SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Act of 1934
(Amendment No. )
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Check the appropriate box:
[ ] Preliminary Proxy Statement
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[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
Republic Leasing Incorporated
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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REPUBLIC LEASING INCORPORATED
P.O. Box 919
Olympia, WA 98507-0919
Proxy Statement for Special Meeting of Shareholders
To be held March 25, 1996
This proxy statement, is submitted with the Notice of Special Meeting of
Shareholders of Republic Leasing Incorporated (the "Corporation") to be held on
Monday, March 25, 1996 at 9:00 a.m., in the Quinault Room, West Coast Tyee
Hotel, 500 Tyee Drive, Tumwater, Washington.
SOLICITATION OF PROXIES
The accompanying form of proxy is being solicited on behalf of the Board of
Directors of the Corporation. The principal executive offices of the Corporation
are located in the Republic Building, 505 East Union, Suite 300, P.O. Box 919,
Olympia, WA 98501, and the telephone number is (360) 754-6227.
Subject to the conditions hereinafter set forth, the shares represented by
each proxy executed in the accompanying form of proxy will be voted at the
meeting in accordance with the instructions therein. In the absence of contrary
instructions, shares represented by such proxies shall be voted FOR each
proposal herein specified.
The expenses of the solicitation of the proxies for the meeting, including
the cost of preparing, assembling, and mailing the notice, proxy, proxy
statement, and return envelopes, the handling and tabulation of proxies
received, and charges of brokerage houses and other institutions, nominees, or
fiduciaries for forwarding such documents to beneficial owners, will be paid by
the Corporation. In addition to the mailing of the proxy material, solicitation
may be made in person or by telephone or telegraph by officers, directors, or
regular employees of the Corporation.
A proxy executed in the form enclosed may be revoked by the person signing
the same at any time before the authority thereby granted is exercised by giving
written notice to the Secretary of the Corporation or by casting a vote at the
meeting.
This Proxy Statement and the proxies solicited hereby are being first sent
or delivered to shareholders of the Corporation on or about February 23, 1996.
MATTERS TO BE ACTED UPON AT THE MEETING
As indicated by the Notice of Meeting, shareholders are asked to approve
the reincorporation of the Corporation in Washington and an increase in capital
shares.
OUTSTANDING VOTING SECURITIES AND VOTING RIGHTS
The holders of common stock and the holders of Series 4 preferred stock of
the Corporation of record at the close of business on February 14, 1996 will be
entitled to notice of, and to vote at, the meeting. Each holder of common stock
and each holder of Series 4 preferred stock will be entitled to one vote for
each share of stock so held. There are no cumulative voting rights.
On the record date, there were 690,250 shares of common stock and 1,250
shares of Series 4 preferred stock outstanding and entitled to vote. The
presence, in person or by proxy, of at least 345,236 common shares will
constitute a quorum.
In addition to approval by a majority of the outstanding common shares,
approval by seventy percent (70%) of the shares of the Series 4 preferred stock
will be required for the adoption of both of the proposals.
PROPOSAL 1
REINCORPORATION IN WASHINGTON
and
PROPOSAL 2
INCREASE IN CAPITAL SHARES
For the reasons set forth below, the Board of Directors believes that the
best interests of the Corporation and its shareholders will be served by
changing the Corporation's state of incorporation from Delaware to Washington
(the "Reincorporation"). The Board of Directors has approved the
Reincorporation, which would be accomplished by merging the Corporation with and
into a newly formed Washington subsidiary, Westar Financial Services
Incorporated ("Westar Financial"). Upon effectiveness of the merger, the
business will be conducted under the name of the newly-formed corporation,
Westar Financial Services Incorporated. At the Special Meeting, the shareholders
will be asked to approve the Reincorporation.
The Board of Directors also believes that the best interests of the
Corporation and its shareholders will be served by increasing the number of
common shares available for issuance from the present 2,000,000 (of which
approximately 1,200,000 are either issued or are committed to issuance under
certain circumstances) to 35,000,000.
REASONS FOR REINCORPORATION
The Corporation was formed in 1989 in Delaware as the result of the
incorporation of a limited partnership. Delaware was selected because it
provided a comprehensive body of both statutory and case law appropriate for a
public corporation.
The Washington Business Corporation Act ("WBCA") was comprehensively
revised, effective in 1990. In the Corporation's opinion, Washington law is now
clearer and better addresses the Corporation's concerns than does Delaware law.
The difference in the filing fees which must be paid each year between
Washington ($59) and Delaware ($150,000), based upon the proposed level of
capitalization, is also significant.
PLAN OF MERGER
The Corporation will be merged with and into Westar Financial pursuant to
the terms of the proposed Plan and Agreement of Merger (the "Merger Agreement",
a copy of which is attached as Appendix A to this Proxy Statement). Upon the
completion of the merger, the owner of each outstanding share of common stock of
the Corporation will automatically own one Westar Financial common share.
Similarly, the owner of each outstanding share of preferred stock of the
Corporation will automatically own one Westar Financial preferred share of the
corresponding Series. Each outstanding certificate representing a Corporation
common or preferred share or shares will continue to represent the same
classification and number of shares in Westar Financial (i.e., a certificate
representing one Corporation common share will then represent one Westar
Financial common share, a certificate representing one Corporation preferred
share of a particular Series will then represent one Westar Financial preferred
Share of the same Series.) All outstanding warrants and options of the
Corporation will automatically become warrants and options of the same tenor
from Westar.
Westar's Articles of Incorporation and Bylaws will be the Articles of
Incorporation and Bylaws of the surviving corporation, and upon the
effectiveness of the merger, the name of the surviving corporation will be
Westar Financial Services Incorporated. The Articles of Incorporation of Westar
Financial Services Incorporated are attached hereto as Appendix B. The
discussion contained in this Proxy Statement is qualified in its entirety by
reference to Appendices A and B.
EFFECT OF REINCORPORATION AND MERGER
The Reincorporation and the merger will effect a change in the name and
legal domicile of the Corporation and other changes of a legal nature, the most
significant of which are described in this Proxy Statement. However, the
Reincorporation and merger will not result in any change in the business,
management, location of the Corporation's principal executive offices, assets,
liabilities, net worth or accounting practices. After the effective date of the
merger, the Corporation's common shares will be traded on the NASDAQ OTC
Bulletin Board under the new symbol "WEST." The merger will not give rise to any
appraisal or dissenter's rights under either Delaware or Washington law.
PRINCIPAL DIFFERENCES IN CORPORATE CHARTERS
The Corporation's current Certificate of Incorporation differs from
Westar's Articles of Incorporation primarily as to the number of authorized
common shares and as to indemnification of officers and directors and
limitations on director liability. Other differences primarily concern technical
differences between the WBCA and the Delaware General Corporation Law ("DGCL").
INCREASE IN AUTHORIZED COMMON SHARES. The total number of common shares
which the Corporation is authorized to issue under the Corporation's Certificate
of Incorporation is 2,000,000, and the number of authorized preferred shares is
2,000,000. Under Westar's Articles of Incorporation, the number of authorized
common shares is increased to 35,000,000 and the number of authorized preferred
shares remains the same. Under Delaware law, the franchise fees payable by a
corporation incorporated in Delaware increases with the number of authorized
shares, whereas franchise fees payable under Washington law are not tied to the
number of authorized shares. As a result, the Board of Directors has concluded
that the Corporation will benefit from the greater flexibility in the
structuring of corporate transactions achieved by increasing the number of its
authorized common shares, at no additional cost to the Corporation. The
increased number of shares could more easily facilitate transactions such as
stock splits, share dividends, mergers and acquisitions and various forms of
financings. The Corporation is contemplating future stock splits, share
dividends, a private financing and a future public offering, any of which could
result in an increase in the number of outstanding common shares. Because the
proposed increase represents a significant change in the number of authorized
common shares, the shareholders are being asked to separately approve the
increase.
LIMITATION ON DIRECTOR LIABILITY. Both the WBCA and the DGCL allow
incorporation documents to eliminate or limit the personal liability of
directors; however, the two statutes prescribe different limitations. In
Washington, the Articles of Incorporation may not eliminate or limit the
liability of a director for: (i) acts or omissions involving intentional
misconduct or a knowing violation of law; (ii) approval of certain distributions
or loans contrary to law; or (iii) any transaction from which the director
personally receives a benefit in money, property, or services to which the
director is not legally entitled. The Delaware statute further excludes the
limitation of director liability: (i) if a director has breached the duty of
loyalty to the corporation or its shareholders; or (ii) for acts or omissions
not in good faith. In both Westar's Articles of Incorporation and the
Corporation's Certificate of Incorporation, these limits on director liability
are deemed to be contract rights, which are to be automatically amended as
authorized by changes in applicable law so that the liability of a director
shall be eliminated or limited to the fullest extent not prohibited by
applicable law. Neither the DGCL nor the WBCA limit a director's liability for
violation of certain federal laws including the federal securities laws.
INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under the Corporation's current
Certificate of Incorporation and Bylaws and under Delaware law, the ability of
the Corporation to indemnify its directors and officers for payments made in
settlement of derivative actions may be open to certain questions. Westar's
Articles of Incorporation provide that Westar Financial shall indemnify its
directors and officers for expenses and liabilities incurred by them as a result
of their service as directors and officers, provided that no such
indemnification shall be provided on account of: (i) acts or omissions of the
director or officer finally adjudged to be intentional misconduct or a knowing
violation of the law; (ii) approval of certain distributions or loans contrary
to law; or (iii) any transaction with respect to which the director or officer
is finally adjudged to have received a benefit to which he or she was not
legally entitled. This comprehensive language is intended to provide the
broadest indemnification of directors and officers of amounts paid in settlement
of actions brought on behalf of the Corporation, commonly known as derivative
actions. See "Certain Differences in Corporate Law -Indemnification of Directors
and Officers" below.
