As filed with the Securities and Exchange Commission on December 15, 1995.
Registration No. 33-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
CAPITAL ASSOCIATES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 84-1055327
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
7175 West Jefferson Avenue, Suite 4000
Lakewood, Colorado 80235
(303) 980-1000
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
DENNIS J. LACEY
President
Capital Associates, Inc.
7175 West Jefferson Avenue, Suite 4000
Lakewood, Colorado 80235
(303) 980-1000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
-----------------
Copy to:
LYLE B. STEWART, ESQ.
BALLARD SPAHR ANDREWS & INGERSOLL
1225 17th Street, Suite 2300
Denver, CO 80202
(303) 292-2400
----------------
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. |_|
----------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================
<S> <C> <C> <C> <C>
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to Be Amount to Offering Price Aggregate Amount of
Registered Be Registered Per Share Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------
Common Stock ($.008
par value).......... 75,000 shares $1.50 (1) $112,500 (1) $100
=======================================================================================================
</TABLE>
(1) Estimated solely for purposes of computing the registration fee and based in
accordance with Rule 457(c) of the Securities Act of 1933, as amended, on the
market price of the Capital Associates, Inc., common stock on December 13, 1995,
on the NASDAQ National Market System.
-----------------------------------------
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
================================================================================
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED DECEMBER 15, 1995
PROSPECTUS
75,000 Shares
CAPITAL ASSOCIATES, INC.
Common Stock
(par value $.008 per share)
This Prospectus relates to 75,000 shares of common stock, par value
$.008 per share ("Common Stock"), of Capital Associates, Inc., a Delaware
corporation (the "Company"), which may be offered for sale from time to time by
a stockholder of the Company (the "Selling Stockholder"), or by his pledgees,
donees, transferees or other successors in interest, to or through underwriters,
or directly to other purchasers, or through agents in one or more transactions
at varying prices determined at the time of sale, or at negotiated prices (the
"Offering"). See "PLAN OF DISTRIBUTION".
The Company will not receive any of the proceeds from the sale of
the shares of Common Stock (the "Shares") by the Selling Stockholder. The
expenses of registration under the Securities Act of 1933, as amended (the
"Securities Act"), of the Shares which may be offered hereby will be paid by the
Company.
The Common Stock is traded on the Nasdaq National Market under the
symbol "CAIID". On December 13, 1995, the closing price of the Common Stock was
$1.50.
---------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is ___________, 1995
<PAGE>
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in or incorporated by
reference in this Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company,
the Selling Stockholder or any other person. This Prospectus does not constitute
an offer to sell or a solicitation of an offer to buy any of the securities
offered hereby in any jurisdiction to any person to whom it is unlawful to make
such an offer in such jurisdiction. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances, create any implication
that the information herein is correct as of any time subsequent to the date
hereof or that there has been no change in the affairs of the Company since such
date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information concerning the Company filed with the
Commission may be inspected and copied at the public reference facilities
maintained by the Commission at its office at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, as well as at the Regional Offices of the Commission at
Citicorp Center, 300 West Madison Street, Chicago, Illinois 60661 and Seven
World Trade Center, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Shares of the
Company's Common Stock are traded on the Nasdaq National Market. Such reports,
proxy statements and other information can also be inspected and copied at the
offices of the Nasdaq National Market, 1735 K Street, N.W., Washington, D.C.
20006.
The Company has filed a registration statement on Form S-3 (herein,
together with all amendments and exhibits thereto, the "Registration
Statement"), under the Securities Act with respect to the securities offered
pursuant to this Prospectus. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is made to the Registration Statement. Statements
contained herein concerning any document filed as an exhibit are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to the
Exchange Act (File No. 0-15525) are hereby incorporated by reference into this
Prospectus: (a) the Company's Annual Report on Form 10-K for the fiscal year
ended May 31, 1995, (b) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 1995, (c) the Company's Current Report on Form
8-K filed on November 22, 1995, and (d) the description of the Company's Common
Stock contained in the Company's Registration Statement on Form S-1, Reg. No.
33-9503, filed on October 20, 1986, as amended.
All other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the Offering pursuant to this
Prospectus shall be deemed to be incorporated by reference and to be a part of
this Prospectus 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
Prospectus to the extent that a statement contained herein or in any
2
<PAGE>
subsequently filed document which 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 Prospectus.
The Company will provide without charge to each person, including
any beneficial owner, to whom a copy of this Prospectus is delivered, upon oral
or written request of any such person, a copy of any or all of the documents
incorporated herein by reference, other than the exhibits to such documents
(unless such exhibits are specifically incorporated by reference into the
information that this Prospectus incorporates). Requests should be directed to
Capital Associates, Inc., 7175 West Jefferson Avenue, Suite 4000, Lakewood,
Colorado 80235, to the attention of David L. Fabian, Senior Vice President,
telephone (303) 980-1000.
THE COMPANY
Capital Associates, Inc. ("CAI"), was incorporated as a holding
company in October 1986. Its principal operating subsidiary, Capital Associates
International, Inc. ("CAII"), was incorporated in December 1976. Capital
Associates, Inc., is principally engaged in (1) buying, selling, leasing and
remarketing new and used equipment, (2) managing equipment on and off-lease, (3)
sponsoring, co-sponsoring, managing and co-managing publicly-registered income
funds and (4) arranging equipment-related financing.
