UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(AMENDMENT NO. 1)
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number 1-11956
HEARTLAND TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-1487580
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
547 WEST JACKSON BOULEVARD, CHICAGO, ILLINOIS 60661
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 312/294-0497
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
COMMON STOCK AMERICAN STOCK EXCHANGE
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the Registrant's Common Stock held by
non-affiliates of the Registrant, computed by reference to the last reported
sales price of the Registrant's common stock on the American Stock Exchange as
of March 25, 1998, was approximately $25.8 million. On that date there were
1,671,238 shares outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
The information required by Part III (Items 10, 11, 12 and 13) is incorporated
by reference from the Registrant's definitive proxy statement, which involves
the election of directors, to be filed with the Commission pursuant to
Regulation 14A, or if such proxy statement is not filed with the Commission on
or before 120 days after the end of the fiscal year covered by this Report, such
information will be included in an amendment to this Report filed no later than
the end of such 120-day period.
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A to the Annual Report on Form 10-K of
Heartland Technology, Inc. (the "Company"), amends and restates in its entirety
Item 14 of Part IV solely to correct Exhibit 3.3 and to add Exhibit 10.19.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed or incorporated by reference as part of
this report:
1. FINANCIAL STATEMENTS
The financial statements of Heartland Technology, Inc. and Subsidiary are
included in Part II, Item 8:
<TABLE>
<CAPTION>
<S> <C>
Report of Independent Auditors........................................................................9
Operating Company
Consolidated Balance Sheet at December 31, 1997.............................................10
Consolidated Statement of Income for the year ended December 31, 1997.......................11
Consolidated Statement of Stockholders' Equity for the year ended December 31, 1997.........12
Consolidated Statement of Cash Flows year ended December 31, 1997...........................13
Investment Company
Statement of Assets and Liabilities at December 31, 1996....................................15
Statements of Operations for the years ended December 31, 1996 and 1995.....................16
Statements of Changes in Net Assets for the years ended December 31, 1996 and 1995..........17
Notes to Consolidated Financial Statements...........................................................19
</TABLE>
2. FINANCIAL STATEMENT SCHEDULES
The financial statements and financial statement schedules of Heartland
Partners, L.P. included in Item 8 of the Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, of Heartland Partners, L.P. (File No.
1-10520) are incorporated by reference herein and filed as an exhibit hereto.
3. EXHIBITS
3.1 Certificate of Incorporation of the Registrant, dated as of June 2,
1993 (incorporated by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997
(the "Registrant's 1997 Form 10-K")).
3.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant, dated October 29, 1997 (incorporated by reference to
Exhibit 3.2 to the Registrant's 1997 Form 10-K).
3.3 By-laws of the Registrant, as amended (filed herewith).
10.1 Amended and Restated Agreement of Limited Partnership of Heartland
Partners, L.P., dated as of June 27, 1990 (incorporated by reference to
Exhibit 3.2 to Heartland Partners, L.P.'s Current Report on Form 8-K
dated January 5, 1998 (File No. 1-10520)).
2
<PAGE>
10.2 Amended and Restated Partnership Agreement of CMC Heartland Partners,
dated as of June 27, 1990, between Heartland Partners L.P. and
Milwaukee Land Company (incorporated by reference to Exhibit 10.3 to
Heartland Partners, L.P.'s Annual Report on Form 10-K for the year
ended December 31, 1990 (File No. 1-10520)).
10.3 Conveyance Agreement, dated as of June 27, 1990, by and among Chicago
Milwaukee Corporation, Milwaukee Land Company, CMC Heartland Partners
and Heartland Partners, L.P.(incorporated by reference to Exhibit 10.1
to Heartland Partners, L.P.'s Annual Report on Form 10-K for the year
ended December 31, 1990 (File No. 1-10520)).
10.4 Conveyance Agreement, dated June 29, 1993 by and among Chicago
Milwaukee Corporation and Milwaukee Land Company (incorporated by
reference to Exhibit 10.4 to the Registrant's 1997 Form 10-K).
10.5 Facilities Agreement, dated June 29, 1993, by and between Milwaukee
Land Company and Heartland Partners, L.P. (incorporated by reference to
Exhibit 10.5 to the Registrant's 1997 Form 10-K).
10.6 Employment Agreement, dated June 29, 1993, between Milwaukee Land
Company and Edwin Jacobson (incorporated by reference to Exhibit 10.6
to the Registrant's 1997 Form 10-K).*
10.7 First Amendment, dated August 7, 1996, to Employment Agreement, dated
June 29, 1993, between Milwaukee Land Company and Edwin Jacobson
(incorporated by reference to Exhibit 10.7 to the Registrant's 1997
Form 10-K) .*
10.8 Asset Purchase Agreement, dated as of April 4, 1997, by and among
Milwaukee Land Company, PG Newco Corp., PG Design Electronics, Inc. and
named shareholder indemnitors (incorporated by reference to Exhibit
10.8 to the Registrant's 1997 Form 10-K).
10.9 Milwaukee Land Company 1997 Incentive and Capital Accumulation Plan
(incorporated by reference to Exhibit 10.9 to the Registrant's 1997
Form 10-K).*
10.10 Loan and Security Agreement, dated May 29, 1997, by and between PG
Newco Corp. and General Electric Capital Corporation (incorporated by
reference to Exhibit 10.10 to the Registrant's 1997 Form 10-K).