OTHER DIFFERENCES IN THE CHARTER DOCUMENTS AND BYLAWS. Westar's Articles of
Incorporation differ in other aspects which relate to differences between
Delaware and Washington law. Specific provisions in certain Articles have been
included in Westar's Articles so as to minimize differences in corporate
governance before and after the Reincorporation. For example, Westar's Articles
of Incorporation provide for a majority vote requirement in the case of mergers
(which is the same as the DGCL requirement for mergers) instead of a two-thirds
vote requirement which is the general provision applicable under the WBCA.
However, the Articles of Incorporation of Westar Financial contain a provision
identical to the Certificate of Incorporation of the Corporation which increase
the majority vote requirement to seventy-five percent (75%) if not recommended
by the Board of Directors. Similarly, preemptive rights, cumulative voting, and
shareholder-called meetings are precluded in the Westar Financial Articles of
Incorporation since such rights do not presently apply to the Corporation under
the DGCL. Other specific provisions under Westar's Articles of Incorporation
include the following: (i) the authority of the Board of Directors regarding the
issuance of preferred shares and the determination of the rights and preferences
with respect to such shares are more specifically and broadly described; (ii)
the elimination of a "par value" for common and preferred shares as permitted by
Washington law; and (iii) clarification of the time in which nominations to the
Board of Directors must be made and a requirement to provide the same
information regarding each nominee as is required by the proxy rules.
Various differences also exist between Westar's Bylaws and the
Corporation's Bylaws which are generally reflective of technical differences
between Delaware and Washington law as well as a policy decision not to include
provisions which are adequately covered by statute or not required to be
included in the Bylaws. A specific provision under Westar's Bylaws is the
requirement that shareholder proposals be submitted in advance of the date of an
annual or special shareholder meeting. Such a notice provision is not included
in the Corporation's Bylaws. The notice provision requires that a shareholder
proposing action at a shareholder meeting (whether an annual or special meeting)
provide Westar Financial with advance written notice at least 50 days prior to
the scheduled meeting. Specified information is required. Proposals not made in
compliance with the specified procedure may be disregarded. Neither the notice
provision nor any other of the provisions of Westar's Bylaws are expected to
have a material effect on the governance of the Corporation. A copy of the
Westar Financial Bylaws may be obtained by writing to the Corporate Secretary at
the Corporation's Offices.
CERTAIN DIFFERENCES IN CORPORATE LAW
The DGCL currently governs the rights of the Corporation's shareholders.
After the merger, the rights of shareholders shall be governed by the WBCA. The
following discussion summarizes certain significant differences between the
provisions of the Delaware General Corporation Law and the Washington Business
Corporation Act.
AMENDMENT OF ARTICLES/RESTATED CERTIFICATE OF INCORPORATION. The WBCA
authorizes a corporation's board of directors to make various changes to its
articles of incorporation without shareholder approval including changes: of
corporate name; of the number of outstanding shares in order to effectuate a
stock split or stock dividend in the corporation's own shares; and to change or
eliminate provisions with respect to par value of its shares. Other amendments
to a corporation's articles of incorporation must be recommended to the
shareholders by the board of directors, unless the board determines that because
of a conflict of interest or other special circumstances, it should make no
recommendations, and must be approved by a majority of all votes entitled to be
cast by each voting group which has a right to vote on the amendment.
Under the DGCL, amendments to a corporation's certificate of incorporation
require the approval of shareholders holding a majority of the voting power of
the corporation unless a different proportion is specified in the certificate of
incorporation.
PROVISIONS AFFECTING ACQUISITIONS AND BUSINESS COMBINATIONS. The WBCA
imposes restrictions on certain transactions between a corporation and certain
significant shareholders.
Subject to certain exceptions, a merger, share exchange, sale of assets
other than in the regular course of business, or dissolution of a corporation
involving an "Interested Shareholder" owning beneficially 20% or more of the
corporation's voting securities must be approved by the holders of two-thirds of
the corporation's outstanding voting securities, other than those of the
Interested Shareholder. This restriction does not apply if the consideration
received as a result of the transaction by noninterested shareholders is not
less than the highest consideration paid by the Interested Shareholder for the
corporation's shares during the preceding two years or if the transaction is
approved by a majority of directors who are not affiliated with the Interested
Shareholder. A Washington corporation may, in its original articles of
incorporation, elect not to be covered by this provision; however, Westar
Financial has not done so.
In addition, Washington law prohibits a "target corporation," with certain
exceptions, from engaging in certain "significant business transactions" (such
as a merger or sale of assets) with an "acquiring person" who acquires more that
10% of the voting securities of a target corporation for a period of five years
after such acquisition, unless the transaction is approved by a majority of the
members of the target corporation's board of directors prior to the date of the
acquisition. To be covered by this statute, both domestic and foreign
corporations with their principal executive offices in Washington must have,
together with all of their subsidiaries, either a majority or over 1,000 of
their employees resident in Washington. The statute will apply to Westar.
Delaware has enacted a business combination statute that is contained in
Section 203 of DGCL providing that any person who acquires 15% or more of a
corporation's voting stock (thereby becoming an "interested shareholder") may
not engage in certain "business combinations" with the target corporation for a
period of three years following the date the person became an interested
shareholder, unless (i) the board of directors of the corporation has approved,
prior to that acquisition date, either the business combination or the
transaction that resulted in the person becoming an interested shareholder, (ii)
upon consummation of the transaction that resulted in the person becoming an
interested shareholder, that person owns at least 85% of the corporation's
voting stock outstanding at the time the transaction is commenced (excluding
shares owned by persons who are both directors and officers and shares owned by
employee stock plans in which participants do not have the right to determine
confidentially whether shares will be tendered in a tender or exchange offer),
or (iii) the business combination is approved by the board of directors and
authorized by the affirmative vote (at an annual or special meeting and not by
written consent) of at least 66.66% of the outstanding voting stock not owned by
the interested shareholder.
For purposes of determining whether a person is the "owner" of 15% or more
of a corporation's voting stock for purposes of Section 203, ownership is
defined broadly to include the right, directly or indirectly, to acquire the
stock or to control the voting or disposition of the stock. A "business
combination" is also defined broadly to include (i) mergers and sales or other
dispositions of 10% or more of the assets of a corporation with or to an
interested shareholder, (ii) certain transactions resulting in the issuance or
transfer to the interested shareholder of any stock of the corporation or its
subsidiaries, (iii) certain transactions which would result in increasing the
proportionate share of the stock of a corporation or its subsidiaries owned by
the interested shareholder, and (iv) receipt by the interested shareholder of
the benefit (except proportionately as a shareholder) of any loans, advances,
guarantees, pledges, or other financial benefits.
The Corporation specifically adopted Section 203 in its Certificate of
Incorporation. The fact that Westar, however, will no longer be subject to the
restrictions of Section 203 is not expected to have a material adverse effect on
the shareholders of Westar Financial because Westar Financial will have the
protective provisions of Washington law regarding "Interested Shareholders" and
"significant business transactions."
MERGERS, ACQUISITIONS AND OTHER TRANSACTIONS. Under the WBCA, a merger,
consolidation, sale of substantially all of a corporation's assets other than in
the regular course of business, or dissolution of a public corporation must be
approved by the affirmative vote of a majority of directors when a quorum is
present, and by two-thirds of all votes entitled to be cast by each voting group
entitled to vote as a separate group unless another proportion is specified in
the articles of incorporation. As previously set forth in "Other Differences in
the Charter Documents," Westar's Articles of Incorporation provide that the
corporate transactions specified above may be approved by a majority of the
outstanding shares entitled to vote if recommended by the Board of Directors.
Otherwise a seventy-five percent (75%) approval is required. This provision is
identical to the provision in the Certificate of Incorporation of the
Corporation.
ACTION WITHOUT A MEETING. Under the WBCA, shareholder action may be taken
without a meeting if written consents setting forth such action are signed by
all holders of outstanding shares entitled to vote thereon. Westar's Articles of
Incorporation do not permit such actions.
The DGCL authorizes shareholder action with a meeting if consents are received
from holders of a majority of the outstanding shares. The Corporation's
Certificate of Incorporation does not permit such action.
CLASS VOTING. Under the WBCA, the articles of incorporation of a
corporation may authorize one or more classes of shares that have special,
conditional or limited voting rights, including the right to vote on certain
matters as a group. The articles of incorporation may not limit the rights of
holders of a class to vote as a group with respect to certain amendments to the
articles of incorporation and certain mergers that adversely affect the rights
of holders of that class.
The DGCL requires voting by separate classes only with respect to
amendments to the certificate of incorporation that adversely affect the holders
of those classes or that increase or decrease the aggregate number of authorized
shares or the par value of the shares of any of those classes.
TRANSACTIONS WITH OFFICERS OR DIRECTORS. The WBCA sets forth a safe harbor
for transactions between a corporation and one or more of its directors. A
conflicting interest transaction may not be enjoined, set aside or give rise to
damages if: (i) it is approved by a majority of qualified directors; (ii) it is
approved by the affirmative vote of all qualified shares; or (iii) at the time
of commitment, the transaction was fair to the corporation. For purposes of this
provision, "qualified director" is one who does not have: (a) a conflicting
interest respecting the transaction, or (b) a familial, financial, professional,
or employment relationship with a second director which relationship would
reasonably be expected to exert an influence on the first director's judgment
when voting on the transaction. "Qualified Shares" are defined generally as
shares other than those beneficially owned, or the voting of which is
controlled, by a director who has a conflicting interest respecting the
transaction.