The Company's principal executive office is located at 7175 West
Jefferson Avenue, Suite 4000, Lakewood, Colorado 80235, and its telephone number
is (303) 980-1000.
USE OF PROCEEDS
The net proceeds from the sale of the Shares will be received by the
Selling Stockholder. The Company will not receive any of the proceeds from any
sale of the Shares by the Selling Stockholder.
SELLING STOCKHOLDER
The table below sets forth information as of December 4, 1995 with
respect to the Selling Stockholder, including his name, holdings of shares of
the Company's Common Stock prior to the Offering of the Shares, the number of
Shares being offered for his account, and the number and percentage of shares of
the Company's Common Stock to be owned by the Selling Stockholder immediately
following the sale of the Shares, assuming all of the offered Shares are sold.
Shares of Common Stock Percentage of
Common Stock to be Common Stock
Beneficially Shares of Beneficially Beneficially
Owned Before Common Stock Owned After Owned After
Name the Offering Being Offered the Offering the Offering
Dennis J. Lacey 137,500 75,000 62,500 1.23%
Relationship Between the Company and the Selling Stockholder
Mr. Lacey joined the Company as Vice President, Operations, in
October 1989. Mr. Lacey was appointed Treasurer on January 1, 1991, Chief
Financial Officer on April 11, 1991, a director on July 19, 1991, and President
and Chief Executive Officer on September 6, 1991. Mr. Lacey is also a director
3
<PAGE>
and senior officer of CAII, CAI Equipment Leasing I Corp., CAI Equipment Leasing
II Corp., CAI Equipment Leasing III Corp., CAI Equipment Leasing IV Corp., CAI
Leasing Canada, Ltd., CAI Partners Management Company, CAI Securities
Corporation, CAI Lease Securitization I Corp. and Capital Equipment Corporation
(collectively referred to herein as the "CAI Affiliates"), all of which are
first- or second-tier wholly-owned subsidiaries of the Company.
PLAN OF DISTRIBUTION
Any distribution of the Shares by the Selling Stockholder, or by his
pledgees, donees, transferees or other successors in interest, may be effected
from time to time in one or more of the following transactions: (a) to
underwriters who will acquire the Shares for their own account and resell them
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale (any
public offering price and any discount or concessions allowed or reallowed or
paid to dealers may be changed from time to time); (b) through brokers, acting
as principal or agent, in transactions (which may involve block transactions) on
the Nasdaq Stock Market or on one or more exchanges on which the Shares are then
listed, in special offerings, exchange distributions pursuant to the rules of
the applicable exchanges or in the over-the-counter market, or otherwise, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices or at fixed prices; (c) directly
or through brokers or agents in private sales at negotiated prices; or (d) by
any other legally available means.
The Selling Stockholder and such underwriters, brokers, dealers or
agents, upon effecting a sale of the Shares, may be considered "underwriters" as
that term is defined by the Securities Act.
Underwriters participating in any offering made pursuant to this
Prospectus (as amended or supplemented from time to time) may receive
underwriting discounts and commissions, discounts or concessions may be allowed
or reallowed or paid to dealers, and brokers or agents participating in such
transaction may receive brokerage or agent's commissions or fees.
4
<PAGE>
At the time a particular offering of the Shares is made, to the
extent required, a Prospectus Supplement will be distributed which will set
forth the amount of the Shares being offered and the terms of the Offering,
including the purchase price or public offering price, the name or names of any
underwriters, dealers or agents, the purchase price paid by any underwriter for
the Shares purchased from the Selling Stockholder, any discounts, commissions
and other items constituting compensation from the Selling Stockholder and any
discounts, commissions or concessions allowed or reallowed or paid to dealers.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions, if required, only
through registered or licensed brokers or dealers. In addition, in certain
states the Shares may not be sold unless the Shares have been registered or
qualified for sale in such state or an exemption from registration or
qualification is available and complied with.
The Company has agreed that it will bear all costs, expenses and
fees in connection with the registration of the Shares.
LEGAL MATTERS
The validity of the Shares offered hereby are being passed upon for
the Company by Ballard Spahr Andrews & Ingersoll, Denver, Colorado.
EXPERTS
The consolidated financial statements and schedule of Capital
Associates, Inc. and subsidiaries as of May 31, 1995 and 1994 and for each of
the years in the three-year period ended May 31, 1995, have been incorporated by
reference herein and in the registration statement in reliance upon the report
of KPMG Peat Marwick LLP, independent Certified Public Accountants, incorporated
by reference herein, and upon the authority of said firm as experts in
accounting and auditing.
5
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a list of the estimated expenses to be incurred by
the Registrant in connection with the issuance and distribution of the Shares
being registered hereby.
SEC Registration Fee.............................. $ 100
Accountants' Fees and Expenses.................... 2,000*
Legal Fees and Expenses........................... 3,000*
Miscellaneous..................................... 400*
--------
TOTAL..................................... $ 5,500*
- --------------------
* Estimated, subject to change.
The Selling Stockholder will not bear any portion of the
expenses of registration of the Shares.