10.11 Promissory Note, dated May 29, 1997, in the principal amount of
$4,000,000, and related Security Agreement by and between PG Newco
Corp. and General Electric Capital Corporation (incorporated by
reference to Exhibit 10.11 to the Registrant's 1997 Form 10-K).
10.12 Promissory Note, dated May 29, 1997, in the principal amount of
$674,757.27, and related Security Agreement by and between PG Newco
Corp. and General Electric Capital Corporation (incorporated by
reference to Exhibit 10.12 to the Registrant's 1997 Form 10-K).
10.13 Employment Agreement, dated May 30, 1997, by and between PG Newco Corp.
and Peter G. VanHeusden (incorporated by reference to Exhibit 10.13 to
the Registrant's 1997 Form 10-K).
10.14 Promissory Note, dated May 30, 1997, of Milwaukee Land Company, in the
principal amount of $1,500,000 due September 30, 2000, and payable to
PG Design Electronics, Inc. (incorporated by reference to Exhibit 10.14
to the Registrant's 1997 Form 10-K).
10.15 Promissory Note, dated May 30, 1997, of Milwaukee Land Company, in the
principal amount of $1,500,000 due May 30, 2002, and payable to PG
Design Electronics, Inc. (incorporated by reference to Exhibit 10.15 to
the Registrant's 1997 Form 10-K).
3
<PAGE>
10.16 Second Amendment, dated June 1, 1997, to Employment Agreement, dated
June 29, 1993, between Milwaukee Land Company and Edwin Jacobson
(incorporated by reference to Exhibit 10.16 to the Registrant's 1997
Form 10-K) .*
10.17 Stock Appreciation Right Agreement, dated January 2, 1998, between
Heartland Technology, Inc. and Edwin Jacobson (incorporated by
reference to Exhibit 10.17 to the Registrant's 1997 Form 10-K).*
10.18 Nonqualified Stock Option Agreement, dated January 2, 1998 between
Heartland Technology, Inc. and Edwin Jacobson (incorporated by
reference to Exhibit 10.18 to the Registrant's 1997 Form 10-K).*
10.19 Amendment, dated as of December 4, 1997, to the Amended and Restated
Agreement of Limited Partnership of Heartland Partners, L.P., dated as
of June 27, 1990 (incorporated by reference to Exhibit 3.3 to Heartland
Partners, L.P.'s Current Report on Form 8-K dated January 5, 1998 (File
No. 1-10520)).
21 Subsidiaries of Heartland Technology, Inc. (incorporated by reference
to Exhibit 21 to the Registrant's 1997 Form 10-K).
27 Financial Data Schedule (incorporated by reference to Exhibit 27 to the
Registrant's 1997 Form 10-K).
99.1 Portions of the Annual Report on Form 10-K for the fiscal ended
December 31, 1997, of Heartland Partners, L.P. (incorporated by
reference to Exhibit 99.1 to the Registrant's 1997 Form 10-K).
- ----------------------------
* Management contract or compensatory plan or arrangement.
(b) Reports on Form 8-K
No reports on Form 8-K have been filed during the quarter ended
December 31, 1997.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this amendment to be signed on its
behalf by the undersigned, thereunto duly authorized.
HEARTLAND TECHNOLOGY, INC.
(Registrant)
By: Leon F. Fiorentino
Leon F. Fiorentino
Vice President-Finance, Treasurer and Secretary
Date: April 27, 1998
5
<PAGE>
HEARTLAND TECHNOLOGY, INC.
INDEX TO EXHIBITS
Exhibit
Number Description
- ------- -----------
3.1 Certificate of Incorporation of the Registrant, dated as of June 2, 1993
(incorporated by reference to Exhibit 3.1 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997 (the
"Registrant's 1997 Form 10-K")).
3.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant, dated October 29, 1997 (incorporated by reference to Exhibit
3.2 to the Registrant's 1997 Form 10-K).
3.3 By-laws of the Registrant, as amended (filed herewith).
10.1 Amended and Restated Agreement of Limited Partnership of Heartland
Partners, L.P., dated as of June 27, 1990, incorporated by reference to
Exhibit 3.2 to Heartland Partners, L.P.'s Current Report on Form 8-K
dated January 5, 1998 (File No. 1-10520).
10.2 Amended and Restated Partnership Agreement of CMC Heartland Partners,
dated as of June 27, 1990, between Heartland Partners L.P. and Milwaukee
Land Company, incorporated by reference to Exhibit 10.3 to Heartland
Partners, L.P.'s Annual Report on Form 10-K for the year ended December
31, 1990 (File No. 1-10520).
10.3 Conveyance Agreement, dated as of June 27, 1990, by and among Chicago
Milwaukee Corporation, Milwaukee Land Company, CMC Heartland Partners
and Heartland Partners, L.P., incorporated by reference to Exhibit 10.1
to Heartland Partners, L.P.'s Annual Report on Form 10-K for the year
ended December 31, 1990 (File No. 1-10520).
10.4 Conveyance Agreement, dated June 29, 1993 by and among Chicago Milwaukee
Corporation and Milwaukee Land Company (incorporated by reference to
Exhibit 10.4 to the Registrant's 1997 Form 10-K).
10.5 Facilities Agreement, dated June 29, 1993, by and between Milwaukee Land
Company and Heartland Partners, L.P. (incorporated by reference to
Exhibit 10.5 to the Registrant's 1997 Form 10-K).
