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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 21, 1997
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SEMELE GROUP, INC., f/k/a BANYAN STRATEGIC LAND FUND II
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(Exact name of Registrant as specified in its charter)
Delaware 0-1686 36-3465422
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(State of or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
incorporation) Number)
150 South Wacker Drive, Suite 2900, Chicago, IL 60606
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 553-9800
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ITEM 5. OTHER EVENTS
On October 21, 1997, Banyan Strategic Land Fund II (the "Registrant")
conducted its annual meeting of stockholders for the year 1996 ("Annual
Meeting"). At the Annual Meeting, the stockholders approved an Amended and
Restated Certificate of Incorporation ("Restated Certificate") and Amended and
Restated By-laws ("Restated By-laws"). The Restated Certificate was filed on
October 24, 1997 with the Delaware Secretary of State. The Restated Certificate
and the Restated By-laws are attached hereto as Exhibits (3)(i) and (3)(ii)
respectively.
The Restated Certificate, among other things, caused the name of the
Registrant to be changed to Semele Group, Inc. and changed the Registrant from
a finite life entity to a perpetual life entity. The Restated By-laws, among
other things, prohibit any person from acquiring more than 4.9 percent of the
outstanding shares of Common Stock of the Registrant. The Registrant intends to
conspicuously note this restriction on all of its newly-issued stock
certificates.
In addition, at the Annual Meeting, the stockholders of the Registrant
re-elected directors Walter E. Auch, Sr., Gary D. Engle, Gerald L. Nudo and
Robert M. Ungerleider and elected as new directors Joseph W. Bartlett and
James A. Coyne.
On October 21, 1997, the Registrant's Board of Directors declared a
distribution of $0.20 per share to stockholders of record as of September 4,
1997. The distribution is to be completed not later than November 15, 1997.
On October 21, 1997, the Registrant issued a press release, a copy of which
is attached hereto as Exhibit (99.1) and is incorporated by reference.
ITEM 13. EXHIBITS
(a) The following documents are filed as part of this Report:
Exhibit Number Description
(3)(i) Restated Certificate of Incorporation
(3)(ii) Restated By-laws
(99.1) Press Release dated October 21, 1997
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 29, 1997 SEMELE GROUP, INC. F/K/A
BANYAN STRATEGIC LAND FUND II
(Registrant)
By:
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Joel L. Teglia
Its: Vice President, Chief Financial
and Accounting Officer
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EXHIBIT 1
RESTATED
CERTIFICATE OF INCORPORATION
OF
BANYAN STRATEGIC LAND FUND II
Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, Banyan Strategic Land Fund II (the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
A. The name of the Corporation is Banyan Strategic Land Fund II,
originally incorporated under the name of VMS Strategic Land Fund II.
B. The Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on April 14, 1987; as amended on
July 28, 1987; as further amended on August 24, 1987; as further amended on
June 20, 1991; as further amended on July 31, 1991; and as further amended on
July 23, 1992.
The text of the Certificate of Incorporation as amended or supplemented
heretofore is further amended hereby to read as herein set forth in full:
1. The name of the corporation is SEMELE GROUP INC. (the "Corporation").
2. The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, zip code 19801. The name of its registered
agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted by
the Corporation is to acquire, directly or indirectly, interests in real estate
and in general to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
4. The Corporation is authorized to issue 50,000,000 shares of common
stock, each share having a par value of $.01.
5. The Board of Directors of the Corporation is expressly authorized to
make, alter or repeal Bylaws of the Corporation, but the stockholders may make
additional Bylaws and may alter or repeal any Bylaw whether adopted by them or
otherwise.
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6. The number of directors which will constitute the whole Board of
Directors of the Corporation shall be as specified in the Bylaws of the
Corporation. The election of directors need not be by written ballot unless
the Bylaws so provide.
7. 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.
8. A Director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability: (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 Delaware General
Corporation Law; or (iv) for any transaction from which the Director derived
any improper personal benefit. If the General Corporation Law of the State of
Delaware is hereafter amended to authorize, with the approval of a
corporation's stockholders, further reductions in the liability of the
Corporation's directors for breach of fiduciary duty, then a Director of the
Corporation shall not be liable for any such breach to the fullest extent
permitted by the General Corporation Law of the State of Delaware as so
amended. Any repeal or modification of the foregoing provisions of this
Section 8 by the stockholders of the Corporation shall not adversely affect any
right or protection of a Director of the Corporation existing at the time of
such repeal or modification.
9. To the fullest extent permitted by applicable law, this Corporation is
authorized to provide indemnification of (and advancement of expenses to)
directors, officers, employees and agents of the Corporation (and any other
persons to which Delaware law permits this Corporation to provide
indemnification) through Bylaw provisions, agreements with such agents or other
persons, vote of stockholders or disinterested directors or otherwise, in
excess of the indemnification and advancement otherwise permitted by Section
145 of the General Corporation Law of the State of Delaware, subject only to
limits created by applicable Delaware law (statutory or non-statutory), with
respect to actions for breach of duty to this Corporation, its stockholders,
and others. Any repeal or modification of any of the foregoing provisions of
this Section 9 shall not adversely affect any right or protection of a
director, officer, employee, agent or other person existing at the time of, or
increase the liability of any director of this Corporation with respect to any
acts or omissions of such director, officer, employee or agent occurring prior
to such repeal or modification.
This Restated Certificate of Incorporation was duly adopted by the Board
of Directors and by vote of the stockholders in accordance with Sections 242
and 245 of the General Corporation Law of the State of Delaware.
(The remainder of this page is intentionally left blank)
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Robert G. Higgins, its Vice President and Secretary, who does make
this Certificate and declare and certify under penalty of perjury that this is
the act and deed of the Corporation and that the facts stated therein are true,
and accordingly have set his hand hereto as of this 24th day of October, 1997.
By:
--------------------------------
Name: Robert G. Higgins
Title: Vice President and Secretary
313513
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EXHIBIT 2
SEMELE GROUP INC.