Item 15. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation provides that the
Company shall indemnify its directors and officers to the fullest extent
permitted by applicable law. Section 145 of the General Corporation Law of the
State of Delaware provides that a corporation may indemnify its officers,
directors, employees and agents (or persons who have served, at the
corporation's request, as officers, directors, employees or agents of another
corporation) against the expenses, including attorneys' fees, actually and
reasonably incurred by them in connection with the defense of any action by
reason of being or having been directors, officers, employees or agents, if such
person shall have acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and with respect
to any criminal action or proceeding, had no reason to believe his conduct was
unlawful, except that if such action shall be in the right of the corporation,
no such indemnification shall be provided as to any claim, issue or matter as to
which such person shall have been adjudged to have been liable to the
corporation unless and only to the extent that the Court of Chancery of the
State of Delaware, or any other court in which the suit was brought, shall
determine upon application that, 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 or such other court shall deem proper.
II-1
<PAGE>
CAI has entered into indemnification agreements with each of
the members of the Board of Directors (the "Indemnification Agreements"). In
general, the Indemnification Agreements contractually provide that CAI will hold
harmless and indemnify directors to the fullest extent authorized by applicable
law, provided the director acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of CAI and, with respect
to any criminal proceeding, the director had no reasonable cause to believe his
conduct was unlawful. With respect to proceedings brought by or in the right of
CAI, CAI is required to indemnify the directors, unless the directors are
adjudged to be liable and applicable law provides that a director shall not be
indemnified if the director is found liable. CAI will advance funds to directors
prior to a determination by CAI of the director's entitlement to
indemnification. However, a director will repay any funds advanced to him if it
is ultimately determined that the director is not entitled to indemnification.
The Indemnification Agreements are applicable to claims asserted within ten
years after the date that the director ceased to serve as a director, officer,
employee or agent of CAI.
Item 16. Exhibits.
Exhibit
Number Description
- ------- -----------
4.1 Specimen copy of Common Stock Certificate
4.2(a) Certificate of Incorporation as filed on October 17, 1986
4.2(b) Certificate of Amendment to Certificate of Incorporation, as filed on
March 3, 1987.
4.2(c) Certificate of Amendment of Certificate of Incorporation, as filed on
November 2, 1995
4.3 Amended and Restated Bylaws, effective on and as of October 2, 1995
5.1 Opinion of Ballard Spahr Andrews & Ingersoll
23.1 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit
5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included in Part II, page II-5 of the Registration
Statement)
- -----------------------------
II-2
<PAGE>
Item 17. Undertakings.
A. The undersigned Registrant 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, as amended (the "Act");
(ii) To reflect in the prospectus any facts 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; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Act if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission (the "Commission") by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Act, each such 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 undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement 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.
C. Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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 Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
II-3
<PAGE>
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant 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-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Lakewood, State of Colorado, on December 15,
1995.
CAPITAL ASSOCIATES, INC.
By: /s/John E. Christensen
----------------------
John E. Christensen
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below in so signing also makes, constitutes and appoints John
E. Christensen or Dennis J. Lacey, individually, as true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities to execute
and cause to be filed with the Securities and Exchange Commission any and all
amendments (including pre-effective and post-effective amendments) to this
Registration Statement, with exhibits thereto and other documents in connection
therewith, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes as
he might or could do in person, and hereby ratifies and confirms all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Signature Title Date
- --------- ----- ----
/s/James D. Walker Chairman of the Board December 12, 1995
- ------------------ and Director
James D. Walker
/s/William H. Buckland Director December 12, 1995
- ----------------------
William H. Buckland
/s/James D. Edwards Director December 11, 1995
- -------------------
James D. Edwards
/s/Gary M. Jacobs Director December 12, 1995
- -----------------
Gary M. Jacobs
II-5
<PAGE>
Signature Title Date
- --------- ----- ----
/s/Dennis J. Lacey President, Chief Executive December 12, 1995
- ------------------ Officer (Principal Executive
Dennis J. Lacey Officer) and Director
/s/William B. Patton, Jr. Director December 12, 1995
- -------------------------
William B. Patton, Jr.
/s/Robert A. Sharpe II Director December 12, 1995
- ----------------------
Robert A. Sharpe II
/s/John E. Christensen Senior Vice President and Chief December 12, 1995
- ---------------------- Financial Officer (Principal
John E. Christensen Financial Officer)
/s/Joseph F. Bukofski Assistant Vice President December 12, 1995
- --------------------- and Controller (Principal
Joseph F. Bukofski Accounting Officer)
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 Specimen copy of Common Stock
Certificate
4.2(a) Certificate of Incorporation, as filed on
October 17, 1986
4.2(b) Certificate of Amendment to Certificate of
Incorporation, as filed on March 3, 1987
4.2(c) Certificate of Amendment of Certificate of
Incorporation, as filed on November 2, 1995
4.3 Amended and Restated Bylaws, effective
on and as of October 2, 1995
5.1 Opinion of Ballard Spahr Andrews &
Ingersoll
23.2 Consent of KPMG Peat Marwick LLP
- -----------------------
[SPECIMEN COPY OF COMMON STOCK CERTIFICATE
TO BE SUBMITTED TO BRANCH CHIEF]
CERTIFICATE OF INCORPORATION
CAPITAL ASSOCIATES, INC.
