<PAGE>
As filed with the Securities and Exchange Commission on March 31, 1994
Registration No. 33-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
Under
the Securities Act of 1933
-----------------
PIPER JAFFRAY COMPANIES INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 41-1233380
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
222 SOUTH NINTH STREET
MINNEAPOLIS, MINNESOTA 55402
(Address of principal executive offices) (Zip Code)
PIPER JAFFRAY COMPANIES INC.
1993 OMNIBUS STOCK PLAN
(Full title of the plan)
David Evans Rosedahl, Esq.
General Counsel
Piper Jaffray Companies Inc.
222 South Ninth Street
Minneapolis, Minnesota 55402
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (612) 342-6000
----------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price offering registration
be registered registered per share (1) price (1) fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,200,000
$1.00 par shares $16.56 $19,872,000 $6,853.00
value
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of the registration fee pursuant to Rule
457(h)(1) based on the average of the high and low sales prices per share
of the Registrant's Common Stock on March 25, 1994, as reported on the New
York Stock Exchange Consolidated Transactions Composite Tape.
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PIPER JAFFRAY COMPANIES INC.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed (File No. 1-7421) with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are, as of
their respective dates, incorporated in this Registration Statement by reference
and made a part hereof:
(1) The latest Annual Report on Form 10-K of Piper Jaffray Companies
Inc. (the "Company") filed pursuant to Section 13 of the Exchange
Act.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Annual Report referred to in (1) above.
(3) The description of the Company's Common Stock which is contained
in the Registration Statement filed under the Exchange Act and
all amendments and reports filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all of the shares of Common Stock
offered have been sold or which deregisters all shares of the Common Stock then
remaining unsold shall be deemed to be incorporated by reference in and a part
of this Registration Statement from the date of filing of such documents.
Any statement contained in a document incorporated, or deemed to
be incorporated, by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock registered hereby is
being passed upon for the Company by David Evans Rosedahl, General Counsel of
the Company, who, as of the date hereof, owns 27,046 shares of Common Stock and
has options to acquire 74,450 additional shares of Common Stock, and, as of
September 30, 1993, indirectly owned 19,361 shares of Common Stock held by the
Piper Jaffray ESOP for his account.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and Article XI of the By-Laws
of the Company provide for broad indemnification of directors and officers of
the Company.
The Company also maintains a director and officer insurance policy
which insures the Company and its directors and officers against damages,
judgments, settlements and costs incurred by reason of certain acts of such
persons in their capacities as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
------- -----------
4.01 Restated Certificate of Incorporation of the
Company, as amended.
4.02 By-Laws of the Company, as amended.
4.03 Piper Jaffray Companies Inc. 1993 Omnibus
Stock Plan.
4.04 Form of Non-Statutory Stock Option Agreement.
4.05 Form of Incentive Stock Option Agreement.
5 Opinion of David Evans Rosedahl, General
Counsel of the Company, as to the legality of
the shares being registered.
23.01 Consent of David Evans Rosedahl, General
Counsel of the Company, is contained in his
opinion filed as Exhibit 5 to this
Registration Statement.
23.02 Consent of Deloitte & Touche, independent
auditors, to the incorporation by reference
in this Registration Statement of their dated
November 9, 1993 appearing on page 34 of the
Company's Annual Report, which is
incorporated by reference in the Company's
Annual Report on Form 10-K for the year ended
September 30, 1993.
24 Powers of Attorney authorizing Charles N.
Hayssen and David Evans Rosedahl to sign this
Registration Statement on behalf of the
directors and certain officers of the
Company.
ITEM 9. UNDERTAKINGS.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933; (ii) to reflect in the prospectus any facts
II-2
<PAGE>
or events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement; and (iii) to
include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on March 31, 1994.
PIPER JAFFRAY COMPANIES INC.
By /S/ CHARLES N. HAYSSEN
---------------------------------------------
Charles N. Hayssen, Managing Director
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on March 31, 1994 by the following
persons in the capacities and on the date indicated.
SIGNATURE CAPACITY
- --------- --------
/S/ ADDISON L. PIPER Chief Executive Officer
- ------------------------ and Chairman of the
Addison L. Piper Board (Principal
Executive Officer)
/S/ CHARLES N. HAYSSEN Managing Director
- ------------------------ and Chief Financial
Charles N. Hayssen Officer (Principal
Financial Officer)
/S/ DEBORAH K. ROESLER Managing Director and
- ------------------------ Controller (Principal
Deborah K. Roesler Accounting Officer)
Edward N. Bennett* Director )
Karen M. Bohn* Director )
Ralph W. Burnet* Director )
David P. Crosby* Director )
William H. Ellis* Director )
Dan L. Lastavich* Director ) A majority of the
Robert J. Magnuson* Director ) Board of Directors
John L. McElroy, Jr.* Director )
Gary M. Petrucci* Director )
Addison L. Piper* Director )
Robert S. Slifka* Director )
David Stanley* Director )
DeLos V. Steenson* Director )
Richard J. Stream* Director )
- -------------------------
*By /S/ DAVID EVANS ROSEDAHL
--------------------------------
David Evans Rosedahl,
Attorney-in-Fact
II-4
<PAGE>
INDEX TO EXHIBITS
METHOD
EXHIBIT DESCRIPTION OF FILING
- ------- ----------- ---------
4.01 Restated Certificate of Incorporation of Electronic
the Company, as amended ........................... Transmission
4.02 By-Laws of the Company, as amended ................ Electronic
Transmission
4.03 Piper Jaffray Companies Inc. 1993 Omnibus Electronic
Stock Plan ........................................ Transmission
4.04 Form of Non-Statutory Stock Option Agreement ...... Electronic
Transmission
4.05 Form of Incentive Stock Option Agreement .......... Electronic
Transmission
5 Opinion of David Evans Rosedahl, General
Counsel of the Company, as to the legality Electronic
of the shares being registered .................... Transmission
23.01 Consent of David Evans Rosedahl, General
Counsel of the Company, is contained in his
opinion filed as Exhibit 5 to this Registration
Statement.
23.02 Consent of Deloitte & Touche, independent
auditors, to the incorporation by
reference in this Registration Statement of
their report dated November 9, 1993 appearing
on page 34 of the Company's Annual Report,
which is incorporated by reference in the
Company's Annual Report on Form 10-K for Electronic
the year ended September 30, 1993 ................. Transmission
24 Powers of Attorney authorizing Charles N.
Hayssen and David Evans Rosedahl to sign
this Registration Statement on behalf of the
directors and certain officers of the Electronic
Company ........................................... Transmission
II-5
<PAGE>
EXHIBIT 4.01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
RESTATED
CERTIFICATE OF INCORPORATION
OF
PIPER JAFFRAY COMPANIES INC.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
As Amended March 25, 1994.
<PAGE>
RESTATED
CERTIFICATE OF INCORPORATION
OF
PIPER JAFFRAY COMPANIES INC.
ARTICLE I
NAME
The name of the Corporation is:
Piper Jaffray Companies Inc.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of Delaware is to be
located at No. 100 West Tenth Street, in the City of Wilmington, County of New
Castle. The name and address of the Corporation's registered agent is The
Corporation Trust Company, No. 100 West Tenth Street, in the City of Wilmington,
County of New Castle, State of Delaware.
ARTICLE III
NATURE OF BUSINESS AND PURPOSES
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
ARTICLE IV
CAPITAL STOCK
SECTION 1. SHARES AND CLASSES AUTHORIZED. The total number of shares of
capital stock which the Corporation shall have authority to issue is 40,300,000
shares, comprised of the following classes: 40,000,000 shares of Common Stock
of the par value of $1.00 per share and 300,000 shares of Preferred Stock of the
par value of $1.00 per share. Such classes of Common
<PAGE>
Stock and Preferred Stock are sometimes hereinafter collectively referred to as
the "capital stock".
SECTION 2. DESIGNATIONS, POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS OF CAPITAL STOCK. The following is a statement of
the designations and the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, in respect of the classes of the capital
stock, and of the authority with respect thereto expressly vested in the Board
of Directors of the Corporation:
COMMON STOCK
(a) Except as required by the laws of the State of Delaware, all rights
to vote and all voting power (including, without limitation, the right to elect
directors) shall be vested exclusively in the shares of Common Stock, and shares
of any class of capital stock other than Common Stock shall not entitle the
holder thereof to have any right to vote or to receive any notice of any meeting
of the holders of the Corporation's capital stock or to exercise any voting
power.
(b) Subject to the following provisions with respect to Preferred Stock,
holders of Common Stock shall be entitled to receive dividends in cash, capital
stock or property when and as declared by the Board of Directors, share for
share alike, payable on such dividend payment dates as may be fixed from time to
time by the Board of Directors to holders of record on such dates (not exceeding
60 days preceding such dividend payment dates) as may be determined by the Board
of Directors. In declaring dividends payable in shares of capital stock, the
Board of Directors may in its discretion determine that fractional shares
otherwise issuable upon payment of the dividend shall be disregarded and that no
fractional shares shall be issued or cash or other payment made in lieu thereof.
(c) In the event of any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, all assets and property remaining
after discharging the debts and liabilities of the Corporation, and after paying
all amounts payable upon liquidation to the holders of the Preferred Stock then
outstanding, shall be distributed to the holders of the Common Stock according
to their respective shares.
PREFERRED STOCK
(a) The 300,000 shares of Preferred Stock may be issued, from time to
time, in one or more series, each of such series to have such designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as are stated herein or in
the resolution or resolutions providing for the issuance of such series adopted
by the Board of Directors as hereinafter provided.
(b) Authority is hereby expressly vested in and granted to the Board of
Directors, subject to the provisions of this Article IV, to authorize from time
to time the issuance of one or more series of Preferred Stock, and, with respect
to each such series, to fix or alter from time
-2-
<PAGE>
to time, as to shares then unallotted, by resolution or resolutions providing
for the issuance of such series, the following:
(i) the distinct designation of such series and the number of shares which
shall constitute such series, which number may be increased (except where
otherwise provided by the Board of Directors in creating such series) or
decreased (but not below the number of shares thereof then outstanding)
from time to time by action of the Board of Directors;
(ii) the dividend rate or rates to which shares of such series shall be
entitled, the restrictions, conditions and limitations upon the payment of
such dividends, whether such dividends shall be cumulative and, if
cumulative, the date or dates from which such dividends shall be
cumulative, and the dates on which such dividends, if declared, shall be
payable;
(iii) the manner of selecting shares for redemption, the redemption price
or prices (which may vary at different redemption dates and may differ in
the case of shares redeemed through the operation of any purchase,
retirement or sinking fund from the case of shares otherwise redeemed), the
terms and conditions on which shares may be redeemed and the effect
thereof;
(iv) the amount payable on shares of such series in the event of any
liquidation, dissolution or winding up of the Corporation, which amount may
vary at different dates and may vary depending upon whether such
liquidation, dissolution or winding up is voluntary or involuntary;
(v) the obligation, if any, of the Corporation to maintain a purchase,
retirement, or sinking fund for shares of such series, or to redeem shares
of such series, and the provisions with respect thereto;
(vi) the rights, if any, of the holders of shares of such series to convert
such shares into shares of stock of the Corporation of any class or of any
series of any class and the price or prices or the rate or rates of such
conversion and the other terms, provisions and conditions of such
conversion;
(vii) the limitations and restrictions, if any, to be effective while any
shares of such series are outstanding, upon the payment of dividends or
making of other distributions on, and upon the purchase, redemption or
other acquisition by the Corporation or any subsidiary of, the Common
Stock, or any other class or classes of stock of the Corporation other
than the Preferred Stock ranking on a parity with or senior to the shares
of such series either as to dividends or upon liquidation;
(viii) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or of any subsidiary, or upon the issue of
any additional stock (including additional shares of such series or of any
other series or of any other class) ranking on a parity with or prior to
the shares of such series either as to dividends or upon liquidation; and
-3-
<PAGE>
(ix) such other preferences and relative, participating, optional or other
special rights, or qualifications, limitations or restrictions thereof, as
shall not be inconsistent with this Article IV.
(c) All shares of any one series of Preferred Stock shall be identical
with each other in all respects, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon shall be
cumulative. All series of Preferred Stock shall be of equal rank and be
identical in all respects, except as permitted by the foregoing provisions of
this Section 2 of this Article IV.
(d) The holders of the Preferred Stock of each series shall be entitled
to receive such dividends in cash, when and as declared by the Board of
Directors, out of funds legally available therefor, as they may be entitled to
in accordance with the resolution or resolutions adopted by the Board of
Directors authorizing such series, and no more, payable on such dates as may be
fixed in such resolution or resolutions. So long as there shall be outstanding
any shares of Preferred Stock of any series entitled to cumulative dividends
pursuant to the resolution or resolutions authorizing such series, no dividend,
whether in cash or property, shall be paid or declared, nor shall any
distribution be made, on the Common Stock, nor shall any shares of Common Stock
be purchased, redeemed, or otherwise acquired for value by the Corporation, if
at the time of making such payment, declaration, distribution, purchase,
redemption or acquisition the Corporation shall be in default with respect to
any dividend payable on, or obligation to maintain a purchase, retirement, or
sinking fund with respect to or to redeem, shares of Preferred Stock of any
series. The foregoing provisions of this paragraph (d) shall not, however,
apply to a dividend payable in Common Stock or to the acquisition of shares of
Common Stock in exchange for, or through application of the proceeds of the sale
of, shares of Common Stock. Accrued dividends shall not bear interest.
(e) In the event of any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation is made to the holders of any
Common Stock, the holders of the Preferred Stock of each series shall be
entitled to receive the amount per share provided in the resolution or
resolutions adopted by the Board of Directors authorizing such series. When
such payments shall have been made in full to the holders of the Preferred
Stock, they shall have no further rights in respect of their shares to the
assets of the Corporation. If upon any liquidation, dissolution or winding up
of the Corporation the assets available for distribution shall be insufficient
to pay the holders of all outstanding shares of Preferred Stock the full amounts
to which they respectively shall be entitled, the holders of shares of Preferred
Stock of all series shall share ratably in any distribution of assets according
to the respective amounts which would be payable in respect of the shares of
Preferred Stock held by them upon such distribution if all amounts payable in
respect of the Preferred Stock of all series were paid in full. Neither a
statutory merger nor consolidation of the Corporation into or with any other
corporation, nor a statutory merger or consolidation of any other corporation
into or with the Corporation, nor a sale, transfer, exchange or lease of all or
any part of the assets of the Corporation, shall be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this Article
IV.
-4-
<PAGE>
(f) The Corporation, at the option of the Board of Directors, may redeem
the whole or any part of the Preferred Stock of any series at the price or
prices and on the terms and conditions provided in the resolution or resolutions
adopted by the Board of Directors authorizing such series.
(g) Notice of every such redemption shall be mailed at least 30 days in
advance of the date designated for such redemption (herein called the
"redemption date") to the holders of record of shares of Preferred Stock so to
be redeemed at their respective addresses as the same shall appear on the books
of the Corporation. In case of the redemption of a part only of any series of
Preferred Stock at the time outstanding, the shares of such series so to be
redeemed shall be selected by lot or in such other manner as the Board of
Directors may determine.
(h) If said notice of redemption shall have been given as aforesaid and
if, on or before the redemption date, the funds necessary for such redemption
shall have been set aside by the Corporation, separate and apart from its other
funds, in trust for the pro rata benefit of the holders of the shares so called
for redemption, then, from and after the redemption date, notwithstanding that
any certificates for shares of Preferred Stock so called for redemption shall
not have been surrendered for cancellation, the shares represented thereby shall
not be deemed outstanding, the right to receive dividends thereon shall cease to
accrue from and after the redemption date and all rights of holders of the
shares of Preferred Stock so called for redemption shall forthwith, after the
redemption date, cease and terminate, excepting only the right to receive the
redemption price therefor but without interest. Any moneys so set aside by the
Corporation and unclaimed at the end of six years from the date fixed for such
redemption shall revert to the general funds of the Corporation after which
reversion the holders of such shares so called for redemption shall look only to
the Corporation for payment of the redemption price, and such shares shall still
not be deemed to be outstanding.
