UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Pursuant to Sections 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 12, 1997
WHITNEY AMERICAN CORPORATION
(Exact name of registrant as specified in charter)
Delaware
(State or other jurisdiction of incorporation or organization)
33-17397-D 84-1070022
(Commission File Number) (I.R.S. Employer Identification Number)
12373 E. Cornell Avenue, Aurora, Colorado, 80014
(Address of Principal Executive Offices and Zip Code)
(303) 337-3384
(Registrant's telephone number, including area code)
Industrial Waste Processing, Inc.
(Former name or former address, if changed since last report)
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Item 5. OTHER EVENTS.
Change of Corporate Name
Whitney American Corporation, a Delaware corporation ("Company"), was
incorporated in 1987 under that name. In 1988, the Company changed its name to
Industrial Waste Processing, Inc. The Company on February 19, 1997, filed with
the Delaware Secretary of State an amendment to the Company's Certificate of
Incorporation that, among other things, changed the Company's name back to
Whitney American Corporation.
Removal of Board of Directors for Cause; Establishment of new Board
On February 12, 1997, the shareholders of the Company removed all of
the Company's then directors from office for cause, consisting of their
persistent failure since at least 1989 to, among many other things, (i) direct
or oversee the affairs of the Company, (ii) protect the Company's franchise and
charter and keep them in effect, (iii) cause financial statements to be prepared
or filings to be made with the Securities and Exchange Commission, (iv) do any
act or thing for the benefit of the shareholders, (v) hold any meetings of
directors or call any meetings of the shareholders, (vi) inform the shareholders
of the state of the Company or its affairs, or (vii) suggest or evaluate any
means whereby the Company might be made to prosper.
Stephen M. Siedow, the single largest shareholder of the Company, was
elected to the board of directors to serve as the sole director of the Company.
Election of New Management
The shareholders on February 12, 1997, elected Stephen M. Siedow as
Chief Executive Officer, President and Chief Financial Officer of the Company
and John D. Brasher Jr. as Secretary of the Company. Mr. Brasher was a founder
of theCompany and is a significant shareholder of the Company. Mr. Siedow also
is a significant shareholder of the Company.
Audits and Filings
Current management has made all necessary filings with the Delaware
Secretary of State to bring the Company back into good standing. Management also
has prepared certain annual reports and quarterly reports which will be filed
with the Securities and Exchange Commission ("SEC"), in order to bring current
the Company's filings with the SEC. In addition, the Company has engaged an
independent accounting firm to audit the Company's financial statements through
the fiscal year ended May 31, 1996, and management anticipates that the same
firm will audit the Company's financial statements through the fiscal year ended
May 31, 1997. Under current accounting rules, the Company is considered to be in
the development stage.
Restatement and Amendment of Certificate of Incorporation
The Company on February 19, 1997, filed with the Delaware Secretary of
State a comprehensive amendment which (in addition to changing the corporate
name back to Whitney American Corporation) amended the Company's existing
Certificate of Incorporation in its entirety, which are attached as an exhibit
to this report.
Adoption of New Bylaws
On February 12, 1997, the Company's shareholders approved and adopted a
new set of bylaws, which supersede and replace the former bylaws in their
entirety. The new bylaws are attached as an exhibit to this report.
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Recapitalization
On February 12, 1997, the Company's shareholders approved a
restructuring of the Company's authorized capital, which effected a 1-for-100
reverse stock split, reducing the issued and outstanding common shares from
6,250,000 to 62,500 shares. At the same time, the shareholders fixed the
Company's authorized capital stock following the reverse split at 50,000,000
shares of common stock and 5,000,000 shares of preferred stock, all of a par
value of $.00001 per share.
Adoption of 1997 Stock Option Plan
On February 14, 1997, the Company's shareholders approved the 1997
Stock Option Plan for officers, key employees, non-employee directors and
advisors (the "CSO Plan"). The Company has reserved a maximum of 2,000,000
common shares to be issued upon the exercise of options granted under the CSO
Plan. The CSO Plan will not qualify as an "incentive stock option" plan under
Section 422 of the Internal Revenue Code of 1986, as amended. Options will be
granted under the CSO Plan at exercise prices to be determined by the Board of
Directors or other CSO Plan administrator. With respect to options granted
pursuant to the CSO Plan, optionees will not recognize taxable income upon the
grant of options, but will realize income (or capital loss) at the time the
options are exercised to purchase common stock. The amount of income will be
equal to the difference between the exercise price and the fair market value of
the common stock on the date of exercise. The Company will be entitled to a
compensating deduction in an amount equal to the taxable income realized by an
optionee as a result of exercising the option. The CSO Plan will be administered
by the Board of Directors or a committee of directors. No options have been
granted under the CSO Plan to date. The CSO Plan is attached as an exhibit to
this report.
Adoption of 1997 Employee Stock Compensation Plan
On February 14, 1997, the Company's shareholders approved the 1997
Employee Stock Compensation Plan for employees, officers, directors of the
Company and advisors to the Company (the "ESC Plan"). The Company has reserved a
maximum of 1,500,000 common shares to be issued upon the grant of awards under
the ESC Plan. Employees will recognize taxable income upon the grant of common
stock equal to the fair market value of the common stock on the date of the
grant and the Company will recognize a compensating deduction at such time. The
ESC Plan will be administered by the Board of Directors. No stock has been
awarded under the ESC Plan to date. The ESC Plan is attached as an exhibit to
this report.
Intended Filings
The Company is not at this time subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended ("Exchange Act"), but
voluntarily files reports under the Exchange Act. Management intends as soon as
possible, no later than June 30, 1997, to file a registration statement with the
SEC in order to register the Company's common stock under the Exchange Act, upon
the effectiveness of which the Company will be subject to the reporting
requirements of the Exchange Act.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements. NOT APPLICABLE.
(b) Pro Forma Financial Statements. NOT APPLICABLE.
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(c) Exhibits. The following documents are filed herewith as exhibits to
this report on Form 8-K. References in the list of exhibits to the "Company"
mean Whitney American Corporation.
3.1 Certificate of Amendment of the Company (effecting name change
to Whitney American Corporation and amending the Certificate
of Incorporation in its entirety) as filed with the Delaware
Secretary of State on February 19, 1997.
3.2 Bylaws of the Company adopted on February 12, 1997.
10.1 1997 Stock Option Plan of the Company.
10.2 1997 Employee Stock Compensation Plan of the Company.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Company has duly caused this report on Form 8-K to be signed on its
behalf by the undersigned, thereunto duly authorized.
DATED: May 6, 1997
Whitney American Corporation
/s/ Stephen M. Siedow
By ...........................
Stephen M. Siedow, President
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Exhibit 3.1 to Form 8-K dated February 12, 1997
CERTIFICATE OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
INDUSTRIAL WASTE PROCESSING, INC.
(A Delaware Corporation)
INDUSTRIAL WASTE PROCESSING, INC., a corporation organized on June 18,
1987, under the name Whitney American Corporation, and existing under and by
virtue of the General Corporation Law of Delaware, DOES HEREBY CERTIFY THAT:
A. The shareholders of the Corporation duly adopted the following
Certificate of Amended and Restated Certificate of Incorporation of the
Corporation, including a change of the corporate name to WHITNEY AMERICAN
CORPORATION:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended and restated to provide as set forth below, and such provisions shall
supercede the existing Certificate of Incorporation (as it may have been
amended, restated and corrected to date) in its entirety:
"FIRST. The name of this corporation is WHITNEY AMERICAN CORPORATION.
SECOND. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware. The Corporation may conduct all or any part of its
business, and may hold, purchase, mortgage, lease and convey real and personal
property, anywhere in the world. The Corporation shall have perpetual duration.
{CAPITAL STOCK}
THIRD. The aggregate number of shares of capital stock of all classes
which the Corporation shall have authority to issue is FIFTY-FIVE MILLION
(55,000,000), of which FIFTY MILLION (50,000,000) shares having a par value of
$.00001 per share shall be of a class designated "Common Stock" (or "Common
Shares"), and FIVE MILLION (5,000,000) shares having a par value of $.00001 per
share shall be of a class designated "Preferred Stock" (or "Preferred Shares").
All shares of the Corporation shall be issued for such consideration or
considerations as the Board of Directors may from time to time determine. The
designations, voting powers, preferences, optional or other special rights and
qualifications, limitations, or restrictions of the above classes of stock shall
be as follows:
I. OTHER PREFERRED STOCK
(a) Issuance in Class and Series. Shares of Preferred Stock may be
issued in one or more classes or series at such time or times as the Board of
Directors may determine. All shares of any one series shall be of equal rank and
identical in all respects.
(b) Authority of Board for Issuance. Authority is hereby expressly
granted to the Board of Directors to fix from time to time, by resolution or
resolutions providing for the issuance of any class or series of Preferred
Stock, the designation of such classes and series and the powers, preferences
and rights of the shares of such classes and series, and the qualifications,
limitations or restrictions thereof, including the following:
1. The distinctive designation and number of shares comprising
such class or series, which number may (except where otherwise provided
by the Board of Directors in creating such class or series) be
increased or decreased (but not below the number of shares then
outstanding) from time to time by action of the Board of Directors;
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2. The rate of dividend, if any, on the shares of that class or
series, whether dividends shall be cumulative and, if so, from which
date or dates, the relative rights of priority, if any, of payment of
dividends on shares of that class or series over shares of any other
class or series;
3. Whether the shares of that class or series shall be
redeemable at the option of the Corporation, at the option of the
holder of shares of that class or series, at the option of another
person, or upon the occurence of a designated event and, if so, the
terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different
conditions and different redemption dates;
4. Whether that class or series shall have a sinking fund for
the redemption or purchase of shares of that class or series and, if
so, the terms and amounts payable into such sinking fund;
5. The rights to which the holders of the shares of that class
or series shall be entitled in the event of voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, relative rights of priority; if any, of payment of shares
of that class or series;
6. Whether the shares of that class or series shall be
convertible into or exchangeable for shares of stock of any class or
any other series of Preferred Stock at the option of the Corporation or
of the holder, or upon the occurrence of a specified event and, if so,
the terms and conditions of such conversion or exchange, including the
method of adjusting the rates of conversion or exchange in the event of
a stock split, stock dividend, combination of shares or similar event;
7. Whether the issuance of any additional shares of such class
or series, or of any shares of any other class or series, shall be
subject to restrictions as to issuance, or as to the powers,
preferences or rights of any such other class or series;
8. Any other preferences, privileges and powers, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of such class or series, as the Board of
Directors may deem advisable and as shall not be inconsistent with the
provisions of the Corporation's Charter, as from time to time amended,
and to the full extent now or hereinafter permitted by the laws of
Delaware.
(c) Dividends. Payment of dividends shall be as follows:
1. The holders of Preferred Stock of each class or series, in
preference to the holders of Common Stock, shall be entitled to
receive, as and when declared by the Board of Directors out of funds
legally available therefor, all dividends, at the rate for such class
or series fixed in accordance with the provisions of this Article THIRD
and no more;
2. Dividends may be paid upon, or declared or set aside for,
any class or series of Preferred Stock in preference to the holders of
any other class or series of Preferred Stock in the manner determined
by the resolutions of the Board of Directors authorizing and creating
such class or series;
3. So long as any shares of Preferred Stock shall be
outstanding, in no event shall any dividend, whether in cash or in
property, be paid or declared nor shall any distribution be made, on
the Common Stock, nor shall any shares of Common Stock be purchased,
redeemed or otherwise acquired for value by the Corporation, unless all
dividends on all cumulative classes and series Preferred Stock with
respect to all past dividend periods, and unless all dividends on all
classes and series of Preferred Stock for the then current dividend
period shall have been paid or declared, and provided for, and unless
the Corporation shall not be in default with respect to any of its
obligations with respect to any sinking fund for any class or series of
Preferred Stock. The foregoing provisions of this subparagraph (3)
shall not, however, apply to any dividend payable in Common Stock;
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4. No dividend shall be deemed to have accrued on any share of
Preferred Stock of any class or series with respect to any period prior
to the date of the original issue of such share or the dividend payment
date immediately preceding or following such date of original issue, as
may be provided in the resolutions of the Board of Directors creating
such class or series. Preferred Stock shall not be entitled to
participate in any dividends declared and paid on Common Stock, whether
payable in cash, stock or otherwise. Accruals of dividends shall not
pay interest.
(d) Dissolution or Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution of assets or winding-up of the Corporation,
the holders of the shares of each class and series of Preferred Stock then
outstanding shall be entitled to receive out of the net assets of the
Corporation, but only in accordance with the preferences, if any, provided for
such class or series, before any distribution or payment shall be made to the
holders of Common Stock, the amount per share fixed by the resolution or
resolutions of the Board of Directors to be received by the holder of each such
share on such voluntary or involuntary liquidation, dissolution, distribution of
assets or winding-up, as the case may be. If such payment shall have been made
in full to the holders of all outstanding Preferred Stock of all classes and
series, or duly provided for, the remaining assets of the Corporation shall be
available for distribution among the holders of Common Stock as provided in this
Article THIRD. If upon any such liquidation, dissolution, distribution of assets
or winding-up, the net assets of the Corporation available for distribution
among the holders of any one or more classes or series of Preferred Stock which
(i) are entitled to a preference over the holders of Common Stock upon such
liquidation, dissolution, distribution of assets or winding-up, and (ii) rank
equally in connection therewith, shall be insufficient to make payment for the
preferential amount to which the holders of such shares shall be entitled, then
such assets shall be distributed among the holders of each such series of
Preferred Stock ratably according to the respective amounts to which they would
be entitled in respect of the shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full. Neither the
consolidation nor merger of the Corporation, nor the exchange, sale, lease or
conveyance (whether for cash, securities or other property) of all,
substantially all or any part of its assets, shall be deemed a liquidation,
dissolution, distribution of assets or winding-up of the Corporation within the
meaning of this provision.
(e) Voting Rights. Except to the extent otherwise required by law or
provided in the resolution of the Board of Directors adopted pursuant to
authority granted in this Article THIRD, the shares of Preferred Stock shall
have no voting power with respect to any matter whatsoever. The Board of
Directors may determine whether the shares of any class or series shall have
limited, contingent, full or no voting rights, in addition to the voting rights
provided by law and, if so, the terms of such voting rights. Whenever holders of
Preferred Stock are entitled to vote on a matter, each holder of record of
Preferred Stock shall be entitled to one vote for each share standing in his
name on the books of the Corporation and entitled to vote.