Formerly known as Banyan Strategic Land Fund II
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
The Corporation may have offices at such place or 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. Time and Place of Meetings. All meetings of the stockholders
for the election of directors shall be held at such time and place, either
within or without the State of Delaware, as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting or, in
the case of an adjourned meeting, as announced at the meeting at which the
adjournment is taken. 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 or, in the case of an adjourned meeting, as announced at the meeting at
which the adjournment is taken.
Section 2. Annual Meetings. Annual meetings of stockholders shall be
held at such date and time within six months following the end of each fiscal
year of the Corporation as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting, at which the stockholders
shall elect by a plurality vote a Board of Directors and transact such other
business as may properly be brought before the meeting.
Section 3. Notice of Annual Meetings. Written notice of the annual
meeting, stating the place, date, and hour of the meeting, shall be given to
each stockholder of record entitled to vote at such meeting not less than 10
nor more than 60 days before the date of the meeting. If mailed, such notice
shall be deemed to be given when deposited in the mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Corporation.
Section 4. Special Meetings. Special meetings of the stockholders for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called at any time by order of the Board
of Directors and shall be called by the Chairman of the Board, the
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President, or the Secretary at the request in writing of a majority of the
Board of Directors, a majority of the Independent Directors, or stockholders
holding at least 30% of the outstanding shares of Common Stock of the
Corporation. Such request shall state the purpose or purposes of the proposed
special meeting. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 5. Notice of Special Meetings. Written notice of a special
meeting, stating the place, date, and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given to each stockholder of
record entitled to vote at such meeting not less than 10 nor more than 60 days
before the date of the meeting. If mailed, such notice shall be deemed to be
given when deposited in the mail, postage prepaid, directed to the stockholder
at his address as it appears on the records of the Corporation.
Section 6. Quorum. Except as otherwise provided by statute, these
Bylaws, or the Certificate of Incorporation, the holders of stock having a
majority of the voting power of the stock entitled to be voted thereat,
present in person or represented by proxy, shall constitute a quorum for the
transaction of business at all meetings of the stockholders. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time without notice
(other than announcement at the meeting at which the adjournment is taken of
the time and place of the adjourned meeting) until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If any single adjournment is for more than
30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 7. Organization. At each meeting of the stockholders, the
Chairman or Vice Chairman of the Board or the President, determined as provided
in Article V of these Bylaws, or if those officers shall be absent therefrom,
another officer of the Corporation chosen as chairman present in person or by
proxy and entitled to vote thereat, or if all the officers of the Corporation
shall be absent therefrom, a stockholder holding of record shares of stock of
the Corporation so chosen, shall act as chairman of the meeting and preside
thereat. The Secretary, or if he or she shall be absent from such meeting or
shall be required pursuant to the provisions of this Section 7 to act as
chairman of such meeting, the person (who shall be an Assistant Secretary, if
an Assistant Secretary shall be present thereat) whom the chairman of such
meeting shall appoint, shall act as secretary of such meeting and keep the
minutes thereof.
Section 8. Voting. Except as otherwise provided in the Certificate of
Incorporation, each stockholder shall, at each meeting of the stockholders, be
entitled to one vote in person or by proxy for each share of stock of the
Corporation held by him, her or it and registered in his, her or its name on
the books of the Corporation on the date fixed pursuant to the provisions of
Section 5 of Article VII of these Bylaws as the record date for the
determination of stockholders who shall be
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entitled to notice of and to vote at such meeting. Shares of its own stock
belonging to the Corporation or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such other corporation
is held directly or indirectly by the Corporation, shall not be entitled to
vote. Any vote by stock of the Corporation may be given at any meeting of the
stockholders by the stockholder entitled thereto, in person or by his or her
proxy appointed by an instrument in writing subscribed by such stockholder or
by his or her attorney thereunto duly authorized and delivered to the Secretary
of the Corporation or to the secretary of the meeting; provided, however, that
no proxy shall be voted or acted upon after three years from its date, unless
said proxy shall provide for a longer period. Each proxy shall be revocable
unless expressly provided therein to be irrevocable and if, and only as long
as, it is coupled with an interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or another duly executed proxy bearing a later date
with the Secretary of the Corporation.
At all meetings of the stockholders, all matters, except where other
provision is made by law, the Certificate of Incorporation, or these Bylaws,
shall be decided by the vote of a majority of the votes cast by the
stockholders present in person or by proxy and entitled to vote thereat, a
quorum being present. In all matters other than the election of directors, the
affirmative vote of the majority of shares present in person or represented by
proxy at the meeting and entitled to vote on the subject matter shall be the
act of the stockholders. Where a separate vote by class or classes is
required, a majority of the outstanding shares of such class or classes,
present in person or represented by proxy, shall constitute a quorum entitled
to take action with respect to that vote on that matter and the affirmative
vote of the majority of shares of such class or classes present in person or
represented by proxy at the meeting shall be the act of such class. Unless
demanded by a stockholder of the Corporation present in person or by proxy at
any meeting of the stockholders and entitled to vote thereat, or so directed by
the chairman of the meeting, the vote thereat on any question other than the
election or removal of directors need not be by written ballot. Upon a demand
of any such stockholder for a vote by written ballot on any question or at the
direction of such chairman that a vote by written ballot be taken on any
question, such vote shall be taken by written ballot. On a vote by written
ballot, each ballot shall be signed by the stockholder voting, or by his or her
proxy, if there be such proxy, and shall state the number of shares voted.
Section 9. List of Stockholders. It shall be the duty of the Secretary
or other officer of the Corporation who shall have charge of its stock ledger,
either directly or through another officer of the Corporation designated by him
or her or through a transfer agent appointed by the Board of Directors, to
prepare and make, at least 10 days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each 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 before said
meeting, either at a place within the city where said meeting is to be held,
which place shall be specified in the notice of said meeting, or, if not so
specified, at the place where said meeting is to be held. The list
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shall also be produced and kept at the time and place of said meeting
during the whole time thereof, and may be inspected by any stockholder of
record who shall be present thereat. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
such list or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 10. Inspectors of Election.