(i) If, on or before the redemption date, the Corporation shall deposit
in trust, with a bank or trust company having a capital and surplus of at least
$5,000,000, the funds necessary for the redemption of the shares of Preferred
Stock so called for redemption, to be applied to the redemption of such shares,
and if on or before such date the Corporation shall have given notice of
redemption as aforesaid or made provision satisfactory to such bank or trust
company for the timely giving thereof, then from and after the date of such
deposit all shares of Preferred Stock so called for redemption shall not be
deemed to be outstanding, and all rights of the holders of such shares of
Preferred Stock so called for redemption shall cease and terminate, excepting
only the right to receive the redemption price therefor, but without interest,
and the right to exercise on or before the date fixed for redemption privileges
of conversion or exchange, if any, not theretofore otherwise expiring. Any
funds so deposited, which shall not be required for such redemption because of
the exercise of any such right of conversion or exchange subsequent to the date
of such deposit, shall be returned to the Corporation. In case the holders of
shares of Preferred Stock which shall have been called for redemption shall not,
within one year after the redemption date, claim the amount deposited with
respect to the redemption thereof, any such bank or trust company shall, upon
demand, pay over to the Corporation such unclaimed amounts and thereupon such
bank or trust company shall be relieved of all responsibility in respect thereof
to such holders and such holders shall look only to the Corporation for the
payment thereof. Any interest accrued on funds so deposited shall be paid to
the Corporation from time to time. Any such unclaimed amounts paid over by any
such bank
-5-
<PAGE>
or trust company to the Corporation shall, for a period terminating six years
after the date fixed for redemption, be set aside and held by the Corporation in
the manner and with the same effect as if such unclaimed amounts had been set
aside under the preceding paragraph (h) of this Section 2 of this Article IV.
(j) Shares of Preferred Stock which have been issued and reacquired in
any manner by the Corporation (excluding, until the Corporation elects to retire
them, shares which are held as treasury shares but including shares redeemed,
shares purchased and retired, whether through the operation of a retirement or
sinking fund or otherwise, and shares which, if convertible or exchangeable,
have been converted into or exchanged for shares of stock of any other class of
shares) shall, upon compliance with any applicable provisions of the General
Corporation Law of the State of Delaware, have the status of authorized and
unissued shares of Preferred Stock and may be reissued as a part of the series
of which they were originally a part (if the terms of such series do not
prohibit such reissue) or as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors or as part of any
other series of Preferred Stock the terms of which do not prohibit such reissue.
(k) So long as any of the Preferred Stock is outstanding, the Corporation
shall not:
(i) Without the affirmative vote or consent of the holders of at least
66-2/3% of all the Preferred Stock at the time outstanding, given in person
or by proxy, either in writing or by resolution adopted at a meeting, (A)
create, or increase the authorized number of shares of any class or classes
of stock ranking prior to the Preferred Stock, either as to dividends or
upon liquidation, or (B) amend, alter or repeal any of the provisions of
this Article IV so as adversely to affect the preferences, special rights
or powers of the Preferred Stock;
(ii) Without the affirmative vote or consent of the holders of at least
66-2/3% of any series of the Preferred Stock at the time outstanding, given
in person or by proxy, either in writing or by resolution adopted at a
meeting, amend, alter or repeal any of the provisions of the resolution or
resolutions providing for the issue of such series so as adversely to
affect the preferences, special rights or powers of the Preferred Stock of
such series; and
(iii) Without the affirmative vote or consent of the holders of at least a
majority of all the Preferred Stock at the time outstanding, given in
person or by proxy, either in writing or by resolution adopted at a
meeting, (A) increase the authorized amount of the Preferred Stock, or (B)
create, or increase the authorized number of shares of, any other class or
classes of stock ranking on a parity with the Preferred Stock either as to
dividends or upon liquidation.
SECTION 3. INCREASE OR DECREASE IN AMOUNT OF AUTHORIZED SHARES. The
amount of the authorized capital stock may be increased or decreased by an
amendment to this Certificate of Incorporation authorized by the affirmative
vote or consent of the holders of a majority of the outstanding shares of Common
Stock and the affirmative vote or consent of the holders of a majority of the
outstanding shares of each class of capital stock increased or decreased by such
amendment, given in person or by proxy, either in writing or by resolution
adopted at a meeting.
-6-
<PAGE>
SECTION 4. CERTAIN DEFINITIONS. For the purposes of this Certificate of
Incorporation, or of any certificate filed by the Corporation with the Secretary
of State of Delaware (unless otherwise expressly provided in any such
certificate):
(a) The term "outstanding," when used in reference to shares of stock,
shall mean issued shares, excluding shares held by the Corporation or a
subsidiary of the Corporation;
(b) The term "holder" or "stockholder" shall mean the legal owner of
shares of capital stock of the Corporation and, unless the context indicates
otherwise, includes, without limitation, the legal representative of a deceased
or incompetent natural person and an involuntary transferee of shares of the
capital stock of the Corporation.
ARTICLE V
BOARD OF DIRECTORS
In furtherance of and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized to make, alter
or repeal the By-Laws of the Corporation.
ARTICLE VI
CORPORATE BOOKS; ELECTION OF DIRECTORS
Except as otherwise provided by law, the books of the Corporation may be
kept outside the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the By-Laws of the
Corporation. Elections of directors need not be by written ballot unless the
By-Laws of the Corporation shall so provide.
ARTICLE VII
COMPROMISE OR ARRANGEMENT BETWEEN THE CORPORATION
AND ITS CREDITORS OR STOCKHOLDERS
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders, of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three-
-7-
<PAGE>
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders, of the Corporation, as the case may be,
agrees to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding upon all the
creditors or class of creditors, and/or upon all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
ARTICLE VIII
RESERVATION OF RIGHT TO AMEND CERTIFICATE
OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any
provisions contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by law, and all the provisions of this Certificate of
Incorporation and all rights and powers conferred in this Certificate of
Incorporation on stockholders and directors are subject to this reservation.
ARTICLE IX
MERGER AND CONSOLIDATION;
SALE OF ASSETS; DISSOLUTION
The Corporation may (1) enter into an agreement of merger or consolidation;
(2) sell, lease or exchange all or substantially all of its property and assets;
or (3) adopt a plan of complete liquidation and dissolution, as the Board of
Directors deems expedient and for the best interests of the Corporation, when
and as authorized by a resolution by the affirmative vote or consent of the
holders of at least 66-2/3% of the Corporation's Common Stock.
ARTICLE X
LIMITATION ON LIABILITY OF DIRECTORS
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director as a director, provided, however, that this Article shall
not eliminate or limit the liability of a director to the extent provided by
applicable law (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived an improper personal benefit.
This Article shall not eliminate or limit the liability of a director for any
act or omission occurring prior to the effective date of this Article. No
amendment to or repeal of this Article shall apply to or have any effect on the
liability or alleged
- 8 -
<PAGE>
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
- 9 -
<PAGE>
EXHIBIT 4.02
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BYLAWS
OF
PIPER JAFFRAY COMPANIES INC.
______________________________________
INCORPORATED UNDER THE LAWS OF THE
STATE OF DELAWARE
______________________________________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
As amended January 27, 1988
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I --OFFICES............................................... 1
ARTICLE II --MEETINGS OF STOCKHOLDERS............................. 1
SECTION 1. Annual Meeting............................. 1
SECTION 2. Special Meetings........................... 1
SECTION 3. Place of Meetings.......................... 1
SECTION 4. Notice of Meetings......................... 2
SECTION 5. Waiver of Notice........................... 2
SECTION 6. Organization............................... 2
SECTION 7. Judges..................................... 2
SECTION 8. Stockholders Entitled to Vote.............. 2
SECTION 9. Quorum and Adjournment..................... 3
SECTION 10. Order of Business.......................... 3
SECTION 11. Vote of Stockholders....................... 3
SECTION 12. Proxies.................................... 3
SECTION 13. Consent of Stockholders in Lieu
of Meeting................................. 4
SECTION 14. Attendance at Stockholders' Meetings....... 4
ARTICLE III --BOARD OF DIRECTORS................................... 4
SECTION 1. Election and Term.......................... 4
SECTION 2. Number..................................... 4
SECTION 3. General Powers............................. 4
SECTION 4. Place of Meetings.......................... 5
SECTION 5. Organization Meeting....................... 5
SECTION 6. Regular Meetings........................... 5
SECTION 7. Special Meetings; Notice and Waiver
of Notice.................................. 5
SECTION 8. Organization............................... 5
SECTION 9. Quorum and Adjournment..................... 6
SECTION 10. Voting..................................... 6
SECTION 11. Action Without a Meeting................... 6
SECTION 12. Resignations............................... 6
SECTION 13. Removal of Directors....................... 6
SECTION 14. Filling of Vacancies Not Caused by
Removal.................................... 6
ARTICLE IV --EXECUTIVE COMMITTEE............................ 7
SECTION 1. Appointment and Powers..................... 7
SECTION 2. Place of Meetings.......................... 7
SECTION 3. Meetings; Notice and Waiver of Notice...... 7
SECTION 4. Organization............................... 8
SECTION 5. Quorum and Adjournment..................... 8
SECTION 6. Voting..................................... 8
i
<PAGE>
SECTION 7. Action Without a Meeting................... 8
SECTION 8. Records.................................... 8
SECTION 9. Vacancies; Alternate Members; Absences..... 8
ARTICLE V --OTHER COMMITTEES............................... 9
SECTION 1. Appointing Other Committees................ 9
SECTION 2. Place and Time of Meetings; Notice
and Waiver of Notice; Records.............. 9
SECTION 3. Action Without a Meeting................... 9
ARTICLE VI --THE MANAGEMENT COMMITTEE....................... 9
SECTION 1. Appointment and Powers..................... 9
SECTION 2. Membership................................. 9
ARTICLE VII --THE OFFICERS................................... 10
SECTION 1. Officers................................... 10
SECTION 2. Terms of Office; Vacancies................. 10
SECTION 3. Removal of Officers........................ 10
SECTION 4. Resignations............................... 10
SECTION 5. Officers Holding More Than One Office...... 10
SECTION 6. The Chairman of the Board.................. 10
SECTION 7. Chairman Emeritus.......................... 11
SECTION 8. The President.............................. 11
SECTION 9. The Managing Directors..................... 11
SECTION 10. The Vice Presidents........................ 11
SECTION 11. The Secretary.............................. 11
SECTION 12. The Treasurer.............................. 11
SECTION 13. Additional Powers and Duties............... 12
ARTICLE VIII --STOCK AND TRANSFERS OF STOCK................... 12
SECTION 1. Stock Certificates......................... 12
SECTION 2. Registration of Transfers of Stock......... 12
SECTION 3. Lost Certificates.......................... 12
SECTION 4. Determination of Stockholders of
Record for Certain Purposes................ 12
ARTICLE IX --MISCELLANEOUS.................................. 13
SECTION 1. Seal....................................... 13
SECTION 2. Fiscal Year................................ 13
SECTION 3. References to Article and Section
Numbers and to the Bylaws and the
Certificate of Incorporation............... 13
SECTION 4. Books of the Corporation................... 13
ARTICLE X --AMENDMENTS..................................... 13
ARTICLE XI --INDEMNIFICATION................................ 13
ii
<PAGE>
BYLAWS
OF
PIPER JAFFRAY COMPANIES INC.
ARTICLE I
OFFICES
The registered office of Piper Jaffray Companies Inc. (hereinafter
referred to as the "Corporation") in the State of Delaware shall be located in
the City of Wilmington, County of New Castle. The Corporation's principal place
of business shall be at Suite 1600, 222 South Ninth Street, Minneapolis,
Minnesota. The Corporation may establish or discontinue from time to time, such
other offices and places of business within or without the State of Delaware as
may be deemed proper for the conduct of the Corporation's business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING. An annual meeting (hereinafter referred to as
the "annual meeting of stockholders") of such holders of stock as are entitled
to vote thereat pursuant to the provisions of the Certificate of Incorporation
shall be held for the election of directors on the third Tuesday in January at
10:00 a.m., commencing in the year 1975, or on such other date and at such other
time as may be designated by the Board of Directors. Any other proper business
may be transacted at the annual meeting of stockholders. If the annual meeting
of stockholders is not held on the date designated therefor, the Board of
Directors shall cause the meeting to be held as soon thereafter as convenient.
SECTION 2. SPECIAL MEETINGS. In addition to such special meetings as are
provided for by law or by the Certificate of Incorporation, special meetings of
the holders of any class or of all classes of the Corporation's capital stock
may be called at any time by the Board of Directors, and special meetings of the
holders of the Common Stock shall be called by the Secretary upon the written
request, stating the purpose or purposes of any such meeting, of the holders of
Common Stock who hold of record collectively at least 33 1/3% of the outstanding
shares of Common Stock of the Corporation. Special meetings shall be called by
means of a notice as provided for in Section 4 of this Article II.
SECTION 3. PLACE OF MEETINGS. All meetings of the stockholders shall be
held at such place within or without the State of Delaware as shall be
designated by the Board of Directors.
<PAGE>
SECTION 4. NOTICE OF MEETINGS. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting and, in case
of a special meeting, the purpose or purposes for which the meeting is called.
The notice of annual meeting shall identify each matter intended to be acted
upon at such meeting. If mailed, the notice shall be addressed to the
stockholder in a postage-prepaid envelope at his address as it appears on the
records of the Corporation unless, prior to the time of mailing, the Secretary
shall have received from any such stockholder a written request that notices
intended for him be mailed to some other address, in which case notices intended
for such stockholder shall be mailed to the address designated in such request.
Notice of each meeting of stockholders shall be mailed not less than 10 days nor
more than 60 days before the day of the meeting to each stockholder entitled to
vote at such meeting.
SECTION 5. WAIVER OF NOTICE. Whenever notice is required to be given, a
written waiver thereof signed by each person entitled to notice or by his or her
proxy or attorney duly authorized, whether before or after the time stated
thereon, shall be deemed equivalent to notice. Attendance of a person at a
meeting of stockholders shall constitute a waiver of notice of such meeting,
except as otherwise provided by law. Neither the business to be transacted at
nor the purpose of any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
SECTION 6. ORGANIZATION. The Chairman of the Board shall act as chairman
at all meetings of stockholders at which he is present, and as such chairman
shall call such meetings of stockholders to order and preside thereat. If the
Chairman of the Board shall be absent from any meeting of stockholders, the
duties otherwise provided in this Section 6 to be performed by him at such
meeting shall be performed thereat by the President. If no such officer is
present at such meeting, any stockholder or the proxy of any stockholder
entitled to vote at the meeting may call the meeting to order, and a chairman to
preside thereat shall be elected by a majority of those present and entitled to
vote. The Secretary of the Corporation shall act as secretary at all meetings
of the stockholders, but in his absence the chairman of the meeting may appoint
any person present to act as secretary of the meeting.
SECTION 7. JUDGES. Except as otherwise provided by law, all votes by
ballot at any meeting of stockholders shall be conducted by two judges who shall
be appointed for that purpose by the chairman of the meeting. The judges shall
decide upon the qualifications of voters and the validity of ballots, shall
count the votes and shall declare the result.