II. COMMON STOCK
(a) Issuance. The Common Stock may be issued from time to time in one
or more classes or series in any manner permitted by law, as determined by the
Board of Directors and stated in the resolution or resolutions providing for
issuance thereof. Each class or series shall be appropriately designated, prior
to issuance of any shares thereof, by some distinguishing letter, number or
title. All shares of each class or series of Common Stock shall be alike in
every particular and shall be of equal rank and have the same power, preferences
and rights, and shall be subject to the same qualifications, limitations and
restrictions, if any.
(b) Voting Powers. The Common Stock may have such voting powers (full,
limited, contingent or no voting powers), such designations, preferences and
relative, participating, optional or other special rights, and be subject to
such qualifications, limitations and restrictions, as the Board of Directors
shall determine by resolution or resolutions. Unless otherwise resolved by the
Board of Directors at the time of issuing Common Shares, (i) each Common Stock
share shall be of the same class, without any designation, preference or
relative, participating, optional or other special rights, and subject to no
qualification, limitation or restriction, and (ii) Common Shares shall have
unlimited voting rights, including but not limited to the right to vote in
elections for directors, and each holder of record of Common Shares entitled to
vote shall have one vote for each share of stock standing in his name on the
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books of the Corporation and entitled to vote, except that in the election of
directors each holder shall have as many votes for each share held by him as
there are directors.
(c) Dividends. After the requirements with respect to preferential
dividends, if any, on Preferred Stock, and after the Corporation shall have
complied with all requirements, if any, with respect to the setting aside of
sums in a sinking fund for the purchase or redemption of shares of any class or
series of Preferred Stock, then and not otherwise, the holders of Common Stock
shall receive, to the extent permitted by law, such dividends as may be declared
from time to time by the Board of Directors.
(d) Dissolution or Liquidation. After distribution in full of the
preferential amount, if any, to be distributed to the holders of Preferred
Stock, in the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding-up of the Corporation, the holders of Common
Stock shall be entitled to receive all the remaining assets of the Corporation
of whatever kind available for distribution to shareholders ratably in
proportion to the number of shares of Common Stock respectively held by them.
(e) Convertibility. Common Shares or other shares of any class or
series may be made convertible into or exchangeable for, at the option of the
Corporation or the holder or upon the occurrence of a specified event, shares of
any other class or classes or any other series of the same or any other class or
classes of shares of the Corporation, at such price or prices or at such rate or
rates of exchange and with such adjustments as shall be set forth in the
resolution or resolutions providing for the issuance of such convertible or
exchangeable shares adopted by the Board of Directors.
(f) Redeemability. Common Shares may be made redeemable at the option
of the Corporation, of the holder thereof, of another person, or upon the
occurrence of a designated event, if and to the extent now or subsequently
allowed by the General Corporation Law of Delaware, as such law may subsequently
be amended, and the terms and conditions of redemption, including the date or
dates upon or after which they shall be redeemable, the amount per share payable
in case of redemption and any variance in the amount or amounts payable, among
other terms, conditions and limitations which may be imposed, may be fixed and
established by the Board of Directors in the resolution or resolutions
authorizing the issuance of redeemable Common Shares.
III. GENERAL MATTERS
(a) Capital. The portion of the consideration received by the
Corporation upon issuance of any of its shares that shall constitute "capital"
within the meaning of the General Corporation Law of Delaware shall be (1) in
the case of par-value shares, the par value thereof, and (2) in the case of
shares without par value, the stated value of such shares as determined by the
Board of Directors at the time of issuance; provided, that if no stated value is
determined at the time that shares without par value are issued, the entire
consideration to be received for the shares shall constitute capital.
(b) Fully Paid and Nonassessable. Any and all shares of Common or
Preferred Stock or other shares issued by the Corporation for which not less
than the portion of the consideration to be received determined to be "capital"
has been paid to the Corporation, provided the Corporation has received a
promissory note or other binding legal obligation of the purchaser to pay the
balance thereof, shall be deemed fully paid and nonassessable shares.
(c) Status of Certain Shares. Shares of Preferred or Common Stock or
other shares which have redeemed, converted, exchanged, purchased, retired or
surrendered to the Corporation, or which have been reacquired in any other
manner, shall have the status of authorized and unissued shares and may be
reissued by the Board of Directors as shares of the same or any other series,
unless otherwise provided herein or in the resolution authorizing and
establishing the shares.
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(d) Denial of Preemptive Rights. No holder of any shares of the
Corporation shall be entitled as a matter of right to subscribe for or purchase
any part of any new or additional issue of stock of any class or of securities
convertible into or exchangeable for stock of any class, whether now or
hereafter authorized or whether issued for money, for a consideration other than
money, or by way of dividend.
{VOTING OF SHAREHOLDERS}
FOURTH. The following provisions are hereby adopted for the purpose of
regulating certain matters relating to the voting of shareholders of the
Corporation:
(a) Definitions. Whenever the term "total voting power" appears in this
Charter, it shall mean all shares of the Corporation entitled to vote at a
meeting or on a question presented for shareholder approval, and of every class
or series of shares entitled to vote by class or series. Whenever the term
"votes cast" appears in this Charter, it shall mean the total number of voting
shares which were unequivocally voted in favor of or against a director standing
for election or a matter presented for shareholder approval at a legal meeting
which commenced with a quorum.
(b) Quorum. At least forty percent (40%) of the total voting power, or
where a separate vote by class or series is required, forty percent (40%) of the
voting shares of each such class or series, represented in person or by proxy,
shall constitute a quorum at any meeting of the Corporation's shareholders.
(c) Vote Required. Any action to be taken by the Corporation's
shareholders at any valid meeting which commenced with a quorum shall require
the affirmative vote only of a majority of the votes cast, except where this
Charter or the Corporation's Bylaws then in effect requires the affirmative vote
of a higher proportion of the votes cast or requires the affirmative vote of a
proportion of the total voting power, and except where the Delaware General
Corporation Law specifically requires the affirmative vote of a majority of all
the votes entitled to be cast. Directors shall be elected by plurality vote.
Abstentions from voting shall not be considered in the tallying of votes.
Nothing contained in this Article FOURTH shall affect the voting rights of
holders of any class or series of shares entitled to vote as a class or by
series. The Bylaws may provide for the vote necessary at any adjournment of a
duly called meeting for which a quorum was not obtained. Cumulative voting shall
not be allowed in voting for directors.
(d) Manner of Voting; Etc. The vote of shareholders may be taken at a
meeting by a show of hands or other method authorized by the Board of Directors.
Written ballots shall be used only upon authorization of the Board of Directors
or as provided in the Corporation's Bylaws. Cumulative voting shall not be
allowed in the election of directors.
(e) Action Without Meeting. Any action by the shareholders may be taken
by written consent, in lieu of a meeting and without prior notice or vote, by
the holders of a majority of the total voting power, except where a higher
proportion of the total voting power is expressly required herein to authorize
such action. The manner of obtaining any such written consent shall be governed
by the Corporation's Bylaws.
(f) Shareholder Ratification. Any contract, transaction, or act of the
Corporation or of the directors which shall be ratified by a majority of the
voting power present at any annual meeting, or at any special meeting called for
such purpose, or by means of a written consent of the holders of at least a
majority of the total voting power in lieu of a meeting, shall so far as
permitted by law be as valid and as binding as though ratified by every
shareholder of the Corporation.
{CONCERNING SHAREHOLDERS, DIRECTORS AND OFFICERS}
FIFTH. The following provisions are hereby adopted for the purpose of
defining, limiting, and regulating the powers of the Corporation and of the
directors, officers and shareholders:
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(a) Number of Directors. The number of Directors shall be as fixed in
the Bylaws. Directors shall be elected by plurality vote and need not be elected
by written ballot, except as prescribed in the Bylaws.
(b) Removal of Directors. A director of the Corporation, or the entire
Board of Directors of the Corporation, may be removed by the shareholders, with
or without cause, upon the affirmative vote of the holders of a majority of the
total voting power, without considering the vote of the director sought to be
removed.
(c) Removal of Officers and Employees. Unless the Bylaws otherwise
provide, any officer or employee of the Corporation (other than a director) may
be removed at any time with or without cause by the Board of Directors or by any
committee or superior officer upon whom such power of removal may be conferred
by the Bylaws or by authority of the Board of Directors, without prejudice,
however, to existing contractual rights.
(d) Corporate Opportunities. The officers, directors and other members
of management of the Corporation shall be subject to the doctrine of "corporate
opportunities" only insofar as it applies to any business opportunity (i) of a
type falling within the regular business or operations of the Corporation, or
(ii) in which the Corporation has expressed an interest as determined from time
to time by the Corporation's Board of Directors as evidenced by resolutions
appearing in the Corporation's minutes. All such business opportunities which
come to the attention of the officers, directors, and other members of
management of the Corporation shall be disclosed promptly to the Corporation and
made available to it. The Board of Directors may reject any business opportunity
presented to it, and only thereafter may any officer, director or other member
of management avail himself of such opportunity. The provisions of this
paragraph (d) shall not be construed to release any employee of the Corporation
from any fiduciary duties which he may have to the Corporation.
{BYLAWS}
SIXTH. The initial Bylaws of the Corporation may be adopted by its
Board of Directors. The power to alter, amend or repeal the Bylaws or adopt new
Bylaws shall be vested in the Board of Directors, subject to the right of the
shareholders to alter, amend or repeal such Bylaws or adopt new Bylaws by the
affirmative vote of at least a majority of the total voting power. The Bylaws
may not contain any provision inconsistent with law or this Charter.
{INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS}
SEVENTH. The following provisions are hereby adopted for the purpose of
defining and regulating certain rights of directors, officers and others in
respect of indemnification and related matters.
(a) Actions, Suits or Proceedings Other than by or in the Right of the
Corporation. The Corporation may 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 or has agreed to become a director, officer, employee or
agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
costs, charges, expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, 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 or that, with respect to
any criminal proceeding, he had reasonable cause to believe that his conduct was
unlawful.
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(b) Actions or Suits by or in the Right of the Corporation. The
Corporation may 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 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 or has agreed to become a
director, officer, employee or agent of the Corporation, or is or was serving or
has agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges and expenses (including amounts
paid in settlement and attorney's fees) actually and reasonably incurred by him
or on his behalf in connection with the defense or settlement of such action or
suit and any appeal therefrom, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
(c) Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Article SEVENTH, to the
extent that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in Sections (a) and (b) of this Article SEVENTH, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorney's fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
(d) Determination of Right to Indemnification. Any indemnification
under Sections (a) and (b) of this Article SEVENTH (unless ordered by a court)
shall be made by the Corporation unless a determination is made (i) by a
disinterested majority of the Board of Directors who were not parties to such
action, suit or proceeding, or (ii) if such disinterested majority of the Board
of Directors so directs, by independent legal counsel in a written opinion, or
(iii) by the shareholders, that indemnification of the director or officer is
not proper in the circumstances because he has not met the applicable standard
of conduct set forth in Sections (a) and (b) of this Article SEVENTH.
(e) Advances of Costs, Charges and Expenses. Costs, charges and
expenses (including attorney's fees) incurred by a person referred to in
Sections (a) or (b) of this Article SEVENTH 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; provided, however, that
the payment of such costs, charges and expenses incurred by a director or
officer in his capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such person while a director or officer)
in advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article, accompanied by evidence
satisfactory to the Board of Directors of ability to make such repayment. Such
costs, charges and expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the majority of the Directors
deems appropriate. The majority of the Directors may, in the manner set forth
above, and upon approval of such director, officer, employee or agent of the
Corporation, authorize the Corporation's counsel to represent such person, in
any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding.
(f) Procedure for Indemnification. Any indemnification under Sections
(a), (b) and (c), or advance of costs, charges and expenses under Section (e) of
this Article SEVENTH, shall be made promptly, and in any event within 60 days,
upon the written request of the director or officer. The right to
indemnification or advances as granted by this Article shall be enforceable by
the director or officer in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or if no disposition
thereof is made within 60 days. Such person's costs and expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce a
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<PAGE>
claim for the advance of costs, charges and expenses under Section (e) of this
Article SEVENTH where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Sections (a) or (b) of this Article SEVENTH, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, its independent legal counsel and its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections (a)
or (b) of this Article SEVENTH, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel and its shareholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
(g) Settlement. If in any action, suit or proceeding, including any
appeal, within the scope of Sections (a) or (b) of this Article SEVENTH, the
person to be indemnified shall have unreasonably failed to enter into a
settlement thereof, then, notwithstanding any other provision hereof, the
indemnification obligation of the Corporation to such person in connection with
such action, suit or proceeding shall not exceed the total of the amount at
which settlement could have been made and the expenses by such person prior to
the time such settlement could reasonably have been effected.
(h) Other Rights; Continuation of Right to Indemnification. The
indemnification provided by this Article shall not be deemed exclusive of any
other rights to which any director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of shareholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
office or while employed by or acting as agent for the Corporation, 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 estate, heirs, executors and
administrators of such person. All rights to indemnification under this Article
shall be deemed to be a contract between the Corporation and each director or
officer of the Corporation who serves or served in such capacity at any time
while this Article SEVENTH is in effect. Any repeal or modification of this
Article SEVENTH or any repeal or modification of relevant provisions of the
General Corporation Law of Delaware or any other applicable laws shall not in
any way diminish any rights to indemnification of such director, officer,
employee or agent or the obligations of the Corporation arising hereunder. This
Article SEVENTH shall be binding upon any successor corporation to this
Corporation, whether by way of acquisition, merger, consolidation or otherwise.
(i) Exceptions to Indemnification Right. Notwithstanding any other
language in this Charter, the Company shall not be obligated pursuant to the
terms of this Charter:
1. Claims Initiated by Indemnitee. To indemnify or advance
expenses to any person with respect to proceedings or claims initiated
or brought voluntarily by him or her and not by way of defense, expect
with respect to proceedings brought to establish or enforce a right to
indemnification under this Charter or any other statue or law or
otherwise as required under Section 145 of the General Corporation Law
of Delaware, but such indemnification or advancement of expenses may be
provided by the Corporation in specific cases if the Board of Directors
finds it to be appropriate; or
2. Lack of Good Faith. To indemnify any person for any expenses
incurred by him or her with respect to any proceeding instituted by
him or her to enforce or interpret this Agreement, if a court of
competent jurisdiction determines that each of the material assertions
made by him or her in such proceeding was not made in good faith or
was frivolous;
3. Insured Claims. To indemnify any person for expenses or
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to him or her by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the Corporation.