(a) The Corporation shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a written report
thereof. The Corporation may designate one or more persons as alternate
inspectors or replace an inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person presiding at
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares
represented at a meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors, and (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
(c) The date and time of the operating and the closing of the polls
for each matter upon which the stockholders will vote at meeting shall be
announced at the meeting.
(d) In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, ballots and the regular books and records of the
Corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons which represent
more votes than the holder of a proxy is authorized by the record owner to cast
or more votes than the stockholder holds of record. If the inspectors consider
other reliable information for the limited purpose permitted herein, the
inspectors at the time they make their certification pursuant to subsection
(b)(v) of this section shall specify the precise information considered by them
including the person or persons from whom they obtained information, when the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 11. Actions Without a Meeting.
(a) 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 stockholders, may be taken without a meeting,
without prior notice, and without a vote if a consent
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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 thereat were present and voted. Notice of the taking of
corporate action without a meeting shall be delivered to the Corporation by
delivery to its registered office, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of members are recorded. Delivery made to the
Corporation shall be by hand or by certified or registered mail, return receipt
requested.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporation action referred to therein unless, within sixty days of
the earliest dated consent delivered in the manner required by this Article II,
Section 11 to the Corporation, written consents signed by a sufficient number
of stockholders to take action are delivered to the Corporation by delivery to
its registered office, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery made to the Corporation shall be by
hand or by certified or registered mail, return receipt requested.
(c) Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall be
managed by its Board of Directors, which shall have and may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute, the Certificate of Incorporation, or these Bylaws directed or required
to be exercised or done by the stockholders.
Section 2. Number, Qualification, and Term of Office. The Board of
Directors elected immediately following the adoption of these Bylaws shall
consist of not less than four (4) nor more than nine (9) individuals, at least
a majority of whom shall at all times be Independent Directors, and shall be
divided into three Classes as nearly equal in number as possible, with the
initial terms of such Classes being one year, two years and three years
respectively. Except as provided in the immediately preceding sentence, the
term of office for each Director shall be three years. Thereafter, the number
of Directors which shall constitute the whole Board of Directors shall be
determined by resolution of the Board of Directors or by the stockholders at
any annual or special meeting or otherwise pursuant to action of the
stockholders. Directors need not be stockholders. The directors shall be
elected at the annual meeting of the stockholders, except as contemplated by
the second sentence of this Section and as provided in Sections 4 and 5 of this
Article III, and each director elected shall hold office until the next annual
meeting of the stockholders of the corporation and until his or her successor
is duly elected and qualified, or until his or her death or retirement or until
he or she resigns or is removed in the manner hereinafter provided. Such
election shall be by written
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ballot. For purposes of this Article III, Section 2, "Independent
Directors" shall mean directors who (i) are not affiliated directly or
indirectly (whether by ownership of, ownership interest in, employment by, or
service as an officer or director by such person or an immediate family member)
with any person or entity which beneficially owns in excess of five percent of
the Company's common stock, on a fully-diluted basis (a "Five Percent Holder")
or any person or entity controlling, controlled by, or under common control
with, a Five Percent Holder, (ii) perform no other ongoing or substantial
services for the Corporation except as directors.
Section 3. Resignation. Any director may resign at any time by giving
written notice of his or her resignation to the Corporation. Any such
resignation shall take effect at the time specified therein, or if the time
when it shall become effective shall not be specified therein, then it shall
take effect immediately upon its receipt by the Secretary. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 4. Removal of Directors. Any director may be removed, for cause
only, at any time, by the affirmative vote of a majority in voting interest of
the stockholders of record of the Corporation entitled to vote, given at an
annual meeting or at a special meeting of the stockholders called for that
purpose. The vacancy in the Board of Directors caused by any such removal
shall be filled by the stockholders at such meeting or by the directors as
provided in Section 5 of this Article III. No reduction of the authorized
number of directors shall have the effect of removing any director prior to the
expiration of such director's term of office.
Section 5. 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, or by
a sole remaining director, or by a plurality of the votes cast at a meeting of
stockholders, and the directors so chosen shall hold office until the annual
meeting next after their election and until their successors are elected and
qualified, unless sooner displaced. If at any time, by reason of death or
resignation ro other cause, the corporation should have no directors in office,
then any officer or any stockholder or an executor, administrator, trustee or
guardian of a stockholder, or other fiduciary entrusted with like
responsibility for the person or estate of a stockholder, may call a special
meeting of stockholders in accordance with the provisions of the Certificate of
Incorporation or these Bylaws, or may apply to the Court of Chancery for a
decree summarily ordering an election as provided in Section 211 of the General
Corporation Law of Delaware. If, at the time of filling any vacancy or any
newly created directorship, the directors then in office constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), then the Court of Chancery may, upon application of any stockholder
or stockholders holding at least ten (10) percent of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
if office as aforesaid, which election shall be governed by the provisions of
Section 211 of the General Corporation Law of Delaware as far as applicable.
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MEETINGS OF THE BOARD OF DIRECTORS
Section 6. Place of Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware.
Section 7. Annual Meetings. The first meeting of each newly elected Board
of Directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present. If such meeting is not held immediately after the annual
meeting of stockholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written
waiver signed by all of the directors.
Section 8. Regular Meetings. Regular meetings 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 the Board of Directors.
Section 9. Special Meetings; Notice. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President, or the
Secretary on 24 hours' notice to each director, either personally or by
telephone or by mail, telecopy, or other form of recorded communication;
special meetings shall be called by the Chairman of the Board, the President,
or the Secretary in like manner and on like notice on the written request of
two directors. Notice of any such meeting need not be given to any director,
however, if waived by him or her in writing or by mail, telecopy, or other form
of recorded communication, or if he or she shall be present at such meeting.