The DGCL provides that contracts or transactions between a corporation and
one or more of its officers or directors or an entity in which they have an
interest is not void or voidable solely because of such interest or the
participation of the director or officer in a meeting of the board or a
committee which authorizes the contract or transaction if: (i) the material
facts as to the relationship or interest and as to the contract or transaction
are disclosed or are known to the board or the committee, and the board or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of disinterested directors; (ii) the material
facts as to the relationship or interest and as to the contract or transaction
is specifically approved in good faith by vote of the shareholders; or (iii) the
contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the board of directors, a committee
thereof, or the shareholders.
APPRAISAL OR DISSENTER'S RIGHTS. Under the WBCA, a shareholder is entitled
to dissent from and, upon perfection of his or her appraisal right, to obtain
fair value of his or her shares in the event of certain corporate actions,
including certain mergers, consolidations, share exchanges, sales of
substantially all assets of the corporation, and amendments to the corporation's
articles of incorporation that materially and adversely affect shareholder
rights.
Under the DGCL, appraisal rights are available only in connection with
certain mergers or consolidations, unless otherwise provided in the
corporation's certificate of incorporation. Even in the event of those mergers
or consolidations, unless the certificate of incorporation otherwise provides,
the DGCL does not provide appraisal rights (1) if the shares of the corporation
are listed on a national securities exchange, designated as a "National Market
System" security, or held of record by more than 2,000 shareholders (as long as
in the merger the shareholders receive shares of the surviving corporation or
any other corporation the shares of which are listed on a national securities
exchange, designated as a National Market System security, or held of record by
more that 2,000 shareholders) or (2) if the corporation is the surviving
corporation and no vote of its shareholders is required for the merger. Under
the DGCL, appraisal rights are not available for the merger of the Corporation
into its wholly-owned subsidiary Westar.
INDEMNIFICATION OF DIRECTORS AND OFFICERS. Under the WBCA, if authorized by
the articles of incorporation, a bylaw adopted or ratified by shareholders, or a
resolution adopted or ratified, before or after the event, by the shareholders,
a corporation has the power to indemnify a director or officer made a party to a
proceeding, or to advance or reimburse expenses incurred in a proceeding, under
any circumstances, except that no such indemnification shall be allowed on
account of: (i) acts or omissions of the directors finally adjudged to be
intentional misconduct or a knowing violation of the law; (ii) conduct of the
director finally adjudged to be an unlawful distribution; or (iii) any
transaction with respect to which it was finally adjudged that such director
personally received a benefit in money, property or services to which the
director was not legally entitled. Written commentary by the drafters of the
WBCA, which has the status of legislative history, specifically indicates that a
corporation may indemnify its directors and officers for amounts paid in
settlement of derivative actions, provided that the director's or officer's
conduct does not fall within one of the categories set forth above. Westar's
Articles provide that Westar Financial shall indemnify its directors and
officers to the fullest extent not prohibited by law, including indemnification
for payments in settlement of actions brought against the director or officer in
the name of the corporation, commonly referred to as a derivative action. See
"Principal Differences in Corporation Charters and Bylaws - Indemnification of
Directors and Officers" above.
Under the DGCL, indemnification of directors and officers is authorized to
cover judgments, amounts paid in settlement, and expenses arising out of non-
derivative actions where the director or officer acted in good faith and in, or
not opposed, to the best interests of the corporation. Additionally, under the
DGCL, a corporation may reimburse directors and officers for expenses incurred
in a derivative action. While the DGCL provides that these indemnification
provisions are not exclusive, which, in the Corporation's opinion, indicates
that a corporation may provide for broader indemnification in its charter
documents including circumstances not otherwise authorized under the DGCL, there
is some uncertainty as to the extent to which a corporation may indemnify its
directors and officers for judgments and amounts paid in settlement of
derivative actions. There are no definitive decisions and this uncertainty
exists because certain legal commentators have argued that such indemnification
would be circular and is against public policy. Also, a proposal to permit such
indemnification was specifically rejected by the General Corporation Law Section
of the Delaware Bar Association.
TAX CONSEQUENCES
In connection with the Reincorporation, the law firm of Williams, Kastner &
Gibbs, securities and tax counsel to the Corporation, will issue an opinion that
the Reincorporation will constitute a tax free reorganization under the Internal
Revenue Code. Accordingly, it is anticipated that no gain or loss will be
recognized for federal income tax purposes by the Corporation, Westar, or their
shareholders as a result of the merger, and the tax basis and holding period for
the shares of Westar Financial deemed received by the shareholders of the
Corporation in exchange for the Corporation's shares will be the same as the tax
basis and holding period of the shares of the Corporation deemed to be exchanged
therefor. In addition, Westar Financial generally will succeed to the tax
attributes of the Corporation.
VOTES REQUIRED AND BOARD RECOMMENDATION
Delaware law requires the favorable vote of at least a majority of all of
the outstanding voting shares of the Corporation to approve the Reincorporation
and the increase in capital shares. The Certificate of Incorporation requires
the favorable vote of at least 70% of all of the outstanding Series 4 preferred
stock.
As discussed above, one of the reasons for proposing the Reincorporation is
that Washington law has clearer and broader provisions relating to the
limitation of director liability and indemnification of officers and directors.
Accordingly, the Board has a personal interest in the approval of the
Reincorporation. The indemnification requirements might have a significant
adverse effect on the Corporation and its shareholders in the event of a
substantial judgment or settlement, not otherwise covered by insurance, with
respect to a director or officer entitled to indemnification.
The Corporation is not aware of any pending or threatened litigation or
proceeding which may result in a claim for indemnification by a director or
officer or where the limitations on director liability under either the DGCL or
the WBCA would be applicable.
THE BOARD OF DIRECTORS OF REPUBLIC LEASING INCORPORATED UNANIMOUSLY
RECOMMENDS THAT SHAREHOLDERS VOTE FOR APPROVAL OF THE REINCORPORATION FROM
DELAWARE TO WASHINGTON BY MEANS OF A MERGER OF THE CORPORATION INTO WESTAR
FINANCIAL SERVICES INCORPORATED, A NEWLY FORMED, WHOLLY OWNED WASHINGTON
CORPORATION.
THE BOARD OF DIRECTORS ALSO UNANIMOUSLY RECOMMENDS THAT THE SHAREHOLDERS
VOTE FOR APPROVAL OF THE INCREASE IN THE NUMBER OF AUTHORIZED COMMON SHARES FROM
2,000,000 TO 35,000,000.
OTHER BUSINESS
The Board of Directors has no knowledge of any other business to be acted
upon at this meeting. If, however, any other business is presented at the
meeting, proxies will be voted in accordance with the judgment of the person or
persons voting such proxies unless the proxies are so marked as to preclude such
discretionary authority.
By Order of the Board of Directors
Charles S. Seel
Corporate Secretary
Appendix A
Cover Letter Accompanying Proxy Mailing
[Republic Leasing Letterhead]
February 23, 1996
Dear fellow Shareholder:
The past four months have been both exciting and rewarding. The progress
reflected in our recent report to you highlights the record Republic has
achieved during its full-scale entry into the Dealer Direct Retail Leasing
business in Washington and the Pacific Northwest and the beginning of OTC
trading in our stock, as well as the legion of operational and financial changes
we discussed at length during the annual meeting last Fall.
It is in keeping with that vision, and with the strategies that we discussed
then, that I submit for your review and approval this plan to bring your
company's state of incorporation back into Washington from Delaware while
changing its formal name from REPUBLIC LEASING to WESTAR FINANCIAL SERVICES
INCORPORATED. As you know, many of our present marketing activities and some our
related companies already operate under a Westar name. The Westar tradename is,
we believe, available for our use in many, if not all, of the various 50 states,
where "Republic" is not. Also, with the recent merger of West One Bank into
U. S. Bank, the ticker symbol "WEST" became available and we've reserved it
pending your approval of this change. Perhaps most importantly however, the
differences in the annual regulatory fees between Delaware and Washington are
sufficient motivation for the change without regard to the less tangible
differences.
It is also timely to increase the number of common shares available from the
existing 2,000,000 (of which approximately 1,200,000 are issued or committed) to
a more practical 35,000,000. While there is no plan for the immediate use of any
additional shares, there are a number of possibilities under consideration by
the Board, as disclosed in the Proxy Statement.
I urge you to carefully review the materials which are included in this package.
THE BOARD OF DIRECTORS AND I URGE YOU TO VOTE IN FAVOR OF PROPOSAL 1 AND
PROPOSAL 2 on the attached Proxy Card and to return it at your earliest
convenience whether or not you plan to join us in person on March 25th.
Sincerely,
R. W. Christensen, Jr.
Chairman
Appendix B
Notice of Special Meeting
REPUBLIC LEASING INCORPORATED
Notice Of Special Meeting Of Shareholders
March 25, 1996
TO THE SHAREHOLDERS:
A special meeting of shareholders of Republic Leasing Incorporated will be
held on Monday, March 25, 1996 at 9:00 a.m. Pacific Time, at the Quinault Room,
West Coast Tyee Inn, 500 Tyee Road, Tumwater, Washington for the following
purposes:
1. To approve a proposal to change Republic Leasing Incorporated's state
of incorporation from Delaware to Washington by a merger with and into
a newly formed, wholly owned Washington subsidiary;
2. To approve an increase in the authorized common shares from 2,000,000
to 35,000,000;
3. To transact such other business as may properly come before the
meeting.