A Delaware Corporation
ARTICLE I
The name of the corporation is Capital Associates, Inc. (the
"Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
ARTICLE IV
The total number of shares of all classes of stock which the
Corporation has authority to issue is seventeen million, five hundred thousand
(17,500,000) shares, of which fifteen million (15,000,000) shares are common
stock, $.008 par value per share (hereinafter referred to as "Common Stock"),
and two million, five hundred thousand (2,500,000) shares are preferred stock,
$.008 par value per share (hereinafter referred to as "Preferred Stock"). The
designations, powers, preferences and rights of the shares of Common Stock and
Preferred Stock and the qualifications, limitations and restrictions thereof are
as follows:
1. Common Stock.
A. Shares of Common Stock may be issued from time to time as the
Board of Directors shall determine and on such terms and for such consideration
as shall be fixed by the Board of Directors. Each share of Common Stock shall be
equal to every other share of Common Stock in every respect.
B. The holders of Common Stock shall be entitled at all meetings
of stockholders to one vote for each share of Common Stock held of record on
the books of the Corporation.
<PAGE>
2. Preferred Stock. Preferred Stock may be issued from time to time
in one or more series with such distinctive designations as may be stated in the
resolution or resolutions providing for the issue of such stock from time to
time adopted by the Board of Directors. The resolution or resolutions providing
for the issuance of shares of a particular series shall fix, subject to
applicable laws and provisions of this Article IV, the designations, rights,
preferences and limitations of the shares of each such series. The authority of
the Board of Directors in respect to each series shall include, but not be
limited to, determination of the following:
(i) the consideration for which such Preferred Stock shall be
issued;
(ii) the number of shares constituting such series, including the
authority to increase or decrease such number, and the distinctive designation
of such series;
(iii) the dividend rate of the shares of such series, whether the
dividends shall be cumulative and, if so, the date from which they shall be
cumulative, and the relative rights of priority, if any, of payment of dividends
on shares of such series;
(iv) the right, if any, of the Corporation to redeem shares of such
series and the terms and conditions of such redemption;
(v) the rights of the shares in case of a voluntary or involuntary
liquidation, dissolution or winding, up of the Corporation, and the relative
rights of priority, if any, of payment of shares of such series;
(vi) the obligation, if any, of the Corporation to retire shares of
such series pursuant to a retirement or sinking fund or funds of a similar
nature or otherwise and the terms and conditions of such obligation;
(vii) the terms and conditions, if any, upon which shares of such
series shall be convertible into or exchangeable for shares of stock of any
other class or classes, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any;
<PAGE>
(viii) the voting rights, if any, of the shares of such series, in
addition to any voting rights required by law; and
(ix) any other rights, preferences or limitations of shares of such
series.
3. No holder of any shares of any class or series of stock or other
securities of the Corporation, or of options, warrants or other rights to
purchase shares of any class or series of stock or other securities of the
Corporation, shall have any preemptive or preferential right to purchase or
subscribe for any shares of any class or series of stock or other securities of
the Corporation.
ARTICLE V
1. Number of Directors. The number of Directors of the Corporation
shall be fixed from time to time by resolution duly adopted by a majority of the
Board of Directors of the Corporation, but shall be not less than three (3) nor
more than twelve (12). No decrease in the number of Directors by resolution of
the Board of Directors or amendment of this Certificate of Incorporation shall
have the effect of shortening the term of any Director then in office.
2. Initial Board of Directors. The initial Board of Directors of the
Corporation shall consist of the persons whose names and addresses appear below,
which person shall serve until tile first annual meeting of stockholders or
until their successors shall have been duly elected and qualified.
Name Address
---- -------
Richard Kazan 24254 Hawthorne Boulevard
Torrance, California 90505
Jack M. Durliat 31 East Platte Avenue
Colorado Springs, Colorado 80903
Gary M. Jacobs 2995 Baseline Road
Boulder, Colorado 80303
L. Burke Crouse 2995 Baseline Road
Boulder, Colorado 80303
3. Removal. A Director may be removed by the stockholders only for
cause at a special meeting of the stockholders called for such purpose by the
affirmative vote of a majority of all the shares entitled to vote at such
meeting.
<PAGE>
ARTICLE VI
In furtherance and not in limitation of the power conferred by statute,
the Board of Directors is hereby expressly authorized and empowered to adopt,
alter, amend or repeal the Bylaws of the Corporation, without any action or
approval by the stockholders, by the affirmative vote of a majority of the Board
of Directors.
ARTICLE VII
The Corporation may in its Bylaws confer powers upon its Board of
Directors in addition to, but not in contravention of, those elsewhere provided
in this Certificate of Incorporation and in addition to, but not in
contravention of, the power and authorities expressly conferred upon the Board
of Directors by the laws of the State of Delaware. All of the powers of the
Corporation, insofar as the same be lawfully vested by this Certificate of
Incorporation in the Board of Directors, are hereby conferred upon and vested in
the Board of Directors of the Corporation.
ARTICLE VIII
The Corporation shall indemnify its Directors and Officers to the
fullest extent permitted by the Delaware General Corporation Law as the same
exists or may hereafter be amended. In accordance with and to the fullest extent
permitted by the Delaware General Corporation Law as the same exists or may
hereafter be amended, a Director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of such person's
fiduciary duty as a Director. Any repeal or modification of this Article VIII
shall not adversely affect any right or protection of a Director or Officer
hereunder existing at the time of such repeal or modification.
ARTICLE X
Meetings of stockholders may be held at such place, either within or
without the State of Delaware, as the Bylaws may provide. The books of the
Corporation may be kept outside of 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
Bylaws of the Corporation. Election of Directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
<PAGE>
ARTICLE XI
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE XII
The name and mailing address of the incorporator of the Corporation is
as follows: John R. Garrett, 1999 Broadway, Suite 4000, Denver, Colorado 80202.