Section 10. Quorum and Manner of Acting. At all meetings of the Board of
Directors, a majority of the directors at the time in office (but not less than
one-third of the whole Board of Directors) shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute, these
Bylaws or by the Certificate of Incorporation. 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 11. Remuneration. Unless otherwise expressly provided by
resolution adopted by the Board of Directors, the directors of the Corporation
shall be paid an annual fee of $15,000, payable quarterly, plus $875 for each
Board meeting, including meetings of the audit committee, attended in person
and $250 an hour for each Board meeting, including meetings of the audit
committee, attended via telephonic conference call. In addition, each Director
shall be reimbursed for out-of-pocket expenses incurred in attending meetings
of the Board. The Board of Directors may at any time and from time to time by
resolution provide that a different sum shall be paid to any director of the
Corporation, either as his or her annual remuneration as such director or
member of
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any committee of the Board of Directors or as remuneration for his or her
attendance at each meeting of the Board of Directors or any such committee. The
Board of Directors may also likewise provide that the Corporation shall
reimburse each director for any expenses paid by him on account of his or her
attendance at any meeting. Nothing in this Section 10 shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving remuneration thereof.
COMMITTEES OF DIRECTORS
Section 12. Executive Committee: How Constituted and Powers. The Board
of Directors may in its discretion, by resolution passed by a majority of the
whole Board of Directors, designate an Executive Committee consisting of three
or more of the directors of the Corporation. Subject to the provisions of
Section 141 of the General Corporation Law of the State of Delaware, the
Certificate of Incorporation, and these Bylaws, the Executive Committee shall
have and may exercise, when the Board of Directors is not in session, all the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and shall have the power to authorize
the seal of the Corporation to be affixed to all papers which may require it;
but the Executive Committee shall not have the power to fill vacancies in the
Board of Directors, the Executive Committee or any other committee of directors
or to elect or approve offices of the Corporation. The Executive Committee
shall have the power and authority to authorize the issuance of common stock
and grant and authorize options and other rights with respect to such issuance.
The Board of Directors shall have the power at any time, by resolution passed
by a majority of the whole Board of Directors, to change the membership of the
Executive Committee, to fill all vacancies in it, or to dissolve it, either
with or without cause.
Section 13. Organization. The Chairman of the Executive Committee, to be
selected by the Board of Directors, shall act as chairman at all meetings of
the Executive Committee and the Secretary shall act as secretary thereof. In
case of the absence from any meeting of the Executive Committee of the Chairman
of the Executive Committee or the Secretary, the Executive Committee may
appoint a chairman or secretary, as the case may be, of the meeting.
Section 14. Meetings. Regular meetings of the Executive Committee, of
which no notice shall be necessary, may be held on such days and at such
places, within or without the State of Delaware, as shall be fixed by
resolution adopted by a majority of the Executive Committee and communicated in
writing to all its members. Special meetings of the Executive Committee shall
be held whenever called by the Chairman of the Executive Committee or a
majority of the members of the Executive Committee then in office. Notice of
each special meeting of the Executive Committee shall be given by mail,
telecopy, or other form of recorded communication or be delivered personally or
by telephone to each member of the Executive Committee not later than the day
before the day on which such meeting is to be held. Notice of any such meeting
need not be given to any member of the Executive Committee, however, if waived
by him or her in writing or by mail, telecopy, or other form of recorded
communication, or if he or she shall be present at such meeting; and any
meeting of the Executive Committee shall be a legal meeting without any notice
thereof having been given, if all members of the Executive Committee shall be
present thereat. Subject to the provisions
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of this Article III, the Executive Committee, by resolution adopted by a
majority of the whole Executive Committee, shall fix its own rules of procedure.
Section 15. Quorum and Manner of Acting. A majority of the Executive
Committee shall constitute a quorum for the transaction of business, and the
act of a majority of those present at a meeting thereof at which a quorum is
present shall be the act of the Executive Committee.
Section 16. Other Committees. The Board of Directors may, by resolution
or resolutions passed by a majority of the whole Board of Directors, designate
one or more other committees consisting of three or more directors of the
Corporation, which, to the extent provided in said resolution or resolutions,
shall have and manage, exercise, subject to the provisions of Section 141 of
the General Corporation Law of the State of Delaware, the Certificate of
Incorporation, and these Bylaws, the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
shall have the power to authorize the seal of the Corporation to be affixed to
all papers which may require it; but no such committee shall have the power to
fill vacancies in the Board of Directors, the Executive Committee, or any other
committee or in their respective membership, to appoint or remove officers of
the Corporation, or to authorize the issuance of shares of the capital stock of
the Corporation, except that such a committee may, to the extent provided in
said resolutions, grant and authorize options and other rights with respect to
the common stock of the Corporation pursuant to and in accordance with any plan
approved by the Board of Directors. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the Board of Directors. A majority of all the members of any such committee
may determine its action and fix the time and place of its meetings and specify
what notice thereof, if any, shall be given, unless the Board of Directors
shall otherwise provide. The Board of Directors shall have power to change the
members of any such committee at any time to fill vacancies, and to discharge
any such committee, either with or without cause, at any time.
Section 17. Alternate Members of Committees. The Board of Directors may
designate one or more directors as alternate members of the Executive Committee
or any other committee, who may replace any absent or disqualified member at
any meeting of the committee, or if none be so appointed, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he, she 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 18. Minutes of Committees. Each committee shall keep regular
minutes of its meetings and proceedings and report the same to the Board of
Directors at the next meeting thereof.
GENERAL
Section 19. Actions Without a Meeting. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, 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 consent thereto in writing, and
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the writing or writings are filed with the minutes of proceedings of the Board
of Directors or the committee.
Section 20. Presence at Meetings by Means of Communications Equipment.
Members of the Board of Directors, or of any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting conducted pursuant to this Section 20 shall
constitute presence in person at such meeting.
ARTICLE IV
NOTICES
Section 1. Type of Notice. Whenever, under the provisions of any
applicable statute, the Certificate of Incorporation, or these Bylaws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, in
person or by mail, addressed to such director or stockholder, at his or her
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Notice to directors may also be
given in any manner permitted by Article III hereof and shall be deemed to be
given at the time when first transmitted by the method of communication so
permitted.