SECTION 8. STOCKHOLDERS ENTITLED TO VOTE. The Board of Directors may fix
a date not more than 60 days preceding the date of any meeting of stockholders,
or preceding the last day on which the consent of stockholders may be
effectively expressed for any purpose without a meeting, as a record date for
the determination of the stockholders entitled (i) to notice of, and to vote at,
such meeting and any adjournment thereof or (ii) to express such consent and in
such case such stockholders, and only such stockholders as shall be stockholders
of record on the date so fixed, shall be entitled to notice of, and to vote at,
such meeting and any adjournment thereof, or to express such consent, as the
case may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid. The Secretary shall
prepare and make or cause to be prepared and made, at least 10 days before every
meeting of
-2-
<PAGE>
stockholders, a complete list of the stockholders entitled to vote at such
meeting, arranged in alphabetical order and showing the address of each such
stockholder as it appears on the records of the Corporation and the number of
shares registered in the name of each such stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least 10 days prior to the
meeting. Such list will be open to examination at the principal place of
business of the Corporation and at the place where the meeting is to be held.
Such list shall be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
SECTION 9. QUORUM AND ADJOURNMENT. Except as otherwise provided by law,
the holders of a majority of the shares of capital stock entitled to vote at the
meeting shall constitute a quorum at all meetings of the stockholders. Where
more than one class of capital stock is entitled to vote at such a meeting, a
majority of the shares of each such class of capital stock entitled to vote at
such meeting shall constitute a quorum at such meeting. In the absence of a
quorum, the holders of a majority of all such shares of capital stock present in
person or by proxy may adjourn any meeting, from time to time, until a quorum
shall attend. At any such adjourned meeting at which a quorum may be present,
any business may be transacted which might have been transacted at the meeting
as originally called. No notice of any adjourned meeting need be given if the
time and place thereof are announced at the meeting at which the adjournment is
taken. If the adjournment is for more than 30 days or if after the adjournment
a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 10. ORDER OF BUSINESS. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting.
SECTION 11. VOTE OF STOCKHOLDERS. Except as otherwise permitted by law,
by the Certificate of Incorporation or by Section 13 of this Article II, all
action by stockholders shall be taken at a stockholders' meeting. Every
stockholder of record, as determined pursuant to Section 8 of this Article II,
who is entitled to vote, shall at every meeting of the stockholders be entitled
to one vote for each share of capital stock held by such stockholder on the
record date. Every stockholder entitled to vote shall have the right to vote in
person or by proxy. Except as otherwise provided by law, no vote on any
question upon which vote of the stockholders may be taken need be by ballot
unless the chairman of the meeting shall determine that it shall be by ballot or
the holders of a majority of the shares of capital stock present in person or by
proxy and entitled to participate in such vote shall so demand. In a vote by
ballot each ballot shall state the number of shares voted and the name of the
stockholder or proxy voting. Unless otherwise provided by law, by the
Certificate of Incorporation or by Section 14 of Article III hereof, each
director shall be elected and all other questions shall be decided by the vote
of the holders of a majority of the shares of capital stock present in person or
by proxy at the meeting and entitled to vote on the question; PROVIDED, HOWEVER,
that the Board of Directors may require on any question a vote of a majority of
the shares of capital stock outstanding and entitled to vote thereon.
SECTION 12. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent to corporate action in writing without a
meeting may authorize another
-3-
<PAGE>
person or persons to act for him by proxy. A proxy acting for any stockholder
shall be duly appointed by an instrument in writing subscribed by such
stockholder.
SECTION 13. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Whenever the vote
of stockholders at a meeting thereof is required or permitted to be taken for or
in connection with any corporate action by any provision of the General
Corporation Law of Delaware, the meeting and the vote of the stockholders may be
dispensed with and such corporate action taken with the written consent of the
holders of capital stock having not less than the minimum percentage of the
total vote required by statute for the proposed corporate action, unless the
Certificate of Incorporation or these Bylaws require a greater percentage for
such action, in which case the consent shall be that of the holders of such
greater percentage; PROVIDED, HOWEVER, that prompt notice is given to all the
stockholders of the taking of such corporate action without a meeting and by
less than unanimous written consent. Whenever it is intended that action is to
be taken by stockholders without a meeting, a form for expressing consent in
writing to such action shall be sent to all holders of capital stock entitled to
vote on such action.
SECTION 14. ATTENDANCE AT STOCKHOLDERS' MEETINGS. Any stockholder of the
Corporation not entitled to notice of the meeting or to vote at such meeting
shall nevertheless be entitled to attend any meeting of stockholders of the
Corporation.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. ELECTION AND TERM. Except as otherwise provided by law or by
this Article III, directors shall be elected at the annual meeting of
stockholders and shall hold office until the next annual meeting of stockholders
and until their successors are elected and qualify, or until they sooner die,
resign, or are removed. Acceptance of the office of director may be expressed
orally or in writing, and attendance at the organization meeting described in
Section 5 of this Article III shall constitute such acceptance.
SECTION 2. NUMBER. The number of directors may be fixed from time to time
by resolution of the Board of Directors but shall not be less than three.
SECTION 3. GENERAL POWERS. The business, properties and affairs of the
Corporation shall be managed by the Board of Directors which, without limiting
the generality of the foregoing, shall have power to elect officers and appoint
agents of the Corporation, to fix and alter the salaries of officers, employees
and agents of the Corporation, to grant general or limited authority (including
authority to delegate and subdelegate) to officers, employees and agents of the
Corporation to make, execute, affix the corporate seal to, and deliver contracts
and other instruments and documents, including bills, notes, checks or other
instruments for the payment of money, in the name and on behalf of the
Corporation without specific authority in each case, and to appoint committees,
in addition to those provided for in Article IV, Article V and Article VI
hereof, with such powers and duties as the Board of Directors may duly
determine. The membership of such committees shall consist of such persons as
are designated by the Board of Directors whether or not any of such persons is
then a director of the
-4-
<PAGE>
Corporation. In addition, the Board of Directors may exercise all the powers of
the Corporation and do all lawful acts and things which are not reserved to the
stockholders by law, by the Certificate of Incorporation or by the Bylaws.
SECTION 4. PLACE OF MEETINGS. Meetings of the Board of Directors may be
held at the principal place of business of the Corporation or at any other
place, within or without the State of Delaware, from time to time designated by
the Board of Directors.
SECTION 5. ORGANIZATION MEETING. A newly elected Board of Directors shall
meet and organize without notice and as soon as practicable after each annual
meeting of stockholders, at the place at which such meeting of stockholders took
place. If a quorum is not present, such organization meeting may be held at any
other time or place which may be specified in a notice given in a manner
provided in Section 7 of this Article III for special meetings of the Board of
Directors, or in a waiver of notice thereof.
SECTION 6. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such times as may be determined by resolution of the Board of
Directors and no notice shall be required for any regular meeting. Except as
otherwise provided by law, any business may be transacted at any regular meeting
of the Board of Directors.
SECTION 7. SPECIAL MEETINGS; NOTICE AND WAIVER OF NOTICE. Special
meetings of the Board of Directors shall be called by the Secretary or an
Assistant Secretary on the request of the Chairman of the Board or the
President, or on the request in writing of one-third of the whole Board of
Directors stating the purpose or purposes of such meeting. Notices of special
meetings shall be mailed to each director, addressed to him at his residence or
usual place of business, not later than ten days before the day on which the
meeting is to be held, or shall be sent to him at either of such places by
telegraph, or be communicated to him personally or by telephone, not later than
the day before such day of meeting.
Notice of any meeting of the Board of Directors need not be given to any
director if he shall sign a written waiver thereof either before or after the
time stated therein for such meeting, or if he shall be present at the meeting
and participate in the business transacted thereat; and any and all business
transacted at any meeting of the Board of Directors shall be fully effective
without any notice thereof having been given, if all the members shall be
present thereat. Unless limited by law, the Certificate of Incorporation, the
Bylaws, or by the terms of the notice thereof, any and all business may be
transacted at any special meeting without the notice thereof having so
specifically enumerated the matters to be acted upon.
SECTION 8. ORGANIZATION. The Chairman of the Board shall preside at all
meetings of the Board of Directors at which he is present. If the Chairman of
the Board shall be absent from any meeting of the Board of Directors, the duties
otherwise provided in this Section 8 to be performed by him at such meeting
shall be performed at such meeting by the President. If no such officer is
present at such meeting, one of the directors present shall be chosen to preside
at such meeting by the members of the Board of Directors present. The Secretary
of the Corporation shall act as the secretary at all meetings of the Board of
Directors and in his absence a temporary secretary shall be appointed by the
chairman of the meeting.
-5-
<PAGE>
SECTION 9. QUORUM AND ADJOURNMENT. Except as otherwise provided by
Section 14 of this Article III, at every meeting of the Board of Directors a
majority of the total number of Directors shall constitute a quorum but in no
event shall a quorum be constituted by less than two directors. Except as
otherwise provided by law, or by Section 14 of this Article III, or by Section 1
or Section 9 of Article IV, or by Section 1 of Article V, or by Section 3 of
Article VII, or by Article X, the vote of a majority of the directors present at
any such meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum, any meeting may be adjourned, from time
to time, until a quorum is present. No notice of any adjourned meeting need be
given other than by announcement at the meeting that is being adjourned.
SECTION 10. VOTING. On any question on which the Board of Directors shall
vote, the names of those voting and their votes shall be entered in the minutes
of the meeting when any member of the Board of Directors present at the meeting
so requests.
SECTION 11. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or of
such committee, as the case may be, consent thereto in writing and such written
consent or written consents are filed with the minutes of proceedings of the
Board of Directors or the committee.
SECTION 12. RESIGNATIONS. Any director may resign at any time either by
oral tender or resignation at any meeting of the Board of Directors or by oral
tender to the Chairman of the Board or the President or by written notice
thereof to the Corporation. Any resignation shall be effective immediately
unless some other time is specified for it to take effect. Acceptance of any
resignation shall not be necessary to make it effective unless such resignation
is tendered subject to such acceptance.
SECTION 13. REMOVAL OF DIRECTORS. Any director may be removed, either for
or without cause, at any time, by action of the holders of record of a majority
of the shares of Common Stock of the Corporation present in person or by proxy
at a meeting of holders of such shares and entitled to vote thereon, and the
vacancy in the Board of Directors caused by any such removal may be filled by
action of such stockholders at such meeting or at any subsequent meeting.
SECTION 14. FILLING OF VACANCIES NOT CAUSED BY REMOVAL. Except as
otherwise provided by law, in case of any increase in the number of directors,
or of any vacancy created by death, resignation or disqualification, the
additional director or directors may be elected or the vacancy or vacancies may
be filled, as the case may be, by the Board of Directors at any meeting by
affirmative vote of a majority of the remaining directors or by a sole remaining
director though the remaining director or directors be less than the quorum
provided for in Section 9 of this Article III. The directors so chosen shall
hold office until the next annual meeting of stockholders and until their
successors are elected and qualify, or until such directors sooner die, resign,
or are removed.
-6-
<PAGE>
ARTICLE IV
EXECUTIVE COMMITTEE
SECTION 1. APPOINTMENT AND POWERS. The Board of Directors may, by
resolution adopted by affirmative vote of a majority of the whole Board of
Directors, appoint an Executive Committee which shall have and may exercise,
during the intervals between the meetings of the Board of Directors, all the
powers of the Board of Directors in the management of the business, properties
and affairs of the Corporation, including without limitation, authority to take
all action provided in the Bylaws to be taken by the Board of Directors and the
powers of the Board of Directors referred to in Articles IV, VI and VII of the
Certificate of Incorporation, or which are related or incidental to such
authority or powers to effect the conversion or purchase of shares of the
Corporation's capital stock; PROVIDED, HOWEVER, that the foregoing is subject to
the applicable provisions of law and shall not be construed as authorizing
action by the Executive Committee with respect to any action which pursuant to
Section 1 and Section 9 of this Article IV, Section 1 of Article V, Section 3 of
Article VII, Article X, and Article XI is required to be taken by vote of a
specified proportion of the whole Board of Directors, or as authorizing the
Executive Committee to declare any dividend or distribution. The Executive
Committee shall consist of the Chairman of the Board, the President and such
number of other directors as may from time to time be designated by the Board of
Directors, the total number of members being not less than three directors. So
far as practicable, the members of the Executive Committee shall be appointed at
the organization meeting of the Board of Directors in each year, and, unless
sooner discharged by affirmative vote of a majority of the whole Board of
Directors, shall hold office until the next annual organization meeting of the
Board of Directors and until their respective successors are appointed, or until
they sooner die, resign, are removed or cease to be record owners of shares, or
fractional shares, of Common Stock of the Corporation. All acts done and powers
conferred by the Executive Committee shall be deemed to be, and may be certified
as being, done or conferred under authority of the Board of Directors.
SECTION 2. PLACE OF MEETINGS. Meetings of the Executive Committee may be
held at the principal place of business of the Corporation or at any other
place, within or without the State of Delaware, from time to time designated by
the Board of Directors or the Executive Committee.
SECTION 3. MEETINGS; NOTICE AND WAIVER OF NOTICE. Regular meetings of the
Executive Committee shall be held at such times as may be determined by
resolution either of the Board of Directors or the Executive Committee and no
notice shall be required for any regular meeting. Special meetings of the
Executive Committee shall be called by the Secretary or an Assistant Secretary
upon the request of any member thereof. Notices of special meetings shall be
mailed to each member, addressed to him at his residence or usual place of
business, not later than three days before the day on which the meeting is to be
held, or shall be sent to him at such place by telegraph, or be delivered to him
personally or by telephone, not later than the day before such day of meeting.
Notices of any such meeting need not be given to any member of the Executive
Committee, however, if he shall sign a written waiver thereof either before or
after the time stated therein for such meeting, or if he shall be present at the
meeting and participate in the business transacted thereat; and any and all
business transacted at any meeting of the Executive Committee shall be fully
effective without any notice thereof having been given,
-7-
<PAGE>
if all the members shall be present thereat. Unless limited by law, the
Certificate of Incorporation, the Bylaws, or by the terms of the notice thereof,
any and all business may be transacted at any special meeting without the notice
thereof having so specifically enumerated the matters to be acted upon.
SECTION 4. ORGANIZATION. The Chairman of the Board shall preside at all
meetings of the Executive Committee at which he is present. In the absence of
the Chairman of the Board, the President shall preside at meetings of the
Executive Committee at which he is present. In the absence of the Chairman of
the Board and the President, one of the members present shall be chosen by the
members of the Executive Committee present to preside at such meeting. The
Secretary of the Corporation shall act as secretary at all meetings of the
Executive Committee and in his absence a temporary secretary shall be appointed
by the chairman of the meeting.
SECTION 5. QUORUM AND ADJOURNMENT. A majority of the members of the
Executive Committee shall constitute a quorum for the transaction of business,
and the act of a majority of those present at any meeting at which a quorum is
present shall be the act of the Executive Committee. In the absence of a
quorum, any meeting may be adjourned from time to time until a quorum is
present. No notice of any adjourned meeting need be given other than by
announcement at the meeting that is being adjourned.
SECTION 6. VOTING. On any question on which the Executive Committee shall
vote, the names of those voting and their votes shall be entered in the minutes
of the meeting when any member of the Executive Committee present at the meeting
so requests.
SECTION 7. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken at any meeting of the Executive Committee may be taken without a
meeting, if all members of the Executive Committee consent thereto in writing,
and such consents are filed with the minutes of proceedings of the Executive
Committee.
SECTION 8. RECORDS. The Executive Committee shall keep minutes of its
acts and proceedings, which shall be submitted at the next regular meeting of
the Board of Directors, and any action taken by the Board of Directors with
respect thereto shall be entered in the minutes of the Board of Directors.