Holders of common stock and Series 4 preferred stock at the close of
business on February 14, 1996, shall be entitled to notice of, and to vote at,
this meeting.
By order of the Board of Directors
CHARLES S. SEEL
Secretary
February 24, 1996
Appendix C
Form of Proxy Card -- Front
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
PROXY 1996 SPECIAL MEETING - MARCH 25, 1996
The undersigned hereby appoints Richard G. Phillips, Jr., proxy to represent the
undersigned, with full power of substitution, at the 1996 Special Meeting of
Stockholders of Republic Leasing Incorporated, to be held at 9:00
a.m. on Monday, March 25, 1996, in the QUINALT Room, West Coast Tyee Hotel, 500
Tyee Drive, Tumwater, Washington, and at any and all adjournments thereof
1. Reincorporation: Reincorporation of the Corporation in Washington
FOR ______ AGAINST ______
2. Increase in Capital Shares Authorized
FOR ______ AGAINST ______
3. In their discretion, the Proxy is authorized to vote upon such other business
that may properly come before the meeting.
This proxy, when properly executed, will be voted in the manner directed herein
by the undersigned stockholder. Unless otherwise specified, the shares will be
voted for Proposals 1 and 2.
Dated:____________________ ________________________________
NOTE: Signature should agree with name
on stock certificate as printed hereon. ________________________________
Executors, administrators, trustees, and Signature of Stockholder(s)
other fiduciaries should so indicate
when signing. PLEASE DATE, SIGN, AND RETURN THIS PROXY.
Thank you.
______ I plan to attend the meeting in Tumwater, Washington, at 9:00 a.m. on
March 25, 1996.
Appendix D
Form of Proxy Card -- Back
REPUBLIC LEASING INCORPORATED
Solicitation of Proxies for Republic Leasing Incorporated, a Delaware
Corporation
This Proxy is being solicited by Republic Leasing Incorporated in connection
with the Proxy Statement. Capitalized terms used but not defined herein have the
meanings given to them in the Proxy Statement.
Name and Address of Stockholder and Number of Shares Owned:
[Shareholder Label]
Appendix E
EXHIBIT A
ARTICLES OF INCORPORATION
OF
WESTAR FINANCIAL SERVICES INCORPORATED
ARTICLE 1. NAME
The name of the corporation is Westar Financial Services Incorporated,
("Corporation").
ARTICLE 2. REGISTERED OFFICE AND AGENT
The address of the initial registered office of the Corporation is 926 -
24th Way SW, Olympia, Washington 98502, and the name of its initial registered
agent is Richard G. Phillips, Jr.
ARTICLE 3. PURPOSES
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Washington Business
Corporation Act.
ARTICLE 4 CAPITAL STOCK
4.1 Authorized Stock. The total authorized stock of the Corporation
shall consist of 35,000,000 shares of common stock having no par value; 1,500
shares of Series 1 preferred stock having no par value; 300 shares of Series 2
preferred stock having no par value; 1,200 shares of Series 3 preferred stock
having no par value; 1,250 shares of Series 4 preferred stock having no par
value composed of 1,190 shares of Series 4A and 60 Shares of Series 4B
preferred stock; and 1,995,750 additional shares of preferred stock having no
par value.
4.2 Issuance of Shares of Common and Preferred Stock. The Corporation
may from time to time issue and dispose of any of the authorized and unissued
shares of the common and preferred stock for such consideration as may be
fixed from time to time by the Board of Directors. The Board of Directors may
provide for payment therefor to be received by the Corporation in cash,
property or services. Any and all such shares of the common and preferred
stock of the Corporation, the issuance of which has been so authorized, and
for which consideration so fixed by the Board of Directors has been paid or
delivered, shall be deemed fully paid stock and shall not be liable to any
further call or assessment thereon.
4.3 Issuance of Preferred Stock in Series. The additional preferred
stock may be issued from time to time in one or more series, the shares of
each series to have such designations, preferences and relative participating,
optional or other special rights and qualifications, limitations or
restrictions thereof as are stated and expressed herein or in the resolution
or resolutions providing for the issuance of such series adopted by the Board
of Directors.
4.4 Authority of the Board of Directors. Authority is hereby expressly
granted to the Board of Directors of the Corporation, subject to the
provisions of this Section and to the limitations prescribed by law to
authorize the issuance of one or more series of additional preferred stock,
and with respect to each such series to fix by resolution or resolutions
providing for the issuance of such series, the number of shares of such
series, the designations, preferences and relative participating, optional or
other special rights and the qualifications, limitations or restrictions
thereof. The authority of the Board of Directors with respect to each series
of preferred stock shall include, but not be limited to, the determination or
fixing of the following:
(a) The number of shares of such series;
(b) The designation of such series;
(c) The dividend of such series, the conditions and dates upon which
such dividends shall be payable, the relation which such dividends shall
bear to the dividends on any other class or classes of stock and whether
such dividends shall be cumulative or non-cumulative;
(d) Whether the shares of such series shall be subject to redemption
by the Corporation and, if made subject to such redemption, the times,
prices, rates, adjustments, and other terms and conditions of such
redemption;
(e) The terms and amounts of any sinking fund provided for the
purchase or redemption of the shares of such series;
(f) Whether or not the shares of such series shall be convertible
into or exchangeable for shares of any other class or classes or of any
other series of any class or classes of stock of the Corporation and, the
times, prices, rates, adjustments, and other terms and conditions of such
conversion or exchange;
(g) The restrictions, if any, on the issue or reissue of any
preferred stock;
(h) The rights of the holders of the shares of such series upon the
dissolution of, or upon the distribution of the assets of, the
Corporation; and
(i) The extent, if any, to which any committee of the Board of
Directors may fix the designations and any of the preferences or rights of the
shares of such series relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion into or exchange
of such shares for shares of any other class or classes of stock of the
Corporation or any other series of the same or any other class or classes of
stock of the Corporation, or fix the number of shares of any such series or
authorize the increase or decrease in the shares of such series.
4.5 Dividends. The holders of shares of additional preferred stock
shall be entitled to receive dividends to the extent provided by the Board of
Directors in designating the particular series of preferred stock. The
holders of each share of Series 1, Series 2, Series 3, and Series 4 preferred
stock shall be entitled to receive a cumulative, quarterly cash dividend of
Twenty-Three and 125/1000 Dollars ($23.125) per share, out of funds legally
available for that purpose, such dividend to be payable on the last day of
March, June, September, and December of each year (the "Dividend Payments
Dates"). No dividends shall be paid on or set aside for shares of common
stock at such time preferred stock is outstanding. The holders of shares of
the preferred stock shall not be entitled to receive any dividends thereon
other than the dividends referred to in this Section.
4.6 Voting Rights of Preferred Stock. The holders of shares of the
preferred stock (including Series 1, Series 2, Series 3, and Series 4
preferred stock) shall not be entitled to vote on any matter submitted to a
vote of the shareholders except:
(a) as may from time to time be mandatorily required by the laws of
the State of Washington;
(b) on any proposed amendment to the Articles of Incorporation of
the Corporation which materially alters any of the designations, relative
rights, preferences or limitations of the shares of preferred stock or
which creates or increases the authorized shares of any class of stock
having rights or preferences ranking senior to or on a parity with the
preferred stock, approval of any such amendment to require the
affirmative vote of the holders of at least seventy percent (70%) of the
then outstanding shares of preferred stock, voting separately as a class;
(c) on any proposed amendment to the Bylaws of the Corporation which
materially alters any of the rights of the holders of preferred stock, as
a class, and not the rights of the holders of any classes of stock of the
Corporation generally, approval of any such amendment to require the
affirmative vote of the holders of at least seventy percent (70%) of the
then outstanding shares of preferred stock, voting separately as a class;
(d) with respect to Series 4 preferred stock only, on any proposed
merger or consolidation of the Corporation, or any proposed sale of all
or substantially all of its assets, approval of any such proposed action
to require the affirmative vote of at least seventy percent (70%) of the
then outstanding shares of Series 4 preferred stock, voting separately as
a class;
(e) if, at the time any election of directors is held or to be held,
the Corporation has failed to pay in full the two most recent quarterly
dividends due on Series 1, Series 2, Series 3, or Series 4 preferred
stock or has failed to pay two out of the four most recent quarterly
dividends due on any series of preferred stock, the holders of the
preferred stock, as a group and without regard to series and to the
exclusion of all other classes of stock of the Corporation, shall be
entitled to nominate and elect all directors of the Corporation except
for any director elected solely by a designated series of preferred
stock. Such right shall continue until the earlier of (i) a majority of
the Board of Directors having been elected by the holders of the
preferred stock (including any director elected solely by a designated
Series of preferred stock) or (ii) the dividend arrearages described
above having been paid. Thereafter, so long as such dividend
arrearages have not been paid, the holders of preferred stock shall be
entitled to nominate and elect such number of directors at each election
of directors as may be necessary to maintain, as a majority of the Board
of Directors (including any director elected solely by a designated
Series of preferred stock), directors elected by the holders of preferred
stock. Upon payment of any such dividend arrearages, the right of the
holders of preferred stock to nominate and elect any directors of the
Corporation pursuant to this Section shall cease until there exist new
dividend arrearages meeting the conditions described above; provided,
however, that such cessation shall not affect the right of the holders to
fill any vacancy with respect to a director elected by the holders of
preferred stock (as provided below), nor shall such cessation prevent any
director elected by the holders of preferred stock from completing its
unexpired term or constitute cause for removal of any such director. If
a vacancy arises on the Board of Directors in respect of any director
elected by the holders of preferred stock, for any cause, including, but
not limited to, the death, disability, removal, disqualification,
resignation, or refusal to act of any such director (but excluding the
expiration of such director's term), then the holders of preferred stock,
to the exclusion of the holders of all other classes of stock of the
Corporation, may nominate and elect a director to fill the vacancy so
created for the unexpired term thereof; and
(f) so long as not less than 25% of Series 4 preferred stock remains
issued and outstanding, the holders of Series 4 preferred stock, voting
as a class, shall be entitled to elect one (1) member of the Board of
Directors, by majority vote of such Series 4 preferred stock.
