<PAGE> 1
Registrant requests automatic effectiveness upon filing as per Rule 462 of the
Securities Act of 1933
As filed with the Securities and Exchange Commission on May 29, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
Form S-8
Registration Statement
Under
The Securities Act of 1933
_______________
MBf USA, Inc.
(Exact name of issuer as specified in its charter)
Maryland 73-1326131
- ------------------------ ----------------
(State of Incorporation) (I.R.S. Employer
Identification No.)
500 Park Blvd., Suite 1260, Itasca, Illinois 60143-2639
- -------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
MBf USA, Inc. Amended and Restated Omnibus Equity Compensation Plan
- -------------------------------------------------------------------------------
(Full title of the plan)
Mr. Edward J. Marteka
MBf USA, Inc.
500 Park Boulevard, Suite 1260
Itasca, Illinois 60143
With a copy to:
Mitchell D. Goldsmith, Esq.
Dennis B. O'Boyle, Esq.
Shefsky & Froelich Ltd.
444 N. Michigan
Chicago, Illinois 60611
- -------------------------------------------------------------------------------
(Name and address of agent for service)
(630) 285-9191
- -------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Offering Registration Fee
Per Share Price
- -------------------------------------------------------------------------------------------
Common Stock, par 400,000 (1) $5.125 (2) $4,100,000 (2) $413.19 (3)
value $1.00
</TABLE>
(1) Subject to increase (or decrease) in accordance with Rule 416 of
Regulation C to reflect a merger, consolidation, reorganization,
recapitalization, stock dividend, stock split or other change in the
corporate structure of the Registrant which results in a change in the
number of shares issuable pursuant to outstanding awards under the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of Regulation C, on the basis of the
average of the high and low prices of the shares of common stock of the
Registrant on the Nasdaq SmallCap Market on May 27, 1997.
(3) Pursuant to Rule 429 under the Securities Act of 1933, as amended, this
Registration Statement also relates to 228,827 shares of Common Stock (as
adjusted for a 1 for 10 split) previously registered under registrant's
Registration Statement on Form S-8 (SEC File No. 33-71132, filed November
1, 1993). The registration fee has been reduced by $952.11 to reflect the
registration fee allocable to such previously registered shares.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are hereby incorporated by reference into this
Registration Statement:
1. The Company's Annual Report on Form 10-K, for fiscal year
ended December 31, 1996 (filed on April 11, 1997).
2. The Company's Quarterly Report on Form 10-Q, for the quarter
ended March 31, 1997 (filed on May 15, 1997).
3. The Company's Current Report on Form 8-K dated March 27, 1997
(filed April 5, 1997).
4. The Company's Form 8-A dated February 2, 1989.
5. All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934
prior to the termination of the offering made hereby, shall be
deemed to be incorporated by reference in this Prospectus.
All documents filed subsequently to the foregoing by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities registered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
(See Item 3)
Item 5. Interests of Named Experts and Counsel.
Not Applicable
Item 6. Indemnification of Directors and Officers.
The Maryland General Corporation Law ("MGCL") permits a corporation formed
in Maryland to include in its articles a provision eliminating or limiting the
liability of its directors and officers to the corporation or its stockholders
for money damages except for: (i) actual receipt of
3
<PAGE> 4
an improper benefit or profit in money, property or services; or (ii) active
and deliberate dishonesty established by a judgment or other final adjudication
as being material to the cause of action adjudicated in such proceeding. The
Company's Articles of Incorporation (the "Articles") include such a provision
limiting liability to the fullest extent permitted by the MGCL.
The Company's Articles authorize it to indemnify present and former
officers and directors and to pay or reimburse expenses in advance of the final
disposition of the proceeding to the maximum extent permitted from time to time
by Maryland law. The Company's Bylaws obligate the Company to indemnify and
advance expenses to present and former officers and directors to the maximum
extent permitted by Maryland law. The MGCL permits the Company to indemnify
its present and former officers and directors, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason
of their service in those or other capacities unless it is established that:
(i) the act or omission of the officer or director was material to the matter
giving rise to the proceeding and was committed in bad faith or was the result
of active and deliberate dishonesty; (ii) the officer or director actually
received an improper personal benefit in money, property or services; or (iii)
in the case of any criminal proceeding, the officer or director had reasonable
cause to believe that the act or omission was unlawful. The MGCL requires the
Company, as a condition to advancing expenses, to obtain: (a) a written
affirmation by the officer or director of the individual's good faith belief
that he has met the standard of conduct necessary for indemnification by the
Company as authorized by the MGCL; and (b) a written agreement by or on his
behalf to repay the amount paid or reimbursed by the Company if it shall
ultimately be determined that the standard of conduct was not met. The
Company's Bylaws permit the Company to provide indemnification and advance
expenses to a present or former officer or director who served a predecessor of
the Company in such capacity, and to any employee or agent of the Company or a
predecessor of the Company.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
Exhibit No.
3 Certificate of Merger
3(a) Articles of Incorporation
3(b) Amendment to Articles of Incorporation
3(c) By-laws
4 Articles of Incorporation (see Exhibit 3(a))
4
<PAGE> 5
5 Opinion of Coon & Schach L.L.C. re: legality
10 MBf USA, Inc. Amended and Restated Omnibus Equity Compensation Plan
23(a) Consent of Coon & Schach L.L.C. (see Exhibit 5)
23(b) Consent of Arthur Andersen L.L.P.
24 Power of Attorney (see the Signature Page to this Registration
Statement)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) To include any Prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (1)(i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in a periodic report filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into this Registration Statement.
2. That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
5
<PAGE> 6
4. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities and Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in such Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Itasca, State of Illinois, on May 29, 1997.
MBf USA, INC.
By: /s/ Edward J. Marteka
-------------------------
Edward J. Marteka
President
7
<PAGE> 8
GRANT OF POWER OF ATTORNEY
Each person whose signature appears below as a Director and/or officer
of MBf USA, Inc. hereby constitutes and appoints Edward J. Marteka and Stephen
Tan his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all subsequent amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto such attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that such attorneys-in-fact and agents, or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
SIGNATURES TITLE DATE
/s/ Heng Sewn Loi
- -------------------------------------
Heng Sewn Loi Chief Executive Officer & Chairman May 29, 1997
/s/ Tan Sri Dato (Dr.) Hean Heong Loy
- -------------------------------------
Tan Sri Dato (Dr.) Hean Heong Loy Director May 29, 1997
/s/ Loy Teik Hok
- -------------------------------------
Loy Teik Hok Director May 29, 1997
/s/ Teoh Cheng Soon
- -------------------------------------
Teoh Cheng Soon Director May 29, 1997
/s/ Edward J. Marteka
- -------------------------------------
Edward J. Marteka Director May 29, 1997
- -------------------------------------
George J. Mennen Director
- -------------------------------------
Robert Simmons Director
- -------------------------------------
Don Arnwine Director
/s/ Stephen Tan
- -------------------------------------
Stephen Tan Secretary, Chief Financial Officer May 29, 1997
and Chief Accounting Officer
</TABLE>
<PAGE> 9
EXHIBITS
Exhibit No.