SECTION 9. VACANCIES; ALTERNATE MEMBERS; ABSENCES. Any vacancy among the
appointed members of the Executive Committee may be filled by affirmative vote
of a majority of the whole Board of Directors. The Board of Directors may
designate one or more directors as alternate members of the Executive Committee
who may replace any absent or disqualified member at any meeting of the
Executive Committee. In the absence or disqualification of any member of the
Executive Committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
-8-
<PAGE>
ARTICLE V
OTHER COMMITTEES
SECTION 1. APPOINTING OTHER COMMITTEES. The Board of Directors may from
time to time, by resolution adopted by affirmative vote of a majority of the
whole Board of Directors, appoint other committees of the Board of Directors
which shall have such powers and duties as the Board of Directors may properly
determine. No such other committee of the Board of Directors shall be composed
of fewer than two directors. The Board of Directors may designate one or more
directors as alternate members of any such committee who may replace any absent
or disqualified member at any meeting of such committee. In the absence or
disqualification of any member of such committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
SECTION 2. PLACE AND TIME OF MEETINGS; NOTICE AND WAIVER OF NOTICE;
RECORDS. Meetings of such committees of the Board of Directors may be held at
any place, within or without the State of Delaware, from time to time designated
by the Board of Directors or the committee in question. Regular meetings of any
such committee shall be held at such times as may be determined by resolution of
the Board of Directors or the committee in question, and no notice shall be
required for any regular meeting. A special meeting of any such committee shall
be called by resolution of the Board of Directors, or by the Secretary or an
Assistant Secretary upon the request of any member of the committee. The
provisions of Section 3 of Article IV with respect to notice and waiver of
notice of special meetings of the Executive Committee shall also apply to all
special meetings of other committees of the Board of Directors. Any such
committee may make rules for holding and conducting its meetings and shall keep
minutes of all meetings.
SECTION 3. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken at any meeting of a committee of the Board of Directors may be taken
without a meeting, if all members of such committee consent thereto in writing
and such writing or writings are filed with the minutes of proceedings of the
committee.
ARTICLE VI
THE MANAGEMENT COMMITTEE
SECTION 1. APPOINTMENT AND POWERS. The Board of Directors may appoint a
Management Committee which shall have such duties and exercise powers as the
Board of Directors may, from time to time, determine.
SECTION 2. MEMBERSHIP. The Management Committee shall consist of the
Chairman of the Board of Directors, the President, any Executive Vice President
and the Managing Directors.
-9-
<PAGE>
ARTICLE VII
THE OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a Chairman
of the Board, a President, one or more Managing Directors, one or more Vice
Presidents, a Secretary and a Treasurer. The officers shall be appointed by the
Board of Directors. The Board of Directors may also appoint a Vice Chairman of
the Board, one or more Executive Vice Presidents, one or more Assistant Vice
Presidents, Assistant Secretaries, Assistant Treasurers and such other officers
and agents as in their judgment may be necessary or desirable. The Chairman of
the Board and the President shall be selected from among the directors.
SECTION 2. TERMS OF OFFICE; VACANCIES. So far as is practicable, all
officers shall be elected at the organization meeting of the Board of Directors
in each year, and, except as otherwise provided in Sections 3 and 4 of this
Article VII, shall hold office until the organization meeting of the Board of
Directors in the next subsequent year and until their respective successors are
elected and qualify, or until they sooner die, retire, resign or are removed.
If any vacancy shall occur in any office, the Board of Directors may elect a
successor to fill such vacancy for the remainder of the term.
SECTION 3. REMOVAL OF OFFICERS. Any officer may be removed at any time,
either for or without cause, by affirmative vote of a majority of the whole
Board of Directors, at any regular meeting or at any special meeting called for
that purpose.
SECTION 4. RESIGNATIONS. Any officer may resign at any time, either by
oral tender or resignation to the Chairman of the Board or the President or by
giving written notice thereof to the Corporation. Any resignation shall be
effective immediately unless some other date is specified for it to take effect,
and acceptance of any resignation shall not be necessary to make it effective
unless such resignation is tendered subject to such acceptance.
SECTION 5. OFFICERS HOLDING MORE THAN ONE OFFICE. Any officer may hold
two or more offices, the duties of which can be consistently performed by the
same person.
SECTION 6. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall be
a member of the Board of Directors, the Executive Committee and the Management
Committee, and shall provide general leadership in matters of policy and
planning, and formulate recommendations to the Board of Directors for its action
and decision. As provided in Section 6 of Article II, he shall act as chairman
at all meetings of the stockholders at which he is present; as provided in
Section 8 of Article III, he shall preside at all meetings of the Board of
Directors at which he is present; and as provided in Section 4 of Article IV, he
shall preside at all meetings of the Executive Committee at which he is present.
In the absence or disability of the Chairman of the Board his duties shall be
performed and his power may be exercised by the President. In the absence or
disability of the Chairman of the Board and the President, the duties of the
Chairman of the Board shall be performed and his powers may be exercised by such
member of the Executive Committee as may be designated by the Chairman of the
Board and failing such designation or in the absence of the person so
designated, by such member of the Executive Committee as may be designated by
the President.
-10-
<PAGE>
SECTION 7. CHAIRMAN EMERITUS. The Board of Directors may elect a Chairman
Emeritus, being that person who has previously served as Chairman of the Board.
The Chairman Emeritus shall have such duties and privileges as the Board of
Directors shall assign.
SECTION 8. THE PRESIDENT. The President shall be a member of the Board of
Directors, the Executive Committee and the Management Committee. He shall have
such duties as are assigned by the Board of Directors. As provided in Section 6
of Article II, in the absence of the Chairman of the Board, the President shall
act as chairman at all meetings of stockholders at which he is present; as
provided in Section 8 of Article III, in the absence of the Chairman of the
Board, the President shall preside at all meetings of the Board of Directors at
which he is present; and as provided in Section 4 of Article IV, in the absence
or disability of the President, his duties shall be performed and his powers may
be exercised by such officer as may be designated by the Chairman of the Board
and, failing such designation or in the absence of the person so designated, by
the Board of Directors.
SECTION 9. THE MANAGING DIRECTORS. Each Managing Director shall be a
member of the Management Committee. Each Managing Director shall perform such
duties and have such powers as may, from time to time be assigned to them by the
Board of Directors, the Chairman of the Board, or the President.
SECTION 10. THE VICE PRESIDENTS. The several Vice Presidents shall
perform such duties and have such powers as may, from time to time be assigned
to them by the Board of Directors, the Chairman of the Board, or the President.
The Board of Directors may, from time to time designate one or more Vice
Presidents as Executive Vice President, Senior Vice President, or as First Vice
President.
SECTION 11. THE SECRETARY. The Secretary shall attend to the giving of
notice of all meetings of stockholders and of the Board of Directors and
committees thereof, and, as provided in Section 6 of Article II, Section 8 of
Article III, and Section 4 of Article IV, shall act as secretary at all meetings
of stockholders, directors and the Executive Committee, and keep minutes of all
proceedings at such meetings, as well as of all proceedings at all meetings of
such other committees of the Board of Directors as shall designate him to so
serve. The Secretary shall have charge of the corporate seal and he or any
Assistant Secretary shall have authority to attest any and all instruments or
writings to which the same may be affixed. He shall keep and account for all
books, documents, papers and records of the Corporation, except those for which
some other officer or agent is properly accountable. He shall generally perform
all the duties usually appertaining to the office of secretary of a corporation.
In the absence of the Secretary, such person as shall be designated by the
chairman of any meeting shall perform his duties.
SECTION 12. THE TREASURER. The Treasurer shall have the care and custody
of all the funds of the Corporation and shall deposit the same in such banks or
other depositories as the Board of Directors, or any officer or officers
thereunto duly authorized by the Board of Directors, shall, from time to time
direct or approve. He shall generally perform all the duties usually
appertaining to the affairs of the treasurer of a corporation. When required by
the Board of Directors, he shall give bonds for the faithful discharge of his
duties in such sums and with such sureties as the Board of Directors shall
approve. In the absence of the Treasurer, such person as shall be designated by
the Chairman of the Board shall perform his duties.
-11-
<PAGE>
SECTION 13. ADDITIONAL POWERS AND DUTIES. In addition to the foregoing
especially enumerated duties and powers, the several officers of the Corporation
shall perform such other duties and exercise such further powers as the Board of
Directors may, from time to time determine, or as may be assigned to them by any
superior officer.
ARTICLE VIII
STOCK AND TRANSFERS OF STOCK
SECTION 1. STOCK CERTIFICATES. The capital stock of the Corporation shall
be represented by certificates signed by the Chairman of the Board, the
President, or a Vice President and the Secretary or an Assistant Secretary, and
sealed with a seal of the Corporation. Such seal may be a facsimile, engraved
or printed. In case any such officer who has signed any such certificate shall
have ceased to be such officer before such certificate is issued, it may
nevertheless be issued by the Corporation with the same effect as if he were
such officer at the date of issue. The certificates representing the capital
stock of the Corporation shall be in such form as shall be approved by the Board
of Directors.
SECTION 2. REGISTRATION OF TRANSFERS OF STOCK. Registration of a transfer
of stock shall be made on the books of the Corporation only upon presentation by
the person named in the certificate evidencing such stock, or by an attorney
lawfully constituted in writing, and upon surrender and cancellation of such
certificate, with duly executed assignment and power of transfer endorsed
thereon or attached thereto, and with such proof of the authenticity of the
signature thereon as the Corporation or its agents may reasonably require.
SECTION 3. LOST CERTIFICATES. In case any certificate of stock shall be
lost, stolen or destroyed, the Board of Directors, in its discretion, or any
officer or officers thereunto duly authorized by the Board of Directors, may
authorize the issuance of a substitute certificate in the place of the
certificate so lost, stolen or destroyed; PROVIDED, HOWEVER, that, in each such
case, the Corporation may require the owner of the lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation evidence which
the Corporation determines in its discretion is satisfactory of the loss, theft
or destruction of such certificate and of the ownership thereof, and may also
require a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
SECTION 4. DETERMINATION OF STOCKHOLDERS OF RECORD FOR CERTAIN PURPOSES.
In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than 60 days prior
to any such action.
-12-
<PAGE>
ARTICLE IX
MISCELLANEOUS
SECTION 1. SEAL. The seal of the Corporation shall have inscribed thereon
the name of the Corporation and the state of its incorporation.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall end on
the last Friday of September, or on such other date as determined by the Board
of Directors.
SECTION 3. REFERENCES TO ARTICLE AND SECTION NUMBERS AND TO THE BYLAWS AND
THE CERTIFICATE OF INCORPORATION. Whenever in the Bylaws reference is made to
an Article or Section number, such reference is to the number of an Article or
Section of the Bylaws. Whenever in the Bylaws reference is made to the Bylaws,
such reference is to these Bylaws of the Corporation, as the same may from time
to time be amended, and whenever reference is made to the Certificate of
Incorporation, such reference is to the Certificate of Incorporation of the
Corporation, as the same may from time to time be amended.
SECTION 4. BOOKS OF THE CORPORATION. Except as otherwise provided by law,
the books of the Corporation shall be kept at the principal place of business of
the Corporation.
ARTICLE X
AMENDMENTS
The Bylaws may be altered, amended or repealed, from time to time, by the
Board of Directors by affirmative vote of a majority of the whole Board of
Directors, except such of the Bylaws as shall have been made from time to time
by holders of shares of capital stock entitled to vote therefor. The Bylaws may
be altered, amended or repealed at any annual or special meeting of
stockholders; PROVIDED, HOWEVER, that notice of such proposed alteration,
amendment or repeal be included in the notice of such annual or special meeting.
ARTICLE XI
INDEMNIFICATION
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or member of
another corporation, partnership, joint venture, trust, association or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests
-13-
<PAGE>
of the Corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director, officer or
member of another corporation, partnership, joint venture, trust, association or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of the State of Delaware
or such other court shall deem proper.
To the extent that any person referred to in the preceding two paragraphs
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to therein, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
The Corporation may, to the extent deemed advisable by the Board of
Directors, indemnify any person who is or was an employee or agent (other than a
director or officer) of the Corporation, or is or was serving at the request of
the Corporation as an employee or agent (other than a director, officer or
member) of another corporation, partnership, joint venture, trust, association
or other enterprise if such person would be entitled to such indemnity under the
provisions of the preceding three paragraphs if such person had been a director
or officer of the Corporation or a director, officer or member of such other
corporation, partnership, joint venture, trust, association or other enterprise.
Any indemnification under the first two paragraphs or under the fourth
paragraph of this Article XI (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, member, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth therein. Such determination shall be made (i) by the Board of Directors
of the Corporation by a majority vote of a quorum (as defined in Section 9 of
Article III) consisting of directors who were not parties to such action, suit
or proceeding, or (ii) if such a quorum is
-14-
<PAGE>
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this section. Such expenses incurred by other
employees, members and agents may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate. Notwithstanding the foregoing,
no advance shall be made by the Corporation if a determination is reasonably and
promptly made (i) by the Board of Directors of the Corporation by a majority
vote of a quorum (as defined in Section 9 of Article III) consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, that the facts then known to the persons making such determination
would preclude or not require indemnification hereunder.
The indemnification and advancement of expenses provided by or granted
pursuant to this Article XI shall not be deemed exclusive of any other rights to
which an indemnified person may be entitled under any statute, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office.
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust, association or other enterprise, against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of this
Article XI or of the General Corporation Law of the State of Delaware.
For purposes of this Article XI, references to the "Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article XI with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
For purposes of this Article XI, references to "other enterprise" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the
-15-
<PAGE>
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article XI.
No person shall have a right to indemnification under the provisions of
this Article XI by reason of the fact that he is or was a director, officer or
member of another corporation (other than a wholly-owned subsidiary of the
Corporation), a partnership, joint venture, trust, association or other
enterprise (other than an employee benefit plan for the benefit of employees of
the Corporation and its wholly-owned subsidiaries) unless the Management
Committee of the Corporation, or an officer designated by the Management
Committee, has affirmed in writing that such person is or was serving in such
capacity at the request of the Corporation. Nothing herein shall limit the
power of the Corporation to indemnify such persons.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article XI shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. All rights to indemnification and advancement
of expenses hereunder shall be deemed to be provided by a contract between the
Corporation and the director or officer who serves in such capacity at any time
while this Article XI or other applicable law is in effect. Any repeal or
modification thereof shall not affect any rights or obligations then existing.
Any indemnification or advancement of expenses hereunder shall be made
promptly. The right to indemnification or advancement of expenses as granted by
this Article XI shall be enforceable by the director or officer in any court of
competent jurisdiction, if the Board of Directors or independent legal counsel
denies the claim, in whole or in part, or if no disposition of such claim is
made within ninety (90) days after written notice thereof is given to the
Corporation. The expenses of a director or officer (including attorneys' fees)
incurred in connection with successfully establishing his right to
indemnification or advancement of expenses, in whole or in part, in any such
proceedings shall also be indemnified by the Corporation.
- 16 -
<PAGE>
EXHIBIT 4.03
PIPER JAFFRAY COMPANIES INC.
1993 OMNIBUS STOCK PLAN
1. PURPOSE. This Piper Jaffray Companies Inc. 1993 Omnibus Stock Plan
(the "Plan") amends and restates in its entirety the Piper Jaffray Companies
Inc. 1985 Executive Incentive Stock Option Plan (the "Prior Plan"). The purpose
of the Plan is to motivate key personnel, including non-employee directors, to
produce a superior return to the stockholders of Piper Jaffray Companies Inc. by
offering such personnel an opportunity to realize Stock appreciation, by
facilitating Stock ownership and by rewarding them for achieving a high level of
corporate financial performance. The Plan is also intended to facilitate
recruiting and retaining key personnel of outstanding ability by providing an
attractive capital accumulation opportunity.