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<PAGE>
4. Claims Under Section 16(b). To indemnify any person for
expenses or the payment of profits arising from the purchase and sale
by him or her of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar or
successor statute.
(j) Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was or has agreed to become 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 or on his behalf 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 SEVENTH; provided, however, that such insurance is available on
acceptable terms, which determination shall be made by a vote of a majority of
the Directors.
(k) Savings Clause. If this Article SEVENTH or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation (i) shall nevertheless indemnify each director and officer of the
Corporation and (ii) may nevertheless indemnify each employee and agent of the
Corporation, as to any cost, charge and expense (including attorney's fees),
judgment, fine and amount paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
an action by or in the right of the Corporation, to the full extent permitted by
any applicable portion of this Article SEVENTH that shall not have been
invalidated and to the full extent permitted by applicable law.
(l) Amendment. The affirmative vote of at least a majority of the total
voting power shall be required to amend, repeal, or adopt any provision
inconsistent with, this Article SEVENTH. No amendment, termination or repeal of
this Article SEVENTH shall affect or impair in any way the rights of any
director or officer of the Corporation to indemnification under the provisions
hereof with respect to any action, suit or proceeding arising out of, or
relating to, any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or appeal.
(m) Subsequent Legislation. If the General Corporation Law of Delaware
is amended after adoption of this Charter to further expand the indemnification
permitted to directors, officers, employees or agents of the Corporation, then
the Corporation shall indemnify such persons to the fullest extent permitted by
the General Corporation Law of Delaware, as so amended.
(n) Restriction. Notwithstanding any other provision hereof whatsoever,
no person shall be indemnified under this Article SEVENTH who is adjudged liable
for (i) a breach of duty to the Company or its shareholders that resulted in
personal enrichment to which he was not legally entitled, (ii) intentional fraud
or dishonesty or illegal conduct, or (iii) for any other cause prohibited by
applicable state or federal law, unless a court determines otherwise.
{EXCLUSION OF DIRECTOR LIABILITY}
EIGHTH. As authorized by Section 102(b)(7) of the General Corporation
Law of Delaware, no director of the Corporation shall be personally liable to
the Corporation or any shareholder thereof for monetary damages for breach of
his fiduciary duty as a director, except for liability (i) for any breach of a
Director's duty of loyalty to the Corporation or its shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for acts in violation of Section 174 of the
General Corporation Law of Delaware, as it now exists or may hereafter be
amended, or (iv) for any transaction from which the director derives an improper
personal benefit. This Article EIGHTH shall apply to a person who has ceased to
be a director of the Corporation with respect to any breach of fiduciary duty
which occurred when such person was serving as a director. This Article EIGHTH
shall not be construed to limit or modify in any way any director's right to
indemnification or other right whatsoever under this Charter, the Corporation's
Bylaws or the General Corporation Law of Delaware.
If the General Corporation Law of Delaware hereafter is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of the Corporation's directors, in addition to the limitation
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<PAGE>
on personal liability provided herein, shall be limited to the fullest extent
permitted by the General Corporation Law of Delaware as so amended. Any repeal
or modification of this Article EIGHTH by the shareholders shall be prospective
only and shall not adversely affect any limitation on the personal liability of
any director existing at the time of such repeal or modification. The
affirmative vote of at least a majority of the total voting power shall be
required to amend or repeal, or adopt any provision inconsistent with, this
Article EIGHTH.
NINTH. The Corporation reserves the right to amend, restate or repeal
any provision contained in this Charter, in the manner now or hereafter
prescribed by statute, and all rights conferred on shareholders are granted
subject to this reservation. The affirmative vote of a majority of the votes
cast is necessary to amend or restate provisions of this Charter, except such
provisions which expressly require a higher proportion of the votes cast or
require a proportion of the total voting power. The affirmative vote of a
majority of the total voting power is necessary to repeal this Charter in its
entirety and adopt a new charter in its stead.
{INAPPLICABILITY OF BUSINESS COMBINATION STATUTE}
TENTH. The Corporation expressly elects not to be governed by Section
203 of the General Corporation Law of Delaware (concerning business
combinations), as it now exists or hereafter may be amended, or any successor
statute. The affirmative vote of at least a majority of the total voting power
is necessary to repeal, amend or adopt any provision inconsistent with this
Article TENTH.
{CERTAIN POWERS RESERVED TO DIRECTORS}
ELEVENTH. The Corporation hereby reserves solely to the Board of
Directors the power and authority to borrow from time to time on behalf and in
the name of the Corporation and to determine the amount, terms, provisions and
conditions of any such borrowing; and in connection therewith to create, issue
and deliver instruments of indebtedness, including but not limited to promissory
notes, bonds, debentures and similar instruments containing such terms,
provisions and conditions as the Board of Directors deems necessary or advisable
in its sole discretion. In connection with the creation, issuance or delivery of
any such form or evidence of indebtedness, there is also reserved solely to the
Board of Directors the power and authority to create, enter into and execute
indentures of trust, conveyances, mortgages and similar instruments containing
such terms, provisions and conditions as the Board of Directors deems necessary
or advisable in its sole discretion; and, without need of prior or subsequent
shareholder approval, to pledge, mortgage or convey any or all property, assets,
rights, privileges or franchises now or hereafter belonging to the Corporation
in order to secure the payment when due of the principal, interest and other
charges due upon any such promissory notes, bonds or debentures or other
obligations or evidences of indebtedness of the Corporation; and to create,
issue and deliver additional amounts or series of obligations under the terms of
any such indenture, conveyance or mortgage after creation and issuance of the
original obligations thereunder. Any form of indebtedness authorized by the
Board of Directors may be made convertible into Common Stock or other securities
of the Corporation and may be made redeemable at such time and on such terms
(including the use of a sinking fund or similar arrangement) as the Board of
Directors deems necessary or advisable in its sole discretion.
The affirmative vote of at least a majority of the total voting power
shall be required to amend, repeal or adopt any provision inconsistent with this
Article ELEVENTH."
END OF TEXT OF CERTIFICATE OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
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<PAGE>
B. The foregoing Certificate of Amended and Restated Certificate of
Incorporation adopted and approved by the affirmative vote of shareholders
holding 3,780,000 shares of common stock out of 6,250,000 shares of the
Corporation's common stock outstanding and entitled to vote thereon,
constituting at least a majority of all shares entitled to vote thereon and
therefore sufficient for approval, all in accordance with Section 228 of the
General Corporation Law of Delaware and the existing Certificate of
Incorporation and bylaws of the Corporation.
C. This Certificate of Amended and Restated Certificate of
Incorporation was duly adopted and has been duly executed and acknowledged in
accordance with the provisions of Section 245 of the General Corporation Law of
Delaware.
IN WITNESS WHEREOF, INDUSTRIAL WASTE PROCESSING, INC. has caused this
amended and restated Certificate of Incorporation to be signed by its President
and attested by its Secretary on February 12, 1997.
INDUSTRIAL WASTE PROCESSING, INC.
/s/ Stephen M. Siedow
By ...............................
Stephen M. Siedow, President
ATTEST:
/s/ John D. Brasher Jr.
By ......................................
John D. Brasher Jr., Secretary
(SEAL)
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ACKNOWLEDGMENT
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I HEREBY CERTIFY that before me, a Notary Public duly commissioned and
qualified in and for the above jurisdiction, personally came and appeared
Stephen M. Siedow, the President of INDUSTRIAL WASTE PROCESSING, INC., who after
being duly sworn declared that he executed the foregoing Certificate of Amended
and Restated Certificate of Incorporation as his free act and deed and that the
statements therein set forth are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on February
13, 1997.
/s/ Elisabeth M. Crosse
X.......................... My
Elisabeth M. Crosse Commission My Commission Expires
NOTARY PUBLIC Expires: August 16, 1997
-------------------------
(SEAL)
12
Exhibit 3.2 to Form 8-K dated February 12, 1997
BYLAWS
of
WHITNEY AMERICAN CORPORATION
(formerly Industrial Waste Processing, Inc.)
ARTICLE I
General
1.01 Applicability. These Bylaws provide rules for conducting the
business of this corporation (the "Company"). Every shareholder and person who
subsequently becomes a shareholder, the Board of Directors, Committees and
Officers of the Company shall comply with these Bylaws, as amended from time to
time. All Bylaws and resolutions heretofore adopted by the Board of Directors
are hereby repealed, to the extent in conflict with the provisions of these
Bylaws.
1.02 Offices. The principal office of Company shall be selected by the
Board of Directors from time to time and may be within or without the State of
Delaware. The Company may have such other offices, within or without the State
of Delaware, as the Board of Directors may, from time to time, determine. The
registered office of the Company required by the General Corporation Law of
Delaware to be maintained in Delaware may be, but need not be, identical with
the principal office if in Delaware, and the address of the registered office
may be changed from time to time by the Board of Directors.
1.03 Definition of Terms. Terms defined in the Company's Certifcate of
Incorporation, as amended and restated from time to time in effect (the
"Charter"), shall have the same meanings when used in these Bylaws.
ARTICLE II
Stock and the Transfer Thereof
2.01 Stock Certificates. The shares of the Company's capital stock shall
be represented by consecutively numbered certificates signed by the President or
a Vice President and the Secretary or Assistant Secretary of the Company, and
sealed with the seal of the Company, or a facsimile thereof. If certificates are
signed by a transfer agent and registrar other than the Company or an employee
thereof, the signatures of the officers of the Company may be facsimile. In case
any officer who has signed (by real or facsimile signature) a certificate shall
have ceased to hold such office before the certificate is issued, it may be
issued by the Company with the same effect as if he continued to hold such
office on the date of issue. Each certificate representing shares shall state
upon the face thereof: (i) that the Company is organized under the laws of the
State of Delaware; (ii) the name of the person to whom issued; (iii) the number,
class and series (if any) of shares which such certificate represents; and (iv)
the par value, if any, of the shares represented by such certificate, or a
statement that the shares have no par value.
If any class or series of shares is subject to special powers,
designations, preferences or relative, participating or other special rights,
then such (together with all qualifications, limitations or restrictions of such
preferences or rights) shall be set forth in full or summarized on the
certificate representing such class or series. Moreover, each certificate shall
state that the Company will furnish, without charge, to the registered holder of
the shares represented by such certificate who so requests a statement setting
forth such information in full. Each certificate also shall set forth
restrictions upon transfer, if any, or a reference thereto, as shall be adopted
by the Board of Directors or by the shareholders, or as may be contained in this
Article II. Any shares issued without registration under the Securities Act of
1933, as amended ("Act"), shall bear a legend restricting transfer unless such
shares are registered under such act or an exemption from registration is
available for a proposed transfer.
2.02 Consideration for Shares. Shares shall be issued for such
consideration or considerations as shall be fixed from time to time by the Board
of Directors. Treasury shares may be disposed of by the Company for such
consideration as may be fixed from time to time by the Board of Directors. No
shares shall be issued for less than the par value thereof. The consideration
for the issuance of shares may be paid, in whole or in part, in money, in other
property, tangible or intangible, or in labor or services actually received by
or performed for the Company or for its benefit or in its formation or
reorganization, or as otherwise permitted in the Charter.
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2.03 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 Company alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, and the Board of Directors when authorizing
such issue of a new certificate or certificates may in its discretion, and as a
condition precedent to the issuance thereof, require the owner of such lost or
destroyed certificate or certificates or his legal representative to advertise
the same in such manner as it shall require, and/or furnish to the Company a
bond in such sum as it may direct, as indemnity against any claim that may be
made against the Company. Except as hereinabove in this section provided, no new
certificate or certificates evidencing shares of stock shall be issued unless
and until the old certificate or certificates, in lieu of which the new
certificate or certificates are issued, shall be surrendered for cancellation.
2.04 Registered Holder as Owner. The Company shall be entitled to treat
the registered holder of any shares of the Company as the owner of such shares,
and shall not be bound to recognize any equitable or other claim to, or interest
in, such shares or rights deriving from such shares, unless and until such
purchaser, assignee, transferee or other person becomes the registered holder of
such shares, whether or not the Company shall have either actual or constructive
notice of the interests of such purchaser, assignee, or transferee or other
person. The purchaser, assignee, or transferee of any of the shares of the
Company shall not be entitled: to receive notice of the meetings of the
shareholders; to vote at such meetings; to examine a list of the shareholders;
to be paid dividends or other sums payable to shareholders; or to own, enjoy and
exercise any other property or rights deriving from such shares against the
Company, until such purchaser, assignee, or transferee has become the registered
holder of such shares.
2.05 Reversions. Cash, property or share dividends, shares issuable to
shareholders in connection with a reclassification of stock, and the redemption
price of redeemed shares, which are not claimed by the shareholders entitled
thereto within TWO years after the dividend or redemption price became payable
or the shares became issuable, despite reasonable efforts by the Company to pay
the dividend or redemption price or deliver the certificate(s) for the shares to
such shareholders within such time shall, at the expiration of such time, revert
in full ownership to the Company, and the Company's obligation to pay any such
dividend or redemption price or issue such shares, as the case may be, shall
thereupon cease; provided, that the Board of Directors may at any time and for
any reason satisfactory to it, but need not, authorize (i) payment of the amount
of cash or property dividend or (ii) issuance of any shares, ownership of which
has reverted to the Company pursuant to this Section of Article II, to the
person or entity who or which would be entitled thereto had such reversion not
occurred.
2.06 Returned Certificates. All certificates for shares changed or
returned to the Company for transfer shall be marked by the Secretary
"CANCELLED," with the date of cancellation, and the transaction shall be
immediately recorded in the certificate book opposite the memorandum of their
issue. The returned certificate may be inserted in the certificate book.
2.07 Transfer of Shares. Upon surrender to the Company or to a transfer
agent of the Company of a certificate of stock endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, and such
documentary stamps as may be required by law, it shall be the duty of the
Company to issue a new certificate, upon payment by the transferree of such
nominal charge therefor as the Company or its transfer agent may impose. Each
such transfer of stock shall be entered on the stock book of the Company.
Respecting any securities issued in reliance upon Rule 903 of Regulation S under
the Act at any time when the Company is not a "reporting issuer" as defined in
Rule 902 of Regulation S, no transfer of such securities shall be registered
unless made in accordance with the provisions of Regulation S, except where
foreign law prevents the Company from refusing registration thereof.
2.08 Transfer Agent. The Board of Directors shall have power to appoint
one or more transfer agents and registrars for the transfer and registration of
certificates of stock of any class, and may require that stock certificates
shall be countersigned and registered by one or more of such transfer agents and
registrars. Any powers or duties with respect to the transfer and registration
of certificates may be delegated to the transfer agent and registrar.
