been given to the
Small Business Administration. The Corporation shall pay the Small Business
Administration the par value of the shares to be redeemed ($50,000 minimum per
transaction) and accumulated dividends.
-5-
<PAGE>
Whenever the full dividend upon the preferred shares for the then
current dividend period shall have been paid or declared and a sum sufficient
for payment thereof set apart, the holders of the common shares shall be
entitled to receive out of the remaining surplus or net profits of the
Corporation such per share amounts as the directors, in the exercise of their
discretion, may determine to be attributable as dividends. After the full
dividend shall have been declared and paid on the preferred shares and the
dividend shall have been paid on the common shares, the balance of the earnings
of the Corporation shall be added to its surplus.
The Small Business Administration, as the holder of the preferred
shares, shall not be entitled to vote on any matters for which a vote of the
shareholders of the Corporation may be sought. All voting rights shall be
vested in the common shares, except as may be provided by the laws of the State
of New York.
This charter shall not be amended without the prior written approval
of the Small Business Administration.
FIFTH: The accounting period which the Corporation intends to
-----
establish as its first calendar or fiscal year for reporting the franchise tax
on business corporations imposed by Article Nine (a) of the Tax Law is the
period ending December 31, 1979.
SIXTH: The Secretary of State is designated as the agent of the
-----
Corporation upon whom process against the Corporation may be served. The post
office address within or
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<PAGE>
without the State of New York to which the Secretary of State shall mail a copy
of any process against the Corporation served upon him is care of Irving L.
Gartenberg, Esq., 122 East 42nd Street, New York, New York 10017.
Dated: November 28, 1979
/s/ Rose Cohen
----------------------------
Rose Cohen
122 East 42nd Street
New York, New York 10017
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the date hereinafter set forth, before me came ROSE COHEN, to me
known to be the individual who is described in, and who signed the foregoing
Certificate of Incorporation, and she acknowledged tome that she signed the
same.
Dated: November 28, 1979
/s/ Melvin L. Hirsch
--------------------------------
Notary Public
Melvin L. Hirsch
Notary Public, State of New York
No. 30-6911550
Qualified in Nassau County
Commission Expires March 30, 1980
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<PAGE>
BY-LAWS
OF
TRANSPORTATION SBIC, INC.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Offices ............................ -1-
Section 1. Principal Office ........................................... -1-
Section 2. Other Offices .............................................. -1-
ARTICLE II
Shareholders' Meeting ..................... -1-
Section 1. Annual Meetings ............................................ -1-
Section 2. Special Meetings ........................................... -2-
Section 3. Notice and Purpose of Meetings ............................. -2-
Section 4. Quorum ..................................................... -2-
Section 5. Organization ............................................... -3-
Section 6. Voting ..................................................... -3-
Section 7. List of Shareholders ....................................... -3-
Section 8. Inspectors of Election ..................................... -3-
ARTICLE III
Directors ........................... -4-
Section 1. Powers, Number, Qualification, ........................... -4-
Term, Quorum and Vacancies
Section 2. Meetings ................................................... -4-
Section 3. Committees ................................................. -5-
(a) Executive Committee ........................................ -5-
(b) Other Committees ........................................... -5-
Section 4. Dividends .................................................. -5-
Section 5. Removal of Directors ....................................... -5-
Section 6. Indemnification of Directors ............................... -6-
(i)
<PAGE>
ARTICLE IV
Officers ........................... -7-
Section 1. Number ..................................................... -7-
Section 2. Term and Removal ........................................... -7-
Section 3. Duties of the Chairman of the Board of Directors ........... -7-
Section 4. Duties of the President .................................... -7-
Section 5. Duties of the Chairman of the Executive Committee .......... -7-
Section 6. Duties of the Vice President ............................... -7-
Section 7. Duties of the Secretary .................................... -8-
Section 8. Duties of the Treasurer .................................... -8-
Section 9. Duties of officers may be delegated ........................ -8-
Section 10. Powers and Duties .......................................... -8-
Section 11. Voting Corporation's Securities ........................... -8-
ARTICLE V
Certificate of Stock ............................ -9-
Section 1. Form and Transfers ......................................... -9-
Section 2. Closing of Transfer Books .................................. -9-
Section 3. Lost Certificates .......................................... -10-
Section 4. Transfer Agent and Registrar ............................... -10-
Section 5. Examination of Books by Shareholders ....................... -10-
ARTICLE VI
Fiscal Year .......................... -10-
ARTICLE VIII
Amendments .......................... -11-
ARTICLE IX
Unanimous and Other Consent ................. -11-
(ii)
<PAGE>
BY-LAWS
OF
TRANSPORTATION SBIC, INC.