2. DEFINITIONS.
2.1 The terms defined in this section are used (and capitalized)
elsewhere in the Plan.
a. "Affiliate" means any corporation that is a "parent
corporation" or "subsidiary corporation" of the Company, as those
terms are defined in Section 424(e) and (f) of the Code, or any
successor provision.
b. "Agreement" means a written contract entered into between
the Company or an Affiliate and a Participant containing the terms and
conditions of an Award in such form and not inconsistent with this
Plan as the Committee shall approve from time to time, together with
all amendments thereto, which amendments may be unilaterally made by
the Company (with the approval of the Committee) unless such
amendments are deemed by the Committee to be materially adverse to the
Participant and are not required as a matter of law.
c. "Award" means a grant made under this Plan in the form of
Restricted Stock, Options, Stock Appreciation Rights, Performance
Units or Stock.
d. "Board" means the Board of Directors of the Company.
e. "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
f. "Committee" means three or more Disinterested Persons
designated by the Board to administer the Plan under Section 3.
g. "Company" means Piper Jaffray Companies Inc., a Delaware
corporation, or any successor to substantially all of its businesses.
h. "Director" means a director of the Company.
i. "Director Fees" means the annual retainer fees paid to a
Director.
j. "Director Option" means a Non-Statutory Stock Option granted
to an Outside Director under Section 9.3 hereof.
k. "Disinterested Person" means a member of the Board who is
considered a disinterested person within the meaning of Exchange Act
Rule 16b-3 or any successor definition.
l. "Effective Date" means the date specified in Section 12.1
hereof.
<PAGE>
m. "Employee" means a salaried employee (including an officer
or director who is also an employee) of the Company or an Affiliate.
n. "Event" means any of the following:
(1) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) of beneficial ownership (within the meaning of
Exchange Act Rule 13d-3) of 20% or more of either (i) the then
outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the Company
entitled to vote generally in the election of the Board (the
"Outstanding Company Voting Securities"); provided, however, that
the following acquisitions shall not constitute an Event:
(A) any acquisition of voting securities of the
Company directly from the Company,
(B) any acquisition of voting securities of the
Company by the Company or any of its wholly-owned
Subsidiaries,
(C) any acquisition of voting securities of the Company by
any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its Subsidiaries, or
(D) any acquisition by any corporation with respect to
which, immediately following such acquisition, more than 60% of
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally
in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such acquisition in substantially
the same proportions as was their ownership, immediately prior to
such acquisition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be;
(2) Individuals who, as of the Effective Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director of the Board subsequent to the Effective Date
whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest which was (or, if
threatened, would have been) subject to Exchange Act Rule 14a-11;
(3) Approval by the stockholders of the Company of a
reorganization, merger, consolidation or statutory exchange of
Outstanding Company Voting Securities, unless immediately following
such reorganization, merger, consolidation or exchange, all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such reorganization, merger, consolidation or exchange beneficially
own, directly or indirectly, more than 60% of, respectively, the
2
<PAGE>
then outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the corporation
resulting from such reorganization, merger, consolidation or exchange
in substantially the same proportions as was their ownership,
immediately prior to such reorganization, merger, consolidation or
exchange, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be; or
(4) Approval by the stockholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) the sale or
other disposition of all or substantially all of the assets of the
Company, other than to a corporation with respect to which,
immediately following such sale or other disposition, more than 60%
of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or other disposition in
substantially the same proportion as was their ownership, immediately
prior to such sale or other disposition, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case
may be.
Notwithstanding the above, an Event shall not be deemed to occur with
respect to a recipient of an Award if the acquisition of the 20% or greater
interest referred to in paragraph (1) is by a group, acting in concert,
that includes that recipient or if at least 40% of the then outstanding
common stock or combined voting power of the then outstanding voting
securities (or voting equity interests) of the surviving corporation or of
any corporation (or other entity) acquiring all or substantially all of the
assets of the Company shall be beneficially owned, directly or indirectly,
immediately after a reorganization, merger, consolidation, statutory share
exchange or disposition of assets referred to in paragraphs (3) or (4) by a
group, acting in concert, that includes that recipient.
o. "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
p. "Fair Market Value" as of any date means, unless otherwise
expressly provided in the Plan:
(i) the closing price of a Share on the date immediately
preceding that date or, if no sale of Shares shall have occurred on
that date, on the next preceding day on which a sale occurred of
Shares,
(A) on the composite tape for New York Stock Exchange
listed shares, or
(B) if the Shares are not quoted on the composite tape for
New York Stock Exchange listed shares, on the principal United
States Securities Exchange registered under the Exchange Act on
which the Shares are listed, or
(C) if the Shares are not listed on any such exchange, on
the National Association of Securities Dealers, Inc. Automated
Quotations National Market System, or
3
<PAGE>
(ii) if clause (i) is inapplicable, the mean between the closing
"bid" and the closing "asked" quotation of a Share on the date
immediately preceding that date, or, if no closing bid or asked
quotation is made on that date, on the next preceding day on which a
quotation is made, on the National Association of Securities Dealers,
Inc. Automated Quotations System or any system then in use, or
(iii) if clauses (i) and (ii) are inapplicable, what the
Committee determines in good faith to be 100% of the fair market value
of a Share on that date.
However, if the applicable securities exchange or system has closed for the
day at the time the event occurs that triggers a determination of Fair
Market Value, whether the grant of an Award, the exercise of an Option or
Stock Appreciation Right or otherwise, all references in this paragraph to
the "date immediately preceding that date" shall be deemed to be references
to "that date". In the case of an Incentive Stock Option, if such
determination of Fair Market Value is not consistent with the then current
regulations of the Secretary of the Treasury, Fair Market Value shall be
determined in accordance with said regulations. The determination of Fair
Market Value shall be subject to adjustment as provided in Section 16.
q. "Fundamental Change" shall mean a dissolution or liquidation of
the Company, a sale of substantially all of the assets of the Company, a
merger or consolidation of the Company with or into any other corporation,
regardless of whether the Company is the surviving corporation, or a
statutory share exchange involving capital stock of the Company.
r. "Incentive Stock Option" means any Option designated as such and
granted in accordance with the requirements of Code Section 422 or any
successor to said section.
s. "Maximum Annual Employee Grant" means the maximum number of
Shares subject to Options that may be awarded to an Employee in any fiscal
year of the Company.
t. "Non-Statutory Stock Option" means an Option other than an
Incentive Stock Option.
u. "Option" means a right to purchase Stock, including both
Non-Statutory Stock Options and Incentive Stock Options.
v. "Outside Director" means a Director who is not an Employee of the
Company or any Affiliate.
w. "Participant" means an Employee or an Outside Director to whom an
Award is made.
x. "Performance Cycle" means the period of time as specified in an
Agreement over which Performance Units are to be earned.
y. "Performance Units" means an Award made pursuant to Section 11.
z. "Plan" means this Piper Jaffray Companies Inc. 1993 Omnibus Stock
Plan, as amended from time to time.
aa. "Restricted Stock" means Stock granted under Section 7 so long as
such Stock remains subject to restrictions.
bb. "Share" means a share of Stock.
4
<PAGE>
cc. "Stock" means the common stock, $1 par value per share (as such
par value may be adjusted from time to time), of the Company.
dd. "Stock Appreciation Right" means an Award granted under Section
10.
ee. "Subsidiary" means a "subsidiary corporation", as that term is
defined in Code Section 424(f) or any successor provision.
ff. "Successor" means the legal representative of the estate of a
deceased Participant or the person or persons who may, by bequest or
inheritance, or pursuant to the terms of an Award or of forms submitted by
the Participant to the Committee pursuant to Section 21, acquire the right
to exercise an Option or Stock Appreciation Right or to receive cash or
Shares issuable in satisfaction of an Award in the event of a Participant's
death.
gg. "Term" means the period during which an Option or Stock
Appreciation Right may be exercised or the period during which the
restrictions placed on Restricted Stock are in effect.
2.2 GENDER AND NUMBER. Except when otherwise indicated by context,
reference to the masculine gender shall include, when used, the feminine
gender and any term used in the singular shall also include the plural.
3. ADMINISTRATION.
3.1 AUTHORITY OF COMMITTEE. The Committee shall administer the Plan.
Solely for purposes of determining and administering Awards to Employees
who are not then subject to the reporting requirements of Section 16 of the
Exchange Act, the Committee may delegate all or any portion of their
authority under the Plan to persons who are not Disinterested Persons. The
Committee shall have exclusive power to make Awards, to determine when and
to whom Awards will be granted, the form of each Award, the amount of each
Award, and any other terms or conditions of each Award. Each Award shall
be subject to an Agreement authorized by the Committee. The Committee's
interpretation of the Plan and of any Awards made under the Plan shall be
final and binding on all persons with an interest therein. The Committee
shall have the power to establish regulations to administer the Plan and to
change such regulations.
3.2 INDEMNIFICATION. To the full extent permitted by law, (i) no
member of the Committee or any person to whom the Committee delegates
authority under the Plan shall be liable for any action or determination
taken or made in good faith with respect to the Plan or any Award made
under the Plan, and (ii) the members of the Committee and each person to
whom the Committee delegates authority under the Plan shall be entitled to
indemnification by the Company with regard to such actions and
determinations.
4. SHARES AVAILABLE UNDER THE PLAN.
4.1 SHARES AVAILABLE. The number of Shares available for
distribution under this Plan shall not exceed 2,000,000 (subject to
adjustment pursuant to Section 16 hereof). Any Shares subject to the terms
and conditions of an Award under this Plan which are not used because the
terms and conditions of the Award are not met may again be used for an
Award under the Plan. However, Shares with respect to which a Stock
Appreciation Right has been exercised (in cash or in Stock) may not again
be awarded under this Plan.
4.2 CONDITIONAL ISSUANCES. If this Plan is amended at any time to
increase, subject to stockholder approval, the number of Shares available
for distribution under the Plan, then the Committee
5
<PAGE>
may, in accordance with the terms and conditions of the Plan, grant Awards
on a conditional basis, subject to subsequent approval by the stockholders
of the Company not later than the next annual meeting of the stockholders
of the Company following the date of such conditional grant. Any Award
granted on a conditional basis shall not be exercisable unless and until
the amendment to the Plan increasing the number of shares available for
sale under the Plan is approved by the stockholders of the Company. If
such an amendment is not approved by the stockholders at the next annual
meeting of stockholders of the Company following the conditional grant,
then the conditional grant shall be cancelled.
5. ELIGIBILITY. Except as otherwise provided in Sections 7.2 and 9.3
hereof, participation in the Plan shall be limited to any Employee. The
granting of Awards to Employees is solely at the discretion of the
Committee.
6. GENERAL TERMS OF AWARDS.
6.1 AMOUNT OF AWARD. Each Agreement shall set forth the number of
Shares of Restricted Stock, other Stock or Performance Units subject to
such Agreement, or the number of Shares to which the Option subject to such
Agreement applies or with respect to which payment upon the exercise of the
Stock Appreciation Right subject to such Agreement is to be determined, as
the case may be. The Maximum Annual Employee Grant shall not exceed
500,000 Shares (subject to adjustment pursuant to Section 16 hereof.)
6.2 TERM. Each Agreement, other than those relating solely to Awards
of Stock without restrictions, shall set forth the Term of the Option,
Stock Appreciation Right or Restricted Stock or the Performance Cycle for
the Performance Units, as the case may be. An Agreement may permit an
acceleration of the expiration of the applicable Term upon such terms and
conditions as shall be set forth in the Agreement, which may, but need not,
include without limitation acceleration resulting from the occurrence of an
Event or in the event of the Participant's death or retirement.
Acceleration of the Performance Cycle of Performance Units shall be subject
to Section 11.2.
6.3 TRANSFERABILITY. During the lifetime of a Participant to whom an
Award is granted, only such Participant (or such Participant's legal
representative) may exercise an Option or Stock Appreciation Right, or
receive payment with respect to an Award of Performance Units. No Award of
Restricted Stock (prior to the expiration of the restrictions), Options,
Stock Appreciation Rights or Performance Units may be sold, assigned,
transferred, exchanged or otherwise encumbered other than pursuant to a
qualified domestic relations order as defined in the Code or Title 1 of the
Employee Retirement Income Security Act ("ERISA") or the rules thereunder,
and any attempt to do so shall be of no effect. Notwithstanding the
immediately preceding sentence, an Agreement may provide that the Award
subject to the Agreement shall be transferable to a Successor in the event
of a Participant's death.
6.4 TERMINATION OF EMPLOYMENT. No Option or Stock Appreciation Right
may be exercised by a Participant, all Restricted Stock held by a
Participant shall be forfeited and no payment with respect to Performance
Units for which the applicable Performance Cycle has not been completed
shall be made, if the Participant's employment with the Company and its
Affiliates shall be voluntarily terminated or involuntarily terminated with
or without cause prior to the expiration of the Term of the Option, Stock
Appreciation Right or Restricted Stock or the completion of the Performance
Cycle, as the case may be, except as, and to the extent, provided in the
Agreement applicable to that Award. An Award may be exercised by, or paid
to, the Successor of a Participant following the death of such Participant
to the extent, and during the period of time, if any, provided in the
applicable Agreement.
6
<PAGE>
7. RESTRICTED STOCK AWARDS.
7.1 GENERAL TERMS OF ALL AWARDS OF RESTRICTED STOCK. An Award of
Restricted Stock under the Plan shall consist of Shares subject to
restrictions on transfer and conditions of forfeiture, which restrictions
and conditions shall be included in the applicable Agreement. Except as
otherwise provided in the applicable Agreement, each Stock certificate
issued in respect to an Award of Restricted Stock shall either be deposited
with the Company or its designee, together with an assignment separate from
such certificate, in blank, signed by the Participant, or bear such legends
with respect to the restricted nature of the Restricted Stock evidenced
thereby as shall be provided for in the applicable Agreement. The
Agreement shall describe the terms and conditions by which the restrictions
upon awarded Restricted Stock shall lapse. Upon the lapse of the
restrictions, Shares free of restrictive legends, if any, relating to such
restrictions shall be issued to the Participant or his Successor. A
Participant with a Restricted Stock Award shall have all the other rights
of a stockholder including, but not limited to, the right to receive
dividends and the right to vote the Shares of Restricted Stock.
7.2 OUTSIDE DIRECTOR RESTRICTED STOCK AWARDS.
(i) An Outside Director may elect annually on forms provided by
the Company to receive up to 100% of the amount of the Director Fees
payable for any fiscal year in the form of Restricted Stock. Such
election shall be irrevocable and must be received by the Company at
least six months prior to the date of the Annual Meeting of
Stockholders of the Company for the year with respect to which the
election is to go into effect. Shares having a Fair Market Value
equal to 120% of the amount so elected shall be issued within 30 days
after the applicable Annual Meeting of Stockholders.
(ii) Shares issued under this Section 7.2 shall be restricted
and may not be sold, assigned, pledged, hypothecated, transferred or
otherwise disposed of (including, without limitation, transfer by gift
or donation) except that such restrictions shall lapse upon the first
to occur of the following events:
(a) Death of the Outside Director;
(b) Disability of the Outside Director preventing continued
service on the Board;
(c) An Event;
(d) The first anniversary of the date of issuance of such
Shares.
Notwithstanding the foregoing, in no event shall the
restrictions on the Shares lapse prior to the expiration of six
months after the date of the issuance of the Shares pursuant to
this Section 7.2. The certificates for Shares which are subject
to this Section 7.2 may, at the option of the Secretary of the
Company, be held by the Company until lapse of restrictions as
provided in this Section, provided, however, the Outside Director
shall be entitled to all voting, dividend, and distribution
rights for such Shares.
(iii) The Company shall not be required to issue fractions
of Shares. Whenever under the terms of this Section 7.2 a
fractional Share would be required to be issued, an amount in
lieu thereof shall be paid in cash for such fractional Share
based upon the same Fair Market Value as was utilized to
determine the number of Shares to be issued on the relevant
issuance date.