Section 2. Waiver of Notice. Whenever any notice is required to be given
under the provisions of any applicable statute, the Certificate of
Incorporation, or these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto, and transmission of a
waiver of notice by a director or stockholder by mail, telecopy, or other form
of recorded communication may constitute such a waiver.
ARTICLE V
OFFICERS
Section 1. Elected and Appointed Officers. The elected officers of the
Corporation shall be a President, Chief Operating Officer, Chief Executive
Officer, one or more Vice Presidents, with or without such descriptive titles
as the Board of Directors shall deem appropriate, a Secretary, and a Treasurer,
a Vice Chairman of the Board (who shall be a director) and a Chairman of the
Board (who shall be a director) and a Controller. The Board of Directors or
the Executive Committee of the Board of Directors by resolution also may
appoint one or more Assistant Vice Presidents, Assistant Treasurers, Assistant
Secretaries, Assistant Controllers, and such other officers and agents as from
time to time may appear to be necessary or advisable in the conduct of the
affairs of the Corporation.
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Section 2. Time of Election or Appointment. The Board of Directors at
its annual meeting shall elect or appoint, as the case may be, the officers to
fill the positions designated in order pursuant to Section 1 of this Article V.
Officers of the Corporation may also be elected or appointed, as the case may
be, at any other time.
Section 3. Salaries of Elected or Appointed Officers. The salaries of
all elected or appointed officers of the Corporation shall be fixed by the
Board of Directors, unless this function is delegated to the President and/or
Chief Executive Officer with respect to officers other than President and Chief
Executive Officer.
Section 4. Term. Each officer of the Corporation shall hold his office
until his or her successor is duly elected or appointed and qualified or until
his or her earlier resignation or removal. Any officer may resign at any time
upon written notice to the Corporation. Any officer elected or appointed by
the Board of Directors or the Executive Committee may be removed at any time by
the affirmative vote of a majority of the whole Board of Directors. Any
vacancy occurring in any office of the Corporation by death, resignation,
removal, or otherwise may be filled by the Board of Directors or the
appropriate committee thereof.
Section 5. Duties of the Chairman of the Board. The Chairman of the
Board, if one be elected, shall preside when present at all meetings of the
Board of Directors and, with the approval of the President, may preside at
meetings of the stockholders. He or she shall advise and counsel the President
and other officers of the Corporation, and shall exercise such powers and
perform such duties as shall be assigned to or required of him or her from time
to time by the Board of Directors.
Section 6. Duties of the Vice Chairman of the Board. The Vice Chairman
of the Board, if one be elected, shall preside when present at all meetings of
the Board of Directors in the absence of the Chairman of the Board, and, with
the approval of the President, may preside at meetings of the stockholders. He
or she shall assist the Chairman of the Board in fulfillment of the Chairman's
functions, and shall advise and counsel the President and other officers of the
Corporation, and shall exercise such powers and perform such duties as shall be
assigned to or required of him or her from time to time by the Board of
Directors.
Section 7. Duties of the President. The President shall be the chief
executive officer of the Corporation and, subject to the provisions of these
Bylaws, shall have general supervision of the affairs of the Corporation and
shall have general and active control of all its business. He or she shall
preside, when present, at all meetings of stockholders, except when the
Chairman or Vice Chairman of the Board presides with the approval of the
President and as may otherwise be provided by statute, and, in the absence of
any other person designated thereto by these Bylaws, at all meetings of the
Board of Directors. He or she shall see that all orders and resolutions of the
Board of Directors and the stockholders a carried into effect. He or she shall
have general authority to execute bonds, deeds, and contracts in the name of
the Corporation and affix the corporate seal thereto; to sign stock
certificates; to cause the employment or appointment of such employees and
agents of the Corporation as the proper conduct of operations may require, and
to fix their
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compensation, subject to the provisions of these Bylaws; to remove or suspend
any employee or agent who shall have been employed or appointed under his or
her authority or under authority of an officer subordinate to him or her; to
suspend for cause, pending final action by the authority which shall have
elected or appointed him or her, any officer subordinate to the President; and,
in general, to exercise all the powers and authority usually appertaining to
the chief executive officer of a corporation, except as otherwise provided in
these Bylaws.
Section 8. Duties of the Chief Operating Officer. The chief operating
officer of the Corporation shall have the power and authority usually
appertaining to the chief operating officer of a corporation and shall have
such other powers as the Board of Directors or the President may from time to
time prescribe.
Section 9. Duties of Vice Presidents. In the absence of the President or
in the event of his inability or refusal to act, the Vice President (or in the
event there may be more than one Vice President, the Vice Presidents in the
order designated, or in the absence of any designation, then in the order of
their election) shall perform the duties of the President and, when so acting,
shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall perform such other duties and have such
other powers as the Board of Directors or the President may from time to time
prescribe.
Section 10. Duties of Assistant Vice Presidents. In the absence of a
Vice President or in the event of his inability or refusal to act, the
Assistant Vice President (or in the event there shall be more than one, the
Assistant Vice Presidents in the order designated by the Board of Directors, or
in the absence of any designation, then in the order of their appointment)
shall perform the duties and exercise the powers of that Vice President, and
shall perform such other duties and have such powers as the Board of Directors,
the President, or the Vice President under whose supervision he or she is
appointed may from time to time prescribe.
Section 11. Duties of the Secretary. 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 Executive Committee or other standing committees when required.
He or she shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of the Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or the
President, under whose supervision he or she shall be. He or she shall have
custody of the corporate seal of the Corporation, and he or she, or an
Assistant Secretary, shall have the 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 signature. The Secretary
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 or she shall have authority to sign stock certificates and
shall generally perform all the duties usually appertaining to the office of
the secretary of a corporation.
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Section 12. Duties of Assistant Secretaries. In the absence of the
Secretary or in the event of his or her inability or refusal to act, the
Assistant Secretary (or, if there shall be more than one, the Assistant
Secretaries in the order designated by the Board of Directors, or in the
absence of any designation, then in the order of their appointment) shall
perform the duties and exercise the powers as the Board of Directors, the
President, or the Secretary may from time to time prescribe.