ARTICLE I
Offices
Section 1. Principal Office. The principal office shall be in the City
of New York, County of New York, State of New York.
Section 2. Other Offices. The corporation may also have an office or
offices at such other place or places, within or without the State of New York,
as the Board of Directors may from time to time determine or the business of the
corporation require.
ARTICLE II
Shareholders' Meeting
Section 1. Annual Meetings. The annual meeting of the shareholders of
the corporation, commencing with the year 1985, shall be held at the principal
office of the corporation in the State of New York, or at such other place
within or without the State of New York as may be determined by the Board of
Directors and as shall be designated in the notice of said meeting, on the first
Wednesday of May of each year (or if said day be a legal holiday, then on the
next succeeding day not a legal holiday), at 10:30 A.M. in the morning, for the
purpose of electing directors and for the transaction of such other business as
may properly be brought before the meeting.
If the election of directors shall not be held on the day designated
herein for any annual meeting, or at any adjournment thereof, the Board of
Directors shall cause the election to be held at a special meeting of the
shareholders to be called within the time required by law. At such meeting the
shareholders may elect the directors and transact other business with the same
force and effect as at an annual meeting duly called and held.
At each annual meeting of shareholders, directors shall be elected to hold
office until the expiration of the term for which each is elected, and until a
successor has been elected and qualified. The directors of the corporation
shall, effective at the 1985 annual meeting of shareholders and thereafter, be
divided into two classes, hereby designated Class A and Class B. There shall be
at least three (3) directors in each class. The term of office of the initial
Class A directors shall expire at the 1986 annual meeting of shareholders, and
the term of office of the initial Class B directors shall expire at the 1987
annual meeting of shareholders. At each annual meeting after the initial
classification of directors, directors to replace those whose terms expire at
such annual meeting shall be elected to hold office until the second succeeding
annual meeting. If the number of directors is hereafter changed, any newly
created directorships or
<PAGE>
decrease in directorships shall be so apportioned among the classes as to make
all classes as nearly equal in number as possible. When the number of directors
is increased by the board and any newly created directorships are filled by the
board, there shall be no classification of the additional directors until the
next annual meeting of shareholders./1/
Section 2. Special Meetings. Special meetings of the shareholders shall
be held at the principal office of the corporation in the State of New York, or
at such other place within or without the State of New York, as may be
designated in the notice of said meeting, upon call of the Board of Directors or
of the President or the Chairman of the Executive Committee, and shall be called
by the President or the Secretary at the request in writing of shareholders
owning at least forth (40%) percent of the issued and outstanding capital stock
of the corporation entitled to vote thereat, except as otherwise provided by
law.