8. STOCK AWARDS. Awards of Stock without restrictions may be made.
7
<PAGE>
9. STOCK OPTIONS.
9.1 TERMS OF ALL OPTIONS. An Option shall be granted pursuant to an
Agreement as either an Incentive Stock Option or a Non-Statutory Stock
Option. The purchase price of each Share subject to an Option shall be
determined by the Committee and set forth in the Agreement, but shall not
be less than 100% of the Fair Market Value of a Share as of the date the
Option is granted. The purchase price of the Shares with respect to which
an Option is exercised shall be payable in full at the time of exercise,
provided that to the extent permitted by law, the Agreement may permit some
or all Participants to simultaneously exercise Options and sell the Shares
thereby acquired pursuant to a brokerage or similar relationship and use
the proceeds from such sale as payment of the purchase price of such
Shares. The purchase price may be payable in cash, in Stock having a Fair
Market Value as of the date the Option is exercised equal to the purchase
price of the Stock being purchased pursuant to the Option, or a combination
thereof, as determined by the Committee and provided in the Agreement.
Each Option shall be exercisable in whole or in part on the terms provided
in the Agreement. In no event shall any Option be exercisable at any time
after its expiration date. When an Option is no longer exercisable, it
shall be deemed to have lapsed or terminated.
9.2 INCENTIVE STOCK OPTIONS. In addition to the other terms and
conditions applicable to all Options:
(i) the aggregate Fair Market Value (determined as of the date
the Option is granted) of the Shares with respect to which Incentive
Stock Options held by an individual first become exercisable in any
calendar year (under this Plan and all other incentive stock option
plans of the Company and its Affiliates) shall not exceed $100,000 (or
such other limit as may be required by the Code) if such limitation is
necessary to qualify the Option as an Incentive Stock Option;
(ii) an Incentive Stock Option shall not be exercisable more
than 10 years after the date of grant (or such other limit as may be
required by the Code) if such limitation is necessary to qualify the
Option as an Incentive Stock Option; and
(iii) the Agreement covering an Incentive Stock Option shall
contain such other terms and provisions which the Committee determines
necessary to qualify such Option as an Incentive Stock Option.
9.3 OUTSIDE DIRECTOR OPTIONS.
(i) For the Annual Meeting of Stockholders in January, 1993 and
for every Annual Meeting of Stockholders thereafter during the term of
this Plan, each person serving as an Outside Director of the Company
immediately following such Annual Meeting shall be granted, by virtue
of serving as an Outside Director of the Company, a Non-Statutory
Stock Option. The date of such Annual Meeting shall be the date of
grant for options granted pursuant to this Section 9.3(i). The number
of Shares covered by each such option shall be 1,000.
(ii) Director Options shall vest and become exercisable one year
after the date of grant. Notwithstanding the foregoing, Director
Options shall vest and become immediately exercisable in full upon the
occurrence of any Event or upon the death of an Outside Director.
Director Options shall expire at the earlier of (a) the 10-year
anniversary of the date of grant or (b) one year after the date the
Outside Director ceases to be a director of the Company for any
reason.
(iii) The purchase price of each Share subject to a Director
Option pursuant to this Section 9.3 shall be 100% of the Fair Market
Value of a Share as of the date of grant. Notwithstanding anything to
the contrary stated in this Plan, for purposes of this Section 9.3 and
8
<PAGE>
the definition of Fair Market Value in Section 2.1(p) hereof, each
Director Option shall be deemed conclusively to have been granted
prior to close of the applicable securities exchange or system on the
date of grant. An Outside Director may exercise a Director Option
using as payment any form of consideration provided for in Section 9.1
hereof, which form of payment shall be within the sole discretion of
the Outside Director, notwithstanding anything stated in Section 9.1
hereof.
(iv) Director Options shall be evidenced by an agreement signed
on behalf of the Company by an officer thereof which only incorporates
by reference the terms of this Plan.
(v) Unless the Director Option shall have expired, in the event
of an Outside Director's death, the Director Option granted to such
Outside Director shall be transferable to the beneficiary, if any,
designated by the Outside Director in writing to the Company prior to
the Outside Director's death and such beneficiary shall succeed to the
rights of the Outside Director to the extent permitted by law. If no
such designation of a beneficiary has been made, the Outside
Director's legal representative shall succeed to the Director Option,
which shall be transferable by will or pursuant to the laws of descent
and distribution.
10. STOCK APPRECIATION RIGHTS. An Award of a Stock Appreciation Right
shall entitle the Participant, subject to terms and conditions determined by the
Committee, to receive upon exercise of the Stock Appreciation Right all or a
portion of the excess of (i) the Fair Market Value of a specified number of
Shares as of the date of exercise of the Stock Appreciation Right over (ii) a
specified price which shall not be less than 100% of the Fair Market Value of
such Shares as of the date of grant of the Stock Appreciation Right. A Stock
Appreciation Right may be granted in connection with a previously or
contemporaneously granted Option, or independent of any Option. If issued in
connection with an Option, the Committee may impose a condition that exercise of
a Stock Appreciation Right cancels the Option with which it is connected and
exercise of the connected Option cancels the Stock Appreciation Right. Each
Stock Appreciation Right may be exercisable in whole or in part on the terms
provided in the Agreement. Notwithstanding anything to the contrary stated in
the Plan, no Stock Appreciation Right shall be exercisable prior to six months
from the date of grant except in the event of the death or disability of the
Participant. No Stock Appreciation Right shall be exercisable at any time after
its expiration date. When a Stock Appreciation Right is no longer exercisable,
it shall be deemed to have lapsed or terminated. Upon exercise of a Stock
Appreciation Right, payment to the Participant (or to his Successor) shall be
made at such time or times as shall be provided in the Agreement in the form of
cash, Stock or a combination of cash and Stock as determined by the Committee
and provided in the Agreement. The Agreement may provide for a limitation upon
the amount or percentage of the total appreciation on which payment (whether in
cash and/or Stock) may be made in the event of the exercise of a Stock
Appreciation Right.
11. PERFORMANCE UNITS.
11.1 INITIAL AWARD. An Award of Performance Units under the Plan
shall entitle the Participant (or a Successor) to future payments of cash,
Stock or a combination of cash and Stock, as determined by the Committee
and provided in the Agreement, based upon the achievement of
pre-established performance targets. Such performance targets may, but
need not, include without limitation targets relating to one or more of
corporate, group, unit, Affiliate or individual performance. The Agreement
may establish that a portion of a full or maximum amount of a Participant's
Award will be paid for performance which exceeds the minimum target but
falls below the maximum target applicable to such Award. The Agreement
shall also provide for the timing of such payment. Following the
conclusion or acceleration of each Performance Cycle, the Committee shall
determine the extent to which (i) performance targets have been attained,
(ii) any other terms and conditions with respect to an Award relating to
such Performance Cycle have been satisfied and (iii) payment is due with
respect to an Award of Performance Units.
9
<PAGE>
11.2 ACCELERATION AND ADJUSTMENT. The Agreement may permit an
acceleration of the Performance Cycle and an adjustment of performance
targets and payments with respect to some or all of the Performance Units
awarded to a Participant, upon such terms and conditions as shall be set
forth in the Agreement, upon the occurrence of certain events, which may,
but need not include without limitation an Event, a Fundamental Change, a
recapitalization, a change in the accounting practices of the Company, a
change in the Participant's title or employment responsibilities, the
Participant's death or retirement or, with respect to payments in Stock
with respect to Performance Units, a reclassification, stock dividend,
stock split or stock combination as provided in Section 16.
12. EFFECTIVE DATE OF THE PLAN.
12.1 EFFECTIVE DATE. The Plan, as amended, shall become effective as
of January 28, 1993, provided that the amendments to the Prior Plan are
approved and ratified by the affirmative vote of the holders of a majority
of the outstanding Shares of Stock present or represented and entitled to
vote in person or by proxy at a meeting of the stockholders of the Company
no later than March 1, 1993. The provisions of the Prior Plan shall
continue to govern options granted prior to January 28, 1993.
12.2 DURATION OF THE PLAN. The Plan shall remain in effect until all
Stock subject to it shall be distributed or until all Awards have expired
or lapsed, or the Plan is terminated pursuant to Section 15. No Award of
an Incentive Stock Option shall be made more than 10 years after the
Effective Date (or such other limit as may be required by the Code) if such
limitation is necessary to qualify the Option as an Incentive Stock Option.
The date and time of approval by the Committee of the granting of an Award
shall be considered the date and time at which such Award is made or
granted.
13. RIGHT TO TERMINATE EMPLOYMENT. Nothing in the Plan shall confer upon
any Participant the right to continue in the employment of the Company or any
Affiliate or affect any right which the Company or any Affiliate may have to
terminate the employment of the Participant with or without cause.
14. TAX WITHHOLDING. The Company shall have the right to withhold from
any cash payment under the Plan to a Participant or other person an amount
sufficient to cover any required withholding taxes. The Company shall have the
right to require a Participant or other person receiving Stock under the Plan to
pay the Company a cash amount sufficient to cover any required withholding
taxes. In lieu of all or any part of such a cash payment from a person
receiving Stock under the Plan, the Committee may permit the individual to elect
to cover all or any part of the required withholdings, and to cover any
additional withholdings up to the amount needed to cover the individual's full
FICA and federal, state and local income tax with respect to income arising from
payment of the Award, through a reduction of the number of Shares delivered to
him or a subsequent return to the Company of Shares held by the Participant or
other person, in each case valued in the same manner as used in computing the
withholding taxes under the applicable laws. Unless such limitations were
waived by the Committee, such elections are subject to the following limitations
if, and to the extent, such limitations are necessary to comply with Exchange
Act Rule 16b-3 or any successor provision:
a. TIME OF ELECTION. Except as set forth in paragraph 14(a)(3)
below, any such election by a Participant who is then subject to the
reporting requirements of Section 16 of the Exchange Act or any
successor provision ("Section 16") or his Successor may be made only
if the conditions set forth in clauses (1) and (2) below are
satisfied:
(1)(A) The election may be made during the period beginning
on the third business day following the date of public release of
the Company's quarterly or annual financial statements and ending
on the twelfth business day following such date of public
release, or
(B) The election may be made at least six months prior to
the date the Award is paid to him.
10
<PAGE>
(2) An election by a Participant or his Successor may not
be made within six months of the date of grant of the Award to
which the payment relates; provided, however, that said
restriction does not apply in the event death or disability of
the Participant occurs prior to such election and during said six
month period.
(3) Notwithstanding the foregoing, a Participant subject
to Section 16 who tenders previously owned Shares to the Company
in payment of the purchase price of Shares in connection with
exercise of an Option may also tender previously owned Shares to
the Company in satisfaction of any tax withholding obligations in
connection with such Option exercise without regard to the time
periods set forth in clauses (1) and (2) above.
The foregoing restrictions do not apply to any Participant
who is not subject to the reporting requirements of Section 16 at
the time of the election.
b. COMMITTEE APPROVAL. Any such election by a Participant then
subject to the reporting requirements of Section 16 or his Successor
is irrevocable and is subject to approval by the Committee. The
Committee's approval may be granted in advance but is subject to
revocation by the Committee at any time.
15. AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board
may at any time terminate, suspend or modify the Plan; provided, however,
that the Board shall not amend Section 9.3 hereof more than once every six
months, other than to comport with changes in the Code, ERISA or the rules
thereunder. Amendments are subject to approval of the stockholders of the
Company only if such approval is necessary to maintain the Plan in
compliance with the requirements of Exchange Act Rule 16b-3, Code Section
422, their successor provisions or any other applicable law or regulation.
No termination, suspension, or modification of the Plan will materially and
adversely affect any right acquired by any Participant (or his legal
representative) or any Successor under an Award granted before the date of
termination, suspension, or modification, unless otherwise agreed to by the
Participant in the Agreement or otherwise or required as a matter of law;
but it will be conclusively presumed that any adjustment for changes in
capitalization provided for in Section 11.2 or Section 16 does not
adversely affect any right.
16. ADJUSTMENT FOR CHANGES IN CAPITALIZATION. Appropriate
adjustments in the aggregate number and type of Shares available for Awards
under the Plan, in the Maximum Annual Employee Grant, in the number and
type of Shares subject to Director Options thereafter issued and in the
number and type of Shares and amount of cash subject to Awards then
outstanding, in the Option price as to any outstanding Options and, subject
to Section 11.2, in outstanding Performance Units and payments with respect
to outstanding Performance Units may be made by the Committee in its sole
discretion to give effect to adjustments made in the number or type of
Shares of the Company through a Fundamental Change (subject to Section 17),
recapitalization, reclassification, stock dividend, stock split, stock
combination or other relevant change, provided that fractional Shares shall
be rounded to the nearest whole share.
17. FUNDAMENTAL CHANGE. In the event of a proposed Fundamental
Change, the Committee may, but shall not be obligated to:
a. if the Fundamental Change is a merger or consolidation or
statutory share exchange, make appropriate provision for the
protection of the outstanding Options and Stock Appreciation Rights by
the substitution of options, stock appreciation rights and appropriate
voting common stock of the corporation surviving any merger or
consolidation or, if appropriate, the parent corporation of the
Company or such surviving corporation to be issuable upon the exercise
of Options or used to calculate payments upon the exercise of Stock
Appreciation Rights, in lieu of options, stock appreciation rights and
capital stock of the Company; or
11
<PAGE>
b. at least 30 days prior to the occurrence of the Fundamental
Change, declare, and provide written notice to each holder of an
Option or Stock Appreciation Right of the declaration, that each
outstanding Option and Stock Appreciation Right, whether or not then
exercisable, shall be canceled at the time of, or immediately prior to
the occurrence of the Fundamental Change in exchange for payment to
each holder of an Option or Stock Appreciation Right, within ten days
after the Fundamental Change, of cash equal to (i) for each Share
covered by the canceled Option, the amount, if any, by which the Fair
Market Value (as hereinafter defined in this Section) per Share
exceeds the exercise price per Share covered by such Option or (ii)
for each Stock Appreciation Right, the price determined pursuant to
Section 10, except that Fair Market Value of the Shares as of the date
of exercise of the Stock Appreciation Right, as used in clause (i) of
Section 10, shall be deemed to mean Fair Market Value for each Share
with respect to which the Stock Appreciation Right is calculated
determined in the manner hereinafter referred to in this Section. At
the time of the declaration provided for in the immediately preceding
sentence, each Stock Appreciation Right that has been outstanding for
at least six months and each Option shall immediately become
exercisable in full and each person holding an Option or a Stock
Appreciation Right shall have the right, during the period preceding
the time of cancellation of the Option or Stock Appreciation Right, to
exercise his Option as to all or any part of the Shares covered
thereby or his Stock Appreciation Right in whole or in part, as the
case may be. In the event of a declaration pursuant to this Section
17(b), each outstanding Option and Stock Appreciation Right granted
pursuant to the Plan that shall not have been exercised prior to the
Fundamental Change shall be canceled at the time of, or immediately
prior to, the Fundamental Change, as provided in the declaration.
Notwithstanding the foregoing, no person holding an Option or a Stock
Appreciation Right shall be entitled to the payment provided for in
this Section 17(b) if such Option or Stock Appreciation Right shall
have expired pursuant to the Agreement. For purposes of this Section
only, "Fair Market Value" per Share shall mean the cash plus the fair
market value, as determined in good faith by the Committee, of the
non-cash consideration to be received per Share by the stockholders of
the Company upon the occurrence of the Fundamental Change,
notwithstanding anything to the contrary provided in the Plan.
18. FORFEITURES. An Agreement may provide that in the event a Participant
has received or been entitled to payment of cash, delivery of Stock, or a
combination thereof pursuant to an Award within six months prior to his
termination of employment with the Company and its Affiliates, the Committee, in
its sole discretion, may require the Participant to return or forfeit the cash
and/or Stock received with respect to the Award (or its economic value as of (i)
the date of the exercise of Options or Stock Appreciation Rights, (ii) the date
of, and immediately following, the lapse of restrictions on Restricted Stock or
the receipt of Stock without restrictions, or (iii) the date on which the right
of the Participant to payment with respect to Performance Units vests, as the
case may be) in the event of certain occurrences specified in the Agreement.