3 Certificate of Merger
3(a) Articles of Incorporation
3(b) Amendment to Articles of Incorporation
3(c) By-laws
4 Articles of Incorporation (see Exhibit 3(a))
5 Opinion of Coon & Schach, L.L.C. re: legality
10 MBf USA, Inc. Amended and Restated Omnibus Equity Compensation Plan
23(a) Consent of Coon & Schach, L.L.C. (see Exhibit 5)
23(b) Consent of Arthur Andersen LLP
24 Power of Attorney (see the Signature Page to this Registration
Statement)
<PAGE> 1
Exhibit 3
[FORM OF CERTIFICATE]
OFFICE OF THE SECRETARY OF STATE
STATE OF OKLAHOMA
[STATE SEAL]
CERTIFICATE
I, THE UNDERSIGNED SECRETARY OF STATE OF
THE STATE OF OKLAHOMA, DO HEREBY CERTIFY:
MBf USA, INC., AN OKLAHOMA CORPORATION
MERGED INTO:
MBf USA, INC., A MARYLAND CORPORATION
NOT REGISTERED TO TRANSACT BUSINESS IN THE STATE OF OKLAHOMA.
IN TESTIMONY WHEREOF, I HEREUNTO SET MY HAND AND CAUSE TO BE AFFIXED
THE GREAT SEAL OF THE STATE OF OKLAHOMA.
FILED IN THE CITY OF OKLAHOMA CITY THIS 18TH
DAY OF DECEMBER, 1995.
[STATE SEAL] /s/ Jim Cole
-----------------------------------
SECRETARY OF STATE
BY: /s/ Bette D. Garner
-----------------------------------
<PAGE> 1
Exhibit 3(a)
ARTICLES OF INCORPORATION
OF
MBF USA, INC.
ARTICLE I
INCORPORATOR
The undersigned, Billie J. Swoboda, whose address is 32 South Street,
Baltimore, MD, being at least eighteen (18) years of age, does hereby form a
corporation under the general laws of the State of Maryland.
ARTICLE II
NAME
The name of the corporation is: MBf USA, INC. (the "Corporation").
ARTICLE III
PURPOSE
The purposes for which the Corporation is formed are to engage in any
lawful act or activity for which corporations may be organized under the
Maryland General Corporation Law (or any successor statute) ("Maryland Law").
ARTICLE IV
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The post office address of the principal office of the Corporation in
the State of Maryland is c/o The Corporation Trust Incorporated, 32 South
Street, Baltimore, Maryland 21202. The name of the resident agent of the
Corporation in the State of Maryland is The Corporation Trust Incorporated at
32 South Street, Baltimore, Maryland 21202. The resident agent is a
corporation located in the State of Maryland.
ARTICLE V
STOCK
Section 1. Authorized Shares. The total number of shares of
stock which the Corporation has authority to issue is Four Million (4,000,000)
shares of Common stock, $0.01 par value ("Common Stock") and One Million Two
Hundred Fifty Two Thousand Five Hundred Thirty Seven and 4/100 (1,252,537.4)
shares of Series A Convertible Common stock, $0.01 par value ("Preferred
Stock").
-------------------------------------------------------------------------
| STATE OF MARYLAND |
| |
|I hereby certify that this a true and complete copy of a 10 |
|page document on file in this office. DATED: 12-13-95. ----- |
| ---------- |
| STATE DEPARTMENT OF ASSESSMENTS AND TAXATION |
| |
|BY: Jacqueline C. James , Custodian |
| --------------------------- |
| |
|This stamp replaces our previous certification system. Effective: 6/95 |
-------------------------------------------------------------------------
<PAGE> 2
Section 2. Stock Description. As used in this Section 2,
the terms identified below shall have the meanings indicated, unless a
different and common meaning of the term is clearly indicated by the context,
and variants and derivatives of the following terms shall have correlative
meanings:
AHP. American Health Products Corporation, a Texas
corporation, and a wholly-owned subsidiary of MBf Hong Kong.
ARPI. American Rubber Products Industries Sdn. Bhd.,
a Malaysia corporation.
Control Term. That period of time commencing on the
Closing Date of that certain Amended Share Exchange Agreement
(the "Share Exchange Agreement") dated January 15, 1992, by
and among the MBf, MBf America, Inc., an Oklahoma corporation,
and MBf Hong Kong, and expiring the earlier to occur of: (a)
conversion of all shares of Series A Common Stock; (b) the
time that it is determined that AHP has incurred a net loss
for any Performance Period; (c) the time that MBf Hong Kong
breaches any covenant contained in Section 8.01 of the Share
Exchange Agreement; or (d) the vote by the holders of more
than seventy-five percent (75%) of the outstanding shares of
Series A Common Stock and Common Stock, voting together as a
class, to terminate the Control Term.
Conversion Restriction Period. That period of time
commencing on the Closing Date of the Share Exchange Agreement
and expiring on the earlier to occur of (a) the later to occur
of (i) December 31, 1994 or (ii) the end of the term of a
Supplemental Period following the Performance Period ending
December 31, 1994; or (b) the time which it is determined that
the aggregate pre-tax net income for AHP, cumulative for all
Performance Periods commencing January 1, 1992, first exceeds
$4,000,000.
GAAP. United States Generally Accepted Accounting
Principles, as in effect on the date of any statement, report
or determination that purports to be or is required to be,
prepared or made in accordance with GAAP. All references
herein to financial statements prepared in accordance with
GAAP shall mean in accordance with GAAP consistently applied
throughout the periods to which reference is made.
MBf Hong Kong. MBf International Limited, a Hong
Kong corporation.
MBf. MBf USA, INC., an Oklahoma Corporation, and
a subsidiary of MBf International, Ltd.
Multi-Com. Multi-Com Sdn. Bhd., a Malaysia
corporation, and a wholly-owned subsidiary of MBf Hong Kong.
Net Income Deficiency. An amount by which the sum of
the pre-tax net income of AHP for any Shortfall Period and the
pre-tax net income for any
2
<PAGE> 3
Supplemental Period is less than the Net Income Requirement
for a particular Performance Period.
Net Income Requirement. The amount of pre-tax net
income of AHP which is required for any particular Performance
Period set forth in Sub-Section 1(b)(i) of this Section 2.
Performance Period. One of three periods of time
identified in Sub-Section 1(b)(i) of this Section 2.
Shortfall Period. Any Performance Period for which
the pre-tax net income of AHP does not equal or exceed the Net
Income Requirement for such Performance Period.
Stock Claim. Any claim identified in Schedule 4.02
of the Share Exchange Agreement by former shareholders of
Abused Drugs Laboratory, Inc. to be issued shares of Common
Stock.