Section 13. Duties of the Treasurer. The Treasurer shall have the
custody of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation
and shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board of Directors. He or she shall disburse the funds 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
all his or her transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, he or she shall give the
Corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and
other property of whatever kind in his or her possession or under his control
belonging to the Corporation. The Treasurer shall be under the supervision of
the Vice President in charge of finance, if one is so designated, and he or she
shall perform such other duties as may be prescribed by the Board of Directors,
the President, or any such Vice President in charge of finance.
Section 14. Duties of Assistant Treasurers. The Assistant Treasurer or
Assistant Treasurers shall assist the Treasurer, and in the absence of the
Treasurer or in the event of his or her inability or refusal to act, the
Assistant Treasurer (or in the event there shall be more than one, the
Assistant Treasurers in the order designated by the Board of Directors, or in
the absence of any designation, then in the order of their appointment) shall
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, the
President, or the Treasurer may from time to time prescribe.
Section 15. Duties of the Controller. The Controller, if one is
appointed, shall have supervision of the accounting practices of the
Corporation and shall prescribe the duties and powers of any other accounting
personnel of the Corporation. He or she shall cause to be maintained an
adequate system of financial control through a program of budgets and
interpretive reports. He or she shall initiate and enforce measures and
procedures whereby the business of the Corporation shall be conducted with the
maximum efficiency and economy. If required, he or she shall prepare a monthly
report covering the operating results of the Corporation. The Controller shall
be under the supervision of the Vice President in charge of finance, if one is
so designated, and he or she shall perform such other duties as may be
prescribed by the Board of Directors, the President or any such Vice President
in charge of finance.
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Section 16. Duties of Assistant Controller. The Assistant Controller or
Assistant Controllers shall assist the Controller, and in the absence of the
Controller or in the event of his or her inability or refusal to act, the
Assistant Controllers in the order designated by the Board of Directors, or in
the absence of any designation, then in the order of their appointment, shall
perform the duties and exercise the powers of the Controller and perform such
other duties and have such other powers as the Board of Directors, the
President or the Controller may from time to time prescribe.
ARTICLE VI
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other Than
Those By or In the Right of the Corporation. 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,
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 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 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, and, with respect to any criminal action or proceeding, had
reasonable cause to be believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings By or In
the Right of the Corporation. 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, 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) 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 and 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 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 or such other court shall deem proper.
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Section 3. Success on the Merits in Defense of Any Action, Suit or
Proceeding. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 or 2 of this Article VI or
in defense of any claim, issue or matter therein, he shall be indemnified
against expense (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
Section 4. Authorization of Indemnification. Any indemnification under
Sections 1 or 2 of this Article VI (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, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in Section 1 or 2 of this Article VI. Such determination shall be made
(a) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceedings
("Disinterested Directors"), or (b) 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, or (c) by the stockholders.
Section 5. Expenses Payable in Advance. Expenses incurred by a director,
officer, employee or agent of the Corporation 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 by majority vote of a quorum consisting of Disinterested Directors
in the specific case upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent 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 Article VI.
Section 6. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article 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 stockholder or Disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
Section 7. Insurance. 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 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 VI.
Section 8. Certain Definitions. For purposes of Article VI, references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and reference to "serving at the request of the
corporation" shall include any service as a director, officer, employee or
agent of the Corporation
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which imposes duties on, or involves service 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 Article VI.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this section 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.
Section 10. Limitation on Indemnification. Notwithstanding anything
contained in this Article VI to the contrary, except for proceedings ordered by
a court, the Corporation shall not be obligated to indemnify any director,
officer or employee in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors by majority vote of a quorum consisting
of Disinterested Directors.
Section 11. Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article VI to directors and officers of the Corporation if not so conferred
herein.
ARTICLE VII
DISCLOSURES BY STOCKHOLDERS
RESTRICTIONS ON TRANSFER OF STOCK
Section 1. Certain Transfers Prohibited.
(A) Prohibited Transfers. Until the earlier of: (i) the expiration in 2011
of the net operating loss carryforwards which the Corporation had as of
December 31, 1996; or (ii) such date as shall be fixed by the Board of
Directors of the Corporation following a determination by it either that there
are no longer available to it any net operating loss carryforwards or that,
notwithstanding the remaining availability of net operating loss carryforwards,
maintenance of the transfer restrictions shall no longer be in the best
interests of the Corporation, except as otherwise provided in this Article VII,
no shares of Common Stock shall be transferred or become subject to any
agreement to transfer, in any manner whatsoever, whether voluntarily or
involuntarily, by sale, contract, warrant, option, gift, operation of law or
otherwise (any of the foregoing, a "Transfer"), to any person who beneficially
owns directly or through attribution (as determined under Section 382 ("Code
Section 382") of the Internal Revenue Code of 1986, as amended from time to
time (the "Code")), 4.9 percent or more of the then issued and outstanding
shares of Common Stock or who,
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after giving effect to such Transfer, would beneficially own directly or
through attribution (as determined under Code Section 382) 4.9 percent or more
of the value of the then issued and outstanding shares of Common Stock (a
"4.9%- Holder").
The Corporation shall make a prompt public disclosure following any action
by the Board of Directors fixing an expiration date for the restrictions on
Transfers. For purposes of this Article VII, "Common Stock" includes any
option, warrant, contractual agreement or other right to purchase or acquire
Common Stock or any securities convertible into exchangeable for Common Stock.