The Committee's right to require forfeiture must be exercised within 90 days
after discovery of such an occurrence but in no event later than 15 months after
the Participant's termination of employment with the Company and its Affiliates.
The occurrences may, but need not, include competition with the Company or any
Affiliate, unauthorized disclosure of material proprietary information of the
Company or any Affiliate, a violation of applicable business ethics policies of
the Company or any Affiliate or any other occurrence specified in the Agreement
within the period or periods of time specified in the Agreement.
19. UNFUNDED PLAN. The Plan shall be unfunded and the Company shall not
be required to segregate any assets that may at any time be represented by
Awards under the Plan.
20. OTHER BENEFIT AND COMPENSATION PROGRAMS. Payments and other benefits
received by a Participant under an Award made pursuant to the Plan shall not be
deemed a part of a Participant's regular, recurring compensation for purposes of
the termination, indemnity or severance pay law of any country and shall not be
included in, nor have any effect on, the determination of benefits under any
other employee benefit plan, contract or similar arrangement provided by the
Company or an Affiliate unless expressly so provided by such other plan,
contract or arrangement, or unless the Committee expressly determines that an
Award or portion of an Award
12
<PAGE>
should be included to accurately reflect competitive compensation practices or
to recognize that an Award has been made in lieu of a portion of competitive
cash compensation.
21. BENEFICIARY UPON PARTICIPANT'S DEATH. To the extent that the transfer
of a Participant's Award at his death is permitted under an Agreement, (i) a
Participant's Award shall be transferable at his death to the beneficiary, if
any, designated on forms prescribed by and filed with the Committee and (ii)
upon the death of the Participant, such beneficiary shall succeed to the rights
of the Participant to the extent permitted by law. If no such designation of a
beneficiary has been made, the Participant's legal representative shall succeed
to the Awards which shall be transferable by will or pursuant to laws of descent
and distribution to the extent permitted under an Agreement.
22. GOVERNING LAW. To the extent that Federal laws do not otherwise
control, the Plan and all determinations made and actions taken pursuant to the
Plan shall be governed by the laws of Minnesota and construed accordingly.
13
<PAGE>
EXHIBIT 4.04
PIPER JAFFRAY COMPANIES INC.
1993 OMNIBUS STOCK PLAN
NON-STATUTORY STOCK OPTION AGREEMENT
-----------------------------------
Full Name of Optionee:
- --------------------------------------------------------------------------------
No. of Shares Covered: Date of Grant:
- --------------------------------------------------------------------------------
Exercise Price Per Share: $ Expiration Date:
- --------------------------------------------------------------------------------
Exercise Schedule:
No. of Shares
As to Which Option
Date Becomes Exercisable
---- -------------------
This is a Non-statutory Stock Option Agreement ("Agreement") between Piper
Jaffray Companies Inc., a Delaware corporation (the "Company"), and the optionee
identified above (the "Optionee") effective as of the date of grant specified
above.
RECITALS
--------
WHEREAS, the Company maintains the Piper Jaffray Companies Inc. 1993
Omnibus Stock Plan ("Plan"); and
WHEREAS, the Company has appointed a committee (the "Committee") with the
authority to determine the awards to be granted under the Plan; and
WHEREAS, the Committee has determined that the Optionee is eligible to
receive an award under the Plan in the form of a non-statutory stock option
(the "Option") and has set the terms and conditions thereof.
NOW, THEREFORE, the Company hereby grants this Option to the Optionee under
the terms and conditions set by the Committee as follows.
<PAGE>
TERMS AND CONDITIONS*
-------------------
1. GRANT. The Optionee is granted this Option to purchase the number of
Shares specified at the beginning of this Agreement.
2. EXERCISE PRICE. The price to the Optionee of each Share subject to this
Option shall be the exercise price specified at the beginning of this
Agreement.
3. NON-STATUTORY STOCK OPTION. This Option is not intended to be an
"incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
4. EXERCISE SCHEDULE. If this Option has not expired prior thereto, it may be
exercised as to the number of Shares and on the dates specified in the
exercise schedule at the beginning of this Agreement. The exercise
schedule is cumulative -- that is, if this Option has not expired prior
thereto, the Optionee may at any time purchase all or any portion of the
Shares then available under the exercise schedule to the extent not
previously purchased.
This Option may be exercised in full (notwithstanding the exercise
schedule) under the circumstances described in Section 8 of this Agreement
if it has not expired prior thereto.
5. EXPIRATION. This Option shall expire at 4:00 p.m. Central Standard Time on
the earliest of:
(a) The expiration date specified at the beginning of this Agreement;
(b) The last day of the period following the termination of employment of
the Optionee during which this Option can be exercised (as specified
in Section 7 of this Agreement); or
(c) The date (if any) fixed for cancellation pursuant to Section 8 of this
Agreement.
In no event may anyone exercise this Option, in whole or in part, after it
has expired, notwithstanding any other provision of this Agreement.
6. PROCEDURE TO EXERCISE OPTION.
NOTICE OF EXERCISE. This Option may be exercised by delivering written
notice of exercise to the Company in the form attached to this Agreement.
The notice shall state the number of Shares to be purchased, and shall be
signed by the person exercising this
- -------------------
* Unless the context indicates otherwise, capitalized terms that are not
defined in this Agreement shall have the meaning set forth in the Plan as
it currently exists or as it is amended in the future.
-2-
<PAGE>
Option. If the person exercising this Option is not the Optionee, he/she
also must submit appropriate proof of his/her right to exercise this
Option.
TENDER OF PAYMENT. Any notice of exercise hereunder shall be accompanied
by either:
(a) Payment (by check, bank draft or money order payable to the Company)
of the full purchase price of the Shares being purchased; or
(b) Certificates for unencumbered Shares having an aggregate Fair Market
Value on the date of exercise equal to the full purchase price of the
Shares being purchased (the Optionee shall duly endorse all such
certificates in blank and shall represent and warrant in writing that
he/she is the owner of the Shares so delivered free and clear of all
liens, security interests and other restrictions or encumbrances); or
(c) A combination of cash and such unencumbered Shares.
Notwithstanding the above, if the Optionee is then employed with the
Company or an Affiliate, he/she may exercise this Option in full or in
part, simultaneously sell the Shares thereby acquired, and use the proceeds
of the sale as payment of the exercise price.
DELIVERY OF CERTIFICATES. As soon as practicable after the Company
receives the notice and purchase price provided for above, it shall deliver
to the person exercising the Option, in the name of such person, a
certificate or certificates representing the Shares being purchased. The
Company shall pay any original issue or transfer taxes with respect to the
issue or transfer of the Shares and all fees and expenses incurred by it in
connection therewith. All Shares so issued shall be fully paid and
nonassessable. Notwithstanding anything to the contrary in this Agreement,
the Company shall not be required to issue or deliver any Shares prior to
the completion of such registration or other qualification of such Shares
under any State law, rule or regulation as the Company shall determine to
be necessary or desirable.
7. EMPLOYMENT REQUIREMENT. This Option may be exercised only while the
Optionee remains employed with the Company or an Affiliate, and only if the
Optionee has been continuously so employed since the date of this
Agreement; PROVIDED THAT:
(a) The Optionee may exercise this Option during the three month period
following termination of employment, but only to the extent that it
was exercisable immediately prior to termination of employment (I.E.,
he/she shall not progress on the exercise schedule).
(b) If the Optionee becomes totally and permanently disabled (within the
meaning of Code section 22(e)(3)) while employed with the Company or
an Affiliate, he/she may exercise this Option within one year after
his/her termination of employment.
-3-
<PAGE>
(c) If the Optionee dies while employed with the Company or an Affiliate
(or during the three month period following termination of
employment), the legal representative of his/her estate, or the person
who has acquired the right by bequest or inheritance, may exercise
this Option within one year after the Optionee dies.
(d) If the Optionee's employment terminates after a declaration made
pursuant to Section 8 of this Agreement, he/she may exercise the
Option at any time permitted by such declaration.
Notwithstanding the above, this Option may not be exercised after it has
expired.
8. ACCELERATION OF OPTION.
DISABILITY. This Option may be exercised in full (notwithstanding the
exercise schedule) if the Optionee becomes totally and permanently disabled
(as defined in Code section 22(e)(3)) while employed with the Company or an
Affiliate.
DEATH. This Option may be exercised in full (notwithstanding the exercise
schedule) if the Optionee dies while employed with the Company or an
Affiliate.
FUNDAMENTAL CHANGE. At least thirty days prior to a Fundamental Change,
the Committee shall declare, and provide written notice to the Optionee of
the declaration, that this Option shall be cancelled at the time of, or
immediately prior to the occurrence of, the Fundamental Change (unless it
is exercised prior to the Fundamental Change) in exchange for payment to
the Optionee, within ten days after the Fundamental Change, of cash equal
to the amount, for each Share covered by the cancelled Option, by which the
event proceeds per share (as defined below) exceed the exercise price per
Share covered by this Option. This Option may be exercised in full
(notwithstanding the exercise schedule) at any time after such declaration
and prior to the time of cancellation of this Option. This Option, to the
extent it has not been exercised prior to the Fundamental Change, shall be
cancelled at the time of, or immediately prior to, the Fundamental Change,
as provided in the declaration, and this Agreement shall terminate at the
time of such cancellation, subject to the payment obligations of the
Company provided in this paragraph.
In the case of a Fundamental Change that consists of the merger or
consolidation of the Company with or into any other corporation, the
Committee, in lieu of the declaration above, may make appropriate provision
for the protection of this Option by the substitution, in lieu of this
Option, of an option to purchase appropriate voting common stock of the
corporation surviving any such merger or consolidation or, if appropriate,
the parent corporation of the Company or such surviving corporation (the
"survivor's stock"), or, alternatively, by the delivery of a number of
shares of the survivor's stock which has a Fair Market Value as of the
effective date of such merger or consolidation equal to the product of (A)
the excess of (x) the event proceeds per share covered by the
-4-
<PAGE>
Option as of such effective date, over (y) the Option exercise price per
Share, times (B) the number of Shares covered by this Option.
For purposes of the preceding paragraphs, the "event proceeds per share" is
the cash plus the value (as determined by the Committee) of the non-cash
consideration to be received per Share by the stockholders of the Company
upon the occurrence of the Fundamental Change.
9. LIMITATION ON TRANSFER. While the Optionee is alive, only the Optionee or
his/her guardian or legal representative may exercise this Option. This
Option may not be assigned or transferred other than by will or the laws of
descent and distribution, and shall not be subject to pledge,
hypothecation, execution, attachment or similar process. Any attempt to
assign, transfer, pledge, hypothecate or otherwise dispose of this Option
contrary to the provisions hereof, and the levy of any attachment or
similar process upon this Option, shall be null and void.
10. NO STOCKHOLDER RIGHTS BEFORE EXERCISE. No person shall have any of the
rights of a stockholder of the Company with respect to any Share subject to
this Option until the Share actually is issued to him/her upon exercise of
this Option.
11. DISCRETIONARY ADJUSTMENT. The Committee may in its sole discretion make
appropriate adjustments in the number of Shares subject to this Option and
in the purchase price per Share to give effect to any adjustments made in
the number of outstanding Shares through a merger, consolidation,
recapitalization, reclassification, combination, stock dividend, stock
split or other relevant change; PROVIDED THAT, fractional Shares shall be
rounded to the nearest whole Share.
12. TAX WITHHOLDING.
GENERAL RULE. If the Company or an Affiliate is required to withhold
federal, state or local income taxes, or social security or other taxes,
upon the exercise of this Option, the person exercising this Option shall,
upon exercise and demand by the Company or Affiliate, promptly pay in cash
such amount as is necessary to satisfy such requirement; PROVIDED THAT, in
lieu of all or any part of such cash payment, the Committee may (but shall
not be required to) allow the person exercising this Option to cover all or
any part of the required withholdings, and to cover any additional
withholdings up to the amount needed to cover the full federal, state and
local income tax obligation of such person with respect to income arising
from the exercise of this Option, through a reduction of the number of
Shares delivered or through a subsequent return to the Company of Shares
delivered.
SPECIAL RULE FOR INSIDERS. If the Optionee is subject to the reporting
requirements of Section 16 of the Exchange Act, he/she may make an election
under this section to reduce the number of Shares delivered only (i) during
the period beginning on the third business day following the date of public
release of the Company's quarterly or annual financial statement and ending
on the twelfth business day following such date of public
-5-
<PAGE>
release, or (ii) at least six months prior to the date as of which the
amount of tax to be withheld is determined; PROVIDED THAT, an election may
not be made within six months of the date of grant of this Option unless
the Optionee dies or becomes disabled during such six-month period.
COMMITTEE APPROVAL; REVOCATION. The Committee may approve an election
under this section to reduce the number of Shares delivered in advance, but
the approval is subject to revocation by the Committee at any time. Once
such an election is made by the person exercising this Option, he/she may
not revoke it.
EXCEPTION. Notwithstanding the foregoing, the Optionee who tenders
previously owned Shares to the Company in payment of the purchase price of
Shares in connection with an option exercise may also tender previously
owned Shares to the Company in satisfaction of any tax withholding
obligations in connection with such option exercise without regard to the
specified time periods set forth above for insiders.
13. INTERPRETATION OF THIS AGREEMENT. All decisions and interpretations made
by the Committee with regard to any question arising hereunder or under the
Plan shall be binding and conclusive upon the Company and the Optionee. If
there is any inconsistency between the provisions of this Agreement and the
Plan, the provisions of the Plan shall govern.
14. DISCONTINUANCE OF EMPLOYMENT. This Agreement shall not give the Optionee a
right to continued employment with the Company or any Affiliate, and the
Company or Affiliate employing the Optionee may terminate his/her
employment and otherwise deal with the Optionee without regard to the
effect it may have upon him/her under this Agreement.
15. OBLIGATION TO RESERVE SUFFICIENT SHARES. The Company shall at all times
during the term of this Option reserve and keep available a sufficient
number of Shares to satisfy this Agreement.
16. BINDING EFFECT. This Agreement shall be binding in all respects on the
heirs, representatives, successors and assigns of the Optionee.
17. CHOICE OF LAW. This Agreement is entered into under the laws of the State
of Minnesota and shall be construed and interpreted thereunder (without
regard to its conflict of law principles).
-6-
<PAGE>
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the _____ day of _____________________, 199__.
OPTIONEE
_____________________________________________
Optionee
PIPER JAFFRAY COMPANIES INC.
By__________________________________________
Its_______________________________________
-7-
<PAGE>
EXHIBIT 4.05
PIPER JAFFRAY COMPANIES INC.
1993 OMNIBUS STOCK PLAN
INCENTIVE STOCK OPTION AGREEMENT
Full Name of Optionee:
- --------------------------------------------------------------------------------
No. of Shares Covered: Date of Grant:
- --------------------------------------------------------------------------------
Exercise Price Per Share: Expiration Date:
- --------------------------------------------------------------------------------
Exercise Schedule:
No. of Shares
As to Which Option
Date Becomes Exercisable
---- -------------------
This is an Incentive Stock Option Agreement ("Agreement") between Piper Jaffray
Companies Inc., a Delaware corporation (the "Company"), and the optionee
identified above (the "Optionee") effective as of the date of grant specified
above.
RECITALS
--------
WHEREAS, the Company maintains the Piper Jaffray Companies Inc. 1993
Omnibus Stock Plan ("Plan"); and
WHEREAS, the Company has appointed a committee (the "Committee") with the
authority to determine the awards to be granted under the Plan; and
WHEREAS, the Committee has determined that the Optionee is eligible to
receive an award under the Plan in the form of an incentive stock option
(the "Option") and has set the terms and conditions thereof.