Section 3. Notice and Purpose of Meetings. Notice of the purpose or
purposes and of the time and place within or without the State of New York of
every meeting of shareholders shall be in writing and signed by the President or
Vice-President or the Secretary or an Assistant Secretary and a copy thereof
shall be served either personally or by mail or by any other lawful means, not
less than ten (10) nor more than fifty (50) days before the meeting upon each
shareholder of record entitled to vote at such meeting. At any such meeting
action may be taken on the subjects stated in the notice and on any subject
which is not required by law to be stated in the notice of the meeting. If
mailed, such notice shall be directed to each shareholder at his address as it
appears on the stock book unless he shall have filed with the Secretary of the
corporation a written request that notices intended for him be mailed to some
other address, in which case it shall be mailed or transmitted to the address
designated in such request. Except as otherwise expressly provided by statute,
no publication of any notice of a meeting of shareholders shall be required to
be made or other notice given to any shareholder who shall attend such meeting
in person or by proxy, or who shall, in person or by attorney thereunto
authorized, waive such notice in writing or by telegraph, cable, radio, or
wireless either before or after such meeting. Except where otherwise required
by law, notice of any adjourned meeting of the shareholders of the corporation
shall not be required to be given.
Section 4. Quorum. A quorum at all meetings of shareholders shall consist
of the holders of record of a majority of the shares of the capital stock of the
corporation, issued and outstanding, entitled to vote at the meeting, present in
person or by proxy, except as otherwise provided by law or the Certificate of
Incorporation. In the absence of a quorum at any meeting or any adjournment
thereof, a majority of those present in person or by proxy and entitled to vote
may adjourn such meeting from time to time. At any such adjourned meeting at
which a quorum is present any business may be transacted which might have been
transacted at the meeting as originally called.
- ----------------------
/1/This provision for staggered election of directors shall not be effective
until approved by the shareholders.
-2-
<PAGE>
Section 5. Organization. Meetings of the shareholders shall be presided
over by the Chairman of the Board, or if he is not present, by the President, or
if neither the Chairman of the Board nor the President is present, by the
Chairman of the Executive Committee or if he is not present by a Vice-President,
and if neither Chairman nor the President is present, then by a chairman to be
chosen by a majority of the shareholders entitled to vote who are present in
person or by proxy at the meeting. The Secretary of the corporation, or in his
absence, an Assistant Secretary, shall act as secretary of every meeting, but if
neither the Secretary nor an Assistant Secretary is present, the meeting shall
choose any person present to act as secretary of the meeting.
Section 6. Voting. Except as otherwise provided in the By-laws, the
Certificate of Incorporation, or in the laws of the State of New York, at every
meeting of the shareholders, each shareholder of the corporation entitled to
vote at such meeting shall have one vote in person or by proxy for each share of
stock having voting rights held by him and registered in his name on the books
of the corporation. Any vote of stock of the corporation may be given by the
shareholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such shareholder or by his attorney
thereunto authorized and delivered to the secretary of the meeting. Except as
otherwise required by statute, by the Certificate of Incorporation or these By-
Laws, or in electing directors, all matters coming before any meeting of the
shareholders shall be decided by the vote of a majority in interest of the
shareholders of the corporation present in person or by proxy at such meeting
and entitled to vote thereat, a quorum being present. At all elections of
directors the voting shall be by ballot and a plurality of the votes cast
thereat shall elect the directors then being elected to the Board.
Section 7. List of Shareholders. A complete list of the shareholders
entitled to vote at any election, arranged in alphabetical order and showing the
address, and the number of shares registered in the name, of each shareholder,
shall be prepared at least ten days before such election by the Secretary, or
other officer or agent of the corporation having charge of the stock ledger of
the corporation, and shall be open to the examination of any shareholder during
ordinary business hours, for a period of at least ten days prior to the
election, either at a place within the city, town or village where the election
is to be held, which place shall be specified in the notice of the meeting, or,
of not so specified, at the place where said meeting is to be held, and such
list shall be produced and kept at the time and place of election during the
whole time thereof, subject to such inspection as may be required by law.
Section 8. Inspectors of Election. At all elections of directors, or in
any other case in which inspectors may act, two inspectors of election shall be
appointed by the chairman of the meeting, except as otherwise provided by law.