10.6 Employment Agreement, dated June 29, 1993, between Milwaukee Land
Company and Edwin Jacobson (incorporated by reference to Exhibit 10.6 to
the Registrant's 1997 Form 10-K).*
10.7 First Amendment, dated August 7, 1996, to Employment Agreement, dated
June 29, 1993, between Milwaukee Land Company and Edwin Jacobson
(incorporated by reference to Exhibit 10.7 to the Registrant's 1997 Form
10-K) .*
10.8 Asset Purchase Agreement, dated as of April 4, 1997, by and among
Milwaukee Land Company, PG Newco Corp., PG Design Electronics, Inc. and
named shareholder indemnitors (incorporated by reference to Exhibit 10.8
to the Registrant's 1997 Form 10-K).
10.9 Milwaukee Land Company 1997 Incentive and Capital Accumulation Plan
(incorporated by reference to Exhibit 10.9 to the Registrant's 1997 Form
10-K).*
6
<PAGE>
Exhibit
Number Description
- ------- -----------
10.10 Loan and Security Agreement, dated May 29, 1997, by and between PG Newco
Corp. and General Electric Capital Corporation (incorporated by
reference to Exhibit 10.10 to the Registrant's 1997 Form 10-K).
10.11 Promissory Note, dated May 29, 1997, in the principal amount of
$4,000,000, and related Security Agreement by and between PG Newco Corp.
and General Electric Capital Corporation (incorporated by reference to
Exhibit 10.11 to the Registrant's 1997 Form 10-K).
10.12 Promissory Note, dated May 29, 1997, in the principal amount of
$674,757.27, and related Security Agreement by and between PG Newco
Corp. and General Electric Capital Corporation (incorporated by
reference to Exhibit 10.12 to the Registrant's 1997 Form 10-K).
10.13 Employment Agreement, dated May 30, 1997, by and between PG Newco Corp.
and Peter G. VanHeusden (incorporated by reference to Exhibit 10.13 to
the Registrant's 1997 Form 10-K).
10.14 Promissory Note, dated May 30, 1997, of Milwaukee Land Company, in the
principal amount of $1,500,000 due September 30, 2000, and payable to PG
Design Electronics, Inc. (incorporated by reference to Exhibit 10.14 to
the Registrant's 1997 Form 10-K).
10.15 Promissory Note, dated May 30, 1997, of Milwaukee Land Company, in the
principal amount of $1,500,000 due May 30, 2002, and payable to PG
Design Electronics, Inc. (incorporated by reference to Exhibit 10.15 to
the Registrant's 1997 Form 10-K).
10.16 Second Amendment, dated June 1, 1997, to Employment Agreement, dated
June 29, 1993, between Milwaukee Land Company and Edwin Jacobson
(incorporated by reference to Exhibit 10.16 to the Registrant's 1997
Form 10-K) .*
10.17 Stock Appreciation Right Agreement, dated January 2, 1998, between
Heartland Technology, Inc. and Edwin Jacobson (incorporated by reference
to Exhibit 10.17 to the Registrant's 1997 Form 10-K).*
10.18 Nonqualified Stock Option Agreement, dated January 2, 1998 between
Heartland Technology, Inc. and Edwin Jacobson (incorporated by reference
to Exhibit 10.18 to the Registrant's 1997 Form 10-K).*
10.19 Amendment, dated as of December 4, 1997, to the Amended and Restated
Agreement of Limited Partnership of Heartland Partners, L.P., dated as
of June 27, 1990 (incorporated by reference to Exhibit 3.3 to Heartland
Partners, L.P.'s Current Report on Form 8-K dated January 5, 1998 (File
No. 1- 10520)).
21 Subsidiaries of Heartland Technology, Inc. (incorporated by reference to
Exhibit 21 to the Registrant's 1997 Form 10-K).
27 Financial Data Schedule (incorporated by reference to Exhibit 27 to the
Registrant's 1997 Form 10-K).
99.1 Portions of the Annual Report on Form 10-K for the fiscal ended December
31, 1997, of Heartland Partners, L.P. (incorporated by reference to
Exhibit 99.1 to the Registrant's 1997 Form 10-K).
- ----------------------------
* Management contract or compensatory plan or arrangement.
7
BY-LAWS
OF
MILWAUKEE LAND COMPANY
(a Delaware corporation)
(as amended to March 18, 1997)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. The annual meeting of stockholders
---------------
for the election of directors and for the transaction of such other business as
may properly come before the meeting shall be held each year at such date and
time, within or without the State of Delaware, as the Board of Directors shall
determine.
SECTION 2. Special Meetings. Special meetings of stockholders
----------------
for the transaction of such business as may properly come before the meeting may
be called only by notice of the Chairman of the Board or the President or by a
duly qualified officer of the Corporation upon the request of stockholders
holding together no less than 80% of all the outstanding shares of the
Corporation entitled to vote at the meeting, and shall be held at such date and
time, within or without the State of Delaware, as may be specified by such
order. Whenever the notice shall fail to fix such place, the meeting shall be
held at the principal executive office of the Corporation.
SECTION 3. Notice of Meetings. Written notice of all meetings
------------------
of the stockholders, stating the place, date and hour of the meeting and the
place within the city or other municipality or community at which the list of
stockholders may be examined, shall be mailed or delivered to each stockholder
not less than 10 nor more than 60 days prior to the meeting. Notice of any
special meeting shall state in general terms the purpose or purposes for which
the meeting is to be held.