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ARTICLE III
Meetings of the Shareholders
3.01 Annual Meeting. The annual meeting of the shareholders shall be held
between the 90th and 180th day after the Company's tax year end, at such date
and time and at such place, within or without the State of Delaware, as is
designated from time to time by the Board of Directors and stated in the notice
of the meeting. At each annual meeting the shareholders shall elect a Board of
Directors in accordance with the Charter and shall transact such other business
as may properly be brought before the meeting.
3.02 Special Meetings. Unless otherwise proscribed by law, the Charter or
these Bylaws, special meetings of the shareholders may be called by the Chairman
of the Board, the President, or a majority of the Board of Directors. The
President shall call a special meeting upon the Secretary's receipt of written
demand therefor by the holders of not less than ten percent (10%) of the total
voting power. Requests for special meetings shall state the purpose or purposes
of the proposed meeting.
3.03 Notice of Meetings. Except as otherwise provided by law, the Charter
or these Bylaws, written notice of any annual or special meeting of the
shareholders shall state the place, date, and time thereof and, in the case of a
special meeting, the purpose or purposes for which the meeting is called, shall
be given to each shareholder of record entitled to vote at such meeting not
fewer than 10 nor more than 60 days prior to the meeting by any means permitted
in Section 9.01 hereof. No business other than that specified in the notice of a
special meeting shall be transacted at any such special meeting.
3.04 Record Date. In order that the Company may determine shareholders of
record who are entitled (i) to notice of or to vote at any shareholders meeting
or adjournment thereof, (ii) to express written consent to corporate action in
lieu of a meeting, (iii) to receive payment of any dividend or other
distribution, or (iv) to allotment of any rights or to exercise any rights in
respect of any change, conversion or exchange of stock, or in order that the
Company may make a determination of shareholders of record for any other lawful
purpose, the Board of Directors may fix in advance a date as the record date for
any such determination. Such date shall not be more than 60 days, and in case of
a meeting of shareholders, not less than 10 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken,
and in no event may the record date precede the date upon which the Directors
adopt a resolution fixing the record date.
If no record date is fixed for the determination of shareholders entitled
to notice of or to vote at a meeting of shareholders, or shareholders entitled
to receive payment of a dividend, the date on which notice of the meeting is
given (as defined in Section 9.01 hereof) or the date on which the resolution of
the Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of the shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this Section such determination shall apply to any
adjournment thereof, unless the Board of Directors fixes a new record date for
the adjournment. The record date for determining shareholders entitled to
consent to corporate actions without a meeting shall be fixed as provided in
Section 3.12 hereof.
3.05 Voting List. At least 10 days but nor more than 60 days before any
meeting of shareholders, the officer or transfer agent in charge of the
Company's stock transfer books shall prepare a complete alphabetical list of the
shareholders entitled to vote at such meeting, which list shows the address of
each shareholder and the number of shares registered in his or her name. The
list so prepared shall be maintained at the corporate offices of the Company and
shall be open to inspection by any shareholder, for any purpose germane to the
meeting, at any time during usual business hours during a period of no fewer
than 10 days prior to the meeting. The list shall also be produced and kept open
at any shareholders meeting and, except as otherwise provided by law, may be
inspected by any shareholder or proxy of a shareholder who is present in person
at the meeting. The original stock transfer books shall be prima facie evidence
as to who are the shareholders entitled to examine the list of shareholders and
to vote at any meeting of shareholders.
3.06 Quorum; Adjournments. (a) The holders of a majority of the total
voting power at any shareholders meeting present in person or by proxy shall be
necessary to and shall constitute a quorum for the transaction of business at
all shareholders meetings, except as otherwise provided by law or by the
Charter.
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(b) If a quorum is not present in person or by proxy at any shareholders
meeting, a majority of the voting shares present or represented shall have the
power to adjourn the meeting from time to time to the same or another place
within 30 days thereof and no further notice of such adjourned meeting need be
given if the time and place thereof are announced at the meeting at which the
adjournment is taken.
(c) Even if a quorum is present in person or by proxy at any shareholders
meeting, a majority of the voting shares present or represented shall have the
power to adjourn the meeting from time to time, for good cause, without notice
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjourment is taken, until a new date which is not more
than 30 days after the date of the original meeting.
(d) Any business which might have been transacted at a shareholders
meeting as originally called may be transacted at any meeting held after
adjournment as provided in this Section 3.06 at which reconvened meeting a
quorum is present in person or by proxy. Anything in paragraph (b) of this
Section to the contrary notwithstanding, if an adjournment is for more than 30
days, or if after an adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote thereat.
(e) The shareholders present at a duly called meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
3.07 Proxies. At all meetings of shareholders, a shareholder may vote by
proxy, executed in writing by the shareholder or by his duly authorized attorney
in fact. Any proxyholder shall be authorized to sign, on the shareholder's
behalf, any written consent for shareholder action taken in lieu of a meeting.
Such proxy shall be filed with the Secretary of the Company before or at the
time of the meeting. No proxy shall be valid after three (3) years from the date
of its execution, unless otherwise provided in the proxy.
3.08 Voting of Shares. At any shareholders meeting every shareholder
having the right to vote shall be entitled to vote in person or by proxy. Except
as otherwise provided by law, by the Articles or in the Board resolution
authorizing the issuance of shares, each shareholder of record shall be entitled
to one vote (on each matter submitted to a vote) for each share of capital stock
registered in his, her or its name on the Company's books. Except as otherwise
provided by law or by the Articles, all matters submitted to the shareholders
for approval shall be determined by a majority of the votes cast (not counting
abstentions) at a legal meeting commenced with a quorum.
3.09 Voting of Shares by Certain Holders. Neither treasury shares, nor
shares of its own stock held by the Company in a fiduciary capacity, nor shares
held by another corporation if the majority of the shares entitled to vote for
the election of directors of such other corporation is held by the Company,
shall be voted at any meeting or counted in determining the total number of
outstanding shares at any given time.
Shares standing in the name of another corporation, domestic or foreign,
may be voted by such officer, agent, or proxy as the bylaws of such corporation
may prescribe, or, in the absence of such provision, as the board of directors
of such corporation may determine.
Shares held by an administrator, executor, personal representative,
guardian, or conservator may be voted by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing in the name of
a trustee may be voted by him, either in person or by proxy, but no trustee
shall be entitled to vote shares held by him without a transfer of such shares
into his name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority to do so be
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
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3.10 Chairman. The Chairman of the Board of Directors of the Company, if
there is one, or in his absence, the President, shall act as chairman at all
meetings of shareholders.
3.11 Manner of Shareholder Voting. Voting at any shareholders meeting
shall be oral or by show of hands; provided, however, that voting shall be by
written ballot if such demand is made by any shareholder present in person or by
proxy and entitled to vote.
3.12 Action by Shareholders Without a Meeting; Record Date. Any action
required or permitted to be taken at a meeting of the shareholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by a majority of the
total voting power; provided, that where an action requires a greater proportion
of the total voting power, then the consent shall be signed by such greater
proportion. No written consent will be effective unless written consents, signed
by a sufficient proportion of shareholders to take action, are delivered to the
Company within sixty (60) days of the date of the earliest such consent. Such
consent shall have the same force and effect as a vote of the shareholders, and
may be stated as such in any document filed with the Secretary of State of
Delaware under the General Corporation Law of Delaware. Prompt notice of such
action by written consent of less than all shareholders entitled to vote shall
be given to all shareholders who have not consented in writing to the action
taken.
The record date for determining shareholders entitled to consent to
corporate actions in writing without a meeting (the "consent record date") shall
not precede, and shall not be more than ten (10) days after, the date upon which
the resolution fixing the record date was adopted. However, if no consent record
date is fixed, the consent record date shall be, respectively, (i) if prior
action by the Board of Directors is required under the General Corporation Law
of Delaware for the consent to be validly taken, the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action; and (ii) if prior action by the Board of Directors is not so required,
the first date on which a properly signed and dated consent setting forth the
action taken or proposed to be taken is delivered as required above.
3.13 Presiding Officers; Order of Business. (a) Shareholders meetings
shall be presided over by the Chairman of the Board; or if the Chairman (and
Vice Chairman) is not present, by the President; or if the President is not
present, by a Vice President; or if a Vice President is not present, by such
person chosen by the Board of Directors; or if none, by a chairperson to be
chosen at the meeting by shareholders present in person or by proxy who own a
majority of the voting power present. The Secretary of a shareholders meeting
shall be the Secretary of the Company; or if the Secretary is not present, an
Assistant Secretary; or if an Assistant Secretary is not present, such person as
may be chosen by the Board of Directors; or if none, by such person who is
chosen by the chairperson at the meeting.
(b) The following order of business, unless otherwise ordered at the
shareholders meeting by the chairperson thereof, shall be observed as far as
practicable and consistent with the purposes of the meeting:
1. Calling of the shareholders' meeting to order.
2. Presentation of proof of mailing of the notice of the meeting and,
if a special meeting, the call thereof.
3. Presentation of proxies.
4. Determination and announcement that a quorum is present.
5. Reading and approval (or waiver thereof) of the minutes of the
previous meeting of shareholders.
6. Reports, if any, of officers.
7. Election of directors, if the meeting is an annual meeting or a
meeting called for such purpose.
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8. Consideration of the specific purpose or purposes for which the
meeting has been called, other than election of directors.
9. Transaction of such other business as may properly come before the
meeting.
10. Adjournment.
3.14 Annual Report. The President of the Company shall prepare an annual
report which will set forth a statement of affairs of the Company as of the end
of its last fiscal year, including a balance sheet, an income statement and a
statement of changes in financial position, which need not be audited, and
present them at the annual meeting of shareholders. Failure to prepare or
present an annual report shall not affect the validity of any shareholder
meeting. No such report need be prepared or presented for any fiscal year in
which the Company was inactive, beyond a statement reflecting the inactive
status. This Section shall not apply as to any fiscal year if the Company (i)
was at the year end subject to the reporting requirements of Section 13 or 15(d)
of the Securities Exchange Act of 1934, and subsequently furnishes to the
shareholders an annual report or report on Form 10-K under such Act covering
such fiscal year, or (ii) furnishes to shareholders an Information Statement
which conforms to the requirements of Rule 15c2-11 of the Securities and
Exchange Commission.
ARTICLE IV
Directors, Powers and Meetings
4.01 General Powers. All corporate powers shall be exercised, and the
business and affairs of the Company shall be managed, by or under the authority
of its Board of Directors, except as otherwise provided in the General
Corporation Law of Delaware or the Charter.
4.02 Number, Tenure and Qualifications. The Company's Board of Directors
shall consist of not less than three (3) and not more than seven (7) Directors,
as resolved from time to time by the Board of Directors. If such number is not
so fixed, the Company shall have THREE Directors. Directors shall be elected at
each annual meeting of shareholders, except as otherwise provided below. Each
Director shall hold office until the next annual meeting of shareholders and
thereafter until his successor shall have been elected and duly qualified.
Directors need not be residents of Delaware or shareholders of the Company.
Directors shall be elected by plurality vote. No decrease in the number of
Directors shall shorten the term of any incumbent Director.
4.03 Vacancies; Resignation. (a) Any vacancy occurring in the Board of
Directors, except resulting from an increase in the number of directors, may be
filled by the affirmative vote of a majority of the remaining Directors, though
less than a quorum, or by a sole remaining Director. A Director elected to fill
a vacancy shall be elected for the unexpired term of his predecessor in office.
Any directorship to be filled by reason of an increase in the number of
Directors shall be filled by the affirmative vote of a majority of the entire
board or by a majority of the total voting power at any annual meeting or at a
special meeting of shareholders called for that purpose, or by means of written
shareholder consents taken in lieu of a meeting. Every director chosen to fill a
vacancy as provided in this Section shall hold office until the next annual
meeting of shareholders or until his successor has been elected and qualified.
(b) Any Director may resign at any time by giving written notice to the
Board, the Chairman of the Board, the President or the Secretary of the Company.
Unless otherwise specified in such written notice, a resignation shall take
effect upon delivery to the Board or the designated officer. A resignation need
not be accepted in order for it to be effective.
4.04 Removal of Directors. Any Director may be removed only by the
shareholders in the manner provided in the Company's Charter and, if no such
provision appears therein, then as provided by law. Such action may be taken at
any special meeting called for that purpose or by means of written shareholder
consents. In case any vacancy so created shall not be filled by the shareholders
at such meeting or in the written consent effecting removal, such vacancy may be
filled by a majority of the Board of Directors.
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4.05 Place of Meetings. The Board of Directors may hold both regular and
special meetings either within or without the State of Delaware, at such place
as the Board of Directors from time to time deems advisable.
4.06 Regular Meetings. A regular meeting of the Board of Directors shall
be held without other notice than these Bylaws immediately after and at the same
place as the annual meeting of shareholders. The Board of Directors may provide
by resolution the time and place for the holding of additional regular meetings
without other notice than such resolution; provided, that any Director not
present when any such resolution is passed is given notice of the resolution.
4.07 Special Meetings. A special meeting of the Board of Directors shall
be held without other notice than these Bylaws immediately after and at the same
place as every special meeting of shareholders. Special meetings of the Board of
Directors also may be called by or at the request of the Chairman of the Board,
the President, or any two Directors upon two days' notice to each director if
such notice is delivered personally or sent by telegram, or upon five days'
notice if sent by mail.
4.08 Telephonic Meetings. One or more members of the Board of Directors
or any committee designated by the Board may participate in a meeting of the
Board of Directors or committee by means of conference telephone or similar
communications equipment by which all persons participating in the meeting can
hear one another at the same time. Such participation shall constitute presence
in person at the meeting. All participants in any meeting of Directors, by
virtue of their participation and without further action on their part, shall be
deemed to have consented to the recording of such meeting by electronic device
or otherwise, and to the making of a written transcript thereof, in order that
minutes thereof shall be available for the Company's records.
4.09 Notice. Except as otherwise provided above, notice of the time, date
and place, of every special meeting of Directors or any committee thereof shall
be given. Any Director may waive notice of any meeting. The attendance of a
Director at a meeting shall constitute a waiver of notice of such meeting,
except where a Director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
4.10 Quorum; Adjournments. A majority of the number of directors then in
office, present in person or by means of conference telephone or similar
equipment, shall constitute a quorum for the transaction of business at every
Board meeting, and the act of the majority of the Directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors, except
as may otherwise specifically be provided by law, the Charter or these Bylaws.
If a quorum is not present at any Board meeting, the directors present may
adjourn the meeting, from time to time, without notice other than announcement
of the meeting, until a quorum is present.