<PAGE>
The undersigned, being the sole incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, does make this certificate, hereby declaring and
certifying that this is his act and deed and the facts herein stated are true,
and accordingly has hereunto set his hand this 19th day of October, 1986.
/s/John R. Garret
-----------------------------
John R. Garrett, Incorporator
JRG435G.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATION OF INCORPORATION
OF
CAPITAL ASSOCIATES, INC.
Adopted in accordance with the
provisions of Section 242 of
the General Corporation Law of
the State of Delaware
CAPITAL ASSOCIATES, INC., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation has adopted the
following resolutions proposing and declaring advisable an Amendment to the
Certificate of Incorporation of the Corporation:
RESOLVED, that Article V of the Company's Certificate
of Incorporation be amended to delete in its entirety paragraph
3 thereof entitled "Removal";
RESOLVED, that the foregoing amendment be submitted
for approval of the stockholders of the Company by written
consent in lieu of a special meeting of stockholders, and the
Board of Directors does hereby recommend that such amendment be
approved . . .
SECOND: That in lieu of a meeting and vote of stockholders, the holders
of a majority of the outstanding stock of the Corporation have given written
consent to said Amendment in accordance with the provisions of Section 228 of
the General Corporation Law of the State of Delaware.
THIRD: That written notice of such action has been given to all
stockholders of the Corporation that did not so act by written consent in
accordance with Section 228(c) of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of the Corporation will not be reduced by
reason said Amendment.
<PAGE>
FIFTH: That the aforesaid Amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, CAPITAL ASSOCIATES, INC. has caused its corporate
seal to be hereunto affixed and this certificate to be signed by Gary M. Jacobs,
its Vice President, and attested to by Joseph A. Newcomb, its Secretary, this
2nd day of March, 1987.
/s/Gary M. Jacobs
----------------------------
Gary M. Jacobs
Vice President
ATTEST:
/s/Joseph A. Newcomb
- ----------------------------
Joseph A. Newcomb, Secretary
(seal)
JRG442D.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Capital Associates, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Capital
Associates, Inc., resolutions were duly adopted setting forth a proposed
amendment to the Certificate of Incorporation of said corporation, declaring
said amendment to be advisable and requesting a written consent of stockholders
owning a majority of the outstanding shares of capital stock of said corporation
for adoption thereof. The resolution setting forth the proposed amendment is as
follows:
RESOLVED,that this Board of Directors deems it to be
advisable that Article IV of the Certificate of Incorporation
of Capital Associates, Inc. be amended by the addition of the
following paragraph immediately following paragraph 3
thereof:
"4. Simultaneously with the effective date of this
amendment (the "Effective Date"), each share of Common Stock
issued and outstanding immediately prior to the Effective
Date (the "Old Common Stock") shall automatically and without
any action on the part of the holder thereof be reclassified
as, and changed into, one-half (1/2) of a share of Common
Stock (the "New Common Stock"), subject to the treatment of
fractional share interests, as described below. Such
reclassification and change of Old Common Stock into New
Common Stock shall not change the par value per share of the
shares reclassified and changed, which par value shall remain
$.008 per share. Each holder of a certificate or certificates
<PAGE>
which immediately prior to the Effective Date represented
outstanding shares of Old Common Stock (the "Old
Certificates", whether one or more) shall be entitled to
receive upon surrender of such Old Certificates to the
Corporation's Exchange Agent for cancellation, a certificate
or certificates (the "New Certificates", whether one or more)
representing the number of whole shares of New Common Stock
into which and for which the shares of the Old Common Stock
formerly represented by such Old Certificates so surrendered,
are reclassified under the terms hereof. From and after the
Effective Date, Old Certificates shall represent only the
right to receive New Certificates (and, where applicable,
cash in lieu of fractional shares, as provided below)
pursuant to the provisions hereof. No certificates or scrip
representing fractional share interests in New Common Stock
will be issued, and no such fractional share interest will
entitle the holder thereof to vote, or to any rights of a
stockholder of the Corporation. A holder of Old Certificates
shall receive, in lieu of any fraction of a share of New
Common Stock to which the holder would otherwise be entitled,
a cash payment therefore in an amount equal to the product of
(a) the number of shares of Old Common Stock that appears in
the numerator of such fraction times (b) the average of
either (i) the high bid and low asked prices of one share of
Old Common Stock, as reported on the NASD OTC Bulletin Board,
or (ii) the closing price of one share of Old Common Stock,
as reported on the Nasdaq National Market, whichever
alternative is applicable, for the ten business days
immediately preceding the Effective Date for which
transactions in Old Common Stock are reported. If more than
one Old Certificate shall be surrendered at one time for the
account of the same stockholder, the number of full shares of
New Common Stock for which New Certificates shall be issued
shall be computed on the basis of the aggregate number of
shares represented by the Old Certificates so surrendered. In
the event that the Exchange Agent becomes aware that a holder
of old Certificates has not tendered all the holder's
certificates for exchange, the Exchange Agent shall carry
forward any fractional share until all certificates of that
holder have been presented for exchange such that payment for
fractional shares to any one holder shall not exceed the
value of one share of old Common Stock. If any New
<PAGE>
Certificate is to be issued in a name other than that in
which the Old Certificates surrendered for exchange are
issued, the Old Certificates so surrendered shall be properly
endorsed and otherwise in proper form for transfer, and the
person or persons requesting such exchange shall affix any
requisite stock transfer tax stamps to the Old Certificates
surrendered, or provide funds for their purchase, or
establish to the satisfaction of the Exchange Agent that such
taxes are not payable. From and after the Effective Date, the
amount of capital represented by the shares of the New Common
Stock into which and for which the shares of the Old Common
Stock are reclassified under the terms hereof shall be the
same as the amount of capital represented by the shares of
Old Common Stock so reclassified, until thereafter reduced or
increased in accordance with applicable law."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a written consent of stockholders owning a majority of the
outstanding shares of capital stock of said corporation was duly executed and
given and written notice to stockholders who had not consented in writing was
given, all in accordance with Sections 228 and 242 of the General Corporation
Law of the State of Delaware.