Supplemental Period. A period of six (6) months
following the end of any Shortfall Period.
Underwriter Warrants and Other Options. Certain
warrants referred to in Schedule 4.02 of the Share Exchange
Agreement as "IPO Underwriter Warrants" and "1990 Underwriter
Warrants", and any other options or warrants to purchase ADS
Common Stock outstanding as of the date of these Articles and
not disclosed in such Schedule 4.02.
The following is a description of Common Stock and Series A
Common Stock:
COMMON STOCK. Each share of Common Stock shall be equal to
each other share of Common Stock and, when issued, shall be fully paid
and non-assessable, and the personal property of shareholders which
shall not be liable for corporate debts. The holders of Common Stock
of the Corporation shall each be entitled to share in any dividends of
the Corporation, if, as, and when declared by the Board of Directors,
or any distributions upon liquidation or dissolution of the
Corporation, ratably with the holders of Series A Common Stock, based
upon the number of shares of Common Stock issuable upon conversion of
each outstanding share of Series A Common Stock at the time of the
declaration of such dividend, liquidation or dissolution.
Except as otherwise expressly provided by law, during the
Control Term, the holders of Common Stock shall be entitled to vote,
as a separate class, for the election of all of the Class B Directors,
and after the expiration of the Control Term, shall vote with the
holders of Series A Common Stock as a single class, for the election
of directors. At all times, the holders of Common Stock shall vote
with the holders of shares of Series A Common Stock as a single class
with respect to any other matters subject to a vote of shareholders.
Each holder of record of Common Stock shall have one vote for each
share of Common Stock outstanding in his name on the books of the
Corporation and shall be entitled to vote said stock.
3
<PAGE> 4
SERIES A COMMON STOCK. The Series A Common Stock shall have
the rights and privileges of Common Stock, except as set forth as
follows:
1. Conversion. Series A Common Stock shall be
convertible into Common Stock as hereinafter provided and, when so
converted, shall be canceled and retired and shall not be reissued as
such:
(a) The Series A Common Stock shall be
convertible into Common Stock on and subject to the following terms
and conditions:
(i) Each share of Series A Common Stock
shall be converted: (A) at any time after the expiration of
the Conversion Restriction Period at the option of the holder
of Series A Common Stock so long as there has been no
adjustment to the Conversion Rate (as hereinafter defined)
pursuant to the provisions of Sub-Section 1(b)(iii) hereof;
(B) if there has been an adjustment to the Conversion Rate
under Sub-Section 1(b)(iii) hereof, automatically at the
expiration of the Conversion Restriction Period; or (C) if AHP
has not incurred a loss for any Performance Period, at the
option of the holder prior to the expiration of the Conversion
Restriction Period, provided that the number of shares of
Series A Common Stock convertible under this clause (C) shall
be limited to an amount equal to the product of (I)
1,252,537.4 and (II) a fraction, the numerator of which is the
number of Performance Periods (or Supplemental Periods, if
any, in relation thereto), which have been completed and for
which Performance Periods (or Supplemental Periods, if any, in
relation thereto) there has been a determination of whether an
adjustment was necessary under Sub-Section 1(b)(iii) of this
Section 2, and the denominator of which is three (3). Each
share is convertible into one (1) fully paid and nonassessable
share of Common Stock (the "Conversion Rate"). The Conversion
Rate at the date of these Articles of Incorporation shall be
one (1) (the "Initial Conversion Rate") and shall be subject
to adjustment as hereinafter provided.
(ii) Series A Common Stock shall be
deemed to have been converted immediately prior to the close
of business on the date of expiration of the Control Term if
there has been an adjustment under Sub-Section 1(b)(iii) to
the Conversion Rate, or, on the date of conversion by the
holder thereof if there has been no adjustment to the
Conversion Rate under Sub-Section 1(b)(iii) hereof, and the
person or persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Common Stock
at such time. As promptly as practicable on or after the date
of any conversion, the Corporation shall issue and deliver a
certificate or certificates representing the number of shares
of Common Stock issuable upon such conversion to the person or
persons entitled to receive the same.
4
<PAGE> 5
(b) (i) The Conversion Rate shall be subject
to adjustment from time to time, and the number of shares of
Common Stock issuable on conversion of any shares of Series A
Common Stock shall be subject to a resultant decrease by
reason of such adjustment, as provided in paragraph (iii) of
this paragraph (b) in the event that the pre-tax net income
(as determined under GAAP) of AHP does not meet the levels for
each of the Performance Periods set forth below:
<TABLE>
<CAPTION>
Net Income
Performance Period: Requirement:
------------------- ------------
<S> <C>
January 1, 1992 through December 31, 1992 $1,300,000
January 1, 1993 through December 31, 1993 $1,300,000
January 1, 1994 through December 31, 1994 $1,400,000
</TABLE>
(ii) In the event that for any
Performance Period there is a Net Income Deficiency (i.e.,
that the Performance Period constituted a Shortfall Period),
and AHP did not incur a net loss for such Shortfall Period,
then the pre-tax net income of AHP for the Supplemental Period
following the end of such Shortfall Period shall be included
in the pre-tax net income for such Shortfall Period for the
purpose of determining whether the Net Income Requirement for
the relevant Performance Period had been met. In the event
that there is a net loss for the Supplemental Period, such
loss shall not be added to the pre-tax net income for the
Shortfall Period. In order to meet the Net Income Requirement
for the Performance Period following the Shortfall Period, the
sum of (i) the pre-tax net income for the Shortfall Period
(without regard to any pre-tax net income or net loss for the
Supplemental Period following such Shortfall Period) and (ii)
the pre-tax net income for the Performance Period following
such Shortfall Period must equal the sum of the Net Income
Requirement levels set forth in paragraph (ii) above for such
Performance Periods. For any Shortfall Period, the value of
the capital contributions during such Shortfall Period or the
relevant Supplemental Period by MBf Hong Kong to MBf shall
reduce the amount of Net Income Deficiency for such Shortfall
Period; provided, however, that such capital contribution
shall be limited to cash or cash equivalents, marketable latex
examination glove inventory valued at the current Multi-Com or
ARPI list price, and the sole consideration to be given by MBf
in exchange for such capital contribution shall be the
reduction in the amount of the Net Income Deficiency.
(iii) At such time that a Net Income
Deficiency is determined, the Conversion Rate shall
automatically be reduced to a number equal to (A) the
Conversion Rate in effect at such time, minus (B) the product
of (x) 33 1/3% and (y) the quotient of (I) the amount of the
Net Income Deficiency divided by (II) the Net Income
Requirement for the relevant Performance Period.
5
<PAGE> 6
(iv) The net income of AHP shall be
determined within sixty (60) days following the end of each
Performance Period and within thirty (30) days following the
end of any Supplemental Period.