SECTION 4. Stockholder Lists. The officer who has charge of
-----------------
the stock ledger of the Corporation shall prepare and make, at least 10 days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
<PAGE>
The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
SECTION 5. Quorum; Required Vote. Except as otherwise provided
---------------------
by law or the Corporation's Certificate of Incorporation, a quorum for the
transaction of business at any meeting of stockholders shall consist of the
holders of record of a majority of the issued and outstanding shares of the
capital stock of the Corporation entitled to vote at the meeting, present in
person or by proxy. At all meetings of the stockholders at which a quorum is
present, a plurality of the votes cast shall elect directors and each other
matter, except as otherwise provided by law or the Certificate of Incorporation,
shall be decided by the vote of the holders of a majority of the shares entitled
to vote thereon present in person or by proxy and actually voting on such
matter. If there be no such quorum, the holders of a majority of such shares so
present or represented may adjourn the meeting from time to time, without
further notice, until a quorum shall have been obtained. When a quorum is once
present it is not broken by the subsequent withdrawal of any stockholder.
SECTION 6. Organization. Meetings of stockholders shall be
------------
presided over by the Chairman, if any, or if none or in the Chairman's absence
the President, if any, or if none or in the President's absence a
Vice-President, or, if none of the foregoing is present, by a chairman to be
chosen by the stockholders entitled to vote who are present in person or by
proxy at the meeting. The Secretary of the Corporation, or in the Secretary's
absence an Assistant Secretary, shall act as secretary of every meeting, but if
neither the Secretary nor an Assistant Secretary is present, the presiding
officer of the meeting shall appoint any person present to act as secretary of
the meeting.
SECTION 7. Voting; Proxies. (a) At each meeting of
---------------
stockholders, every stockholder shall be entitled to vote in person or by proxy
appointed by instrument in writing, subscribed by such stockholder or by such
stockholder's duly authorized attorney-in-fact (but no such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period), and, unless the Certificate of Incorporation provides otherwise,
shall have one vote for each share of stock entitled to vote registered in the
name of such stockholder on the books of the Corporation on the applicable
record date fixed pursuant to these By-laws. At all elections of directors the
voting may but need not be by ballot.
(b) Where a separate vote by a class or classes, present in
person or represented by proxy, shall constitute a quorum entitled to vote on
that matter, the affirmative vote of the majority of shares of such class or
classes present in person or represented by proxy at the meeting and actually
voting on the matter shall be the act of such class, unless otherwise provided
in the Corporation's Certificate of Incorporation.
SECTION 8. Inspectors. The Board of Directors, in advance of
----------
any meeting, shall appoint one or more inspectors of election to act at the
meeting or any adjournment thereof and make a written report thereof. In case
any person who may be appointed as an inspector fails to appear or act, the
2
<PAGE>
vacancy may be filled by appointment made by the directors in advance of the
meeting or at the meeting by the person presiding thereat. Each inspector,
before entering upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors shall
determine the number of shares of stock outstanding and the voting power of
each, the shares of stock represented at the meeting, the existence of a quorum,
and the validity and effect of proxies and ballots, and shall receive votes,
ballots or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. The inspector or inspectors
shall make a report in writing of any challenge, question or matter determined
by such inspector or inspectors and execute a certificate of any fact found by
such inspector or inspectors.
ARTICLE II
Board of Directors
------------------
SECTION 1. General Powers. The business, property and
--------------
affairs of the Corporation shall be managed by, or under the direction of, the
Board of Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each
-----------------------------------------
director shall be at least 18 years of age. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The number of directors constituting the entire Board shall be six, or
such larger or lesser number as may be fixed from time to time by the Board of
Directors. The use of the phrase "entire Board" herein refers to the total
number of directors which the Corporation would have if there were no vacancies.
(b) Directors who are elected at an annual meeting of
stockholders, and directors who are elected in the interim to fill vacancies and
newly created directorships, shall hold office until their successors are
elected and qualified or until their earlier resignation or removal.
(c) 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 payment 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.
SECTION 3. Chairman of the Board of Directors. From time to
----------------------------------
time the Board of Directors by a resolution adopted by a majority of the entire
Board may appoint a Chairman of the Board of Directors, who shall be a member of
the Board of Directors. The Chairman of the board of Directors, if there be one,
shall preside at all meetings of the Board of Directors and of the stockholders.
The Chairman of the Board of Directors shall hold that position at the pleasure
of the Board. The Chairman of the Board of Directors shall not, by reason of
holding such position, be deemed to be an officer of the Corporation.
3
<PAGE>
SECTION 4. Quorum and Manner of Voting. Except as otherwise
---------------------------
provided by law, a majority of the entire Board shall constitute a quorum. A
majority of the directors present, whether or not a quorum is present, may
adjourn a meeting from time to time to another time and place without notice.
The vote 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.
SECTION 5. Places of Meetings. Meetings of the Board of
------------------
Directors may be held at any place within or without the State of Delaware, as
may from time to time be fixed by resolution of the Board of Directors, or as
may be specified in the notice of meeting.
SECTION 6. Annual Meeting. Following the annual meeting of
--------------
stockholders, the newly elected Board of Directors shall meet for the purpose of
the election of officers and the transaction of such other business as may
properly come before the meeting. Such meeting may be held without notice
immediately after the annual meeting of stockholders at the same place at which
such stockholders' meeting is held.
SECTION 7. Regular Meetings. Regular meetings of the Board
----------------
of Directors shall be held at such times and places as the Board of Directors
shall from time to time by resolution determine.