THIRD: Other than as provided above and in prior filings of one or more
Certificates of Amendment, no other amendments or changes to the Certificate of
Incorporation of said corporation are being effected hereby and said Certificate
of Incorporation as so amended remains in full force and effect subject to
further amendment from time to time pursuant to the General Corporation Law of
the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, said Capital Associates, Inc. has caused this
certificate to be signed by Dennis J. Lacey, its President, this 30th day of
October, 1995.
/s/Dennis J. Lacey
------------------------
Dennis J. Lacey
AMENDED AND RESTATED
BYLAWS
OF
CAPITAL ASSOCIATES, INC.
A Delaware Corporation
As of October 2, 1995
ARTICLE I
OFFICES
Section 1. Registered Office. The principal office of the corporation
in the State of Delaware shall be located at 100 West Tenth Street, Wilmington,
Delaware. The name of the corporation's registered agent at such address shall
be The Corporation Trust Company.
Section 2. Other Offices. The corporation may also have offices at such
other places, both within and without the State of Delaware, as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the
stockholders of the corporation shall be held for the purpose of electing
directors and conducting such other business as may properly come before the
meeting. The date, time and place of the annual meeting shall be determined by
resolution of the board of directors. Special meetings of stockholders for any
other purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof. Special meetings of the stockholders may be called by
the president for any purpose and shall be called by the secretary if directed
by the board of directors.
Section 2. Notice. Written or printed notice of every annual or special
meeting of the stockholders, stating the place, date, time, and, in the case of
special meetings, the purpose or purposes, of such meeting, shall be given to
each stockholder entitled to vote at such meeting not less than ten, nor more
than sixty days before the date of the meeting, but such notice may be waived by
any stockholder before or after the meeting. All such notices shall be
delivered, either personally or by mail, by or at the direction of the board of
directors, the president or the secretary, and if mailed, such notice shall be
deemed to be delivered when deposited in the United States mail addressed to the
stockholder at his or her address as it appears on the records of the
corporation, with postage prepaid.
<PAGE>
Section 3. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders except as
otherwise provided by statute or by the certificate of incorporation. If a
quorum is not present, the holders of the shares present in person or
represented by proxy at the meeting, and entitled to vote thereat, shall have
the power, by the affirmative vote of the holders of a majority of such shares,
to adjourn the meeting to another time and/or place. Unless the adjournment is
for more than thirty days or unless a new record date is set for the adjourned
meeting, no notice of the adjourned meeting need be given to any stockholder
provided that the time and place of the adjourned meeting were announced at the
meeting at which the adjournment was taken. At the adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting.
Section 4. Vote Required. When a quorum is present or represented by
proxy at any meeting, the vote of the holders of a majority of the stock having
voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express
provisions of an applicable statute or of the certificate of incorporation a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
Section 5. Voting Rights. Every stockholder shall at every meeting of
the stockholders be entitled to one vote in person or by proxy for each share of
the capital stock having voting power held by such stockholder, except that no
proxy shall be voted after three years from its date, unless such proxy provides
for a longer period.
Section 6. Informal Action. To the extent permitted by statute, any
action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Any action taken pursuant to such written consent of the stockholders
shall have the same force and effect as if taken by the stockholder at a meeting
thereof.
ARTICLE III
DIRECTORS
Section 1. Number, Qualifications and Term of Office. The business and
affairs of the corporation shall be managed by a board of directors consisting
of not less than three nor more than twelve members. The board of directors may
by resolution increase or decrease the number of directors from time to time.
Each director shall be elected at the annual meeting of the stockholders, except
<PAGE>
as provided in Section 2 of this Article III, and each director elected shall
hold office until the next annual meeting of stockholders or until a successor
is duly elected and qualified or until his or her earlier death, resignation or
removal.
Section 2. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office though less than a quorum, and
each director so chosen shall hold office until the next annual election or
until a successor is duly elected and qualified or until his or her earlier
death, resignation or removal.
Section 3. Annual Meetings. The annual meeting of each newly elected
board of directors shall be held without other notice than this bylaw
immediately after the annual meeting of stockholders.
Section 4. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the board of directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution of
the board. Special meetings of the board of directors may be called by or at the
request of the president or the chairman of the Board on at least twenty-four
hours notice to each director, either personally, by telephone, by mail, or by
telegraph; in like manner and on like notice the president and/or chairman of
the Board must call a special meeting on the written request of a majority of
directors.