4.7 Rights on Liquidation, Dissolution or Winding Up.
(a) Payment. In the event of any liquidation, dissolution or
winding up of the Corporation, the holders of shares of Series 1, Series
2, Series 3, and Series 4 preferred stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its shareholders before any payment shall be made to the
holders of common stock, an amount equal to One Thousand ($1,000) per
share of preferred stock, plus any amount equal to accrued but unpaid
dividends, if any, to the date of payment. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation available for distribution to its shareholders shall be
insufficient to pay the holders of shares of preferred stock the full
amount to which they shall be entitled, such holders shall share ratably
in any distribution of assets according to the respective amounts which
would be payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to said shares
were paid in full. In the event of any liquidation, dissolution or
winding up of the Corporation and after payment shall have been made to
the holders of shares of preferred stock of the full amount to which they
shall be entitled as aforesaid, the holders of common stock shall be
entitled, to the exclusion of the holders of shares of preferred stock,
to share in all remaining assets of the Corporation available for
distribution to its shareholders.
(b) Treatment of Consolidations, Mergers and Sale of Assets. A
consolidation or merger of the Corporation into or with another
corporation (as a result of which the holders of more than 50% of the
shares of common stock receive cash, stock or other property in exchange
for their shares of such stock) or a sale of all or substantially all of
the assets of the Corporation shall be regarded as a liquidation,
dissolution or winding up of the affairs of the Corporation within the
meaning of this Section.
(c) Distribution Other Than Cash. Whenever the distribution
provided for in this Section shall be payable in property other than
cash, the value of such distribution shall be the fair market value of
such property as determined in good faith by the Board of Directors.
4.8 Redemption.
(a) Redemption Events. Shares of Series 1, Series 2, Series 3, and
Series 4 preferred stock shall be redeemable by the Corporation as
follows:
(i) All outstanding shares of Series 1 and Series 2 preferred
stock shall be redeemed by the Corporation redeeming one-fourth of
the outstanding shares on the last day of June and December 1997 and
1998; all outstanding shares of Series 3 and Series 4 shall be
redeemed by the Corporation redeeming one-fourth of the outstanding
shares on the last day of June and December 1999 and 2000.
(ii) Prior to any redemption date set forth above, the
Corporation, at its option at any time from time to time, upon ten
(10) days advance notice pursuant to Section 4.8(c) below, may redeem
in whole or in part Series 1, Series 2, Series 3, and Series 4
preferred stock. Each date fixed for redemption pursuant to this
subsection (ii) is hereinafter referred to as a "Preferred Redemption
Date." If less than all of the shares of a series are being redeemed
at any time, such redemption shall be ratably among all holders of
the series in proportion to the number of shares held by all holders
thereof. No optional redemption under this subsection (ii) shall
relieve the Corporation of its mandatory redemption obligation under
subsection (i) unless and until all shares of each series has been
redeemed.
(b) Redemption Price. The total sum payable per share of Series 1,
Series 2, Series 3, and Series 4 preferred stock being redeemed shall be
$1,000 plus cumulative or accrued but unpaid dividends, if any, payable
with respect to such share. The total sum payable with respect to any
such share to be redeemed is hereinafter referred to as the "Preferred
Redemption Price." The Preferred Redemption Price is payable on the
Preferred Redemption Date established pursuant to Section 4.8(a)(ii), and
the payment is hereinafter referred to as a "Preferred Redemption
Payment." On and after the Preferred Redemption Date (unless default
shall be made by the Corporation in the payment of the Preferred
Redemption Price as hereinafter provided), all rights in respect of the
shares of preferred stock to be redeemed, except the right to receive the
Preferred Redemption Price as hereinafter provided, shall cease and
terminate, and such shares shall no longer be deemed to be outstanding,
whether or not the certificates representing such shares have been
received by the Corporation.
(c) Notice of Redemption. Notice of the redemption pursuant to this
Section shall be sent by first-class mail, postage prepaid, to the
holders of record of the shares of Series 1, Series 2, Series 3, and
Series 4 preferred stock to be redeemed at their respective addresses as
the same shall appear on the books of the Corporation. Such notice shall
set forth the number of shares of such series to be redeemed, the
Preferred Redemption Date, the Preferred Redemption Price, and the date
and place at which the holder may obtain the Preferred Redemption Payment
upon the surrender of such holder's certificate.
(d) Surrender of Certificates. On or after the Preferred Redemption
Date stated in a notice delivered pursuant to Section 4.8(c), each holder
of shares of Series 1, Series 2, Series 3, and Series 4 preferred stock
to be redeemed shall surrender his or her certificate or certificates
evidencing such shares to the Corporation at the place designated in such
notice and shall, upon surrender of such certificate or certificates,
receive the Preferred Redemption Payment therefor. In case less than all
the shares of preferred stock represented by any such surrendered
certificate or certificates are redeemed, a new certificate or
certificates shall be issued representing the unredeemed shares.
4.9 Conversion.
(a) Conversion to Common Stock. Series 4B preferred stock shall be
designated as convertible. Series 4B preferred stock is convertible, at
the option of the holder thereof, into a number of fully paid and
nonassessable shares of common stock of the Corporation equal to 10% of
the outstanding common stock, on a fully-diluted basis, and including all
shares subject to stock incentive plans for service providers, following
such conversion. The convertible shares may be converted at any time.
(b) Process of Conversion. In order to exercise conversion rights,
the holder thereof shall surrender (in person or by mail) such holder's
certificate(s) of convertible stock to the Corporation at its home office
together with a written notice that the holder elects to convert such
stock, or a specified portion thereof. Such notice shall also state the
name(s) and address and taxpayer identification numbers in which the
certificate(s) for common stock shall be issued.
(c) Issuance of Certificates. Promptly after the receipt of the
written notice and surrender of such stock certificate(s) as aforesaid,
the Corporation shall issue and deliver to such holder, registered in
such name or names as such holder may direct in writing, a certificate or
certificates for the number of full shares of common stock issuable upon
the conversion of such stock (or specified portion thereof), bearing any
required restrictive legend. To the extent permitted by law, such
conversion shall be deemed to have been effected as of the close of
business on the date by which both of the following have occurred: (i)
such written statement shall have been received by the Corporation; and
(ii) such certificate(s) shall have been surrendered as aforesaid. At
such time the rights of the holder of such stock (or specified portion
thereof) shall cease, and the person or persons in whose name or names
any certificate or certificates for shares of common stock shall then be
issuable upon such exercise shall be deemed to have become the holder or
holders of record of the shares of common stock represented thereby.
(d) Automatic Conversion. In the event of an underwritten public
offering of shares of common stock of the Corporation at a public
offering price per share of $1.50 or more (prior to underwriter
commissions and expenses) in an offering of more than $8,400,000, the
Series 4B preferred stock shall (if not previously converted) be
automatically converted into a number of shares of common stock as
calculated pursuant to Section 4.9(a); provided, however, that in
determining the number of shares of common stock outstanding on a fully
diluted basis, the number of newly issued shares offered in such public
offering shall be excluded.
ARTICLE 5. NO PREEMPTIVE RIGHTS
No preemptive rights shall exist with respect to shares of stock or
securities convertible into shares of stock of the Corporation.
ARTICLE 6. DIRECTORS
6.1 Number. The Board of Directors shall consist of not fewer than six
(6) nor more than nine (9) members. The exact number shall be fixed and
determined by a resolution approved by at least a sixty percent (60%) vote of
the total number of Directors.
6.2 Classes. The Board of Directors shall be divided into three
classes, with each class to be as equal in number as may be possible. A
Director's basic term shall be three years, but initially the term of the
Directors in the first class shall expire at the first annual shareholders'
meeting after the filing of these Articles, the term of Directors in the
second class shall expire at the second annual shareholders' meeting after the
filing of these Articles, and the term of Directors in the third class shall
expire at the third annual shareholders' meeting after the filing of these
Articles. So long as not less than 25% of the authorized Series 4 preferred
stock remains outstanding, one Director position shall be reserved for
election solely by the holders of Series 4 preferred stock, voting as a class,
pursuant to Section 4.6(f). So long as not less than 25% of the authorized
Series 4 preferred stock remains issued and outstanding, one of the Director's
positions shall be designated "Series 4 Director" by the Board of Directors.
Election to the Series 4 Director position shall be by the vote of the holders
of the Series 4 preferred stock, voting as a class.