4.11 Compensation. The Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
Director. No such paymnent shall preclude any Director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings. The amount or rate of such compensation of memnbers of the
Board of Directors or of Committees shall be established by the Board of
Directors and shall be set forth in the minutes of the Board.
4.12 Reliance on Accounts and Reports, etc. A Director, or a member of
any Committee designated by the Board of Directors shall, in the performance of
this duties, be fully protected in relying in good faith upon the records of the
Company and upon information, opinions, reports or statements presented to the
Company by any of the Company's officers or employees, or Committees designated
by the Board of Directors, or by any other person as to the matters the member
reasonably believes are within such other person's professional or expert
compentence and who has been selected with reasonable care by or on behalf of
the Company.
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4.13 Presumption of Assent. A Director of the Company who is present at a
meeting of the Board of Directors at which action on any corporate matter is
taken shall be presumed 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 or certified mail, first class, postage prepaid, to the Secretary of
the Company, provided such mailing is postmarked within ten calendar days after
the adjournment of the meeting. Such right to dissent shall not apply to a
Director who voted in favor of such action.
4.14 Action by Directors Without Meeting. Any action required to be taken
at a meeting of the Directors of the Company or of a committee of Directors or
any action which may be taken at such a meeting, may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be signed by
all of the Directors entitled to vote with respect to the subject matter therof.
A consent shall be sufficient for this Section if it is executed in
counterparts, in which event all of such counterparts, when taken together,
shall constitute one and the same consent.
4.15 Bank Accounts, etc. Anything herein to the contrary notwithstanding,
the Board of Directors may, except as may otherwise be required by law,
authorize any officer or officers, agent or agents, in the name of and on behalf
of the Company, to sign checks, drafts, or other orders for the payment of money
or notes or other evidences of indebtedness, to endorse for deposit, deposit to
the credit of the Company at any bank or trust company or banking institution in
which the Company may maintain an account or to cash checks, notes, drafts, or
other bankable securities or instruments, and such authority may be general or
confined to specific instances, as the Board of Directors may elect.
4.16 Inspection of Records. Every Director shall have the absolute right
at any reasonable time to inspect all books, records, documents of every kind,
and the physical properties, of the Company and of its subsidiaries. Such
inspection may be made personally or by an agent and includes the right to make
copies and extracts.
4.17 Executive Committee. (a) The Board of Directors may, by resolution
adopted by a majority of the whole Board, appoint two or more of its members to
constitute an Executive Committee. One of such directors shall be designated as
Chairman of the Executive Committee. Each member of the Executive Committee
shall continue as a member thereof until the expiration of his term as a
director, or until his earlier resignation from the Executive Committee, in
either case unless sooner removed as a director or member of the Executive
Committee by any means authorized by the Charter or herein.
(b) The Executive Committee shall have and may exercise, to the extent
provided in such resolution and except as prohibited by law, all of the rights,
power and authority of the Board of Directors.
(c) The Executive Committee shall fix its own rules of procedure and
shall meet at such times and at such place or places as may be provided by its
rules. The Chairman of the Executive Committee, or in the absence of the
Chairman, a member of the Executive Committee chosen by a majority of the
members present, shall preside at all meetings of the Executive Committee, and
another member thereof chosen by the Executive Committee shall act as Secretary.
A majority of the Executive Committee shall constitute a quorum for the
transaction of business, and the affirmative vote of a majority of the members
thereof shall be required for any action of the Executive Committee. The
Executive Committee shall keep minutes of its meetings and deliver such minutes
to the Board of Directors.
4.18 Other Committees. The Board of Directors may, by resolution duly
adopted by a majority of directors at a meeting at which a quorum is present,
appoint an audit committee, compensation committee, and such other committee or
committees as it shall deem advisable and with such limited authority as the
Board of Directors shall from time to time determine.
4.19 Other Provisions Regarding Committees. (a) The Board of Directors
shall have the power at any time to fill vacancies in, change the membership of,
or discharge any committee. The members of any committee present at any meeting
of a committee, whether or not they constitute a quorum, may appoint a director
to act in the place of an absent member.
(b) Members of any committee shall be entitled to such compensation for
their services as such as from time to time may be fixed by the Board of
Directors and in any event shall be entitled to reimbursement of all reasonable
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expenses incurred in attending committee meetings. Any member of a committee may
waive compensation for any meeting. No member of a committee who receives
compensation as a member of one or more committees shall be barred from serving
the Company in any other capacity or from receiving compensation and
reimbursement of reasonable expenses for any or all such other services.
(c) Unless otherwise prohibited by law, the provisions above concerning
action by written consent of directors and meetings of directors by telephonic
or similar means shall apply to all committees from time to time created by the
Board of Directors.
ARTICLE V
Officers
5.01 Positions. The Company's officers generally shall be chosen by the
Board of Directors and shall consist of a Chairman of the Board, a President,
one or more Vice Presidents if desired, a Secretary and a Treasurer. The Board
of Directors may appoint one or more other officers, assistant officers and
agents as it from time to time deems necessary or appropriate, who shall be
chosen in such manner and hold their offices for such terms and have such
authority and duties as from time to time may be determined by the Board of
Directors. The Board may delegate to the Chairman of the Board the authority to
appoint any officer or agent of the Company and to fill a vacancy other than the
Chairman of the Board or President. Any two or more offices may be held by the
same person, except that no person may simultaneously hold the offices of
President and Secretary and of President and Vice President. In all cases where
the duties of any officer, agent or employee are not prescribed by these bylaws
or by the Board of Directors, such officer, agent or employee shall follow the
orders and instructions of the President.
5.02 Term of Office; Removal. Each officer of the Company shall hold
office at the pleasure of the Board and any officer may be removed, with or
without cause, at any time by the affirmative vote of a majority of the
directors then in office; provided, that any officer appointed by the Chairman
of the Board pursuant to authority delegated by the Board may be removed, with
or without cause, at any time by the Chairman whenever the Chairman in his or
her absolute discretion shall consider that the Company's best interests shall
be served by such removal. Removal of an officer by the Board (or the Chairman,
as the case may be) shall not prejudice the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not in
itself create contract rights.
5.03 Vacancies. A vacancy in any office, however occurring, may be filled
by the Board or the Executive Committee, for the unexpired portion of the term
by majority vote of its members, or by the Chairman of the Board in the case of
a vacancy occurring in an office to which the Chairman has been delegated
authority to make appointments.
5.04 Compensation. The salaries of all officers of the Company shall be
fixed from time to time by the Board, and no officer shall be prevented from
receiving a salary by reason of the fact that he also receives compensation from
the Company in any other capacity.
5.05 Chairman of the Board. The Chairman of the Board ("Chairman"), if
such officer shall be chosen by the Board of Directors, shall preside at all
meetings of the Board of Directors and meetings of shareholders at which he is
present and shall exercise general supervision and direction over the
implementation of Board policy affecting the affairs of the Company. Any act
which may be performed by the Chief Executive Officer or President may be
performed by the Chairman.
5.06 Chief Executive Officer; Chief Operating Officer. The Chairman of
the Board shall, unless the Board determines otherwise, serve as the Chief
Executive Officer ("CEO") of the Company. If the Chairman is not designated the
CEO, then the President shall serve as CEO. The Board may, from time to time,
designate from among the executive officers of the Company an officer to serve
as Chief Operating Officer ("COO") of the Company. If the Chairman serves as the
CEO, then the President shall serve as COO. If the President is designated CEO,
then the Executive Vice President (or if there is none, then the next most
senior Vice President) shall serve as COO. A person designated to serve in the
capacity of CEO or COO shall serve at the pleasure of the Board.
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A person designated Chief Executive Officer (CEO) shall have primary
responsibility for and active charge of the management and supervision of the
Company's business and affairs. The CEO may execute in the name of the Company
authorized corporate obligations and other instruments, shall perform such other
duties as may be prescribed by the Board (or Chairman, as the case may be) from
time to time and, in the absence or disability of the President, shall exercise
all of the duties and powers of the President. In the event that the President
is not the CEO, then the CEO shall supervise the performance of the President
and shall be responsible for the execution of the policies and directives of the
Board. The CEO shall report directly to the Board. The CEO shall perform such
other duties as may be assigned by the Board (or Chairman, as the case may be).
The CEO may perform any act which might be performed by the President.
A person designated Chief Operating Officer (COO) shall be responsible
for the day-to-day management of the Company's operations, subject to the
authority of the CEO. The COO shall report directly to the CEO of the Company
and shall consult with the CEO on all matters of corporate policy and material
business activities of the Company. The COO shall perform such other duties as
may be assigned by the Board or the CEO.
5.07 President. The President shall have general active management of the
business of the Company, subject to the authority of the Chief Executive Officer
if the President is not designated as such, and general supervision of its
officers, agents and employees. In the absence of the Chairman and Chief
Executive Officer, he shall preside at all meetings of the shareholders and of
the Board. In the absence of a designated Chief Executive Officer he shall see
that all policies and directives of the Board are carried into effect.
He shall, unless otherwise directed by the Board of Directors, attend in
person or by substitute appointed by him, or shall execute in behalf of the
Company written instruments appointing a proxy or proxies to represent the
Company, at all meetings of the stockholders of any other company in which the
Company shall hold any stock. He may, on behalf of the Company, in person or by
substitute or by proxy, execute written waivers of notice and consents with
respect to any such meetings. At all such meetings and otherwise, the President,
in person or by substitute or proxy as aforesaid, may vote the stock so held by
the Company and may execute written consent and other instruments and power
incident to the ownership of said stock, subject however to the instructions, if
any, of the Chairman or the Board of Directors. The President shall have custody
of the Treasurer's bond, if any.
5.08 Executive Vice President. The Executive Vice President, if any,
shall assist the President in the discharge of surpervisory, managerial and
executive duties and functions. In the absence of the President or in the event
of his death, or inability or refusal to act, the Executive Vice President shall
perform the duties of the President and when so acting shall have the duties and
powers of the President. He shall perform such other duties as from time to time
may be assigned to him by the President, Chairman or Board of directors.
5.09 Vice Presidents. The Vice Presidents, if any, shall assist the
President and Executive Vice President and shall perform such duties as may be
prescribed by the Board, the Chairman or the President. Vice Presidents in the
order of their seniority shall, in the absence or disability of the Chairman and
President, exercise all of the duties and powers of such officers. The Executive
Vice President, if any, shall be the most senior of Vice Presidents, and the
Senior Vice President, if any, shall be the next most senior of Vice Presidents.
In regard to other Vice Presidents, they shall have the respective ranks
designated by the Board of Directors, or if none has been so designated, as
designated by the Chairman, or if none has been so designated by the Chairman,
they shall rank in the order of their respective elections to such office. The
execution of any instrument on the Company's behalf by a Vice President shall be
conclusive evidence, as to third parties, of his authority to act in the stead
of the President and Executive Vice President.
5.10 Secretary. The Secretary shall: (i) keep the minutes of the
proceedings of the shareholders and the Board of Directors and record all votes
and proceedings thereof in a book kept for that purpose; (ii) see that all
notices are duly given in accordance with the provisions of these Bylaws or as
required by law; (iii) be custodian of the corporate records and of the seal of
the Company and affix the seal to all documents when authorized by the Board of
Directors; (iv) keep at its registered office or principal place of business
within or outside Delaware a record containing the names and addresses of all
shareholders and the number and class of shares held by each, unless such a
record shall be kept at the office of the Company's transfer agent or registrar;
(v) sign with the President, or a Vice President, certificates for shares of the
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Company, the issuance of which shall have been authorized by resolution of the
Board of Directors; (vi) have general charge of the stock transfer books of the
Company, unless the Company has a transfer agent; and (vii) in general, perform
all duties incident to the office of Secretary and such other duties as from
time to time may be assigned to him by the President or the Board of Directors.
The Board of Directors may give general authority to officers other than the
Secretary or any Assistant Secretary to affix the Company's seal and to attest
the fixing thereof by his or her signature.
5.11 Assistant Secretary. The Assistant Secretary, if any (or if there is
more than one, the Assistant Secretaries in the order designated, or in the
absence of any designation, in the order of their appointment), in the absence
or disability of the Secretary, shall perform the duties and exercise the powers
of the Secretary. The Assistant Secretary(ies) shall perform such other duties
and have such other powers as from time to time may be prescribed by the Board,
the Chairman or the Chief Executive Officer. The Chairman may appoint one or
more Assistant Secretary(ies) to office.
5.12 Treasurer. The Treasurer shall, unless the Board otherwise resolves,
be the principal financial officer and principal accounting officer of the
Company and shall have the care and custody of all funds, securities, evidence
of indebtedness and other valuable effects of the Company, shall keep full and
accurate accounts of receipts and disburesments in books belonging to the
Company and shall deposit all money and other valuable effects of the Company in
the name and to the credit of the Company in such depositories as from time to
time may be designated by the Board. The Treasurer shall disburse the funds of
the Company in such manner as may be ordered by the Board from time to time and
shall render to the Chairman of the Board, the President and the Board, at
regular Board meetings or whenever any of them may so require, an account of all
transactions and of the Company's financial condition.
5.13 Assistant Treasurer. The Assistant Treasurer, if any (or if there is
more than one, the Assistant Treasurers in the order designated, or in the
absence of any designation, in the order of their appointment), in the absence
or disability of the Treasurer, shall perform the duties and exercise the powers
of the Treasurer. The Assistant Treasurer(s) shall perform such other duties and
have such other powers as from time to time may be prescribed by the Board, the
Chairman or the Chief Executive Officer. The Chairman may appoint one or more
Assistant Treasurer(s) to office.
5.14 Resignations. Any officer may resign at any time by giving written
notice to the Board or to the Chairman. Such resignation shall take effect at
the time specified therein and, unless specified therein, no acceptance of the
resignation shall be required for the resignation to be effective.
5.15 Delegation of Duties. In the event of the absence or disability of
any officer of the Company, or for any other reason the Board shall deem
sufficient, the Board may temporarily designate the powers and duties, or
particular powers and duties, of such officer to any other officer, or to any
director.
5.16 Fidelity Bonds. The Board of Directors shall have the power, to the
extent permitted by law, to require any officer, agent or employee of the
Company to give bond for the faithful discharge of his duties in such form and
with such surety or sureties as the Board deems advisable.
ARTICLE VI
Indemnification
Every Director, officer, employee and agent of the Company, and every
person serving at the Company's request as a director, officer (or in a position
functionally equivalent to that of officer or director), employee or agent of
another corporation, partnership, joint venture, trust or other entity, shall be
indemnified to the extent and in the manner provided by the Company's Charter,
as it may be amended, and if no such provision appears therein, then in
accordance with the laws of the State of Delaware.