Section 5. Quorum. A majority of the total number of directors shall
constitute a quorum for the transaction of business. The vote of a majority of
directors present at a meeting at which a quorum is present shall be the act of
the board of directors; provided however, that in the case of any proposed
action or matter presented to the board of directors for its approval which is
described in, or subject to, subsection (a) of Section 144 of the Delaware
General Corporation Law ("DGCL"), in order to be the act of the board of
directors, such proposed action or matter must be approved by (1) a majority of
the directors present at a meeting at which a quorum is present and (2) a
majority of the disinterested directors (within the meaning of Section 144 of
the DGCL), without regard to whether such disinterested directors are or are not
present at such meeting." If a quorum shall not be present at any meeting of the
board of directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Committees. The board of directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation, which
to the extent provided in such resolution shall have and may exercise the powers
of the board of directors in the management and affairs of the corporation
except as otherwise limited by statute. The board of directors may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Such Committee or
committees shall have such name or names as may be determined from time to time
<PAGE>
by resolution adopted by the board of directors. Each committee shall keep
regular minutes of its meetings and report the same to the directors when
required.
Section 7. Committee Rules. Each committee of the board of directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by the resolution of the board
of directors designating such committee, but in all cases the presence of at
least a majority of the members of such committee shall be necessary to
constitute a quorum. In the event that a member and that member's alternate, if
alternates are designated by the board of directors as provided in Section 6 of
this Article III, of such committee is/are absent or disqualified, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in place of any
such absent or disqualified member.
Section 8. Communications Equipment. Members of the board of directors
or any committee designated by the board of directors may participate in any
meeting of such board or committee by means of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in such a meeting shall constitute
presence in person at such meeting.
Section 9. Presumption of Assent. A director of the corporation who is
present at a meeting of the board of directors or any committee designated by
the board at which action on any corporate matter is taken shall be deemed to
have assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
secretary of the corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
Section 10. Informal Action. Any action required or permitted to be
taken at any meeting of the board of directors, or of any committee thereof, may
be taken without a meeting if all members of the board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be chosen by
the board of directors and shall consist of a president, one or more
vice-presidents, a secretary, a treasurer, and such other officers and assistant
officers as may be deemed necessary or desirable by the board of directors. Any
number of offices may be held by the same person. In its discretion, the board
of directors may choose not to fill any office for any period as it may deem
advisable, except the offices of president and secretary.
<PAGE>
Section 2. Election and Term of Office. The officers of the corporation
shall be elected annually by the board of directors at the first meeting of the
board of directors held after each annual meeting of stockholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as may be convenient. Vacancies may be filled or new
offices created and filled at any meeting of the board of directors. Each
officer shall hold office until the next annual meeting of the board of
directors or until a successor is duly elected and qualified or until his or her
earlier death, resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected or appointed by the
board of directors may be removed by the board of directors whenever in its
judgment the best interests of the corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
Section 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board
of directors for the unexpired portion of the term by a majority vote of the
directors then in office.
Section 5. Compensation. Compensation of all officers shall be fixed by
the board of directors, and no officer shall be prevented from receiving such
compensation by virtue of the fact that he or she is also a director of the
corporation.
Section 6. The Chairman of the Board. The chairman of the board, if
there shall be one, shall preside at all meetings of the board of directors and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe. In addition to the president, the
chairman of the board shall have authority to execute bonds, mortgages and other
contracts (whether or not requiring a seal), except where required or permitted
by law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
Section 7. The President. The president shall be the chief executive
officer of the corporation; shall preside at all meetings of the stockholders;
shall have general and active management of the business of the corporation; and
shall see that all orders and resolutions of the board of directors are carried
into effect. The president shall execute bonds, mortgages and other contracts
requiring a seal under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
Section 8. Vice Presidents. The vice-president, or if there shall be
more than one, the vice-presidents in the order determined by the board of
directors, shall, in the absence or disability of the president, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other powers as the board of directors may from time to
time determine or these bylaws may prescribe.
<PAGE>
Section 9. The Secretary and Assistant Secretaries. The secretary shall
attend all meetings of the board of directors and all meetings of the
stockholders and record all the proceedings of the meetings of the corporation
and of the board of directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The secretary
shall give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the board of directors; perform such other duties as may be
prescribed by the board of directors or president, under whose supervision he or
she shall be; shall have custody of the corporate seal of the corporation and
the secretary, or an assistant secretary, shall have authority to affix the same
to any instrument requiring it and when so affixed, it may be attested by his or
her signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his or her signature. The
assistant secretary, or if there be more than one, the assistant secretaries in
the order determined by the board of directors, shall, in the absence or
disability of the secretary, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
Section 10. The Treasurer and Assistant Treasurer. The treasurer shall
have the custody of the corporate funds and securities; shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation; shall deposit all monies and other valuable effects in the name and
to the credit of the corporation as may be ordered by the board of directors,
taking proper vouchers for such disbursements; and shall render to the president
and the board of directors, at its regular meetings, or when the board of
directors so requires, an account of the corporation. If required by the board
of directors, the treasurer shall give the corporation a bond (which shall be
rendered every six years) in such sums and with such surety or sureties as shall
be satisfactory to the board of directors for the faithful performance of the
duties of the office of treasurer and for the restoration to the corporation, in
case of death, resignation, retirement, or removal from office, of all books,
papers, vouchers, money, and other property of whatever kind in the possession
or under the control of the treasurer belonging to the corporation. The
assistant treasurer, or if there shall be more than one, the assistant
treasurers in the order determined by the board of directors, shall in the
absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
Section 11. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these bylaws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the board of directors.