SECTION 8. Special Meetings. Special meetings of the Board
----------------
of Directors shall be held whenever called by the Chairman of the Board,
President, or by no less than 75% of the directors then in office.
SECTION 9. Notice of Meetings. A notice of the place, date and
------------------
time and the purpose or purposes of each meeting of the Board of Directors shall
be given to each director by mailing the same at least two days before the
meeting, or by telegraphing or telephoning the same or by delivering the same
personally not later than the day before the day of the meeting.
SECTION 10. Organization. At all meetings of the Board of
------------
Directors, the Chairman, if any, or if none or in the Chairman's absence or
inability to act the President, or in the President's absence or inability to
act any Vice-President who is a member of the Board of Directors, or in such
Vice-President's absence or inability to act a chairman chosen by the directors,
shall preside. The Secretary of the Corporation shall act as secretary at all
meetings of the Board of Directors when present, and, in the Secretary's
absence, the presiding officer may appoint any person to act as secretary.
SECTION 11. Resignation. Any director may resign at any time
-----------
upon written notice to the Corporation and such resignation shall take effect
upon receipt thereof by the President or Secretary, unless otherwise specified
in the resignation. Any or all of the directors may be removed, with or without
cause, by the holders of 80% or more of the shares of stock outstanding and
entitled to vote for the election of directors.
SECTION 12. Vacancies. Unless otherwise provided in these
---------
By-laws, vacancies on the Board of Directors, whether caused by resignation,
death, disqualification, removal, an increase in the authorized number of
4
<PAGE>
directors or otherwise, may be filled by the affirmative vote of a majority of
the remaining directors, although less than a quorum, or by a sole remaining
director, or at a special meeting of the stockholders, by the holders of shares
entitled to vote for the election of directors.
SECTION 13. Action by Written Consent. Any action required or
-------------------------
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all the directors consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors.
ARTICLE III
Committees
----------
SECTION 1. Appointment. From time to time the Board of
-----------
Directors by a resolution adopted by a majority of the entire Board may appoint
any committee or committees for any purpose or purposes, to the extent lawful,
which shall have powers as shall be determined and specified by the Board of
Directors in the resolution of appointment.
SECTION 2. Procedures, Quorum and Manner of Acting. Each
---------------------------------------
committee shall fix its own rules of procedure, and shall meet where and as
provided by such rules or by resolution of the Board of Directors. Except as
otherwise provided by law, the presence of a majority of the then appointed
members of a committee shall constitute a quorum for the transaction of business
by that committee, and in every case where a quorum is present the affirmative
vote of a majority of the members of the committee present shall be the act of
the committee. Each committee shall keep minutes of its proceedings, and actions
taken by a committee shall be reported to the Board of Directors.
SECTION 3. Action by Written Consent. Any action required or
-------------------------
permitted to be taken at any meeting of any committee of the Board of Directors
may be taken without a meeting if all the members of the committee consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the committee.
SECTION 4. Term; Termination. In the event any person shall
-----------------
cease to be a director of the Corporation, such person shall simultaneously
therewith cease to be a member of any committee appointed by the Board of
Directors.
ARTICLE IV
Officers
--------
SECTION 1. Election and Qualifications. The Board of Directors
---------------------------
shall elect the officers of the Corporation, which shall include a President and
a Secretary, and may include, by election or appointment, one or more
Vice-Presidents (any one or more of whom may be given an additional designation
of rank or function), a Treasurer and such assistant secretaries, such Assistant
5
<PAGE>
Treasurers and such other officers as the Board may from time to time deem
proper. Each officer shall have such powers and duties as may be prescribed by
these By-laws and as may be assigned by the Board of Directors or the President.
Any two or more offices may be held by the same person except the offices of
President and Secretary.
SECTION 2. Term of Office and Remuneration. The term of office
-------------------------------
of all officers shall be one year and until their respective successors have
been elected and qualified, but any officer may be removed from office, either
with or without cause, at any time by the Board of Directors. Any vacancy in any
office arising from any cause may be filled for the unexpired portion of the
term by the Board of Directors. The remuneration of all officers of the
Corporation may be fixed by the Board of Directors or in such manner as the
Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at any
--------------------
time upon written notice to the Corporation and such resignation shall take
effect upon receipt thereof by the President or Secretary, unless otherwise
specified in the resignation. Any officer shall be subject to removal, with or
without cause, at any time by vote of a majority of the entire Board.
SECTION 4. President and Chief Executive Officer. The
-------------------------------------
President shall be the chief executive officer of the Corporation, and shall
have such duties as customarily pertain to that office. The President shall have
general management and supervision of the property, business and affairs of the
Corporation and over its other officers; and may execute and deliver in the name
of the Corporation powers of attorney, contracts, bonds and other obligations
and instruments.
SECTION 5. Vice-President. A Vice-President may execute and
--------------
deliver in the name of the Corporation contracts and other obligations and
instruments pertaining to the regular course of the duties of said office, and
shall have such other authority as from time to time may be assigned by the
Board of Directors or the President.
SECTION 6. Treasurer. The Treasurer shall in general have
---------
all duties incident to the position of Treasurer and such other duties as may be
assigned by the Board of Directors or the President.
SECTION 7. Secretary. The Secretary shall in general have
---------
all the duties incident to the office of Secretary and such other duties as may
be assigned by the Board of Directors or the President.