NOW, THEREFORE, the Company hereby grants this Option to the Optionee under
the terms and conditions set by the Committee as follows.
<PAGE>
TERMS AND CONDITIONS*
1. GRANT. The Optionee is granted this Option to purchase the number of
Shares specified at the beginning of this Agreement.
2. EXERCISE PRICE. The price to the Optionee of each Share subject to this
Option shall be the exercise price specified at the beginning of this
Agreement (which price shall not be less than the Fair Market Value as of
the date of grant or, if the Optionee owns or is deemed to own stock
possessing more than 10% of the combined voting power of all classes of
stock of the Company, 110% of the Fair Market Value as of the date of
grant).
3. INCENTIVE STOCK OPTION. This Option is intended to be an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
4. EXERCISE SCHEDULE. If this Option has not expired prior thereto, it may be
exercised as to the number of Shares and on the dates specified in the
exercise schedule at the beginning of this Agreement (which schedule shall
not allow the number of Shares that are first available for purchase during
any calendar year to exceed the number of Shares with a Fair Market Value
as of the date of grant of $100,000). The exercise schedule is cumulative
-- that is, if this Option has not expired prior thereto, the Optionee may
at any time purchase all or any portion of the Shares then available under
the exercise schedule to the extent not previously purchased.
This Option may be exercised in full (notwithstanding the exercise
schedule) under the circumstances described in Section 8 of this Agreement
if it has not expired prior thereto.
5. EXPIRATION. This Option shall expire at 4:00 p.m. Central Standard Time on
the earliest of:
(a) The expiration date specified at the beginning of this Agreement
(which date shall not be later than ten years after the date of grant
or, if the Optionee owns or is deemed to own stock possessing more
than 10% of the combined voting power of all classes of stock of the
Company, five years after the date of grant);
(b) The last day of the period following the termination of employment of
the Optionee during which this Option can be exercised (as specified
in Section 7 of this Agreement); or
(c) The date (if any) fixed for cancellation pursuant to Section 8 of this
Agreement.
- -------------------
* Unless the context indicates otherwise, capitalized terms that are not
defined in this Agreement shall have the meaning set forth in the Plan as
it currently exists or as it is amended in the future.
-2-
<PAGE>
In no event may anyone exercise this Option, in whole or in part, after it
has expired, notwithstanding any other provision of this Agreement.
6. PROCEDURE TO EXERCISE OPTION.
NOTICE OF EXERCISE. This Option may be exercised by delivering written
notice of exercise to the Company in the form attached to this Agreement.
The notice shall state the number of Shares to be purchased, and shall be
signed by the person exercising this Option. If the person exercising this
Option is not the Optionee, he/she also must submit appropriate proof of
his/her right to exercise this Option.
TENDER OF PAYMENT. Any notice of exercise hereunder shall be accompanied
by either:
(a) Payment (by check, bank draft or money order payable to the Company)
of the full purchase price of the Shares being purchased; or
(b) Certificates for unencumbered Shares having an aggregate Fair Market
Value on the date of exercise equal to the full purchase price of the
Shares being purchased (the Optionee shall duly endorse all such
certificates in blank and shall represent and warrant in writing that
he or she is the owner of the Shares so delivered free and clear of
all liens, security interests and other restrictions or encumbrances);
or
(c) A combination of cash and such unencumbered Shares.
DELIVERY OF CERTIFICATES. As soon as practicable after the Company
receives the notice and purchase price provided for above, it shall deliver
to the person exercising the Option, in the name of such person, a
certificate or certificates representing the Shares being purchased. The
Company shall pay any original issue or transfer taxes with respect to the
issue or transfer of the Shares and all fees and expenses incurred by it in
connection therewith. All Shares so issued shall be fully paid and
nonassessable. Notwithstanding anything to the contrary in this Agreement,
the Company shall not be required to issue or deliver any Shares prior to
the completion of such registration or other qualification of such Shares
under any State law, rule or regulation as the Company shall determine
to be necessary or desirable.
7. EMPLOYMENT REQUIREMENT. This Option may be exercised only while the
Optionee remains employed with the Company or an Affiliate, and only if the
Optionee has been continuously so employed since the date of this
Agreement; PROVIDED THAT:
(a) The Optionee may exercise this Option during the three month period
following termination of employment, but only to the extent that it
was exercisable immediately prior to termination of employment (I.E.,
he/she shall not progress on the exercise schedule). If the Optionee
dies during such three month period, the legal representative of
his/her estate, or the person who has acquired the right by bequest or
inheritance, may exercise this Option during the one year period
following termination of employment.
-3-
<PAGE>
(b) If the Optionee becomes totally and permanently disabled (within the
meaning of Code section 22(e)(3)) while employed with the Company or
an Affiliate, he/she may exercise this Option during the one year
period following his/her termination of employment.
(c) If the Optionee dies while employed with the Company or an Affiliate,
the legal representative of his/her estate, or the person who has
acquired the right by bequest or inheritance, may exercise this Option
during the one year period following the date the Optionee dies.
(d) If the Optionee's employment terminates after a declaration made
pursuant to Section 8 of this Agreement, he/she may exercise the
Option at any time permitted by such declaration.
Notwithstanding the above, this Option may not be exercised after it has
expired.
8. ACCELERATION OF OPTION.
DISABILITY. This Option may be exercised in full (notwithstanding the
exercise schedule) if the Optionee becomes totally and permanently disabled
(as defined in Code section 22(e)(3)) while employed with the Company or an
Affiliate.
DEATH. This Option may be exercised in full (notwithstanding the exercise
schedule) if the Optionee dies while employed with the Company or an
Affiliate.
FUNDAMENTAL CHANGE. At least thirty days prior to a Fundamental Change,
the Committee shall declare, and provide written notice to the Optionee of
the declaration, that this Option shall be cancelled at the time of, or
immediately prior to the occurrence of, the Fundamental Change (unless it
is exercised prior to the Fundamental Change) in exchange for payment to
the Optionee, within ten days after the Fundamental Change, of cash equal
to the amount, for each Share covered by the cancelled Option, by which the
event proceeds per share (as defined below) exceed the exercise price per
Share covered by this Option. This Option may be exercised in full
(notwithstanding the exercise schedule) at any time after such declaration
and prior to the time of cancellation of this Option. This Option, to the
extent it has not been exercised prior to the Fundamental Change, shall be
cancelled at the time of, or immediately prior to, the Fundamental Change,
as provided in the declaration, and this Agreement shall terminate at the
time of such cancellation, subject to the payment obligations of the
Company provided in this paragraph.
In the case of a Fundamental Change that consists of the merger or
consolidation of the Company with or into any other corporation, the
Committee, in lieu of the declaration above, may make appropriate provision
for the protection of this Option by the substitution, in lieu of this
Option, of an option to purchase appropriate voting common stock of the
corporation surviving any such merger or consolidation or, if appropriate,
the parent corporation of the Company or such surviving corporation (the
"survivor's stock"), or, alternatively, by the delivery of a number of
shares of the survivor's stock which has
-4-
<PAGE>
a Fair Market Value as of the effective date of such merger or
consolidation equal to the product of (A) the excess of (x) the event
proceeds per share covered by the Option as of such effective date, over
(y) the Option exercise price per Share, times (B) the number of Shares
covered by this Option.
For purposes of the preceding paragraphs, the "event proceeds per share" is
the cash plus the value (as determined by the Committee) of the non-cash
consideration to be received per Share by the stockholders of the Company
upon the occurrence of the Fundamental Change.
9. LIMITATION ON TRANSFER. While the Optionee is alive, only the Optionee or
his/her guardian or legal representative may exercise this Option. This
Option may not be assigned or transferred other than by will or the laws of
descent and distribution, and shall not be subject to pledge,
hypothecation, execution, attachment or similar process. Any attempt to
assign, transfer, pledge, hypothecate or otherwise dispose of this Option
contrary to the provisions hereof, and the levy of any attachment or
similar process upon this Option, shall be null and void.
10. NO STOCKHOLDER RIGHTS BEFORE EXERCISE. No person shall have any of the
rights of a stockholder of the Company with respect to any Share subject to
this Option until the Share actually is issued to him/her upon exercise of
this Option.
11. DISCRETIONARY ADJUSTMENT. The Committee may in its sole discretion make
appropriate adjustments in the number of Shares subject to this Option and
in the purchase price per Share to give effect to any adjustments made in
the number of outstanding Shares through a merger, consolidation,
recapitalization, reclassification, combination, stock dividend, stock
split or other relevant change; PROVIDED THAT, fractional Shares shall be
rounded to the nearest whole Share.
12. TAX WITHHOLDING.
GENERAL RULE. If the Company or an Affiliate is required to withhold
federal, state or local income taxes, or social security or other taxes,
upon the exercise of this Option, the person exercising this Option shall,
upon exercise and demand by the Company or Affiliate, promptly pay in cash
such amount as is necessary to satisfy such requirement; PROVIDED THAT, in
lieu of all or any part of such cash payment, the Committee may (but shall
not be required to) allow the person exercising this Option to cover all or
any part of the required withholdings, and to cover any additional
withholdings up to the amount needed to cover the full federal, state and
local income tax obligation of such person with respect to income arising
from the exercise of this Option, through a reduction of the number of
Shares delivered or through a subsequent return to the Company of Shares
delivered.
SPECIAL RULE FOR INSIDERS. If the Optionee is subject to the reporting
requirements of Section 16 of the Exchange Act, he/she may make an election
under this section to reduce the number of Shares delivered only (i) during
the period beginning on the third business
-5-
<PAGE>
day following the date of public release of the Company's quarterly or
annual financial statement and ending on the twelfth business day following
such date of public release, or (ii) at least six months prior to the date
as of which the amount of tax to be withheld is determined; PROVIDED THAT,
an election may not be made within six months of the date of grant of this
Option unless the Optionee dies or becomes disabled during such six-month
period.
COMMITTEE APPROVAL; REVOCATION. The Committee may approve an election
under this section to reduce the number of Shares delivered in advance, but
the approval is subject to revocation by the Committee at any time. Once
such an election is made by the person exercising this Option, he/she may
not revoke it.
EXCEPTION. Notwithstanding the foregoing, the Optionee who tenders
previously owned Shares to the Company in payment of the purchase price of
Shares in connection with an option exercise may also tender previously
owned Shares to the Company in satisfaction of any tax withholding
obligations in connection with such option exercise without regard to the
specified time periods set forth above for insiders. If the Company or an
Affiliate is required to withhold federal, state or local income taxes, or
social security or other taxes, upon the exercise of this Option, the
person exercising this Option shall, upon exercise and demand by the
Company or Affiliate, promptly pay in cash such amount as is necessary to
satisfy such requirement.
13. INTERPRETATION OF THIS AGREEMENT. All decisions and interpretations made
by the Committee with regard to any question arising hereunder or under the
Plan shall be binding and conclusive upon the Company and the Optionee. If
there is any inconsistency between the provisions of this Agreement and the
Plan, the provisions of the Plan shall govern.
14. DISCONTINUANCE OF EMPLOYMENT. This Agreement shall not give the Optionee a
right to continued employment with the Company or any Affiliate, and the
Company or Affiliate employing the Optionee may terminate his/her
employment and otherwise deal with the Optionee without regard to the
effect it may have upon him/her under this Agreement.
15. OBLIGATION TO RESERVE SUFFICIENT SHARES. The Company shall at all times
during the term of this Option reserve and keep available a sufficient
number of Shares to satisfy this Agreement.
16. BINDING EFFECT. This Agreement shall be binding in all respects on the
heirs, representatives, successors and assigns of the Optionee.
17. CHOICE OF LAW. This Agreement is entered into under the laws of the State
of Minnesota and shall be construed and interpreted thereunder (without
regard to its conflict of law principles).
-6-
<PAGE>
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the _____ day of _________________________, 199__.
OPTIONEE
_____________________________________________
Optionee
PIPER JAFFRAY COMPANIES INC.
By__________________________________________
Its_______________________________________
-7-
<PAGE>
EXHIBIT 5
March 31, 1994
Board of Directors
Piper Jaffray Companies Inc.
222 South Ninth Street
Minneapolis, Minnesota 55402
In connection with the proposed registration under the Securities
Act of 1933, as amended, of shares of Common Stock of Piper Jaffray Companies
Inc., a Delaware corporation (the "Company"), offered and to be offered pursuant
to the Piper Jaffray Companies Inc. 1993 Omnibus Stock Plan (the "Plan"), I have
examined the Company's Restated Certificate of Incorporation, as amended, its
By-Laws, as amended, and such other documents, including the Registration
Statement on Form S-8, dated the date hereof, to be filed with the Securities
and Exchange Commission relating to such shares (the "Registration Statement"),
and have reviewed such matters of law as I have deemed necessary for this
opinion. Accordingly, based upon the foregoing, I am of the opinion that:
1. The Company is duly and validly organized and existing and
in good standing under the laws of the State of Delaware.
2. The Company has duly authorized the issuance of the shares of
Common Stock which may be issued pursuant to the Plan.
3. The shares which may be issued pursuant to the Plan will be,
upon issuance, validly issued and outstanding and fully paid and
nonassessable.
4. All necessary corporate action has been taken by the Company to
adopt the Plan, and the Plan is a validly existing plan of the Company.
I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ David Evans Rosedahl
David Evans Rosedahl
<PAGE>
EXHIBIT 23.02
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Piper Jaffray Companies, Inc. on Form S-8 of our report dated November 9, 1993,
appearing in the Annual Report on Form 10-K of Piper Jaffray Companies, Inc. for
the year ended September 30, 1993.
/s/ Deloitte & Touche
Minneapolis, Minnesota
March 31, 1994
<PAGE>
EXHIBIT 24
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ Edward N. Bennett
----------------------------------------
Edward N. Bennett
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ Karen M. Bohn
---------------------------------------------
Karen M. Bohn
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 3rd day of March, 1994.
/S/ Ralph W. Burnet
---------------------------------------------
Ralph W. Burnet
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ David P. Crosby
---------------------------------------------
David P. Crosby
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ William H. Ellis
---------------------------------------------
William H. Ellis
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ Dan L. Lastavich
---------------------------------------------
Dan L. Lastavich
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ Robert J. Magnuson
---------------------------------------------
Robert J. Magnuson
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 3rd day of March, 1994.
/S/ John L. McElroy, Jr.
---------------------------------------------
John L. McElroy, Jr.
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ Gary M. Petrucci
---------------------------------------------
Gary M. Petrucci
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 3rd day of March, 1994.
/S/ Addison L. Piper
---------------------------------------------
Addison L. Piper
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ Robert S. Slifka
---------------------------------------------
Robert S. Slifka
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ David Stanley
---------------------------------------------
David Stanley
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ Delos V. Steenson
---------------------------------------------
DeLos V. Steenson
<PAGE>
PIPER JAFFRAY COMPANIES INC.
POWER OF ATTORNEY
OF DIRECTOR AND OFFICER
The undersigned director and/or officer of Piper Jaffray Companies
Inc., a Delaware corporation, does hereby make, constitute and appoint Charles
N. Hayssen and David E. Rosedahl, and each of them, the undersigned's true and
lawful attorneys-in-fact, with power of substitution, for the undersigned and in
the undersigned's name, place and stead, to sign and affix the undersigned's
name as such director and/or officer of said Corporation to a Registration
Statement or Registration Statements, on Form S-8 or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.,
in connection with the registration under the Securities Act of 1933, as
amended, of shares of Common Stock and/or other securities of said Corporation
proposed to be issued or sold by said Corporation, and to file the same, with
all exhibits thereto and other supporting documents, with said Commission,
granting unto said attorneys-in-fact, and each of them, full power and authority
to do and perform any and all acts necessary or incidental to the performance
and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 4th day of March, 1994.
/S/ Richard J. Stream
---------------------------------------------
Richard J. Stream