The inspectors of election shall take and subscribe and oath faithfully to
execute the duties of inspectors at such meeting with strict impartiality, and
according to the best of their ability, and shall take charge of the polls and
after the vote shall have been taken shall make a certificate of the result
thereof, but no director or candidate for the office of director shall be
appointed as such inspector. If there be a failure to appoint inspectors or if
any inspector appointed be absent or refuse to act, or if his office
-3-
<PAGE>
becomes vacant, the shareholders present at the meeting, by a per capita vote,
may choose temporary inspectors of the number required.
ARTICLE III
Directors
Section 1. Powers, Number, Qualification, Term, Quorum and Vacancies.
The property, affairs and business of the corporation shall be managed by its
Board of Directors, consisting of at least six (6) and not more than nine (9)
persons and from and after the 1985 annual meeting shall consist of seven (7)
persons until the Board of Directors fixes a different number. Except as herein
provided, directors shall be elected at the annual meeting of the shareholders
in accordance with Article II, Section 1 hereof. The directors shall have power
from time to time, and at any time, when the shareholders as such are not
assembled in a meeting, regular or special, to increase or decrease their own
number by an amendment to these By-Laws, but not below six (6) and subject to
the requirements of Article II, Section 1 hereof. If the number of directors be
increased, the additional directors may be elected by a majority of the
directors in office at the time of the increase, or if not so elected prior to
the next annual meeting of the shareholders, they shall be elected by the
shareholders.
Directors need not be shareholders.
A majority of the members of the Board of Directors then acting, but in no
event less than one-third (1/3) of the number of directors authorized, acting at
a meeting duly assembled, shall constitute a quorum for the transaction of
business, but if at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of those present may adjourn the meeting,
without further notice, from time to time until a quorum shall have been
obtained.
In case one or more vacancies shall occur in the Board of Directors by
reason of death, resignation or otherwise, except in so far as otherwise
provided in the case of a vacancy or vacancies occurring by reason of removal by
the shareholders, or in the event one or more directors shall be physically
disabled or otherwise unavailable by reason of an act of the public enemy in a
time of a national emergency, then the remaining directors, although less than a
quorum, may, by a majority vote, elect a successor or successors for the
unexpired term or terms.
Section 2. Meetings. Meetings of the Board of Directors shall be held at
such place within or outside the State of New York as may from time to time be
fixed by resolution of the Board of Directors, or as may be specified in the
notice of the meeting. Regular meetings of the Board of Directors shall be held
at such times as may from time to time be fixed by resolution of the Board of
Directors, and special meetings may be held at any time upon the call of the
President or the Chairman of the Executive Committee or the Secretary or any
three directors by oral, telegraphic or written notice duly served on or sent or
mailed to each director not less than two days before such meeting. A meeting
of the Board of Directors may be held
-4-
<PAGE>
without notice immediately after the annual meeting of shareholders. Notice
need not be given of regular meetings of the Board of Directors. Meetings may
be held at any time without notice if all the directors are present, or if at
any time before or after the meeting those not present waive notice of the
meeting in writing. Any one or more members of the Board of Directors or any
committee thereof may participate in a meeting of such Board or committee by
means of a conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at the meeting.
Section 3. Committees.
(a) Executive Committee. The Board of Directors may, in its discretion,
by resolution passed by a majority of the whole Board, designate an Executive
Committee to consist of such number of directors as the Board may from time to
time determine (not less than two), which Committee shall have, and may exercise
when the Board is not in session, all the powers vested in the Board, except the
power to fill vacancies in the Board and the powers which have been expressly
denied to the said Committee by the Certificate of Incorporation or by
applicable law. The Executive Committee may make rules for the conduct of its
business and may appoint such committees and assistants as it shall from time to
time deem necessary. A majority of the members of the said Committee shall
constitute a quorum. The Chairman of the Executive Committee shall be elected by
the Board of Directors.