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ARTICLE VII
Execution of Instruments and Deposit of Corporate Funds
7.01 Execution of Instruments Generally. The Chairman of the Board, the
President, any Vice President, the Secretary or the Treasurer, subject to the
approval of the Board of Directors,may enter into any contract or execute and
deliver any instrument in the name and on behalf of the Company. The Board of
Directors may authorize any officer or officers, or agent or agents, to enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Company, and such authorization may be general or confined to
specific instances.
7.02 Borrowing. Unless and except as authorized by the Board of
Directors, no loans or advances shall be obtained or contracted for, by or on
behalf of the Company, and no negotiable paper shall be issued in its name. Such
authorization may be general or confined to specific instances. Any officer or
agent of the Company thereunto so authorized may attain loans and advances for
the Company and for such loans and advances may make, execute and deliver any
promissory notes, bonds, or other evidences of indebtedness of the Company. Any
officer or agent of the Company so authorized may pledge, hypothecate or
transfer as security for the payment of any and all loans, advances,
indebtedness and liabilities of the Company, any and all stocks, bonds other
securites and other personal property at any time held by the Company, and to
that end may endorse, assign and deliver the same and do every act and thing
necessary or proper in connection therewith.
7.03 Deposits. All funds of the Company not otherwise employed shall be
deposited from time to time to its credit in such banks or trust companies or
with such bankers or other depositaries as the Board of Directors may select, or
as may be selected by any officer or officers or agent or agents authorized to
do so by the Board of Directors. Endorsements for deposit to the credit of the
Company in any of its duly authorized depositaries shall be made in such manner
as the Board of Directors from time to time may determine.
7.04 Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, and all notes or other evidence of indebtedness issued in the
name of the Company, shall be signed by such officer or officers or agent or
agents of the Company and in such manner as the Board of Directors from time to
time may determine.
7.05 Proxies. Proxies to vote with respect to shares of stock of other
corporations owned by, or standing in the name of, the Company may be executed
and delivered from time to time on behalf of the Company by the Chairman of the
Board, the President or any Vice President or by any other person or persons
thereunto authorized by the Board of Directors.
ARTICLE VIII
Miscellaneous
8.01 Declaration of Dividends. The Board of Directors at any regular or
special meeting may declare dividends payable, whenever in the exercise of its
discretion it may deem such declaration advisable and such is permitted by law.
Such dividends may be paid in cash, property, or shares of the Company.
8.02 Benefit Plans. Directors shall have the power to install and
authorize any pension, profit sharing, stock option, stock award or stock bonus,
insurance, welfare, educational, bonus, health and accident or other benefit
program which the Board deems to be in the interest of the Company, at the
expense of the Company, and to amend or revoke any plan so adopted. Any such
plan may adopted and have full force and effect by resolution of the Board of
Directors, except where applicable laws, rules or regulations require prior
approval of the Company's shareholders of such plan in order for the plan to be
valid.
8.03 Seal. The corporate seal of the Company shall be circular in form
and shall contain the name of the Company, the year incorporated and the words
"Seal" and "Delaware".
8.04 Fiscal Year. The Board of Directors shall have the power to fix, and
from time to time change, the fiscal year of the Company. Any such adoption of
or change in a fiscal year shall not constitute or require an amendment to these
Bylaws.
8.05 Amendment of Bylaws. These Bylaws may be amended or repealed in the
manner provided for in the Charter, or if none is there provided: by majority
vote of the Board of Directors, taken at any meeting or by written consent,
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subject to the shareholders' right to change or repeal any Bylaws so made or
adopt new Bylaws by vote of at least a majority of the total voting power.
Bylaws amendments may be proposed by any Director or shareholder. Any action
duly taken by the Board or the shareholders which conflicts or is inconsistent
with these Bylaws (as they may be amended) shall constitute an amendment of the
Bylaws, if the action was taken by such number of directors or shares voting as
would be sufficient for amendment of the Bylaws.
8.06 Gender. The masculine gender is used in these Bylaws as a matter of
convenience only and shall be interpreted to include the feminine and neuter
genders as the circumstances indicate.
8.07 Conflicts. In the event of any irreconcilable conflict between these
Bylaws and either the Company's Charter or applicable law, the latter shall
control.
8.08 Definitions. Except as these Bylaws otherwise specifically provide,
all terms used in these Bylaws shall have the definitions given them in the
Company's Charter or the Delaware General Corporation Law.
ARTICLE IX
Notices
9.01 Receipt of Notices by the Company. Notices, shareholder writings
consenting to action, and other documents or writings shall be deemed to have
been received by the Company when they are actually received: (i) at the
registered office of the Company in Delaware; (ii) at the principal office of
the Company (as designated in the most recent document filed by the Company with
the Delaware Secretary of State designating a principal office) addressed to the
attention of the Secretary of the Company; (iii) by the Secretary of the Company
wherever the Secretary may be found; or (iv) by any other person authorized from
time to time by the Board of Directors or the President to receive such
writings, wherever such person is found.
9.02 Giving of Notice. Exept as otherwise provided by the General
Corporation Law of Delaware, these Bylaws, the Charter or resolution of the
Board of Directors, every meeting notice or other notice, demand, bill,
statement or other communication (collectively, "Notice") from the Company to a
Director, Officer or shareholder shall be duly given if it is written or printed
and is (i) sent by first class or express mail, postage prepaid, (ii) sent by
any commercial overnight air courier service, such as DHL, Federal Express,
Emery, Airborne, UPS or similar service, (iii) sent by telegraph, cablegram,
telex, telecopier, facsimile or similar transmission, (iv) delivered by any
commercial messenger service which regularly retains its receipts, or (v)
personally delivered, provided a receipt is obtained reflecting the date of
delivery. Notice shall not be duly given unless all delivery or postage charges
are prepaid. Notice shall be given to an addressee's most recent address as it
appears on the Company's records or to such other address as has been provided
in writing to the Secretary. A Notice shall be deemed "given" when dispatched
for delivery, when personally delivered, when transmitted electronically, or if
mailed, on the date postmarked. This Section shall not have the effect of
shortening any notice period provided for in these Bylaws.
9.03 Waiver of Notice. Any Notice required or permitted by the General
Corporation Law of Delaware, the Charter or these Bylaws may be waived in
writing at any time by the person entitled to the Notice, and such waiver shall
be equivalent to the giving of notice. Notice of any shareholders' meeting shall
be waived by attendance, in person or by proxy, at the meeting, unless any
question of lack of or defect in a Notice is raised prior to conclusion of the
meeting. A waiver of Notice of a special meeting of shareholders shall state the
purpose for which the meeting was called or the business to be transacted
thereat.
APPROVED AND ADOPTED by the Board of Directors as of February 12, 1997.
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SECRETARY'S CERTIFICATION
I, the undersigned Secretary of this corporation, hereby certify that the
foregoing Bylaws were duly adopted by the shareholders of the corporation on
February 12, 1997, by written consent in lieu of a meeting of shareholders and
that the foregoing text of the Bylaws is currently in full force and effect and
has not been revoked, suspended or amended since adoption.
DATED: February 12, 1997
INDUSTRIAL WASTE PROCESSING, INC.
/s/ John D. Brasher Jr.
(SEAL) By..................................
John D. Brasher Jr., Secretary
14
Exhibit 10.1 to Form 8-K dated February 12, 1997
WHITNEY AMERICAN CORPORATION
1997 STOCK OPTION PLAN
1. Purpose of the Plan.
The purpose of this 1997 Stock Option Plan ("Plan") of WHITNEY AMERICAN
CORPORATION, ("Company") a Delaware corporation is to provide the Company with a
means of attracting and retaining the services of selected employees, directors
and consultants. The Plan is intended to advance the interests of the Company
by affording to selected employees, directors and consultants, upon whose
skill, judgement, initiative and efforts the Company is largely dependent for
the successful conduct of its business, an opportunity for investment in the
Company and the incentives inherent in stock ownership in the Company. For
purposes of this Plan, the term Company shall include subsidiaries, if any, of
the Company.
2. Legal Compliance.
It is the intent of the Plan that all options granted under it
("Options") shall be either "Incentive Stock Options" ("ISOs"), as such term is
defined in Section 422 of the Internal Revenue Code of 1986, as amended
("Code"), or non-qualified stock options ("NQOs"); provided, however, ISOs shall
be granted only to employees of the Company. An Option shall be identified as an
ISO or an NQO in writing in the document or documents evidencing the grant of
the Option. All Options that are not so identified as ISOs are intended to be
NQOs. It is the further intent of the Plan that it conform in all respects with
the requirements of Rule 16b-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as amended ("Rule 16b-3"). To the extent
that any aspect of the Plan or its administration shall at any time be viewed as
inconsistent with the requirements of Rule 16b-3 or, in connection with ISOs,
the Code, as the same shall be amended from time to time, such aspect shall be
deemed to be modified, deleted, or otherwise changed as necessary to ensure
continued compliance with such provisions. Failure to conform with the
requirements of Rule 16b-3 or the Code, shall not invalidate this Plan or any
options granted pursuant hereto.
3. Administration of the Plan.
3.1 Plan Committee.
The Plan shall be administered by a committee ("Committee"). The
members of the Committee shall be appointed from time to time by the Board of
Directors of the Company ("Board") and shall consist of not less than one (1)
director. All of the members of the Committee shall be disinterested persons.
The term "disinterested person," as used in this Plan, shall mean a director:
(i) who was not during the one (1) year prior to service as an administrator of
the Plan granted or awarded equity securities pursuant to the Plan or any other
plan of the Company or any of its Affiliates entitling the participants therein
to acquire equity securities of the Company or any of its Affiliates except as
permitted by Rule 16b-3(c)(2)(i) ("16b-3(c)(2)(i)") promulgated under the
Securities Exchange Act of 1934, as amended; or (ii) who is otherwise considered
to be a "disinterested person" in accordance with Rule 16b-3(c)(2)(i), or any
other applicable rules, regulations or interpretations of the Securities and
Exchange Commission. Any such persons shall otherwise comply with the
requirements of Rule 16b-3 promulgated under the Exchange Act. Should the Board
not appoint a Committee or for any other reason should a Committee not be
properly appointed or in existence, then the entire Board of Directors shall
constitute the Committee for the purpose of administration of this Plan.
3.2 Grants of Options by the Committee.
In accordance with the provisions of the Plan, the Committee, by
resolution, shall select those eligible persons to whom Options shall be granted
("Optionees"); shall determine the time or times at which each Option shall be
granted, whether an Option is an ISO or an NQO and the number of shares to be
subject to each Option; and shall fix the time and manner in which the Option
may be exercised, the Option exercise price, and the Option period. The
Committee shall determine the form of option agreement to evidence the foregoing
terms and conditions of each Option, which need not be identical, in the form
provided for in Section 7. Such option agreement may include such other
provisions as the Committee may deem necessary or desirable consistent with the
Plan, the Code and Rule 16b-3.
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All options granted under this Plan are subject to, and may not be
exercised before, the approval of this Plan by the holders of a majority of the
Company's outstanding shares on or before the expiration of twelve months from
the date of the adoption of this Plan by the Board, and if such approval is not
obtained, all Options previously granted shall be void.
3.3 Committee Procedures.
The Committee from time to time may adopt such rules and regulations
for carrying out the purposes of the Plan as it may deem proper and in the best
interests of the Company. The Committee shall keep minutes of its meetings and
records of its actions. A majority of the members of the Committee shall
constitute a quorum for the transaction of any business by the Committee. The
Committee may act at any time by an affirmative vote of a majority of those
members voting. Such vote may be taken at a meeting (which may be conducted in
person or by any such telecommunication medium) or by written consent of
Committee members without a meeting.
3.4 Finality of Committee Action.
The Committee shall resolve all questions arising under the Plan and
option agreements entered into pursuant to the Plan. Each determination,
interpretation, or other action made or taken by the Committee shall be final
and conclusive and binding in all persons, including, without limitation, the
Company, its shareholders, the Committee and each of the members of the
Committee, and the directors, officers, and employees of the Company, including
Optionees and their respective successors in interest.
3.5 Non-Liability of Committee Members and Others.
No Committee member, Board member or employee, consultant or advisor of
the Company shall be liable for any action or determination made by him in good
faith with respect to the Plan or any Option granted under it.
4. Board Power to Amend, Suspend, or Terminate the Plan.
The Board may, from time to time, make such changes in or additions to
the Plan as it may deem proper and in the best interests of the Company and its
shareholders. The Board may also suspend or terminate the Plan at any time,
without notice, and in its discretion.
Notwithstanding the foregoing, no such change, addition, suspension, or
termination by the Board shall (i) materially impair any option previously
granted under the Plan without the express written consent of the optionee; or
(ii) materially increase the number of shares subject to the Plan, materially
increase the benefits accruing to options under the Plan, materially modify the
requirements as to eligibility to participate in the Plan or alter the method of
determining the option exercise price described in Section 8, without
shareholder approval.
5. Shares Subject to the Plan.
For purposes of the Plan, the Committee is authorized to grant Options
to purchase not more than Two Million (2,000,000) shares of the Company's common
stock, $.00001 par value per share ("Common Stock"), either treasury or
authorized but unissued shares, or the number and kind of shares of stock or
other securities which, in accordance with Section 13, shall be substituted for
such shares of Common Stock or to which such shares shall be adjusted. The
Committee is authorized to grant Options under the Plan with respect to such
shares. Any or all unsold shares subject to an Option which for any reason
expires or otherwise terminates (excluding shares returned to the Company in
payment of the exercise price for additional shares) may again be made subject
to grant under the Plan.
6. Optionee
ISOs shall be granted only to elected or appointed officers or other
key employees of the Company (as determined by the Committee), whether full-time
or part-time, including, without limitation, members of the Board who are also
officers or key employees at the time of grant. NQOs may be granted to employees
(including officers) and directors of and consultants to the Company. In no
event, however, may a member of the Committee be granted an Option under the
Plan. Any Optionee may hold more than one option to purchase Common Stock,
whether such option is an Option held pursuant to the Plan or otherwise.
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7. Grants of Options.