SECTION 8. Assistant Officers. Any assistant officer shall
------------------
have such powers and duties of the officer such assistant officer assists as
such officer or the Board of Directors shall from time to time prescribe.
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ARTICLE V
Books and Records
-----------------
SECTION 1. Location. The books and records of the Corporation
--------
may be kept at such place or places within or outside the State of Delaware as
the Board of Directors or the respective officers in charge thereof may from
time to time determine. The record books containing the names and addresses of
all stockholders, the number and class of shares of stock held by each and the
dates when they respectively became the owners of record thereof shall be kept
by the Secretary as prescribed in the By-laws and by such officer or agent as
shall be designated by the Board of Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and
-------------------------
all other corporate notices may be delivered personally or mailed to each
stockholder at the stockholder's address as it appears on the records of the
Corporation.
SECTION 3. Fixing Date for Determination of Stockholders of
------------------------------------------------
Record. (a) In order that the Corporation may determine the stockholders
- ------
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors and which record date shall not be more
than 60 nor less than 10 days before the date of such meeting. If no record date
is fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted and which record date shall be not more than 60 days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
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ARTICLE VI
Certificates Representing Stock
-------------------------------
SECTION 1. Certificates; Signatures. The shares of the
------------------------
Corporation shall be represented by certificates, provided that the Board of
Directors of the Corporation may provide by resolution or resolutions that some
or all of any or all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate, signed by or
in the name of the Corporation by the Chairman of the Board of Directors, or the
President or Vice-President, and by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation, representing the
number of shares registered in certificate form. Any and all signatures on any
such certificate may be facsimiles. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue. The name of the holder of record of the shares represented thereby,
with the number of such shares and the date of issue, shall be entered on the
books of the Corporation.
SECTION 2. Transfers of Stock. Upon compliance with provisions
------------------
restricting the transfer or registration of transfer of shares of stock, if any,
shares of capital stock shall be transferable on the books of the Corporation
only by the holder of record thereof in person, or by duly authorized attorney,
upon surrender and cancellation of certificates for a like number of shares,
properly endorsed, and the payment of all taxes due thereon.
SECTION 3. Fractional Shares. The Corporation may, but shall
-----------------
not be required to, issue certificates for fractions of a share where necessary
to effect authorized transactions, or the Corporation may pay in cash the fair
value of fractions of a share as of the time when those entitled to receive such
fractions are determined, or it may issue scrip in registered or bearer form
over the manual or facsimile signature of an officer of the Corporation or of
its agent, exchangeable as therein provided for full shares, but such scrip
shall not entitle the holder to any rights of a stockholder except as therein
provided.
The Board of Directors shall have power and authority to make
all such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of the
Corporation.
SECTION 4. Lost, Stolen or Destroyed Certificates. The
--------------------------------------
Corporation may issue a new certificate of stock in place of any certificate,
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Board of Directors may require the owner of any lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate.
8
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ARTICLE VII
Dividends
---------
Subject always to the provisions of law and the Certificate of
Incorporation, the Board of Directors shall have full power to determine whether
any, and, if any, what part of any, funds legally available for the payment of
dividends shall be declared as dividends and paid to stockholders; the division
of the whole or any part of such funds of the Corporation shall rest wholly
within the lawful discretion of the Board of Directors, and it shall not be
required at any time, against such discretion, to divide or pay any part of such
funds among or to the stockholders as dividends or otherwise; and before payment
of any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, thinks proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the Board of Directors
shall think conducive to the interest of the Corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in which it was
created.
ARTICLE VIII
Indemnification of Directors, Officers,
Employees and Agents
---------------------------------------
SECTION 1. Indemnification Respecting Third Party Claims. (a)
---------------------------------------------
The Corporation, to the full extent permitted, and in the manner required, by
the laws of the State of Delaware as in effect at the time of the adoption of
this Article or as such laws may be amended from time to time, shall indemnify
any person who was or is made a party to or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding (including any
appeal thereof), whether civil, criminal, administrative or investigative in
nature (other than an action by or in the right of the Corporation), by reason
of the fact that such person is or was a director or officer of the Corporation,
or, if at a time when he was a director or officer of the Corporation, is or was
serving at the request of, or to represent the interests of, the Corporation as
a director, officer, partner, fiduciary, employee or agent (a "Subsidiary
Officer") of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise (an "Affiliated Entity"), against expenses
(including attorneys' fees and disbursements), costs, judgments, fines,
penalties and amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interest of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
9
<PAGE>
conduct was unlawful; provided, however, that the Corporation shall not be
obligated to indemnify against any amount paid in settlement unless the
Corporation has consented to such settlement, which consent shall not be
unreasonably withheld. The termination of any action, suit or proceeding by
judgment, order, settlement or 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 such person reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, that such person had reasonable cause to
believe that his or her conduct was unlawful. Notwithstanding anything to the
contrary in the foregoing provisions of this paragraph (a), a person shall not
be entitled, as a matter of right, to indemnification pursuant to this paragraph
(a) against costs or expenses incurred in connection with any action, suit or
proceeding commenced by such person against any person who is or was a director,
officer, fiduciary, employee or agent of the Corporation or a Subsidiary Officer
of any Affiliated Entity, but such indemnification may be provided by the
Corporation in a specific case as permitted by Section 6 of this Article.
(b) The Corporation may indemnify any employee or agent of the
Corporation in the manner and to the same or a lesser extent that it shall
indemnify any director or officer under this Section 1.