(b) Other Committees. The Board of Directors may, in its discretion, by
resolution passed by a majority of the whole Board, designate other committees
which shall have and may exercise such powers as shall be conferred or
authorized by the resolution appointing them. A majority of any such Committee,
which shall consist of two (2) or more directors, may determine its action and
fix the time and place of its meetings, unless the Board of Directors shall
otherwise provide. The Board shall have power at any time to change the members
of any such Committee, to fill vacancies and to discharge any such Committee.
Section 4. Dividends. Subject always to the provisions of the law and
the Certificate of Incorporation, the Board of Directors shall have full power
to determine whether any, and if any, what part of any, funds legally available
for the payment of dividends shall be declared in dividends and paid to
shareholders; the division of the whole or any part of such funds of the
corporation shall rest wholly within the lawful discretion of the Board of
Directors, and it shall be required at any time, against such discretion, to
divide or pay any part of such funds among or to the shareholders as dividends
or otherwise; and the Board of Directors may fix a sum which may be set aside or
reserved over and above the capital paid in of the corporation as working
capital for the corporation or as a reserve for any proper purpose, and from
time to time may increase, diminish, and vary the same in its absolute judgment
and discretion.
Section 5. Removal of Directors. At any special meeting of the
shareholders, duly called as provided in these By-Laws, any director or
directors may by the affirmative vote of the holders of majority of all the
shares of stock outstanding and entitled to vote for the election
-5-
<PAGE>
of directors be removed from office, either with or without cause, and his
successor or their successors may be elected at such meeting; or the remaining
directors may, to the extent vacancies are not filled by such election, fill any
vacancy created by a removal with cause.
Section 6. Indemnification of Directors. Each director and officer of
this corporation (and each officer or director of any other corporation and
serving as such at the request of this corporation because of this corporation's
interest in such other corporation) shall be indemnified by this corporation
against the costs and expenses reasonably incurred by him in connection with any
action, suit or proceeding in which he may be involved by reason of his being or
having been a director or officer of this corporation or of such other
corporation (whether or not he is a director or officer at the time of incurring
such costs and expenses), except with respect to matters as to which he shall be
adjudged in such action, suit or proceeding to be liable for negligence or
misconduct in the performance of his duty as such director or officer. In case
of the settlement of any action, suit or proceeding in which any such director
or officer of this corporation or such other corporation is involved by reason
of his being or having been a director or officer of this corporation or of such
other corporation, he shall be indemnified by this corporation against the costs
and expenses (including any amount paid in settlement to this corporation or to
such other corporation or otherwise) reasonably incurred by him in connection
with such action, suit, or proceeding (whether or not he is a director or
officer at the time of incurring such costs and expenses), if, and only if, (a)
this corporation shall be advised by independent counsel that such director or
officer is not liable for negligence or misconduct in the performance of his
duty as such director or officer with respect to the matters covered by such
action, suit or proceeding, and the Board of Directors approves such settlement
as being for the best interests of the corporation, or (b) the holders of a
majority of the shares of this corporation held by disinterested shareholders
shall, by vote at any annual or special meeting of shareholders, approve such
settlement and the reimbursement to such director or officer of such costs and
expenses. The phrase "disinterested shareholders" shall mean all holders of
shares of this corporation at the time outstanding other than (i) any
shareholder of this corporation who at the time is or may as a director or
officer be seeking reimbursement pursuant to the foregoing provisions, (ii) any
corporation or organization of which any such shareholder owns of record or
beneficially 10% or more of any class of voting securities, (iii) any firm of
which any such shareholder is a partner, and (iv) any spouse, child, parent,
brother, or sister of any such shareholder. The foregoing rights of
indemnification shall apply to the heirs, executors and administrators of any
such director or officer of this corporation or of any such corporation and
shall not be exclusive of other rights to which any director or officer (or his
heirs, executors, or administrators) may be entitled under any bylaws,
agreement, vote of shareholders, or as a matter of law or otherwise.