(c) In case the Corporation shall (i) pay a
dividend in shares of its capital stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares,
(iii) combine its outstanding shares of Common Stock into a smaller
number of shares, (iv) issue by reclassification or reorganization of
its shares of Common Stock, any shares of its capital stock, (v) merge
or consolidate with or into another corporation or issue any shares of
capital stock in connection with the merger of any of its subsidiaries
with or into another corporation, or (vi) convey to another
corporation all or any major portion of the assets of the Corporation,
the Conversion Rate in effect immediately prior thereto shall be
adjusted so that the holder of a share of Series A Common Stock
surrendered for conversion after the record date fixing shareholders
to be affected by such event shall be entitled to receive, upon
conversion, the number of shares of Common Stock which such holder
would have owned or have been entitled to receive after the happening
of such event had such share of Series A Common Stock been converted
immediately prior to the record date in the case of such dividend or
the effective date in the case of any such subdivision, combination,
reclassification, merger, or conveyance. An adjustment made pursuant
to this subparagraph (1)(c) shall be made whenever any of such events
shall happen, but shall become effective retroactively after such
record date or such effective date, as the case may be, as to shares
of Series A Common Stock converted between such record date or
effective date and the date of happening of any such event. The
foregoing provisions shall similarly apply to successive subdivisions,
combinations, reclassifications, or other reorganizations and to
successive consolidations, mergers and conveyances of or by any such
successor.
(d) The Conversion Rate shall be subject to
adjustment from time to time, and the number of shares of Common Stock
issuable on conversion of any shares of Series A Common Stock shall be
subject to a resultant increase (calculated to the nearest 1/100th of
a share) by reason of such adjustment, as hereinafter stated, in the
event of the issuance of any shares of Common Stock pursuant to the
satisfaction of any Stock Claim or the exercise of any Underwriter's
Warrants and Other Options, by multiplying the Conversion Rate in
effect at the time of such issuance by the sum of (A) One (1) and (B)
the quotient of (x) the number of shares to be issued in connection
with such issuance divided by (y) the number of shares of Common Stock
outstanding immediately prior to such issuance (which number of shares
outstanding shall include only the number of shares of Common Stock
issued and outstanding at the date of the Share Exchange Agreement
plus only those shares of Common Stock issued subsequent to the Share
Exchange pursuant to the satisfaction of Stock Claims or the exercise
of Underwriter's Warrants and Other Options).
(e) In case:
(i) The Corporation shall take a record of the
holders of its Common Stock for the purpose of entitling them
to receive a dividend or any other distribution payable
otherwise than in cash;
6
<PAGE> 7
(ii) The Corporation shall take a record of the
holders of its Common Stock for the purpose of entitling them
to subscribe for or purchase any share of stock of any class
or to receive any other rights;
(iii) Of any classification, reclassification, or
other reorganization of the capital stock of the Corporation,
consolidation, or merger of the Corporation with or into
another corporation, or conveyance of all or any major portion
of the assets of the Corporation to another corporation; or
(iv) Of the voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation;
then and in any such case, the Corporation shall cause to be mailed to
the transfer agent for the Series A Common Stock and to the holders of
record of the outstanding shares of the Series A Common Stock a notice
stating the date on which (x) a record is to be taken for the purpose
of such dividend, distribution, or rights, or (y) such classification,
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation, or winding up is to take place, as the case
may be. Such notice shall also specify the date as to which holders
of Common Stock of record shall be entitled to participate in said
dividend, distribution, or rights, or shall be entitled to exchange
their shares of Common Stock for securities or other property
deliverable upon such classification, reclassification,
reorganization, consolidation, merger, conveyance, dissolution,
liquidation, or winding up, as the case may be. Such notice shall be
given at least fifteen (15) days prior to the record date or the date
on which the Corporation's transfer books are closed in respect
thereto.
(f) No fractional shares or scrip representing
fractional shares shall be issued upon the conversation of any shares
of Series A Common Stock.
(g) The Corporation shall at all times reserve
and keep available, free from preemptive rights, out of its authorized
Common Stock, for the purpose of effecting the conversion of the
issued and outstanding Series A Common Stock, the full number of
shares of Common Stock then deliverable in the event and upon the
conversion of all of the Series A Common Stock then issued and
outstanding.
2. Voting Rights. Except as otherwise expressly
provided by law, until the expiration of the Control Term, the holders
of Series A Common Stock shall be entitled to vote, as a separate
class, for the election of all of the Class A Directors and after
termination of the Control Term, with the holder of shares of Common
Stock as a single class, for the election of directors. At all times,
the holders of Series A Common Stock shall be entitled to vote with
the holders of shares of Common Stock as a single class, with respect
to any other matters subject to a vote of shareholders. Each holder
of shares of Series A Common Stock shall have one vote for each share
of Common Stock issuable upon conversion of each share of Series A
Common Stock standing registered in his name on the books of the
Corporation on the date, if any, fixed for the purpose of determining
voting rights.
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3. Dividends; Liquidation. The holders of Series A
Common Stock shall be entitled to share in any dividends of the
Corporation, if, as, and when declared by the Board of Directors, or
any distributions upon liquidation or dissolution of the Corporation,
ratably with the holders of Common Stock, based upon the number of
shares of Common Stock issuable upon conversion of each outstanding
share of Series A Common Stock at the time of the declaration of such
dividend, liquidation or dissolution.
Section 3. Articles of Incorporation and Bylaws. All persons
who shall acquire shares of stock in the Corporation shall acquire the same
subject to the provisions of these Articles of Incorporation and the Bylaws of
the Corporation.
ARTICLE VI
PROVISIONS FOR DEFINING, LIMITING AND REGULATING CERTAIN
POWERS OF THE CORPORATION AND OF ITS DIRECTORS AND STOCKHOLDERS
Section 1. Number and Classification. The management of the
business and the conduct of the affairs of the Corporation shall be vested
in its Board of Directors. The Board of Directors of the Corporation shall
have at all times at least five (5) directors but at no time more than thirteen
(13) directors. Until the expiration of the Control Term, the Board of
Directors at all times shall be divided into two classes, to be known as Class
A Directors and Class B Directors, consisting of no more than seven (7) and not
less than three (3) Class A Directors and no more than six (6) and not less
than two (2) Class B Directors. Class A Directors and Class B Directors shall
be elected annually. The number of Class A Directors and Class B Directors
constituting the Board of Directors, subject to the limitations set forth
herein, shall be fixed by the Board of Directors in the manner provided in the
Corporation's Bylaws. Until expiration of the Control Term, the Class A
Directors shall at all times constitute a majority of the Board of Directors.
Immediately following expiration of the Control Term, the Board of Directors
shall no longer be classified.
The names of the directors who shall serve effective immediately and
until the first annual meeting of the Stockholders and until their successors
are duly elected and qualified are: Class A Directors- Tan Sri Dato (Dr.) Hean
Heong Loy, Teik Hok Loy, Heng Sewn Loi, Edward J. Marteka, George Jeff Mennen,
Cheng Soon Teoh; Class B Directors- Robert J. Simmons, Donald Arnwine.