(B) Permitted Transfers. The following Transfers shall be permitted
notwithstanding the provisions of the foregoing subsection (A):
(i) any acquisition of shares of Common Stock pursuant to a tender
offer for all the then issued and outstanding shares of Common Stock;
(ii) any acquisition of shares of Common Stock pursuant to a merger
agreement or acquisition agreement approved by the holders of a majority
of the then issued and outstanding shares of Common Stock (and any entry
into such an agreement subject to such approval);
(iii) any Transfer of shares of Common Stock by a 4.9% Holder (a
"Transferor") to any other person (a "Transferee") if immediately prior
to the Transfer, the Transferee is treated as the beneficial owner of the
shares of Common Stock owned by the Transferor through attribution, as
determined under Code Section 382;
(iv) any other Transfer of shares of Common Stock if the Board of
Directors of the Corporation, with the advice of counsel, determines that
in the judgment of the Board of Directors such Transfer (i) is not likely
to materially and adversely affect the Corporation's ability to preserve
and utilize the net operating loss carryforwards to which it is then
entitled under the Code or (ii) is otherwise in the best interests of and
provides a substantial benefit to the Corporation and its shareholders.
The Corporation and the Board of Directors shall be fully protected in
determining not to exercise their authority under this clause (iv) to
authorize a Transfer in relying on the presumption that a Transfer is
likely to materially and adversely affect the Corporation's ability to
preserve and utilize the net operating loss carryforwards to which it is
the entitled under the Code if, together with any other Transfer by
persons who at such time are 4.9% Holders that would be permitted under
clauses (i) through (iii) of paragraph (b) and under any contractual
arrangements to which such 4.9% Holders are parties at such time, such
Transfers would result in the percentage of Common Stock of the Company
owned by one or more 4.9% Holders having increased by more than 45
percentage points over the lowest percentage of such Common Stock owned
by such persons at any time during the testing period (within the meaning
of Code Section 382).
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Should the Board of Directors determine that a Transfer be permitted
under this clause (iv), such action shall not imply that the Board of
Directors will or will not permit subsequent Transfers under this clause
(iv). In permitting a Transfer under this clause (iv) the Board of
Directors may attach such conditions, if any, that it deems necessary or
appropriate.
(C) Effect of Unauthorized Transfer. Any attempted or purported Transfer
of Common Stock in violation of this Article VII (an "Unauthorized Transfer")
shall be null and void. The Corporation shall not register, recognize or give
effect to any transfer that the Corporation believes to be an Unauthorized
Transfer in violation of this Article VII, and the intended transferee of any
Common stock pursuant to an Unauthorized Transfer shall acquire no rights in
such Common Stock. The Corporation's remedies in respect of any such
Unauthorized Transfer shall include, but not be limited to, those set forth
below, it they may be amended from time to time.
(D) Legend on Certificates. All certificates for shares of Common Stock
issued by the Corporation shall conspicuously bear a legend approved by the
Board of Directors which summarizes in an appropriate manner the provisions of
this Article VII, as it may be amended from time to time, and any related
matters deemed appropriate by the Board of Directors.
(E) Authority of Corporation and Board. The Corporation and the Board of
Directors shall be fully protected in relying in good faith upon the
information, opinions, reports or statements of the President, Chief Executive
Officer, the Chief Operating Officer, the chief financial officer or the chief
accounting officer of the Corporation or the Corporation's legal counsel,
independent auditors, transfer agent, investment bankers, and other employees
and agents, in making any determination pursuant to subsection (B) above. The
Board of Directors of the Corporation is authorized to take such action, to the
extent permitted by law and not inconsistent with this Article VII, as it may
deem necessary or advisable to enforce and carry out the purpose and provisions
of this Article VII.
Section 2. Unauthorized Transfers. If an Unauthorized Transfer
purportedly occurs, the provisions set forth below shall apply:
(A) Notice of Unauthorized Transfer. Within thirty business days of
learning that an Unauthorized Transfer has purportedly occurred, the
Corporation shall cause to be delivered to the purported transferee (the
"Purported Transferee") of the shares (the "Prohibited Stock") purportedly
transferred in violation of the terms of these Bylaws stating in substance that
the Purported Transferee has purportedly received shares in a transaction that
constitutes an Unauthorized Transfer and demanding the Purported Transferee to
surrender or cause to be surrendered to an agent designated by the Corporation
(the "Agent") certificates representing the Prohibited Stock and any dividends
or distributions that such Purported Transferee has received on the Prohibited
Stock.
If the Purported Transferee has purportedly resold the Prohibited Stock
before receiving said notice, the Purported Transferee will be required to
transfer to the Agent the proceeds of such sale,
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to the extent in excess of the amount that the Purported Transferee paid for
the Prohibited Stock in the unauthorized transfer, together with any dividends
or distributions that the Purported Transferee has received on the Prohibited
Stock. Unless such purported resale itself constitutes a Prohibited Transfer,
in which case the other provisions of this Article VII will apply, the
transferee shall be treated as the owner of the Prohibited Stock and as having
acquired such Prohibited Stock from the Purported Transferee acting in the
capacity as agent for the Corporation. If a surrender of Certificates or a
transfer of proceeds required by this subsection (A) is not made within thirty
days following delivery of the notice herein provided for the Corporation may
institute legal proceedings to compel such surrender or transfer.
(B) Sale of Prohibited Stock. As soon as practicable following receipt of
the Prohibited Stock and surrender of any dividends or distributions that the
Purported Transferee has received on the Prohibited Stock, as contemplated by
subsection (A) above, the Agent will sell the Prohibited Stock and any non-cash
dividends or distributions in an arm's-length transaction (using best efforts
to consummate such sale on the Nasdaq National Market or such other national
exchange on which the Corporation's common stock is then traded or included for
quotation). After applying the proceeds from such sale toward reimbursement of
the Purported Transferee for the price that the Purported Transferee paid for
the Prohibited Stock in the Unauthorized Transfer (or the fair market value of
the Prohibited Stock at the time of the Unauthorized Transfer if such
Unauthorized Transfer was by way of gift, devise, or similar transfer), the
Agent will pay any remaining proceeds and any cash dividends and distributions
so surrendered to organizations described in Section 501(c)(3) of the Code that
are designated by the Corporation. In no event shall the proceeds of any such
sale by the Agent or the surrender of dividends or distributions inure to the
benefit of the Corporation or the Agent, but such amounts may be used to cover
expenses incurred by the Agent in performing its duties hereunder prior to any
reimbursement being made pursuant to this subsection (B).