The foregoing right of indemnification shall not be exclusive of other
rights to which any director or officer may be entitled as a matter of law.
-6-
<PAGE>
ARTICLE IV
Officers
Section 1. Number. The Board of Directors, as soon as may be after the
election thereof held in such year, shall elect a Chairman of the Board of
Directors, a President, a Chairman of the Executive Committee, a Secretary and a
Treasurer, and from time to time may elect or appoint one or more Vice
Presidents and such Assistant Secretaries, Assistant Treasurers and such other
officers, agents and employees as it may deem proper. Two or more offices other
than the offices of President and Vice President or President and Secretary may
be held by the same person. The Chairman of the Board of Directors and
President shall be chosen from among the directors.
Section 2. Term and Removal. The term of office of all officers shall be
one year and until their respective successors are elected and qualify, but any
officer may be removed from office, either with or without cause, at any time by
the affirmative vote of a majority of the members of the Board of Directors then
in office. A vacancy in any office arising from any cause may be filled for the
unexpired portion of the term by the Board of Directors.
Section 3. Duties of the Chairman of the Board of Directors. The Chair-
man of the Board shall preside at all meetings of the shareholders and directors
and shall have such other duties as shall from time to time be assigned to him
by the Board of Directors.
Section 4. Duties of the President. The President shall be the chief
executive officer of the corporation. It shall be his duty to see that all
orders and resolutions of the Board of Directors are carried into effect; to
execute all contracts and agreements authorized by the Board; to keep the seal
of the corporation and, when authorized by the Board, to sign and to affix the
seal of the corporation to any instrument requiring the same, which shall be
attested by the signature of the Secretary or the Treasurer. He shall have the
general supervision and direction of the other officers of the corporation and
shall see that their duties are property performed. He shall submit a report of
the operations of the corporation for the year to the directors at their meeting
next preceding the annual meeting of the shareholders and to the shareholders at
their annual meeting. He shall have the general duties and powers of
supervision and management usually vested in the office of President of a
corporation.
Section 5. Duties of the Chairman of the Executive Committee. The
Chairman of the Executive Committee shall preside at all meetings of the
Executive Committee, shall be vested with all the powers and shall perform all
the duties of the President in his absence or disability, and shall perform such
other duties as may be prescribed by the Board of Directors.
Section 6. Duties of the Vice President. The Vice President or Vice
Presidents, in the order of their seniority, shall be vested with all the powers
and required to perform all the duties of the President in the absence or
disability of both the President and the Chairman of the Executive Committee,
and shall perform such other duties as may be prescribed by the Board
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<PAGE>
of Directors. Vice Presidents may be designated as "Executive Vice President,"
"Senior Vice President" or in such other manner as the Board of Directors may
determine.
Section 7. Duties of the Secretary. The Secretary shall attend all
meetings of the shareholders and the Board of Directors. He shall act as clerk
thereof and shall record all of the proceedings of such meetings in a book kept
for that purpose. He shall give proper notice of meetings of shareholders and
directors and shall perform such other duties as shall be assigned to him by the
President or the Board of Directors.
Section 8. Duties of the Treasurer. The Treasurer shall have custody of
the funds and securities of the corporation and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation and
shall deposit 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. He shall disburse the funds of the corporation as may be ordered
by the Board of Directors, or President, taking proper vouchers for such
disbursements, and shall render to the President and Directors, whenever they
may require it, an account of all his transactions as Treasurer and of the
financial condition of the corporation. He shall keep an account of stock and
income notes registered and transferred in such manner and subject to such
regulations as the Board of Directors may prescribe. He shall give the
corporation a bond, if required by the Board of Directors, in such sum and in
form and with security satisfactory to the Board of Directors for the faithful
performance of the duties of his office and the restoration to the corporation,
in case of his death, resignation, or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession, belonging
to the corporation. He shall perform such other duties as the Board of
Directors may from time to time prescribe or required.