6.3 Nominations to the Board. Nominations for election to the Board of
Directors may be made by the Board of Directors or by any stockholder entitled
to vote for the election of directors. Nominations, other than those made by
the Board of Directors, shall be made in writing and delivered to or mailed
and received by the Secretary not less than fourteen (14) days nor more than
fifty (50) days prior to the annual meeting of stockholders; provided,
however, that in the event that less than 65 days' notice or prior public
disclosure of the date of the meeting is given or made to shareholders, notice
by a shareholder to be timely must be so received no later than the close of
business on the 15th day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure was made. Such
notification shall contain the following information:
(a) The name and address of the nominee(s);
(b) Each nominee's principal occupation;
(c) The total number of shares of stock of the corporation that will
be voted for each proposed nominee;
(d) The name and address of the proposing stockholder and the number
of shares the proposing stockholder owns;
(e) Such other information regarding each nominee as would be
required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had the nominee been
nominated by the Board of Directors.
Nominations not made in accordance herewith may, in his discretion, be
disregarded by the Chairman of the meeting, and upon his instruction, all
votes cast for such nominee shall be disregarded.
6.4 Vacancies. Vacancies and newly created directorships resulting from
any increase in the authorized number of Directors shall be filled only by a
majority of the Directors then in office, although less than a quorum, or by a
sole remaining Director, unless for any reason there are no Directors in
office in which case they shall be filled by a special election by
shareholders. The term of a Director elected to fill a vacancy expires at the
next shareholders' meeting at which Directors are elected. Vacancy of the
Series 4 position shall be filled by a special election of the holders of the
Series 4 preferred stock, voting as a class.
6.5 Cumulative Voting. Shareholders of the Corporation shall not have
the right to cumulate votes in the election of Directors.
6.6 Removal of Directors. At a meeting of shareholders called expressly
for that purpose, any Director, any class of Directors, or the entire Board of
Directors may be removed from office as a Director at any time for cause by
the affirmative vote at a duly called meeting of shareholders of at least
seventy-five percent (75%) of the votes which are entitled to be cast at an
annual election of the director or directors. Notwithstanding the foregoing,
the Director occupying the Series 4 Director position may be removed only by
the affirmative vote of a majority vote of the holders of Series 4 preferred
stock.
ARTICLE 7. MERGERS, SHARE EXCHANGES, AND OTHER TRANSACTIONS
Except as otherwise expressly provided in these Articles of Incorporation
and provided the Board of Directors adopts an affirmative resolution
recommending such action, a merger, share exchange, sale of substantially all
of the Corporation's assets, or dissolution must be approved by the
affirmative vote of a majority of the Corporation's outstanding shares
entitled to vote, or if separate voting by voting groups is required, then by
not less than a majority of all the votes entitled to be cast by that voting
group. In the absence of an affirmative recommendation by the Board of
Directors, a merger, consolidation, conveyance of all or substantially all of
the assets, or dissolution of the Corporation shall require an affirmative
vote of the holders of seventy-five percent (75%) of the outstanding shares
entitled to vote thereon.
ARTICLE 8. AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by the
Washington Business Corporation Act, the Board of Directors is expressly
authorized to make, adopt, repeal, alter, amend, and rescind the Bylaws of the
Corporation by a resolution adopted by a majority of the Directors.
ARTICLE 9. NO SHAREHOLDER ACTION WITHOUT MEETING
No action shall be taken by any shareholder except at an annual or
special meeting of shareholders.
ARTICLE 10. SPECIAL SHAREHOLDER MEETINGS
Special meetings of the shareholders of the Corporation for any purpose
or purposes may be called at any time by the Board of Directors, but such
special meetings may not be called by any other person or persons.
ARTICLE 11. RESTRICTIONS ON CERTAIN AMENDMENTS
The provisions set forth in this Article and in Articles 6, 7, 8, 9, 10,
12, 13, 14, and 15 herein may not be repealed or amended in any respect,
unless such action is approved by the affirmative vote of the holders of not
less than seventy-five percent (75%) of the outstanding common stock.
ARTICLE 12. LIMITATION OF DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for conduct as a
director, except for:
(a) Acts or omissions involving intentional misconduct by the
director or a knowing violation of law by the director;
(b) Conduct violating Section 23B.08.310 of the Washington Business
Corporation Act (which involves certain distributions by the
Corporation);
(c) Any transaction from which the director will personally receive
a benefit in money, property, or services to which the director is not
legally entitled.
If the Washington Business Corporation Act is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent not prohibited by the Washington
Business Corporation Act, as so amended. The provisions of this Article shall
be deemed to be a contract with each Director of the Corporation who serves as
such at any time while such provisions are in effect, and each such Director
shall be deemed to be serving as such in reliance on the provisions of this
Article. Any repeal or modification of the foregoing paragraph by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation with respect to any acts or
omissions of such director occurring prior to such repeal or modification.
ARTICLE 13. INDEMNIFICATION
13.1 Definitions. As used in this Article:
(a) "Agent" means an individual who is or was an agent of the
Corporation or an individual who, while an agent of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or
other enterprise. "Agent" includes, unless the context requires
otherwise, the spouse, heirs, estate and personal representative of an
Agent.
(b) "Corporation" means the Corporation, and any domestic or foreign
predecessor entity which, in a merger or other transaction, ceased to
exist.
(c) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or
other enterprise. "Director" includes, unless the context requires
otherwise, the spouse, heirs, estate and personal representative of a
Director.
(d) "Employee" means an individual who is or was an employee of the
Corporation or an individual, while an employee of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other
enterprise. "Employee" includes, unless the context requires otherwise,
the spouse, heirs, estate and personal representative of an Employee.
(e) "Expenses" include counsel fees.
(f) "Indemnitee" means an individual made a party to a proceeding
because the individual is or was a Director, Officer, Employee, or Agent
of the Corporation, and who possesses indemnification rights pursuant to
these Articles or other corporate action. "Indemnitee" includes, unless
the context requires otherwise, the spouse, heirs, estate, and personal
representative of such individuals.
(g) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine, (including an excise tax assessed with respect to an
employee benefit plan) or reasonable Expenses incurred with respect to a
Proceeding.
(h) "Officer" means an individual who is or was an officer of the
Corporation (regardless of whether or not such individual was also a
Director) or an individual who, while an officer of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or
other enterprise. "Officer" includes, unless the context requires
otherwise, the spouse, heirs, estate and personal representative of an
Officer.
(i) "Party" includes an individual who was, is, or is threatened to
be named as a defendant, respondent, directly or by cross-claim or
counterclaim, or witness in a proceeding.
(j) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, derivative, criminal, administrative,
or investigative, and whether formal or informal.
13.2 Indemnification Rights of Directors and Officers. The Corporation
shall indemnify its Directors and Officers to the full extent not prohibited
by applicable law now or hereafter in force against Liability arising out of a
Proceeding to which such individual was made a Party because the individual is
or was a Director or an Officer. However, such indemnity shall not apply on
account of:
(a) Acts or omissions of a Director or Officer finally adjudged to
be intentional misconduct or a knowing violation of law;
(b) Conduct of a Director or Officer finally adjudged to be in
violation of Section 23B.08.310 of the Washington Business Corporation
Act relating to distributions by the Corporation; or
(c) Any transaction with respect to which it was finally adjudged
that such Director or Officer personally received a benefit in money,
property, or services to which the Director or Officer was not legally
entitled.
Subject to the foregoing, it is specifically intended that Proceedings
covered by indemnification shall include Proceedings brought by the
Corporation (including derivative actions) and Proceedings by government
entities, governmental officials or other third parties.
13.3 Indemnification of Employees and Agents of the Corporation. The
Corporation may, by action of its Board of Directors from time to time,
provide indemnification and pay Expenses in advance of the final disposition
of a Proceeding to Employees and Agents of the Corporation who are not also
Directors, in each case to the same extent as to a Director with respect to
the indemnification and advancement of Expenses pursuant to rights granted
under, or provided by, the Washington Business Corporation Act or otherwise.
13.4 Partial Indemnification. If an Indemnitee is entitled to
indemnification by the Corporation for some or a portion of a Liability
actually and reasonably incurred by the Indemnitee but not, however, for the
total amount thereof, the Corporation shall nevertheless indemnify Indemnitee
for the portion of such Liability to which Indemnitee is entitled.
13.5 Procedure for Seeking Indemnification and/or Advancement of
Expenses. The following procedures shall apply in the absence of (or at the
option of the Indemnitee, in lieu thereof), specific procedures otherwise
applicable to an Indemnitee pursuant to a contract, trust agreement, or
general or specific action of the Board of Directors:
(a) Notification and Defense of Claim. Indemnitee shall promptly
notify the Corporation in writing of any Proceeding for which
indemnification could be sought under this Article. In addition,
Indemnitee shall give the Corporation such information and cooperation as
it may reasonably require and as shall be within Indemnitee's power.
With respect to any such Proceeding as to which Indemnitee has notified
the Corporation:
(i) The Corporation will be entitled to participate therein at
its own expense; and
(ii) Except as otherwise provided below, to the extent that it
may wish, the Corporation, jointly with any other indemnifying party
similarly notified, will be entitled to assume the defense thereof,
with counsel satisfactory to Indemnitee. Indemnitee's consent to
such counsel may not be unreasonably withheld.
After notice from the Corporation to Indemnitee of its election to assume
the defense, the Corporation will not be liable to Indemnitee under this
Article for any legal or other Expenses subsequently incurred by
Indemnitee in connection with such defense. However, Indemnitee shall
continue to have the right to employ its counsel in such proceeding, at
Indemnitee's expense, and if:
(i) The employment of counsel by Indemnitee has been authorized
by the Corporation;
(ii) Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Corporation and Indemnitee in
the conduct of such defense; or
(iii) The Corporation shall not in fact have employed counsel
to assume the defense of such proceeding,
the Expenses of Indemnitee's counsel shall be at the expense of the
Corporation.