Section 2. Authorization by Board of Stock Issuance. The Board
of Directors of the Corporation may authorize the issuance from time to time of
shares of stock of any class, whether now or hereafter authorized, or
securities convertible into shares of stock of any class, whether now or
hereafter authorized, for such consideration as the Board of Directors may deem
advisable, subject to such restrictions or limitations, if any, as may be set
forth in these Articles of Incorporation or the Bylaws of the Corporation or
under Maryland Law.
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Section 3.. Indemnification.
(a) The Corporation shall, to the maximum extent
permitted by Maryland Law, in accordance with Section 2-418 of
Maryland Law, indemnify and pay or reimburse reasonable expenses to:
(i) any individual who is a present or former director, officer,
employee or agent of the Corporation; or (ii) any individual who,
while a director of the Corporation and at the request of the
Corporation, serves or has served another corporation, partnership,
joint venture, trust, employee benefit plan or any other enterprise as
a director, officer, partner or trustee, as the case may be.
(b) The Corporation may, to the fullest extent permitted
by Maryland statutory or decisional law, advance amounts to persons
entitled to indemnification hereunder for legal and other expenses and
costs incurred as a result of any legal action for which
indemnification is being sought.
(c) The Corporation shall have the power to purchase and
maintain insurance on behalf of an indemnified party against any
liability asserted which was incurred in any such capacity with the
Corporation or arising out of such status.
(d) Neither the amendment nor the adoption of any other
provision of the Articles of Incorporation or the Bylaws shall apply
to or affect in any respect the applicability of indemnification with
respect to any act or failure to act which occurred prior to such
amendment, repeal or adoption.
Section 4. Reserved Powers of Board. The enumeration and
definition of particular powers of the Board of Directors included in this
Article VI shall in no way be limited or restricted by reference to or
inference from the terms of any other clause of this or any other provision of
these Articles of Incorporation, or construed or deemed by inference or
otherwise in any manner to exclude or limit the powers conferred upon the Board
of Directors under Maryland Law as now or hereafter in force.
Section 5. Voting Requirements. Notwithstanding any provision
of Maryland Law requiring a greater proportion than a majority of the votes of
all classes or of any class of stock entitled to be cast, to take or authorize
any action, the Corporation may take or authorize such action upon the
concurrence of a majority of the aggregate number of the votes entitled to be
cast thereon.
Section 6. Preemptive Rights. No holder of shares of stock of
the Corporation shall, as such holder, have any preemptive right to purchase or
subscribe for any additional shares of the stock of the Corporation or any
other security of the Corporation which it may issue or sell; provided,
however, that the Board of Directors may, in authorizing the issuance of shares
of stock of any class, confer any preemptive right that the Board of Directors
may deem advisable in connection with such issuance.
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ARTICLE VII
AMENDMENTS
The Corporation reserves the right from time to time to make any
amendment to these Articles of Incorporation, now or hereafter authorized by
law, including any amendment altering the terms or contract rights, as
expressly set forth in these Articles of Incorporation, of any shares of
outstanding stock.
ARTICLE VIII
LIMITATION OF LIABILITY
To the maximum extent that Maryland Law in effect from time to time
permits limitation of the liability of directors and officers, no director or
officer of the Corporation shall be liable to the Corporation or its
stockholders for money damages. Neither the amendment nor repeal of this
Article VIII, nor the adoption or amendment of any other provision of these
Articles of Incorporation or of the Bylaws of the Corporation inconsistent with
this Article VIII, shall apply to or affect in any respect the applicability of
the preceding sentence with respect to any act or failure to act which occurred
prior to such amendment, repeal or adoption.
ARTICLE IX
DURATION
The duration of the Corporation shall be perpetual.
IN WITNESS WHEREOF, the undersigned being a natural person of at least
eighteen (18) years of age and being the incorporator hereinbefore named for
the purpose of forming a corporation under the general laws of the State of
Maryland, has signed these Articles of Incorporation and acknowledged the same
to be his act on this 13th day of December, 1995.
Billie J. Swoboda
------------------------
Billie J. Swoboda
Incorporator
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<PAGE> 1
Exhibit 3(b)
MBf USA, INC.
ARTICLES OF AMENDMENT
THIS IS TO CERTIFY THAT:
FIRST: The charter of MBf USA, Inc., a Maryland corporation (the
"Corporation"), is hereby amended by deleting the existing Section 1 of Article
V in its entirety and adding a new Section 1 of Article V to read as follows:
STOCK
Section 1. Authorized Shares. The total number of shares of stock which the
Company has authorized to issue is Ten Million (10,000,000) shares of common
stock, $0.01 par value ("Common Stock") and One Million Two Hundred Fifty Two
Thousand Five Hundred Thirty Eight (1,252,538) shares of Series A Convertible
common stock, $0.01 par value ("Series A Common Stock").
SECOND: As to the shares of stock authorized by the Articles of Incorporation:
(i) Immediately before this amendment to the Articles of Incorporation, the
authorized shares of the Corporation consisted of Four Million (4,000,000)
shares of common stock, $0.01 par value; and One Million Two Hundred Fifty Two
Thousand Five Hundred Thirty Seven and 4/100 (1,250,537.4) shares of Series
A Convertible common stock, $0.01 par value; as amended, the Articles of
Incorporation authorize the Corporation to issue Ten Million (10,000,000)
shares of common stock, $0.01 par value and One Million Two Hundred Fifty Two
Thousand Five Hundred Thirty Eight (1,252,538) shares of Series A Convertible
common stock, $0.01 par value.
(ii) Immediately before the amendment to the Articles of Incorporation the
aggregate par value of all shares of all classes was Fifty Two Thousand Five
Hundred Five Dollars and 37/100 ($52,505.37); as amended, the aggregate par
value of all shares of all classes is One Hundred Twelve Thousand Five Hundred
Five Dollars and 38/100 (112,505.38).
(iii) The information required by subsection (b)(2)(i) of Section 2-606 of the
Maryland General Corporation Law, as it relates to the Corporation's Common
Stock, was not changed by this amendment.
THIRD: The amendment to the charter of the Corporation as set forth above has
been duly advised by the Board of Directors and approved by the stockholders of
the Corporation as required by law.
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IN WITNESS WHEREOF, the Corporation has caused these Articles to be
signed in its name and on its behalf by its president and attested to by its
secretary on this 31st day of December, 1996.
MBf USA, INC.
By: /s/ Edward J. Marteka
-------------------------------
Edward J. Marteka, President
WITNESS:
By: /s/ Robert Carter
-------------------------------
Robert Carter, Assistant Secretary
THE UNDERSIGNED, President of MBf USA, Inc., who executed on behalf
of said corporation the foregoing Articles of Amendment, of which this
certificate is made a part, hereby acknowledges, in the name and on behalf of
said corporation, the foregoing Articles of Amendment to be the corporate act
of said corporation and further certifies that, to the best of his knowledge,
information and belief, the matters and facts set forth therein with respect to
the approval thereof are true in all material respects, under the penalties of
perjury.