Section 9. Duties of officers may be delegated. In case of the absence or
disability of any officer of the corporation or for any other reason deemed
sufficient by a majority of the Board, the Board of Directors may delegate his
powers or duties to any other officer or to any Director for the time being.
Section 10. Powers and Duties. The officers of the corporation shall
even have such other powers and duties as generally pertain to their respective
offices as well as the powers and duties set forth herein and as from time to
time may be conferred by the Board of Directors. The Assistant Secretary or
Assistant Secretaries and the Assistant Treasurer or Assistant Treasurers shall,
in the order of their respective seniorities, in the absence or disability of
the Secretary or Treasurer, respectively, perform the duties of such officer and
shall generally assist the Secretary or Treasurer respectively.
Section 11. Voting Corporation's Securities. Unless otherwise ordered by
the Board of Directors, the President, or, in the event of his inability to act,
the Chairman of the Executive Committee, or, in the event of his inability to
act, the Vice Presidents in order of seniority, shall have full power and
authority on behalf of the Corporation to attend and to act and to vote at any
meetings of security holders of corporations in which the corporation may hold
securities,
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and at such meetings shall possess and may exercise and all rights and powers
incident to the ownership of such securities, and which as the owner thereof the
corporation might have possessed and exercised, if present. The Board of
Directors by resolution from time to time may confer like powers upon any other
person or persons.
ARTICLE V
Certificate of Stock
Section 1. Form and Transfers. The interest of each shareholder of the
corporation shall be evidenced by certificates for shares of stock, certifying
the number of shares represented thereby and in such form not inconsistent with
the Certificate of Incorporation as the Board of Directors may from time to time
prescribe.
Transfers of shares of the capital stock of the corporation shall be made
only on the books of the corporation by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly executed an filed with
the Secretary of the corporation, or with a transfer clerk or a transfer agent
appointed as in Section 4 of this Article provided, and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand on the books
of the corporation shall be deemed the owner thereof for all purposes as regards
the corporation. The Board may, from time to time, make such additional rules
and regulations as it may deem expedient, not inconsistent with these By-Laws,
concerning the issue, transfer and registration of certificates for shares of
the capital stock of the corporation.
The certificates of stock shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and sealed with the seal of the corporation. Such seal may
be a facsimile thereof or may be engraved or printed. Where any such
certificate is signed by a transfer agent or a transfer clerk and by a
registrar, the signatures of the President, Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer upon such certificates may be
facsimiles thereof or may be engraved or printed. In case any such officer who
has signed or whose facsimile signature has been placed upon such certificate
shall have ceased to be such before such certificate is issued, it may be issued
by the corporation with the same effect as if such officer has not ceased to be
such at the time of its issue.
Section 2. Closing of Transfer Books. The Board of Directors may close
the stock transfer books of the corporation for a period between ten (10) and
fifty (50) days preceding the date of any meeting of shareholders or the date of
payment of any dividend or the date for the allotment of rights or the date when
any change or conversion or exchange of capital stock shall go into effect or
for a period of between ten (10) and fifty (50) days in connection with
obtaining the consent of shareholders for any purpose. In lieu of closing the
stock transfer books as aforesaid, the Board of Directors may fix in advance a
date, between ten (10) and fifty (50) days preceding the date of any meeting of
shareholders, or the date for the payment of any dividend,
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or the date for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect, or a date in
connection with obtaining such consent, as a record date for the determination
of shareholders entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividends or to
any such allotment of right, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and in
such case such shareholders and only such shareholders as shall be shareholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights or to exercise such rights, or
to give such consent, as the case may be, notwithstanding any transfer of any
stock on the books of the corporation after such date fixed as aforesaid.