SECTION 2. Indemnification Respecting Derivative Claims. (a)
--------------------------------------------
The Corporation, to the full extent permitted, and in the manner required, by
the laws of the State of Delaware as in effect at the time of the adoption of
this Article or as such laws may be amended from time to time, shall indemnify
any person who was or is made a party to or is threatened to be made a party to
any threatened, pending or completed action or suit (including any appeal
thereof) brought in the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person is or was a director or officer of
the Corporation, or, if at a time when he was a director or officer of the
Corporation, is or was serving at the request of, or to represent the interests
of, the Corporation as a Subsidiary Officer of an Affiliated Entity against
expenses (including attorneys' fees and disbursements) and costs actually and
reasonably incurred by such person in connection with such action or suit if
such person acted in good faith and in a manner such person 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 except to the extent that, the Court of Chancery of the State of
Delaware or the court in which such judgment was rendered shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses and costs as the Court of Chancery of the State of
Delaware or such other court shall deem proper. Notwithstanding anything to the
contrary in the foregoing provisions of this paragraph (a), a person shall not
be entitled, as a matter of right, to indemnification pursuant to this paragraph
(a) against costs and expenses incurred in connection with any action or suit in
the right of the Corporation commenced by such person, but such indemnification
may be provided by the Corporation in any specific case as permitted by Section
6 of this Article.
10
<PAGE>
(b) The Corporation may indemnify any employee or agent of the
Corporation in the manner and to the same or a lesser extent that it shall
indemnify any director or officer under this Section 2.
SECTION 3. Determination of Entitlement to Indemnification.
-----------------------------------------------
Any indemnification under Section 1 or 2 of this Article (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification is proper under the circumstances
because such person has met the applicable standard of conduct set forth in
Section 1 or 2 of this Article. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to the action, suit or proceeding in respect of which
indemnification is sought or by majority vote of the members of a committee of
the Board of Directors composed of at least three members each of whom is not a
party to such action, suit or proceeding, (ii) if such a quorum is not
obtainable and/or such a committee is not established or obtainable, or, even if
obtainable, if a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders. In the event a
request for indemnification is made by any person referred to in paragraph (a)
of Section 1 or paragraph (a) of Section 2, the Corporation shall cause such
determination to be made not later than 60 days after such request is made.
SECTION 4. Right to Indemnification Upon Successful Defense
------------------------------------------------
and for Service as a Witness. (a) Notwithstanding the other provisions of this
- ----------------------------
Article, to the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 or 2 of this Article, or in
defense or any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees and disbursements) and costs
actually and reasonably incurred by such person in connection therewith.
(b) To the extent any person who is or was a director or
officer of the Corporation has served or prepared to serve as a witness in any
action, suit or proceeding (whether civil, criminal, administrative or
investigative in nature) or in any investigation by the Corporation or the Board
of Directors thereof or a committee thereof or by any securities exchange on
which securities of the Corporation are or were listed by reason of his services
as a director or officer of the Corporation or as a Subsidiary Officer of any
Affiliated Entity (other than in a suit commenced by such person), the
Corporation shall indemnify such person against expenses (including attorneys'
fees and disbursements) and costs actually and reasonably incurred by such
person in connection therewith within 30 days after receipt by the Corporation
from such person of a statement requesting such indemnification, averring such
service and reasonably evidencing such expenses and costs. The Corporation may
indemnify any employee or agent of the Corporation to the same extent it may
indemnify any director or officer of the Corporation pursuant to the foregoing
sentence of this paragraph.
SECTION 5. Advance of Expenses. (a) Expenses and costs
-------------------
incurred by any person referred to in paragraph (a) of Section 1 or paragraph
(a) of Section 2 of this Article in defending a civil, criminal, administrative
or investigative action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such person to repay such amount if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized by this Article.
11
<PAGE>
(b) Expenses and costs incurred by any person referred to in
paragraph (b) of Section 1 or paragraph (b) of Section 2 of this Article in
defending a civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors, a
committee thereof or an officer of the Corporation or a committee thereof
authorized to so act by the Board of Directors upon receipt of an undertaking by
or on behalf of such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
as authorized by this Article; provided, however, a determination shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding in respect of
which indemnification is sought or by majority vote of the members of a
committee of the Board of Directors composed of at least three members each of
whom is not a party to such action, suit or proceeding, or (ii) if such a quorum
is not obtainable and/or such a committee is not established or obtainable, or,
even if obtainable, if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, that there is reason to believe,
based on a review of readily available facts, that such person ultimately will
be found entitled to indemnification.
SECTION 6. Indemnification not Exclusive. The provision of
-----------------------------
indemnification to or the advancement of expenses and costs to any person under
this Article, or the entitlement of any person to indemnification or advancement
of expenses and costs under this Article, shall not limit or restrict in any way
the power of the Corporation to indemnify or advance expenses and costs to such
person in any other way permitted by law or be deemed exclusive of, or
invalidate, any right to which any person seeking indemnification or advancement
of expenses and costs may be entitled under any law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's capacity as an officer, director, employee or agent of the Corporation
and as to action in any other capacity while holding any such position.
SECTION 7. Accrual of Claims; Successor. The indemnification
----------------------------
provided or permitted under this Article shall apply in respect of any expense,
cost, judgment, fine, penalty or amount paid in settlement, whether or not the
claim or cause of action in respect thereof accrued or arose before or after the
effective date of this Article. The right of any person who is or was a
director, officer, employee or agent of the Corporation to indemnification under
this Article shall continue after he shall have ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
distributees, executors, administrators and other legal representatives of such
person.