/s/ Edward J. Marteka
-------------------------------
Edward J. Marteka
2
<PAGE> 1
Exhibit 3(c)
BYLAWS
OF
MBf USA, INC.
ARTICLE I
OFFICES
The corporation shall continuously maintain in the State of Maryland,
a registered office and a registered agent whose office is identical with such
registered office and may have other offices within or without the state. The
address of the corporation's registered office in the State of Maryland is 32
South Street, Baltimore, Maryland 21202. The name of the corporation's
registered agent at such address is the Corporation Trust Company. The
corporation reserves the power to change its registered agent and registered
office at any time.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. An annual meeting of the stockholders
shall be held at such time, date and place as the board of directors shall
determine by resolution, for the purpose of electing directors and for the
transaction of such other business, as may come before the meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders
may be called either by the president, the board of directors, a committee of
the board of directors duly designated and whose powers include the powers to
call meetings or by any stockholders entitled to cast at least 25% of all the
votes entitled to be cast at the meeting for the purpose or purposes stated in
the call of the meeting. The secretary shall inform such stockholders of the
reasonably estimated cost of preparing and mailing notice of the meeting and,
upon payment to the corporation of such costs, the secretary shall give notice
to each stockholder entitled to notice of the meeting. Unless requested by the
stockholders entitled to cast a majority of all the votes entitled to be cast
at such meeting, a special meeting need not be called to consider any matter
which is substantially the same as a matter voted on at any special meeting of
the stockholders held during the preceding twelve months.
SECTION 3. PLACE OF MEETINGS. All meetings of the stockholders shall
be held at such places, within or without the State of Maryland, as the board
of directors or a committee of the board shall specify in the notice or waiver
of notice for such meetings.
SECTION 4. NOTICE OF MEETINGS. A written notice of each meeting of
stockholders, stating the place, date and hour of the
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meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given to each stockholder entitled to
vote at the meeting and each other stockholder entitled to notice of the
meeting. Unless otherwise provided by the General Corporation Law of Maryland
("Maryland Law"), the notice shall be given not less than ten (10) nor more
than ninety (90) days before the date of the meeting. If mailed, such notice
shall be deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation. If
mailed, notice is given on the date deposited in the United States Mail.
Notice may also be given by transmitting a notice thereof to the stockholder at
such address by telegraph, telecopy, cable, wireless or personally. No notice
need be given to any person with whom communication is unlawful, nor shall
there be any duty to apply for any permit or license to give notice to any such
person. An affidavit of the secretary or an assistant secretary or of the
transfer agent of the corporation that he has given notice shall constitute, in
the absence of fraud, prima facie evidence of the facts stated therein.
SECTION 5. WAIVER OF NOTICE. Anything herein to the contrary
notwithstanding, with respect to any stockholder meeting, any stockholder who
in person or by proxy shall have waived in writing notice of the meeting,
either before or after such meeting, or who shall attend the meeting in person
or by proxy, shall be deemed to have waived notice of such meeting unless he
attends for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or convened. No written waiver of notice need specify either the business to
be transacted at, or the purpose or purposes of any regular or special meeting
of the Stockholders, directors or members of a committee of the board of
directors.
SECTION 6. QUORUM; MANNER OF ACTING AND ORDER OF BUSINESS. Subject
to the provisions of these bylaws, the Articles of Incorporation and Maryland
Law as to the vote that is required for a specified action, the presence in
person or by proxy of the holders of a majority of the outstanding shares of
the corporation entitled to vote at any meeting of stockholders shall
constitute a quorum for the transaction of business. The vote of the holders
of a majority of the shares of the corporation's stock entitled to vote,
present in person or represented by proxy, shall be binding on all stockholders
of the corporation, unless the vote of a greater number or voting by classes is
required by Maryland Law or the Articles of Incorporation or these bylaws. The
stockholders present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
In the absence of a quorum, stockholders holding a majority of the
shares present in person or by proxy and entitled to vote,
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regardless of whether or not they constitute a quorum, or if no stockholders
are present, any officer entitled to preside at or act as secretary of the
meeting, may adjourn the meeting to another time and place. Any business which
might have been transacted at the original meeting may be transacted at any
adjourned meeting at which a quorum is present. No notice of an adjourned
meeting need be given if the time and place are announced at the meeting at
which the adjournment is taken except that, if adjournment is for more than
thirty (30) days or if, after the adjournment, a new record date is fixed for
the meeting, notice of the adjourned meeting shall be given pursuant to Section
4 of this Article II. If the chairman of the meeting gives notice of any
adjourned special meeting of Stockholders to all Stockholders entitled to vote
thereat, stating that those present shall constitute a quorum, then, except as
otherwise required by law, those present at such adjourned meeting shall
constitute a quorum and a majority of the votes cast at such meeting shall
determine all matters.
SECTION 7. VOTING; PROXIES. (a) Except as provided in Section 7(b)
and the Articles of Incorporation, each stockholder of record on the record
date, as determined pursuant to Section 6 of Article VI, shall be entitled to
one vote for every share registered in his name. Each stockholder entitled to
vote at any meeting of stockholders or to express consent to or dissent from
corporate action in writing without a meeting may authorize another person to
act for him by proxy. No proxy shall be valid after 11 months from its date of
execution, unless the proxy provides for a longer period.
The corporation shall not have the right to vote treasury stock of the
corporation, nor shall another corporation have the right to vote its stock of
the corporation if the corporation holds, directly or indirectly, a majority of
the shares entitled to vote in the election of directors of such other
corporation. Persons holding stock of the corporation in a fiduciary capacity
shall have the right to vote such stock. Persons who have pledged their stock
of the corporation shall have the right to vote such stock unless in the
transfer on the books of the corporation the pledgor expressly empowered the
pledgee to vote such stock. In that event, only the pledgee, or his proxy, may
represent such stock and vote thereon.
A plurality of the votes cast shall determine all elections and,
except when the law requires otherwise, a majority of the votes cast shall
determine all other matters.
The Stockholders may vote by voice on all matters. However, upon
demand by a Stockholder entitled to vote, or his proxy, the Stockholders shall
vote by ballot. In that event, each ballot shall state the name of the
Stockholder or proxy voting, the number of shares voted and such other
information as the corporation may require under the procedure established for
the meeting.