The Committee shall have the sole discretion to grant Options under the
Plan and to determine whether any Option shall be an ISO or an NQO. The terms
and conditions of Options granted under the Plan may differ from one another as
the Committee, in its absolute discretion, shall determine as long as all
Options granted under the Plan satisfy the requirements of the Plan. Upon
determination by the Committee that an Option is to be granted to an Optionee, a
written option agreement evidencing such Option shall be given to the Optionee,
specifying the number of shares subject to the Option, the Option exercise
price, whether the Option is an ISO or an NQO, and the other individual terms
and conditions of such Option. Such option agreement may incorporate generally
applicable provisions from the Plan, a copy of which shall be provided to all
Optionees at the time of their initial grant under the Plan. The Option shall be
deemed granted as of the date specified in the grant resolution of the
Committee, and the option agreement shall be dated as of the date of such
resolution.
8. Option Exercise Price.
The price per share to be paid by the Optionee at the time an ISO is
exercised shall not be less than one hundred percent (100%) of the Fair Market
Value (as hereinafter defined) of one share of the optioned Common Stock on the
date on which the Option is granted. No ISO may be granted under the Plan to any
person who, at the time of such grant, owns (within the meaning of Section
424(d) of the Code) stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of any parent
thereof, unless the exercise price of such ISO is at least equal to one hundred
and ten percent (110%) of Fair Market Value on the date of grant. The price per
share to be paid by the Optionee at the time an NQO is exercised shall not be
less than eight-five percent (85%) of the Fair Market Value on the date on which
the NQO is granted, as determined by the Committee.
For purposes of the Plan, the "Fair Market Value" of a share of the
Company's Common Stock as of a given date shall be: (i) the closing price of a
share of the Company's Common Stock on the principal exchange on which shares of
the Company's Common Stock are then trading, if any, on such date, or, if shares
were not traded on such date, then on the next preceding trading day during
which a sale occurred; or (ii) if the Company's Common Stock is not traded on an
exchange but is quoted on NASDAQ or a successor quotation system, or (iii) if
the Company's Common Stock is not publicly traded on an exchange and not quoted
on NASDAQ or a successor quotation system, the mean between the closing bid and
asked prices for the Common Stock on such date as determined in good faith by
the Committee; or (iv) if the Company's Common Stock is not publicly traded, the
fair market value established by the Committee acting in good faith. In
addition, with respect to any ISO, the Fair Market Value on any given date shall
be determined in a manner consistent with any regulations issued by the
Secretary of the Treasury for the purpose of determining fair market value of
securities subject to an ISO plan under the Code.
9. Ceiling of ISO Grants.
The aggregate Fair Market Value (determined at the time any ISO is
granted) of the Common Stock with respect to which an Optionee's ISOs, together
with incentive stock options granted under any other plan of the Company and any
parent, are exercisable for the first time by such Optionee during any calendar
year shall not exceed $100,000. In the event that an Optionee holds such
incentive stock options that come first exercisable (including as a result of
acceleration of exercisability under the Plan) in any one year for shares having
a Fair Market Value at the date of grant in excess of $100,000, then most
recently granted of such ISOs, to the extent that they are exercisable for
shares having a an aggregate Fair Market Value in excess of such limit, shall be
deemed to be NQOs.
10. Duration, Exercisability and Termination of Options.
10.1 Option Period.
The option period shall be determined by the Committee with respect to
each Option granted. In no event, however, may the option period exceed ten (10)
years from the date on which the Option is granted, or five (5) years in the
case of a grant of an ISO to an Optionee who is a ten percent (10%) shareholder
at the date on which the Option is granted as described in Section 8.
10.2 Exercisability of Options and Acceleration of Exercisability.
Each Option shall be exercisable in whole or in consecutive
installments, cumulative or otherwise, during its term as determined in the
discretion of the Committee.
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10.3 Termination of Options.
An Option shall terminate six (6) months after termination of the
Optionee's employment or relationship as a consultant or director with the
Company, unless (i) such termination is due to such person's permanent and total
disability, within the meaning of Section 422(c)(6) of the Code, in which case
the Option may, but need not, provide that it may be exercised at any time
within one (1) year following such termination of employment or relationship as
a consultant or director, or (ii) the Optionee dies while in the employ of or
while serving as a consultant or director to the Company or within not more than
six (6) months after termination of such relationships, in which case the Option
may, but need not, provide that it may be exercised at any time within fifteen
(15) months following the death of the Optionee by the person or persons to whom
the Optionee's rights under such Option pass by will or by the laws of descent
and distribution; or (iii) the Option by its terms specifies either (A) that it
shall terminate sooner than six (6) months after termination of the Optionee's
employment or relationship as a consultant or director, or (B) that it may be
exercised more than six (6) months after termination of such relationship with
the Company. This Section 10.3 shall not be construed to extend the term of any
Option or to permit anyone to exercise the Option after expiration of its term,
nor shall it be construed to increase the number of shares as to which any
Option is exercisable from the amount exercisable on the date of termination of
the Optionee's employment or relationship as a consultant or director.
11. Manner of Option Exercise; Rights and Obligations of Optionees.
11.1 Written Notice of Exercise.
An Optionee may elect to exercise an Option in whole or in part, from
time to time, subject to the terms and conditions contained in the Plan and in
the agreement evidencing such Option, by giving written notice of exercise to
the Company, or made by bank wire transfer, at its principal executive office.
11.2 Cash Payment for Optioned Shares.
If an Option is exercised for cash, such notice shall be accompanied by
a cashier's check or personal check, or money order, made payable to the Company
for the full exercise price of the shares purchased.
11.3 Stock Swap Feature.
At the time of the Option exercise, and subject to the discretion of
the Committee to accept payment in cash only, the Optionee may determine whether
the total purchase price of the shares to be purchased shall be paid solely in
cash or by transfer from the Optionee to the Company of previously acquired
shares of Common Stock, or by a combination thereof. In the event that the
Optionee elects to pay the total purchase price in whole or in part with
previously acquired shares of Common Stock, the value of such shares shall be
equal to their Fair Market Value on the date of exercise, determined by the
Committee in the same manner used for determining Fair Market Value at the time
of grant for purposes of Section 8.
11.4 Investment Representation for Non-Registered Shares and Legality of
Issuance.
The receipt of shares of Common Stock upon the exercise of an Option
shall be conditioned upon the Optionee (or any other person who exercises the
Option on his or her behalf as permitted by Section 14) providing to the
Committee a written representation that, at the time of such exercise, it is the
intent of such person(s) to acquire the shares for investment only and not with
a view toward distribution. The certificate for unregistered shares issued for
investment shall be restricted by the Company as to transfer unless the Company
receives an opinion of counsel satisfactory to the Company to the effect that
such restriction is not necessary under then pertaining law. The providing of
such representation and such restrictions on transfer shall not, however, be
required upon any person's receipt of shares of Common Stock under the Plan in
the event that, at the time of grant of Option relating to such receipt or upon
such receipt, whichever is the appropriate measure under applicable federal or
state securities laws, the shares subject to the Option shall be (i) covered by
an effective and current registration statement under the Securities Act of
1933, as amended, and (ii) either qualified or exempt from qualification under
applicable state securities laws. The Company, shall, however, under no
circumstances be required to sell or issue any shares under the Plan if, in the
opinion of the Committee, (i) the issuance of such shares would constitute a
violation by the Optionee or the Company of any applicable law or regulation of
any governmental authority, or (ii) the consent or approval of any governmental
body is necessary or desirable as a condition of, or in connection with, the
issuance of such shares.
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11.5 Shareholder Rights of Optionee.
Upon exercise, the Optionee (or any other person who exercises the
Option on his behalf as permitted by Section 14) shall be recorded on the books
of the Company as the owner of the shares, and the Company shall deliver to such
record owner one or more duly issued stock certificates evidencing such
ownership. No person shall have any rights as a shareholder with respect to any
shares of Common Stock covered by an Option granted pursuant to the Plan until
such person shall have become the holder of record of such shares. Except as
provided in Section 13, no adjustments shall be made for cash dividends or other
distributions or other rights as to which there is a record date preceding the
date such person becomes the holder of record of such shares.
11.6 Holding Periods for Tax Purposes.
The Plan does not provide that an Optionee must hold shares of Common
Stock acquired under the Plan for any minimum period of time. Optionees are
urged to consult with their own tax advisors with respect to the tax
consequences to them of their individual participation in the Plan.
12. Successive Grants and Substitution.
12.1 Successive Grants.
Successive grants of Options may be made to any Optionee under the
Plan.
12.2 Options in Substitution for Other Options.
The Committee may, in its sole discretion, at any time during the term
of this Plan, grant new options to an employee under this Plan or any other
stock option plan of the Company on the condition that such employee shall
surrender for cancellation one or more outstanding options which represent the
right to purchase (after giving effect to any previous partial exercise thereof)
a number of shares, in relation to the number shares to be covered by the new
conditional grant hereunder, determined by the Committee. If the Committee shall
have so determined to grant such new options on such a conditional basis ("New
Conditional Options"), no such New Conditional Option shall become exercisable
in the absence of such employee's consent to the condition and surrender and
cancellation as appropriate. New Conditional Options shall be treated in all
respects under this Plan as newly granted options. Options may be granted under
this Plan from time to time in substitution for similar rights held by employees
of other corporations who are about to become employees of the Company or an
Affiliate Corporation as a result of a merger or consolidation of the employing
corporation with the Company or an Affiliated Corporation, or the acquisition by
the Company or an Affiliated Corporation of stock of the employing corporation
as the result of which such other corporation becomes an Affiliated Corporation.
13. Adjustments.
If the outstanding Common Stock shall be hereafter increased or
decreased, or changed into or exchanged for a different number or kind of shares
or other securities of the Company or of another corporation, by reason of
recapitalization, reclassification, reorganization, merger, consolidation, share
exchange, or other business combination in which the Company is the surviving
parent corporation, stock split-up, combination of shares, or dividend or other
distribution payable in capital stock or rights to acquire capital stock,
appropriate adjustment shall be made by the Committee in the number and kind of
shares for which options may be granted under the Plan. In addition, the
Committee shall make appropriate adjustment in the number and kind of share as
to which outstanding and unexercised options shall be exercisable, to the end
that the proportionate interest of the holder of the option shall, to the extent
practicable, be maintained as before the occurrence of such event. Such
adjustment in outstanding options shall be made without change in the total
price applicable to the unexercised portion of the option but with a
corresponding adjustment in the exercise price per share.
In the event of the dissolution or liquidation of the Company, any
outstanding and unexercised options shall terminate as of a future date to be
fixed by the Committee.
In the event of a Reorganization (as hereinafter defined), then,
(a) There is no plan or agreement with respect to the Reorganization
("Reorganization Agreement"), or if the Reorganization Agreement does
not specifically provide for the adjustment, change, conversion, or
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exchange of the outstanding and unexercised options for cash or other
property or securities of another corporation, then any outstanding
and unexercised options shall terminate as of a future date to be
fixed by the Committee; or,
(b) If there is a Reorganization Agreement, and the Reorganization
Agreement specifically provides for the adjustment, change, conversion,
or exchange of the outstanding and unexercised options for cash or
other property or securities of another corporation, the Committee
shall adjust the shares under such outstanding and unexercised options,
and shall adjust the shares remaining under the Plan which are then
available for the issuance of options under the Plan if the
Reorganization Agreement for the adjustment, change, conversion, or
exchange of such options and shares.
The term "Reorganization" as used in this Section 13 shall mean any
reorganization, merger, consolidation, share exchange, or other business
combination pursuant to which the Company is not the surviving parent
corporation after the effective date of the Reorganization, or any sale or lease
of all or substantially all of the assets of the Company. Nothing herein shall
require the Company to adopt a Reorganization Agreement, or to make provision
for the adjustment, change, conversion, or exchange of any options, or the
shares subject thereto, in any Reorganization Agreement which it does adopt.
The Committee shall provide to each Optionee then holding an
outstanding and unexercised Option not less than thirty (30) calendar Days'
advanced written notice of any date fixed by the Committee pursuant to this
Section 13 and of the terms of any Reorganization Agreement providing for the
adjustment, change, conversion, or exchange of outstanding and unexercised
Options. Except as the Committee may otherwise provide, each Optionee shall have
the right during such period to exercise his Option only to the extent that the
Option was exercisable on the date such notice was provided to the Optionee.
Any adjustment to any outstanding ISO pursuant to this Section 13, if
made by reason of a transaction described in Section 424(a) of the Code, shall
be made so as to conform to the requirements of that Section and the regulations
thereunder. If any other transaction described in Section 424(a) of the Code
affects the Common Stock subject to any unexercised ISO theretofore granted
under the Plan (hereinafter for the purposes of this Section 13 referred to as
the "old options"), the Board of Directors of the Company or of any surviving or
acquiring corporation may take such action as it deems appropriate, in
conformity with the requirements of that Code Section and the regulations
thereunder, to substitute a new option for the old option, in order to make the
new option, as nearly as may be practicable, equivalent to the old option, or to
assume the old option.
No modification, extension, renewal, or other change in any option
granted under the Plan may be made, after the grant of such option, without the
optionee's consent, unless the same is permitted by the provisions of the Plan
and the option agreement. In the case of an ISO, optionees are hereby advised
that certain changes may disqualify the ISO from being considered as such under
Section 422 of the Code, or constitute a modification, extension, or renewal of
the ISO under Section 424(h) of the Code.
All adjustments and determinations under this Section 13 shall be made
by the Committee in good faith in its sole discretion.
14. Non-Transferability of Options.
An Option shall be exercisable only by the Optionee, or in the event of
his disability, by his guardian(s), conservator(s), or other legal
representative(s), during the Optionee's lifetime. In the event of the death of
the Optionee, an Option shall be exercisable by his legal representative(s),
legatee(s), or heir(s), as the case may be, or by such person(s) as he may
designate as his beneficiary or beneficiaries in a signed statement included a
part of the option agreement.
An ISO shall not be transferable by the Optionee, either voluntarily or
involuntarily, except by will or the laws of descent and distribution. An NQO
shall not be transferable by the Optionee, either voluntarily or involuntarily,
except by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act, or the rules thereunder. Any attempt to
exercise, transfer or otherwise dispose of an interest in an Option in
contravention of the terms and conditions of the Plan, or of the option
agreement for the Option, shall immediately void the Option.
15. Continued Employment.
As determined in the sole discretion of the Committee at the time of
grant and if so stated in a writing signed by the Company, each Option may have
as a condition the requirement of an Optionee who is an employee of the Company
(an "Employee Optionee") to remain in the employ of the Company, or of its
affiliates, and to render to it his or her service, at such compensation as may
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be determined from time to time by it, for a period not to exceed the term of
the Option, except for earlier termination of employment by or with the express
written consent of the Company or on account of disability or death. The failure
of an Employee Optionee to abide by such agreement as to any Option under the
Plan may result in the termination of all of his or her then outstanding Options
granted pursuant to the Plan.