(C) Liability for Damages and Costs. In addition to the remedy described
in subsections (A) and (B), any person who knowingly engages in an Unauthorized
Transfer shall be liable to the Corporation for any damages and costs incurred
by the Corporation as a result of any such violation.
(D) Disclosure of Shareholdings. Upon demand by the Corporation, the
shareholders of the Corporation shall disclose to the Corporation in writing
such information with respect to their direct and indirect ownership of Common
Stock as the Corporation deems necessary to ensure compliance with this Article
VII.
Section 3. Severability. If any provision included in this Article VII
is determined to be void, invalid, or unenforceable by virtue of any legal
decision, statute, rule or regulation, then, at the option of the Corporation,
the Purported Transferee shall be deemed to have acted on behalf of the
Corporation in acquiring the Prohibited Stock and to hold such Prohibited Stock
on behalf of the Corporation.
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ARTICLE VIII
CERTIFICATES REPRESENTING STOCK
Section 1. Right to Certificate. 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 and by 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. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences, and
relative, participating, optional, or other special rights of each class of
stock or series thereof and the qualifications, limitations, or restrictions of
such preferences or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock; provided, that, except as otherwise provided in
Section 202 of the General Corporation Law of the State of Delaware, in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences, and
relative, participating, optional, or other special rights of each class of
stock or series thereof and the qualifications, limitations, or restrictions of
such preferences or rights.
Section 2. Facsimile Signatures. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he or she were such officer, transfer agent, or registrar at
the date of issue.
Section 3. New 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 and alleged to have been
lost, stolen, 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 advertise the same in such
manner as it shall require or 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 or the issuance of such new certificate.
Section 4. Transfers. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation, or authority to
transfer, it shall be the duty of the Corporation, subject to any proper
restrictions on transfer, to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
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Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or 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 less than 10 nor more than 60 days before the date of
such meeting or any other action. A determination of stockholders of record
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, but shall not be required to, fix a new record date for the adjourned
meeting.
Section 6. Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books a 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 any other person, whether or
not provided by the laws of the State of Delaware.
ARTICLE IX
CORPORATE RECORDS
Section 1. Location. The books, accounts and records of the Corporation
may be kept at such place or places within or without the State of Delaware as
the Board of Directors may from time to time determine.
Section 2. Inspection. The books, accounts and records of the
Corporation shall be open to inspection by any member of the Board of Directors
at all times; and open to inspection by the stockholders at such times, and
subject to such regulations as the Board of Directors may prescribe, except as
otherwise provided by stature.
Section 3. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization, and the word
"Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed, affixed, reproduced, or otherwise.
ARTICLE X
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, if any, subject to the provisions of the Certificate of
Incorporation, may be declared by the Board of Directors (but not any committee
thereof) at any regular meeting, pursuant to law. Dividends may be paid in
cash,
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in property, or in shares of the capital stock, subject to the provisions of
the Certificate of Incorporation.
Section 2. Reserves. 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 Board of Directors from time to time, in their absolute discretion,
thinks 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 Board of Directors shall think conducive to the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
Section 3. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
Section 4. Depositories. The Board of Directors shall appoint bank,
trust companies, or other depositories in which shall be deposited from time to
time the money or securities of the Corporation.
Section 5. Checks, Drafts and Notes. All checks, drafts, or other orders
for the payment and all notes or other evidences of indebtedness issues in the
name of the Corporation shall be signed by such officer or officers or agent or
agents as shall from time to time be designated by resolution of the Board of
Directors or by an officer appointed by the Board of Directors.
Section 6. Interested Directors: Quorum. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association, or
other organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at
or participates in the meeting of the Board or committee thereof which
authorizes the contract or transactions, or solely because his or their votes
are counted for such purpose, if: (1) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction by the
affirmative votes of majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (2) the material facts as to
his relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of
Directors, a committee thereof, or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the Board of Directors or of a committee which authorizes the contract or
transaction.
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ARTICLE XI
AMENDMENTS
The bylaws of the Corporation may be adopted, amended or repealed by the
stockholders entitled to vote; provided, however, that the Board of Directors
may also alter or repeal these Bylaws or make new Bylaws. The fact that such
power has been so conferred upon the directors shall not divest the
stockholders of the power, nor limit their power, to adopt, amend or repeal
bylaws.
301823
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EXHIBIT (99.1)
FOR IMMEDIATE RELEASE:
- ----------------------
CONTACT KAREN DICKELMAN
(312) 683-3670
(312) 553-0450-FAX
STOCKHOLDERS OF BANYAN STRATEGIC LAND FUND II
APPROVE RESTATED CHARTER AND BY-LAWS,
COMPANY TO CHANGE NAME TO SEMELE GROUP, INC.
$0.20 DISTRIBUTION DECLARED
CHICAGO, ILLINOIS - OCTOBER 21, 1997 - The stockholders of Banyan Strategic
Land Fund II (Nasdaq: VSLF) approved a restated charter and restated by-laws at
the 1996 annual meeting held today. Among the changes effected is a change of
the life of the company to perpetual and a change of the company's name to
Semele Group, Inc. The name change will be effective upon filing of the
restated charter with the Delaware Secretary of State, later this week.
In a related action, the company announced that it will be making the
previously announced distribution of $0.20 per share to its stockholders of
record as of September 4, 1997. The distribution is expected to be completed by
November 15, 1997.
Six directors were elected by the shareholders at the annual meeting.
Incumbents Walter E. Auch, Sr., Gary D. Engle, Gerald L. Nudo and
Robert M. Ungerleider were elected, as well as new board members Joseph W.
Bartlett and James A. Coyne.
Company President Leonard G. Levine, commenting on the results of the meeting,
said "We believe today's vote marks a new beginning for Semele Group, Inc. With
a perpetual life vehicle and financing provided by Equis Financial Group, we
are positioned to develop the company's Rancho Malibu property and embark on a
growth-oriented business plan."
Banyan Strategic Land Fund II is a Delaware corporation listed for trading on
the Nasdaq national market system under the symbol "VSLF".
-END-