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SECTION 8. INSPECTORS OF ELECTION. (a) In advance of any meeting of
stockholders, the board of directors may appoint inspectors of election to act
at each meeting of stockholders and any adjournment thereof. If inspectors of
election are not so appointed, the chairman of the meeting may, and upon the
request of any stockholder or his proxy shall, appoint inspectors of election
at the meeting. The number of inspectors shall be either one or three. If
appointed at the meeting upon the request of one or more stockholders or
proxies, the vote of the holders of a majority of shares present shall
determine whether one or three inspectors are appointed. In any case if any
person appointed as an inspector fails to appear or fails or refuses to act,
the vacancy may be filled by appointment made by the directors in advance of
the convening of the meeting or at the meeting by the person acting as
chairman.
(b) The inspectors of election shall determine the outstanding
stock of the corporation, the stock represented at the meeting and the
existence of a quorum, shall receive votes, ballots, or consents, shall count
and tabulate all votes and shall determine the result; and in connection
therewith, the inspector shall determine the authority, validity and effect of
proxies, hear and determine all challenges and questions, and do such other
ministerial acts as may be proper to conduct the election or vote with fairness
to all stockholders. If there are three inspectors of election, the decision,
act or certificate of a majority is effective in all respects as the decision,
act or certificate of all. If no inspectors of election are appointed, the
secretary shall pass upon all questions and shall have all other duties
specified in this Section.
(c) Upon request of the chairman of the meeting or any stockholder
or his proxy, the inspector(s) of election shall make a report in writing of
any challenge or question or other matter determined by him and shall execute a
certificate of any fact found in connection therewith. Any such report or
certificate shall be filed with the record of the meeting.
SECTION 9. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at a meeting of stockholders may be taken without a
meeting if a consent in writing, setting forth such action, is signed by each
stockholder entitled to vote on the matter and any other stockholder entitled
to notice of a meeting of stockholders (but not to vote there at) has waived in
writing any right to dissent from such action, and such consent and waiver are
filed with the records of the stockholders meetings.
SECTION 10. ORGANIZATION. Such person as the board of directors may
have designated or, in the absence of such a person, the highest ranking
officer of the corporation who is present shall call to order any meeting of
the Stockholders, determine the presence of a quorum, and act as chairman of
the meeting. In the
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absence of the secretary or an assistant secretary of the corporation, the
chairman shall appoint the secretary of the meeting.
SECTION 11. CONDUCT OF BUSINESS. The chairman of any meeting of
Stockholders shall determine the order of business and the procedure at the
meeting, including such regulations of the manner of voting and the conduct of
discussion as he deems in order.
SECTION 12. NOMINATIONS AND STOCKHOLDER BUSINESS.
(a) Annual Meetings of Stockholders. (1) Nominations of persons
for election to the board of directors and the proposal of business to be
considered by the stockholders may be made at an annual meeting of
stockholders: (i) pursuant to the corporation's notice of meeting; (ii) by or
at the direction of the board of directors; or (iii) by any stockholder of the
corporation who was a stockholder of record at the time of giving of notice
provided for in this Section 10(a), who is entitled to vote at the meeting and
who complied with the notice procedures set forth in this Section 10(a).
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (iii) of
paragraph (a)(1) of this Section 10, the stockholder must have given timely
notice thereof in writing to the secretary of the corporation. To be timely, a
stockholder's notice shall be delivered to the secretary at the principal
executive offices of the corporation not less than 60 days nor more than 90
days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the 90th day prior to such annual meeting and not later than
the close of business on the later of the 60th day prior to such annual meeting
or the tenth day following the day on which public announcement of the date of
such meeting is first made. Such stockholder's notice shall set forth: (i) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (including
such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (ii) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and of the beneficial owner, if any, on whose
behalf the proposal is
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made; and (iii) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, (x) the name
and address of such stockholder, as they appear on the corporation's books, and
of such beneficial owner, and (y) the class and number of shares of stock of
the corporation which are owned beneficially and of record by such stockholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this Section 10 to the contrary, in the event that the
number of directors to be elected to the board of directors is increased and
there is no public announcement naming all of the nominees for director or
specifying the size of the increased board of directors made by the corporation
at least 70 days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 10(a) shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary at the
principal executive offices of the corporation not later than the close of
business on the tenth day following the day on which such public announcement
is first made by the corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the corporation's notice of meeting.
Nominations of persons for election to the board of directors may be made at a
special meeting of stockholders at which directors are to be elected: (i)
pursuant to the corporation's notice of meeting; (ii) by or at the direction of
the board of directors; or (iii) provided that the board of directors has
determined that directors shall be elected at such special meeting, by any
stockholder of the corporation who is a stockholder of record at the time of
giving of notice provided for in this Section 10(b), who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this
Section 10(b). In the event the corporation calls for a special meeting of
stockholders for the purpose of electing one or more directors to the board of
directors, any such stockholder may nominate a person or persons (as the case
may be) for election to such position as specified in the corporation's notice
of meeting, if the stockholder's notice required by paragraph (a)(2) of this
Section 10(b) shall be delivered to the secretary at the principal executive
offices of the corporation not earlier than the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the tenth day following the day on which
public announcement is first made of the date of the special meeting and of the
nominees proposed by the board of directors to be elected at such meeting.
(c) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Section 10 shall
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be eligible to serve as directors and only such business shall be conducted at
a meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 10. The presiding
officer of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made
in accordance with the procedures set forth in this Section 10 and, if any
proposed nomination or business is not in compliance with this Section 10, to
declare that such defective nomination or proposal be disregarded.
(2) For purposes of this Section 10, "public
announcement" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable news service or in a
document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section 10, a stockholder shall also comply with all applicable requirements of
state law and of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 10. Nothing in this Section
10 shall be deemed to affect any rights of stockholders to request inclusion of
proposals in the corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting
or at any special meeting called for that purpose, a majority of the entire
board of directors may establish, increase or decrease the number of directors,
provided that the number thereof shall never be less than the minimum number
required by Maryland Law, nor more than 15, and further provided that the
tenure of office of a director shall not be affected by any decrease in the
number of directors. The Stockholders of the corporation shall elect the
directors at the annual or adjourned annual meeting (except as otherwise
provided herein for the filling of vacancies). Each director shall hold office
until his death, resignation, retirement, removal, or disqualification, or
until his successor shall have been elected and qualified. Directors need not
be residents of the State of Maryland or stockholders of the corporation.
SECTION 2. RESIGNATIONS AND REMOVAL. Any director of the corporation
may resign at any time by giving written notice to the board of directors or to
the secretary of the corporation. Any resignation shall take effect upon
receipt or at the time specified in the notice. Unless the notice specifies
otherwise, the
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effectiveness of the resignation shall not depend upon its acceptance.
Stockholders holding a majority of the outstanding shares entitled to vote at
an election of directors may remove any director at any time with or without
cause.
SECTION 3. MEETINGS. Meetings of the board of directors may be
called by or at the request of the chairman of the board, the president or
one-third (1/3) of the directors. The person or persons authorized to call
meetings of the board of directors may fix any place as the place for holding
any meeting of the board of directors called by them. Meetings of the board of
directors may be held within or outside the State of Maryland.