Section 3. Lost Certificates. No certificates for shares of stock in the
corporation shall be issued in place of the certificate alleged to have been
lost, destroyed, stolen or mutilated except on production of such evidence of
such loss, destruction or theft and on delivery to the corporation, if the Board
of Directors shall so require, of a bond of indemnity in such amount and upon
such terms and secured by such surety as the Board of Directors may in its
discretion require.
Section 4. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer clerks or one or more transfer agents and one of
more registrars, and may require all certificates of stock to bear the signature
or signatures of any of them.
Section 5. Examination of Books by Shareholders. The Board shall have
power to determine, from time to time, whether and to what extent and at what
times and places and under what conditions and regulations the accounts and
books and documents of the corporation, or any of them, shall be open to the
inspection of the shareholders, subject always to the provisions of the law and
the Certificate of Incorporation, as amended.
ARTICLE VI
Fiscal Year
The fiscal year of the corporation shall be determined by the Board of
Directors and until changed shall be the same as the calendar year.
ARTICLE VII
Corporate Seal
The corporate seal of the corporation shall be in the form of a circle,
shall contain the name of the corporation, the year of organization and the
words "Corporate Seal" and the state of incorporation. Said seal may be used by
causing it or a facsimile thereof to be impressed or
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affixed or reproduced by engraving, printing or otherwise. The use of the
corporate seal shall not be a prerequisite to the effectiveness of any document
executed on behalf of the corporation.
ARTICLE VIII
Amendments
The By-Laws of the corporation shall be subject to alterations, amendments
or repeal, and new By-Laws not inconsistent with any provision of the
Certificate of Incorporation or statute, may be made, either by the affirmative
vote of the holders of a majority in interest of the shareholders of the
corporation present in person or by proxy at any annual or special meeting of
the shareholders and entitled to vote thereat, a quorum being present, or by the
affirmative vote of a majority of the whole Board, provided that notice of the
proposal so to make, alter, amend or repeal such By-Laws be included in the
notice of such meeting of the Board or the shareholders, as the case may be.
By-Laws made, altered, or amended by the Board may be altered, amended, or
repealed by the shareholders at any annual or special meeting thereof.
ARTICLE IX
Unanimous and Other Consent
Provided that the Certificate of Incorporation, or By-Laws of the
corporation, and the statutes and laws applicable to the corporation, do not
expressly prohibit the taking of such action,
(a) any action which may be taken at any annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted; and
prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those shareholders who have not
consented in writing; and
(b) 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 members of the Board or committee, as the case may be, consent thereto in
writing or writings filed with the minutes of proceedings of the Board of
committee.
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THE UNITED STATES OF AMERICA
SMALL BUSINESS ADMINISTRATION
LICENSE
This is to certify that Transportation, SBIC, Inc.
---------------------------
a New York corporation with its principal office located at
---------------------------
Glen Head, New York is hereby licensed as a Small Business Investment
- ---------------------------
Company under the Small Business Investment Act of 1958, as amended, to provide
equity capital, long-term loans and management assistance to small businesses
for their operations, growth, expansion and modernization.
This License is not assignable or transferable.
The aforesaid Licensee is authorized to conduct its operations in the State of
New York --------------
- --------------------------------------------------------------------------------
Issued at Washington, D.C. on June 23, 1980
---------------------------
- ------------------------------------- -------------
Assistant Administrator or Investment Administrator
Number P2/02-5388
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the registration
statement on Form N-5 (File No. 811-07637) of our report dated October 25, 1995
on our audits of the financial statements of Transportation Capital Corp.
included in Form N-2 (File No. 33-31670) of Medallion Financial Corp.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
New York, New York
October 25, 1996
<PAGE>
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form N-5 of our report dated March
14, 1996, on our audit of the financial statements of Transportation Capital
Corp. included in the registration statement File No. 33-31670 on Form N-2 of
Medallion Financial Corp. It should be noted that we have not audited any
financial statements of the company subsequent to December 31, 1995 or performed
any audit procedures subsequent to the date of our report.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
October 28, 1996