Neither the creation of the Plan nor the granting of Option(s) under it
shall be deemed to create a right in an Employee Optionee to continued
employment with the Company, and each such Employee Optionee shall be and shall
remain subject to discharge by the Company as though the Plan had never come
into existence. Except as specifically provided by the Committee in any
particular case, the loss of existing or potential profit in options granted
under this Plan shall not constitute an element of damages in the event of
termination of the employment of an employee even if the termination is in
violation of an obligation of the Company to the employee by contract or
otherwise.
16. Tax Withholding.
The exercise of any option granted under the Plan is subject to the
condition that if at any time the Company shall determine, in its discretion,
that the satisfaction of withholding tax or other withholding liabilities under
any federal, state or local law is necessary or desirable as a condition of, or
in connection with, such exercise or a later lapsing of time or restrictions on
or disposition of the shares of Common Stock received upon such exercise, then
in such event, the exercise of the option shall not be effective unless such
withholding shall have been effected or obtained in a manner acceptable to the
Company.
17. Term of Plan.
17.1 Effective Date.
Subject to shareholder approval, as provided in Section 3.2, the Plan
shall become effective on February 14, 1997, the date of its adoption by the
Board.
17.2 Termination Date.
Except as to options previously granted and outstanding under the Plan,
the Plan shall terminate at midnight on February 14, 2007 and no Option shall be
granted after that time. Options then outstanding may continue to be exercised
in accordance with their terms. The Plan may be suspended or terminated at any
earlier time by the Board within the limitations set forth in Section 4.
18. Non-Exclusivity of the Plan.
Nothing contained in the Plan is intended to amend, modify, or rescind
any previously approved compensation plans, programs or options entered into the
Company. This Plan shall be construed to be in addition to and independent of
any and all such other arrangements. Neither the adoption of the Plan by the
Board nor the submission of the Plan to the shareholders of the Company for
approval shall be construed as creating any limitations on the power or
authority of the Board to adopt, with or without shareholder approval, such
additional or other compensation arrangements as the Board may from time to time
deem desirable.
19. Governing Law.
The Plan and all rights and obligations under it shall be construed and
enforced in accordance with the laws of the State of Delaware.
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SIGNATURE PAGE
By signature below, the undersigned officers of the Company hereby
certify that the foregoing is a true and correct copy of the 1997 Stock Option
Plan of the Company.
DATED: February 14, 1997
WHITNEY AMERICAN CORPORATION
/s/ Stephen M. Siedow
(SEAL) X.............................
Stephen M. Siedow, President
/s/ John D. Brasher Jr.
X ................................
John D. Brasher Jr., Secretary
8
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CERTIFICATION OF PLAN ADOPTION
I, the undersigned Secretary of this corporation, hereby certify that
the foregoing 1997 Stock Option Plan of this corporation was duly approved by
the requisite number of holders of the issued and outstanding common stock of
this corporation as of the below date.
Date of Approval: February 14 , 1997
/s/ John D. Brasher Jr.
(SEAL) X .................................
John D. Brasher Jr., Secretary
9
Exhibit 10.2 to Form 8-K dated February 12, 1997
WHITNEY AMERICAN CORPORATION
1997 EMPLOYEE STOCK COMPENSATION PLAN
1. Purpose of the Plan.
This 1997 Employee Stock Compensation Plan ("Plan") is intended to
further the growth and advance the best interests of WHITNEY AMERICAN
CORPORATION, a Delaware corporation ("Company"), and any Affiliated Corporation,
by supporting and increasing the Company's ability to attract, retain and
compensate persons of experience and ability and whose services are considered
valuable, to encourage the sense of proprietorship in such persons, and to
stimulate the active interest of such persons in the development and success of
the Company and any Affiliate Corporation. This Plan provides for stock
compensation through the award of the Company's Common Stock.
2. Definitions.
Whenever used in this Plan, except where the context might clearly
indicate otherwise, the following terms shall have the meanings set forth in
this section:
(a) "Act" means the U.S. Securities Act of 1933, as amended.
(b) "Affiliated Corporation" means any Parent or Subsidiary of the
Company.
(c) "Award" or "grant" means any grant or sale of Common Stock made
under this Plan.
(d) "Board of Directors" means the Board of Directors of the Company.
The term "Committee" is defined in Section 4 of this Plan.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Common Stock" or "Common Shares" means the common stock, $.00001
par value per share, of the Company, or in the event that the outstanding Common
Shares are hereafter changed into or exchanged for different shares or
securities of the Company, such other shares or securities.
(g) "Date of Grant" means the day the Committee authorizes the grant of
Common Stock or such later date as may be specified by the Committee as the date
a particular award will become effective.
(h) "Employee" means and includes the following persons: (i) executive
officers, officers and directors (including advisory and other special
directors) of the Company or an Affiliated Corporation; (ii) full-time and
part-time employees of the Company or an Affiliated Corporation; (iii) natural
persons engaged by the Company or an Affiliated Corporation as a consultant,
advisor or agent; and (iv) a lawyer, law firm, accountant or accounting firm or
other professional or professional firm engaged by the Company or an Affiliated
Corporation.
(i) "Parent" means any corporation owning 50% or more of the total
combined voting stock of all classes of the Company or of another corporation
qualifying as a Parent within this definition.
(j) "Participant" means an Employee to whom an Award of Plan Shares
has been made.
(k) "Plan Shares" means shares of Common Stock from time to time
subject to this Plan.
(l) "Subsidiary" means a corporation more than 50% of whose total
combined capital stock of all classes is held by the Company or by another
corporation qualifying as a Subsidiary within this definition.
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3. Effective Date of the Plan.
This Plan shall be effective as of February 14, 1997, the date of its
adoption by the Board, and no ESO shall be granted pursuant to this Plan after
its expiration. This Plan shall expire on February 14, 2007 except as to ESOs
then outstanding, which shall remain in effect until they have expired or been
exercised.
4. Administration of the Plan.
The ESC Compensation Committee of the Board of Directors
("Committee"), and in default of the appointment or continued existence of such
Committee the Board of Directors, will be responsible for the administration of
this Plan, and will have sole power to award Common Shares under this Plan.
Subject to the express provisions of this Plan, the Committee shall have full
authority and sole and absolute discretion to interpret this Plan, to prescribe,
amend and rescind rules and regulations relating to it, and to make all other
determinations which it believes to be necessary or advisable in administering
this Plan. The determination of those eligible to receive an award of Plan
Shares shall rest in the sole discretion of the Committee, subject to the
provisions of this Plan. Awards of Plan Shares may be made as compensation for
services rendered, directly or in lieu of other compensation payable, as a bonus
in recognition of past service or performance or may be sold to an Employee as
herein provided. The Committee may correct any defect, supply any omission or
reconcile any inconsistency in this Plan in such manner and to such extent it
shall deem necessary to carry it into effect. Any decision made, or action
taken, by the Committee arising out of or in connection with the interpretation
and administration of this Plan shall be final and conclusive.
5. Stock Subject to the Plan.
The maximum number of Plan Shares which may be awarded under this Plan
is 1,500,000 shares.
6. Persons Eligible to Receive Awards.
Awards may be granted only to Employees (as herein defined).
7. Grants or Awards of Plan Shares.
Except as otherwise provided herein, the Committee shall have complete
discretion to determine when and to which Employees Plan Shares are to be
granted, and the number of Plan Shares to be awarded to each Employee. A grant
to an Employee may be made for cash, property, services rendered or other form
of payment constituting lawful consideration under applicable law; Plan Shares
awarded other than for services rendered shall be sold at not less than the fair
value thereof on the date of grant. No grant will be made if, in the judgment of
the Committee, such a grant would constitute a public distribution with the
meaning of the Act or the rules and regulations promulgated thereunder.
8. Delivery of Stock Certificates.
As promptly as practicable after authorizing an award of Plan Shares,
the Company shall deliver to the person who is the recipient of the award, a
certificate or certificates registered in that person's name, representing the
number of Plan Shares that were granted. Unless the Plan Shares have been
registered under the Act, each certificate evidencing Plan Shares shall bear a
legend to indicate that such shares represented by the certificate were issued
in a transaction which was not registered under the Act, and may only be sold or
transferred in a transaction that is registered under the Act or is exempt from
the registration requirements of the Act. In the absence of registration under
the Act, any person awarded Plan Shares may be required to execute and deliver
to the Company an investment letter, satisfactory in form and substance to the
Company, prior to issuance and delivery of the shares. An award may be made
under this Plan wherein the Plan Shares may be issued only after registration
under the Act.
9. Assignability.
An award of Plan Shares may not be assigned. Plan Shares themselves may
be assigned only after such shares have been awarded, issued and delivered, and
only in accordance with law and any transfer restrictions imposed at the time of
award.
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10. Employment not Conferred.
Nothing in this Plan or in the award of Plan Shares shall confer upon
any Employee the right to continue in the employ of the Company or Affiliated
Corporation nor shall it interfere with or restrict in any way the lawful rights
of the Company or any Affiliated Corporation to discharge any Employee at any
time for any reason whatsoever, with or without cause.
11. Laws and Regulations.
The obligation of the Company to issue and deliver Plan Shares
following an award under this Plan shall be subject to the condition that the
Company be satisfied that the sale and delivery thereof will not violate the Act
or any other applicable laws, rules or regulations.
12. Withholding of Taxes.
If subject to withholding tax, the Company or any Affiliated
Corporation may require that the Employee concurrently pay to the Company the
entire amount or a portion of any taxes which the Company or Affiliated
Corporation is required to withhold by reason of granting Plan Shares, in such
amount as the Company or Affiliated Corporation in its discretion may determine.
In lieu of part or all of any such payment, the Employee may elect to have the
Company or Affiliated Corporation withhold from the Plan Shares issued hereunder
a sufficient number of shares to satisfy withholding obligations. If the Company
or Affiliated Corporation becomes required to pay withholding taxes to any
federal, state or other taxing authority as a result of the granting of Plan
Shares, and the Employee fails to provide the Company or Affiliated Corporation
with the funds with which to pay that withholding tax, the Company or Affiliated
Corporation may withhold up to 50% of each payment of salary or bonus to the
Employee (which will be in addition to any required or permitted withholding),
until the Company or Affiliated Corporation has been reimbursed for the entire
withholding tax it was required to pay in respect of the award of Plan Shares.
13. Reservation of Shares.
The stock subject to this Plan shall, at all times, consist of
authorized but unissued Common Shares, or previously issued shares of Common
Stock reacquired or held by the Company or an Affiliated Corporation equal to
the maximum number of shares the Company may be required to issue as stated in
Section 5 of this Plan, and such number of Common Shares hereby is reserved for
such purpose. The Committee may decrease the number of shares subject to this
Plan, but only the Board of Directors my increase such number, except as a
consequence of a stock split or other reorganization or recapitalization
affecting all Common Shares.
14. Amendment and Termination of the Plan.
The Committee may suspend or terminate this Plan at any time or from
time to time, but no such action shall adversely affect the rights of a person
granted an Award under this Plan prior to that date. Otherwise, this Plan shall
terminate on the earlier of the terminal date stated in Section 3 of this Plan
or the date when all Plan Shares have been issued. The Committee shall have
absolute discretion to amend this Plan, subject only to those limitations
expressly set forth herein; however, the Committee shall have no authority to
extend the term of this Plan, to increase the number of Plan Shares subject to
award under this Plan or to amend the definition of "Employee" to include
executive officers or directors of the Company or any Affiliated Corporation.
15. Delivery of Plan.
A copy or synopsis (for which copy the prospectus will serve) or
description of this Plan shall be delivered to every person to whom an award of
Plan Shares is made. The Secretary of the Company may, but is not required to,
also deliver a copy of the resolution or resolutions of the Committee
authorizing the award.
16. Liability.
No member of the Board of Directors, the Committee or any other
committee of directors, or officers, employees or agents of the Company or any
Affiliated Corporation shall be personally liable for any action, omission or
determination made in good faith in connection with this Plan.
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17. Miscellaneous Provisions.
The place of administration of this Plan shall be in the State of
Delaware (or subsequently, wherever the Company's principal executive offices
are located), and the validity, construction, interpretation and effect of this
Plan and of its rules, regulations and rights relating to it, shall be
determined solely in accordance with the laws of the State of Delaware. Without
amending this Plan, the Committee may issue Plan Shares to employees of the
Company who are foreign nationals or employed outside the United States, or
both, on such terms and conditions different from those specified in this Plan
but consistent with the purpose of this Plan, as it deems necessary and
desirable to create equitable opportunities given differences in tax laws in
other countries. All expenses of administering this Plan and issuing Plan Shares
shall be borne by the Company.
18. Reorganizations and Recapitalizations of the Company.
(a) The shares of Common Stock subject to this Plan are shares of the
Common Stock of the Company as currently constituted. If, and whenever, the
Company shall effect a subdivision or consolidation of shares or other capital
readjustment, the payment of a Common Stock dividend, a stock split, combination
of shares (reverse stock split) or recapitalization or other increase or
reduction of the number of shares of the Common Stock outstanding without
receiving compensation therefor in money, services or property, then the number
of shares of Common Stock subject to this Plan shall (i) in the event of an
increase in the number of outstanding shares, be proportionately increased; and
(ii) in the event of a reduction in the number of outstanding shares, be
proportionately reduced.
(b) Except as expressly provided above, the Company's issuance of
shares of Common Stock of any class, or securities convertible into shares of
Common Stock of any class, for cash or property, or for labor or services,
either upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into or exchangeable for shares of Common Stock or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Common Stock subject to this Plan.
SIGNATURE PAGE
By signature below, the undersigned officers of the Company hereby
certify that the foregoing is a true and correct copy of the 1997 Employee Stock
Compensation Plan of the Company.
DATED: February 14, 1997
WHITNEY AMERICAN CORPORATION
/s/ Stephen M. Siedow
(SEAL) X.............................
Stephen M. Siedow, President
/s/ John D. Brasher Jr.
X..................................
John D. Brasher Jr., Secretary
4
<PAGE>
CERTIFICATION OF PLAN ADOPTION
I, the undersigned Secretary of this corporation, hereby certify that
the foregoing 1997 Employee Stock Compensation Plan of this corporation was duly
approved by the requisite number of holders of the issued and outstanding,
common stock of this corporation as of the below date.
Date of Approval: February 14, 1997
/s/ John D. Brasher Jr.
(SEAL) X ................................
John D. Brasher Jr., Secretary
5