The Corporation shall not be entitled to assume the defense of any
proceeding brought by or on behalf of the Corporation or as to which
Indemnitee shall reasonably have made the conclusion that a conflict of
interest may exist between the Corporation and the Indemnitee in the
conduct of the defense.
(b) Information to be Submitted and Method of Determination and
Authorization of Indemnification. For the purpose of pursuing rights to
indemnification under this Article, the Indemnitee shall submit to the
Board a sworn statement requesting indemnification and reasonable
evidence of all amounts for which such indemnification is requested
(together, the sworn statement and the evidence constitute an
"Indemnification Statement").
Submission of an Indemnification Statement to the Board shall create
a presumption that the Indemnitee is entitled to indemnification
hereunder, and the Corporation shall, within sixty (60) calendar days
thereafter, make the payments requested in the Indemnification Statement
to or for the benefit of the Indemnitee, unless: (i) within such sixty
(60) calendar day period it shall be determined by the Corporation that
the Indemnitee is not entitled to indemnification under this Article;
(ii) such determination shall be based upon clear and convincing evidence
(sufficient to rebut the foregoing presumption); and (iii) the Indemnitee
shall receive notice in writing of such determination, which notice shall
disclose with particularity the evidence upon which the determination is
based.
The foregoing determination may be made: (i) by the Board of
Directors by majority vote of a quorum of Directors who are not at the
time parties to the proceedings; (ii) if a quorum cannot be obtained, by
majority vote of a committee duly designated by the Board of Directors
(in which designation Directors who are parties may participate)
consisting solely of two (2) or more Directors not at the time parties to
the proceeding; (iii) by special legal counsel; or (iv) by the
shareholders, all as provided by Section 23B.08.550 of the Washington
Business Corporation Act.
Any determination that the Indemnitee is not entitled to
indemnification, and any failure to make the payments requested in the
Indemnification Statement, shall be subject to judicial review by any
court of competent jurisdiction.
(c) Special Procedure Regarding Advance for Expenses. An Indemnitee
seeking payment of Expenses in advance of a final disposition of the
proceeding must furnish the Corporation, as part of the Indemnification
Statement:
(i) A written affirmation of the Indemnitee's good faith belief
that the Indemnitee has met the standard of conduct required to be
eligible for indemnifications; and
(ii) A written undertaking, constituting an unlimited general
obligation of the Indemnitee, to repay the advance if it is
ultimately determined that the Indemnitee did not meet the required
standard of conduct.
Upon satisfaction of the foregoing the Indemnitee shall have a
contractual right to the payment of such Expenses.
(d) Settlement. The Corporation is not liable to indemnify
Indemnitee for any amounts paid in settlement of any Proceeding without
the Corporation's written consent. The Corporation shall not settle any
Proceeding in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent. Neither the Corporation
nor Indemnitee may unreasonably withhold its consent to a proposed
settlement.
13.6 Contract and Related Rights.
(a) Contract Rights. The right of an Indemnitee to indemnification
and advancement of Expenses is a contract right upon which the Indemnitee
shall be presumed to have relied in determining to serve or to continue
to serve in his or her capacity with the Corporation. Such right shall
continue as long as the Indemnitee shall be subject to any possible
proceeding. Any amendment to or repeal of this Article shall not
adversely affect any right or protection of an Indemnitee with respect to
any acts or omissions of such Indemnitee occurring prior to such
amendment or repeal.
(b) Optional Insurance, Contracts, and Funding. The Corporation
may:
(i) Maintain insurance, at its expense, to protect itself and
any Indemnitee against any liability, whether or not the Corporation
would have power to indemnify the individual against the same
liability under Sections 23B.08.510 or .520 of the Washington
Business Corporation Act;
(ii) Enter into contracts with an Indemnitee in furtherance of
this Article and consistent with the Washington Business Corporation
Act; and
(iii) Create a trust fund, grant a security interest, or use
other means (including without limitation a letter of credit) to
ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Article.
(c) Severability. If any provision or application or this Article
shall be invalid or unenforceable, the remainder of this Article and its
remaining applications shall not be affected thereby, and shall continue
in full force and effect.
(d) Right of Indemnitee to Bring Suit. If (i) a claim under this
Article for indemnification is not paid in full by the Corporation within
sixty (60) days after a written claim has been received by the
Corporation; or (ii) a claim under this Article for advancement of
Expenses is not paid in full by the Corporation within twenty (20) days
after a written claim has been received by the Corporation, then the
Indemnitee may, but need not, at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim. To the extent
successful in whole or in part, the Indemnitee shall be entitled to also
be paid the expense (to be proportionately prorated if the Indemnitee is
only partially successful) of prosecuting such claim. Neither (i) the
failure of the Corporation (including its Board of Directors, its
shareholders, or independent legal counsel) to have made a determination
prior to the commencement of such proceeding that indemnification or
reimbursement or advancement of Expenses to the Indemnitee is proper in
the circumstances; nor (ii) an actual determination by the Corporation
(including its Board of Directors, its shareholders, or independent legal
counsel) that the Indemnitee is not entitled to indemnification or to the
reimbursement or advancement of Expenses, shall be a defense to the
proceeding or create a presumption that the Indemnitee is not so
entitled.
(e) Nonexclusivity of Rights. The right to indemnification and the
payment of Expenses incurred in defending a Proceeding in advance of its
final disposition granted in this Article shall not be exclusive of any
other right which any Indemnitee may have or hereafter acquire under any
statute, provision of this Article or the Bylaws, agreement, vote of
shareholders or disinterested directors, or otherwise. The Corporation
shall have the express right to grant additional indemnity without
seeking further approval or satisfaction by the shareholders. All
applicable indemnity provisions and any applicable law shall be
interpreted and applied so as to provide an Indemnitee with the broadest
but nonduplicative indemnity to which he or she is entitled.
13.7 Contribution. If the indemnification provided in Section 13.2 of
this Article is not available to be paid to Indemnitee for any reason other
than those set forth in Sections 13.2(a), 13.2(b), and 13.2(c) of this Article
(for example, because indemnification is held to be against public policy even
though otherwise permitted under Section 13.2) then in respect of any
proceeding in which the Corporation is jointly liable with Indemnitee (or
would be if joined in such proceeding), the Corporation shall contribute to
the amount of loss paid or payable by Indemnitee in such proportion as is
appropriate to reflect:
(a) The relative benefits received by the Corporation on the one
hand and the Indemnitee on the other hand from the transaction from which
such proceeding arose; and
(b) The relative fault of the Corporation on the one hand and the
Indemnitee on the other hand in connection with the events which resulted
in such loss, as well as any other relevant equitable consideration.
The relative benefits received by a fault of the Corporation on the one
hand and the Indemnitee on the other shall be determined by a court of
appropriate jurisdiction (which may be the same court in which the proceeding
took place) with reference to, among other things, the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent the circumstances resulting in such loss. The Corporation agrees that
it would not be just and equitable if a contribution pursuant to this Article
was determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable considerations.
13.8 Exceptions. Any other provision herein to the contrary
notwithstanding, the Corporation shall not be obligated pursuant to the terms
of these Articles to indemnify or advance Expenses to Indemnitee with respect
to any proceeding:
(a) Claims Initiated by Indemnitee. Initiated or brought
voluntarily by Indemnitee and not by way of defense, but such
indemnification or advancement of Expenses may be provided by the
Corporation in specific cases if the Board of Directors finds it to be
appropriate. Notwithstanding the foregoing, the Corporation shall
provide indemnification including the advancement of Expenses with
respect to Proceedings brought to establish or enforce a right to
indemnification under these Articles or any other statute or law or as
otherwise required under the statute.
(b) Lack of Good Faith. Instituted by Indemnitee to enforce or
interpret this Article, if a court of competent jurisdiction determines
that each of the material assertions made by Indemnitee in such
proceeding was not made in good faith or that any such assertion was
frivolous.
(c) Insured Claims. For which any of the Expenses or liabilities
for indemnification is being sought have been paid directly to Indemnitee
by an insurance carrier under a policy of officers' and directors'
liability insurance maintained by the Corporation.
(d) Prohibited by Law. If the Corporation is prohibited by the
Washington Business Corporation Act or other applicable law as then in
effect from paying such indemnification and/or advancement of Expenses.
For example, the Securities and Exchange Commission ("SEC") has taken the
position that indemnification is not possible for liabilities arising
under certain federal securities laws. The Corporation has undertaken or
may be required in the future to undertake with the SEC to submit the
question of indemnification to a court in certain circumstances for a
determination of the Corporation's right to indemnify Indemnitee.
13.9 Successors and Assigns. All obligations of the Corporation to
indemnify any Director or Officer shall be binding upon all successors and
assigns of the Corporation (including any transferee of all or substantially
all of its assets and any successor by merger or otherwise by operation of
law). The Corporation shall not effect any sale of substantially all of its
assets, merger, consolidation, or other reorganization, in which it is not the
surviving entity, unless the surviving entity agrees in writing to assume all
such obligations of the Corporation.
ARTICLE 14. TRANSACTIONS INVOLVING INTERESTED SHAREHOLDERS
The provisions of the Washington Business Corporation Act, Revised Code
of Washington, Section 23B.17.020, shall be applicable to the Corporation.