SECTION 8. Corporate Obligations; Successors. This Article
---------------------------------
shall be deemed to create a binding obligation on the part of the Corporation to
its current and former officers and directors and their heirs, distributees,
executors, administrators and other legal representatives, and such persons in
acting in such capacities shall be entitled to rely on the provisions of this
Article, without giving notice thereof to the Corporation.
12
<PAGE>
SECTION 9. Insurance. The Corporation may purchase and
---------
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of, or
to represent the interests of, the Corporation as a Subsidiary Officer of any
Affiliated Entity, against any liability asserted against such person and of
such person's status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions of
this Article or applicable law.
SECTION 10. Definitions of Certain Terms. (a) For purposes of
----------------------------
this Article VIII, references to "the Corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its corporate existence hand continued, would have been permitted under
applicable law to indemnify its directors, officers, employees or agents, so
that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request, or to represent
the interests of, such constituent corporation as a director, officer, employee
or agent of any Affiliated Enterprise shall stand in the same position under the
provisions of this Article with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(b) For purposes of this Article VIII, references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; references to "serving at the request of the Corporation" shall
include any service as a director, officer fiduciary, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, fiduciary, employee or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interest of the Corporation" as
referred to in this Article.
SECTION 11. Notwithstanding any provision of this Article VIII
or the Corporation's Certificate of Incorporation, for so long as the
Corporation is registered with the Securities and Exchange Commission as an
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), the indemnification provided pursuant to this Article VIII shall
not be available to any person to the extent that such indemnification is
inconsistent with the provisions of the 1940 Act and the rules and regulations
thereunder.
ARTICLE IX
Ratification
------------
Any transaction, questioned in any law suit on the ground of
lack of authority, defective or irregular execution, adverse interest of
director, officer or stockholder, non-disclosure, miscomputation, or the
application of improper principles or practices of accounting, may be ratified
before or after judgment, by the Board of Directors or by the stockholders, and
if so ratified shall have the same force and effect as if the questioned
transaction had been originally duly authorized. Such ratification shall be
binding upon the Corporation and its stockholders and shall constitute a bar to
any claim or execution of any judgment in respect of such questioned
transaction.
13
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ARTICLE X
Corporate Seal
--------------
The corporate seal shall have inscribed thereon the name of
the Corporation and the year of its incorporation, and shall be in such form and
contain such other words and/or figures as the Board of Directors shall
determine. The corporate seal may be used by printing, engraving, lithographing,
stamping or otherwise making, placing or affixing, or causing to be printed,
engraved, lithographed, stamped or otherwise made, placed or affixed, upon any
paper or document, by any process whatsoever, an impression, facsimile or other
reproduction of said corporate seal.
ARTICLE XI
Fiscal Year
-----------
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board of Directors. Unless otherwise fixed by the
Board of Directors, the fiscal year of the Corporation shall be the calendar
year.
ARTICLE XII
Waiver of Notice
----------------
Whenever notice is required to be given by these By-laws or by
the Certificate of Incorporation or by law, a written waiver thereof, signed by
the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE XIII
Bank Accounts, Drafts, Contracts, Etc.
-------------------------------------
SECTION 1. Bank Accounts and Drafts. In addition to such bank
------------------------
accounts as may be authorized by the Board of Directors, the primary financial
officer or any person designated by said primary financial officer, whether or
not an employee of the Corporation, may authorize such bank accounts to be
opened or maintained in the name and on behalf of the Corporation as he may deem
necessary or appropriate, payments from such bank accounts to be made upon and
according to the check of the Corporation in accordance with the written
instructions of said primary financial officer, or other person so designated by
the Treasurer.
14
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SECTION 2. Contracts. The Board of Directors may authorize any
---------
person or persons, in the name and on behalf of the Corporation, to enter into
or execute and deliver any and all deeds, bonds, mortgages, contracts and other
obligations or instruments, and such authority may be general or confined to
specific instances.
SECTION 3. Proxies; Powers of Attorney; Other Instruments. The
----------------------------------------------
President or any other person designated by the President shall have the power
and authority to execute and deliver proxies, powers of attorney and other
instruments on behalf of the Corporation in connection with the rights and
powers incident to the ownership of stock by the Corporation. The President or
any other person authorized by proxy or power of attorney executed and delivered
by either of them on behalf of the Corporation may attend and vote at any
meeting of stockholders of any company in which the Corporation may hold stock,
and may exercise on behalf of the Corporation any and all of the rights and
powers incident to the ownership of such stock at any such meeting, or otherwise
as specified in the proxy or power of attorney so authorizing any such person.
The Board of Directors, from time to time, may confer like powers upon any other
person.
SECTION 4. Financial Reports. The Board of Directors may
-----------------
appoint the primary financial officer or other fiscal officer and/or the
Secretary or any other officer to cause to be prepared and furnished to
stockholders entitled thereto any special financial notice and/or financial
statement, as the case may be, which may be required by any provision of law.
ARTICLE XIV
Amendments
----------
The Board of Directors shall have power to adopt, amend or
repeal By-laws. By-laws adopted by the Board of Directors may be repealed or
changed, and new By-laws made, by the stockholders, and the stockholders may
prescribe that any By-law made by them shall not be altered, amended or repealed
by the Board of Directors.
15