<PAGE>
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. 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, by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement incurred by him or her in connection with such action, suit or
proceeding to the fullest extent permitted by the General Corporation Law of
Delaware.
Section 2. Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the board of
directors upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the corporation as authorized in this
Article V. Such expenses incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of directors deems
appropriate.
Section 3. The indemnification and advancement of expenses provided by
this Article V shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office, and shall 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.
Section 4. 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, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the corporation would have the power
to indemnify him or her against such liability under the provisions of this
Article V.
ARTICLE VI
CERTIFICATES FOR STOCK
Section 1. Form. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by,
the president or a vice-president and the treasurer or an assistant treasurer,
or the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him or her in the corporation. Where a certificate is
signed (I) by a transfer agent or an assistant transfer agent other than the
corporation or its employee or (2) by a registrar, other than the corporation or
<PAGE>
its employee, the signature of any such president, vice-president, treasurer,
assistant treasurer, secretary, or assistant secretary may be facsimile. In case
any officer or officers who have signed, or whose facsimile signature or
signatures have been used on, any such certificate or certificates shall cease
to be such officer or officers of the corporation whether because of death,
resignation or otherwise before such certificate or certificates have been
delivered by the corporation, such certificate or certificates may nevertheless
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the corporation.
Section 2. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, to give the corporation a bond
in such sum as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 3. Fixing a Record Date. The board of directors may fix in
advance a date, not more than sixty nor less than ten days preceding the date of
any meeting of stockholders, or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining any consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting, and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect to any such
change, conversion, or exchange of capital stock, or to give 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 such notice of,
and to vote at, such meeting and any adjournment thereof, or to receive payment
of such dividend, or to receive such allotment of rights, or to exercise such
rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation after any such record date
fixed as aforesaid. If no record date is fixed, the time for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which the
meeting is held. The time for determining stockholders for any other purpose
shall be at the close of business on the date on which the board of directors
adopts the resolution pertaining thereto. A determination of stockholders
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of directors may
fix a new record date for the adjourned meeting.
<PAGE>
Section 4. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of the other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of the State of Delaware.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall deem in the best interest of the corporation, and
the directors may modify or abolish any such reserve in the manner in which it
was created.
Section 2. Checks. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
Section 4. Seal. The corporate seal shall have inscribed thereon the
name of the corporation and the words "Corporate Seal, Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 5. Securities Owned By Corporation. Voting securities in any
other corporation held by the corporation shall be voted by the president or any
vice-president, unless the board of directors specifically confers authority to
vote with respect thereto, which may be general or confined to specific
instances, upon some other person or officer. Any person authorized to vote
securities shall have the power to appoint proxies, with general power of
substitution.
<PAGE>
ARTICLE VIII
AMENDMENTS
These bylaws may be amended, altered or repealed and new bylaws adopted
at any meeting of the board of directors by a majority vote; provided, however,
that the proviso in the second sentence of Article III, Section 5., of these
bylaws may not be amended, altered or repealed or changed in any way without the
unanimous approval of all directors. The fact that the power to adopt, amend,
alter, or repeal the bylaws has been conferred upon the board of directors shall
not divest the stockholders of the same powers.
ARTICLE IX
EFFECTIVE DATE
These Amended and Restated Bylaws are effective on and as of October 2,
1995, and supersede in their entirety the Bylaws of Capital Associates, Inc, a
Delaware Corporation, dated as of August 8, 1991.
December 14, 1995
Board of Directors
Capital Associates, Inc.
7175 West Jefferson Avenue
Suite 4000
Lakewood, Colorado 80235
Re: Capital Associates, Inc.
Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Capital Associates, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of
the Registration Statement on Form S-3 (the "Registration Statement") pertaining
to 75,000 shares of the Company's common stock, $.008 par value per share (the
"Shares") issued by the Company to Dennis J. Lacey from time to time.
We have reviewed the Certificate of Incorporation and Bylaws of the
Company, resolutions of the Board of Directors and such other documents as we
have deemed appropriate. In rendering the opinion expressed herein, we have
assumed, without investigation, the validity of all documents and the accuracy
of all information supplied to us by the Company.
Based upon the foregoing, we are of the opinion that the Shares being
registered pursuant to the Registration Statement have been duly authorized and
are legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/Ballard Spahr Andrews & Ingersoll
------------------------------------
Ballard Spahr Andrews & Ingersoll
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Capital Associates, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-3 of Capital Associates, Inc. of our report dated July 14, 1995, except
for note 15, which is as of August 23, 1995, relating to the consolidated
balance sheets of Capital Associates, Inc. and subsidiaries as of May 31, 1995
and 1994 and the related consolidated statements of income, stockholders' equity
and cash flows for each of the years in the three-year period ended May 31,
1995, and the related schedule, which reports appear in the May 31, 1995 annual
report on Form 10-K of Capital Associates, Inc., and the reference to our firm
under the heading "Experts" in the Prospectus.
/s/KPMG Peat Marwick LLP
------------------------
KPMG Peat Marwick LLP
Denver, Colorado
December 14, 1995