ARTICLE 15. SIGNIFICANT BUSINESS TRANSACTIONS
The Corporation shall not engage in any Significant Business Transaction
for a period of five (5) years following the Acquiring Person's share
acquisition date unless the Significant Business Transaction or the purchase
of shares made by the Acquiring Person on the share acquisition date is
approved prior to the Acquiring Person's share acquisition date by a majority
of the members of the Board of Directors of the Corporation. All definitions
for this Article shall be pursuant to Section 23B.19.020 of the Revised Code
of Washington.
ARTICLE 16. INCORPORATOR
The name and address of the incorporator are:
Richard G. Phillips, Jr.
926 24th Way SW
Olympia, WA 98502
The undersigned Incorporator has signed these Articles of Incorporation as
of February 13th, 1996.
Richard G. Phillips, Jr.
Incorporator
Appendix F
EXHIBIT B
PLAN AND AGREEMENT OF MERGER
BETWEEN
WESTAR FINANCIAL SERVICES INCORPORATED
AND
REPUBLIC LEASING INCORPORATED
This Plan and Agreement of Merger (this "Agreement") is entered into this
____ day of February 1996, by and between Westar Financial Services
Incorporated, a Washington corporation (the "Surviving Corporation"), and
Republic Leasing Incorporated, a Delaware corporation ("Republic"). The
Surviving Corporation and Republic are sometimes referred to jointly as the
"Constituent Corporations."
RECITALS
A. Each of the Constituent Corporations are corporations organized and
existing under the laws of the respective states as indicated in the first
paragraph of this Agreement of Merger.
B. The shareholders and directors of each of the Constituent Corporations
have deemed it advisable for the mutual benefit of the Constituent Corporations
and their respective shareholders that Republic be merged into the Surviving
Corporation pursuant to the provisions of the Washington Business Corporation
Act and the Delaware General Corporation Law.
NOW, THEREFORE, in accordance with the laws of the states of Washington and
Delaware, the Constituent Corporations agree that, subject to the following
terms and conditions, (i) Republic shall be merged into the Surviving
Corporation, (ii) the Surviving Corporation shall continue to be governed by the
laws of the state of Washington, and (iii) the terms of the Merger, and the mode
of carrying them into effect, shall be as follows:
ARTICLE I
ARTICLES OF SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation as in effect
immediately prior to the Effective Time of the Merger shall constitute the
"Articles" of the Surviving Corporation within the meaning of Section
23B.01.400(1) of the Washington Business Corporation Act and Section 104 of the
Delaware General Corporation Law.
ARTICLE II
APPOINTMENT OF AGENT FOR SERVICE OF PROCESS
Pursuant to Section 252(d) of the Delaware General Corporation Law, the
Surviving Corporation irrevocably appoints the Secretary of State of Delaware to
accept service of process in any proceeding to enforce against the Surviving
Corporation any obligation of Republic as well as for enforcement of any
obligation of the Surviving Corporation arising from the merger. The Delaware
Secretary of State shall mail a copy of such process to Richard G. Phillips, Jr.
at Owens Davies Mackie, Attorneys at Law, P.O. Box 187, Olympia, Washington
98507.
ARTICLE III
CONVERSION OF SHARES
3.1 REPUBLIC COMMON SHARES. At the Effective Time of the Merger each
outstanding share of the common stock of Republic shall automatically convert to
one share of Westar Financial Services Incorporated. It will not be necessary
for shareholders of Republic to exchange their existing stock certificates for
stock certificates of the Surviving Corporation.
3.2 REPUBLIC PREFERRED SHARES - SERIES 1. At the Effective Time of the
Merger each outstanding share of Series 1 preferred stock of Republic will
automatically convert to one share of Westar Financial Services Incorporated
Series 1 preferred stock.
3.3 REPUBLIC PREFERRED SHARES - SERIES 2. At the Effective Time of the
Merger each outstanding share of Series 2 preferred stock of Republic will
automatically convert to one share of Westar Financial Services Incorporated
Series 2 preferred stock.
3.4 REPUBLIC PREFERRED SHARES - SERIES 3. At the Effective Time of the
Merger each outstanding share of Series 3 preferred stock of Republic will
automatically convert to one share of Westar Financial Services Incorporated
Series 3 preferred stock.
3.5 REPUBLIC PREFERRED SHARES - SERIES 4. At the Effective Time of the
Merger each outstanding share of Series 4 preferred stock of Republic will
automatically convert to one share of Westar Financial Services Incorporated
Series 4 preferred stock.
3.6 REPUBLIC OPTIONS AND WARRANTS. At the Effective Time of the Merger
each outstanding warrant and option of Republic will automatically convert to
the corresponding warrant and option of Westar Financial Services Incorporated.
3.7 SURVIVING CORPORATION SHARES. At the Effective Time of the Merger
each outstanding share of the common stock of the Surviving Corporation shall be
automatically cancelled and returned to the status of authorized but unissued
shares.
ARTICLE IV
BYLAWS
The Bylaws of the Surviving Corporation shall be the governing Bylaws.
ARTICLE V
EFFECT OF THE MERGER
The effect of the Merger shall be as provided by the applicable provisions
of the laws of Washington and Delaware. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time of the Merger: the
separate existence of Republic shall cease; the Surviving Corporation shall
possess all assets and property of every description, and every interest
therein, wherever located, and the rights, privileges, immunities, powers,
franchises, and authority, of a public as well as a private nature, of all of
the Constituent Corporations; all obligations belonging to or due any of the
Constituent Corporations shall be vested in and become the obligations of, the
Surviving Corporation without further act or deed; title to any real estate or
any interest therein vested in any of the Constituent Corporations shall be
vested in and become the obligations of the Surviving Corporation without
further act or deed; title to any real estate or any interest therein shall not
revert or in any way be impaired by reason of the Merger; all rights of
creditors and all liens upon any property of any of the Constituent Corporations
shall be preserved unimpaired; and the Surviving Corporation shall be liable for
all the obligations of the Constituent Corporations and any claim existing, or
action or proceeding pending, by or against any of the Constituent Corporations
may be prosecuted to judgment with right of appeal, as if the Merger had not
taken place.
If at any time after the Effective Time of the Merger the Surviving
Corporation shall consider it to be advisable that any further conveyances,
agreements, documents, instruments, and assurances of law or any other things
are necessary or desirable to vest, perfect, confirm, or record in the Surviving
Corporation the title to any property, rights, privileges, powers, and
franchises of the Constituent Corporations or otherwise to carry out the
provisions of this Agreement, the proper directors and officers of the
Constituent Corporations last in office shall execute and deliver, upon the
Surviving Corporation's request, any and all proper conveyances, agreements,
documents, instruments, and assurances of law, and do all things necessary or
proper to vest, perfect, or confirm title to such property, rights, privileges,
powers, and title to such property, rights, privileges, powers, and franchises
in the Surviving Corporation, and otherwise to carry out the provisions of this
Agreement.
ARTICLE VI
EFFECTIVE TIME OF THE MERGER
As used in this Agreement, the "Effective Time of the Merger" shall mean
the time at which executed counterparts of this Agreement or conformed copies
thereof, together with duly executed Certificates or Articles of Merger have
been duly filed by the Constituent Corporations in the office of the Washington
Secretary of State pursuant to Section 23B.11.250 of the Washington Business
Corporation Act and the Office of the Delaware Secretary of State pursuant to
Section 252 of the Delaware General Corporation Law or at such time thereafter
as is provided in such Certificate of Articles of Merger.
ARTICLE VII
TERMINATION
This Agreement may be terminated and the Merger abandoned by mutual consent
of the directors of the Constituent Corporations at any time prior to the
Effective Time of the Merger.
ARTICLE VIII
NO THIRD PARTY BENEFICIARIES
Except as otherwise specifically provided herein, nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any person, firm, or corporation, other than the Constituent Corporations
and their respective shareholders, any rights or remedies under or by reason of
this Agreement or Merger.
IN WITNESS WHEREOF, the parties hereto have caused this Plan and Agreement
of Merger to be executed as of the date first above written.
WESTAR FINANCIAL SERVICES INCORPORATED
A Washington Corporation
By____________________________________
R.W. Christensen, Jr.,
Chairman
ATTEST:
Charles S. Seel, Secretary
REPUBLIC LEASING INCORPORATED
A Delaware Corporation
By
R.W. Christensen, Jr.,
Chairman
ATTEST:
Charles S. Seel, Secretary
CERTIFICATE OF SECRETARY
OF
REPUBLIC LEASING INCORPORATED
I, Charles S. Seel, the Secretary of Republic Leasing Incorporated, a
Delaware corporation, hereby certify that at the special meeting of shareholders
of Republic Leasing Incorporated the Agreement and Plan of Merger between
Republic Leasing Incorporated and Westar Financial Services Incorporated was
adopted by a majority of the outstanding common stock of Republic Leasing
Incorporated entitled to vote thereon, and was also adopted by 70% of the
outstanding shares of Series 4 preferred stock.
Dated: March __, 1996
Charles S. Seel
Secretary
CERTIFICATE OF SECRETARY
OF
WESTAR FINANCIAL SERVICES INCORPORATED
I, Charles S. Seel, the Secretary of Westar Financial Services
Incorporated, a Washington corporation, hereby certify that at the special
meeting of shareholders of Westar Financial Services Incorporated the Agreement
and Plan of Merger between Westar Financial Services Incorporated and Republic
Leasing Incorporated was adopted by a majority of the outstanding common stock
of Westar Financial Services Incorporated entitled to vote thereon.
Dated: March __, 1996
Charles S. Seel
Secretary