SECTION 4. BUSINESS OF MEETINGS. Except as otherwise expressly
provided in these bylaws, any and all business may be transacted at any meeting
of the board of directors.
SECTION 5. NOTICE OF MEETINGS. Notice of a special meeting shall be
given: (i) at least 24 hours previous thereto if delivered by messenger,
overnight courier or facsimile; or (ii) three (3) days notice if mailed to each
director at his principal place of business. A director may waive notice of
any special meeting, and any meeting shall constitute a legal meeting without
notice if all the directors are present or if those not present sign either
before or after the meeting a written waiver of notice, a consent to such
meeting, or an approval of the minutes of the meeting. Except when expressly
for the purpose of objecting to the legality of a meeting, a director's
presence at a meeting shall constitute a waiver of notice of such meeting. A
notice or waiver of notice need not specify the purposes of the meeting or the
business which the board of directors will transact at the meeting.
SECTION 6. ATTENDANCE BY TELEPHONE. Directors may participate in
meetings of the board of directors by means of conference telephone or similar
communications equipment by means of which all directors participating in the
meeting can hear one another, and such participation shall constitute presence
in person at the meeting.
SECTION 7. QUORUM AND MANNER OF ACTING; ADJOURNMENT. A majority of
the directors shall constitute a quorum for the transaction of business at any
meeting of the board of directors and the act of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
board. If less than a majority of such directors are present at said meeting,
a majority of the directors present may adjourn the meeting from time to time
without further notice, and provided further that if, pursuant to the Articles
of Incorporation or these bylaws, the vote of a majority of a particular group
of directors is required for action, a quorum must also include a majority of
such group.
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SECTION 8. ACTION WITHOUT A MEETING. Any action which could be taken
at a meeting of the board of directors may be taken without a meeting if all of
the directors consent to the action in writing and the writing or writings are
filed with the minutes of proceedings of the board.
SECTION 9. FILLING OF VACANCIES. If for any reason any or all the
directors cease to be directors, such event shall not terminate the corporation
or affect these bylaws or the powers of the remaining directors hereunder (even
if fewer than three directors remain). Any vacancy on the board of directors
for any cause other than an increase in the number of directors shall be filled
by a majority of the remaining directors, even if such majority is less than a
quorum. Any individual so elected as director shall hold office until the next
annual meeting of stockholders or until his successor is duly elected and
qualified. Any vacancy in the number of directors created by an increase in
the number of directors may be filled by a majority vote of the entire board of
directors.
SECTION 10. COMPENSATION OF DIRECTORS. The board of directors shall
have the authority to fix the compensation of directors, unless otherwise
provided in the Articles of Incorporation.
SECTION 11. PRESIDING OFFICER. At the initial and annual meeting of
the board of directors, the directors may elect from their number a Chairman of
the Board of Directors. The Chairman shall preside at all meetings of the
board of directors and shall perform such other duties as the board of
directors may direct. The board of directors also may elect a Vice Chairman
and other officers of the board of directors, with such powers and duties as
the board of directors may designate from time to time.
SECTION 12. COMMITTEES OF THE BOARD. The board of directors may
designate, by a vote of a majority of the directors then in office, committees
of the board of directors. The committees shall serve at the pleasure of the
board of directors and shall possess such lawfully delegable powers and duties
as the board of directors may confer.
SECTION 13. SELECTION OF COMMITTEE NUMBERS. The board of directors
shall elect by a vote of a majority of the directors then in office two (2) or
more directors to serve as the members of a committee. By the same vote, the
board of directors may designate other directors as alternative members who may
replace any absent or disqualified member at any meeting of a committee. In
the absence or disqualification of any member of any committee and any
alternate member in his place, the member or members of the committee present
at the meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may appoint by
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unanimous vote another member of the board of directors to act at the meeting
in the place of the absent or disqualified member.
SECTION 14. CONDUCT OF BUSINESS. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as the law or these bylaws require otherwise.
Each committee shall make adequate provision for notice of all meetings to
members. A majority of the members shall constitute a quorum, unless the
committee consists of two members. In that event, one member shall constitute
a quorum. A majority vote of the members present shall determine all matters.
A committee may take action without a meeting if all the members of the
committee consent in writing and file the consent or consents with the minutes
of the proceedings of the committee.
SECTION 15. AUTHORITY. Any committee, to the extent the board of
directors provides, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the affixation of the corporation's seal to all
instruments which may require or permit it. However, no committee shall have
any power or authority with regard to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending
to the Stockholders the sale, lease or exchange of all or substantially all of
the corporation's property, recommending to the Stockholders a dissolution of
the corporation or a revocation of a dissolution of the corporation, or
amending these bylaws of the corporation. Unless a resolution of the board of
directors expressly provides, no committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
SECTION 16. MINUTES. Each committee shall keep regular minutes of
its proceedings and report the same to the board of directors when required.
SECTION 17. RELIANCE. Each director, officer, employee and agent of
the corporation shall, in the performance of his duties with respect to the
corporation, be fully justified and protected with regard to any act or failure
to act in reliance in good faith upon the books of account or other records of
the corporation, upon an opinion of counsel or upon reports made to the
corporation by any of its officers or employees or by the adviser, accountants,
appraisers or other experts or consultants selected by the board of directors
or officers of the corporation, regardless of whether such counsel or expert
may also be a director.
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ARTICLE IV
OFFICERS
SECTION 1. NUMBER. The officers of the corporation shall consist of
a president, a secretary, a treasurer and such vice presidents, assistant
secretaries and assistant treasurers or any other officers thereunto authorized
or elected by the board of directors. Any two or more offices may be held by
the same person, except the offices of president and secretary.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the
corporation shall be elected by the board of directors at their first meeting
and thereafter at any subsequent meeting. Each officer shall hold office until
his successor is duly elected and qualified, or until his death or disability,
or until he resigns or is removed from his duties in the manner hereinafter
provided.
SECTION 3. REMOVAL AND RESIGNATION. Any officer or agent may be
removed, either with or without cause, by a majority of the directors, then in
office, at any meeting of the board of directors. Any officer or agent may
resign at any time by giving written notice to the board of directors, the COB,
the president or the secretary of the corporation. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein. Unless otherwise specified in the notice, the board of
directors need not accept the resignation to make it effective.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation or removal or any other cause may be filled by the board of
directors.
SECTION 5. PRESIDENT. The president, subject to the board of
directors's control and supervision by the Managing Director, shall supervise
and control all of the business and affairs of the corporation. When present,
he shall sign (with or without the secretary, an assistant secretary, or any
other officer or agent of the corporation which the board of directors has
authorized) deeds, mortgages, bonds, contracts or other instruments which the
board of directors has authorized an officer or agent of the corporation to
execute. However, the president shall not sign any instrument which the law,
these bylaws, or the board of directors expressly requires some other officer
or agent of the corporation to sign and execute. In general, the president
shall perform all duties incident to the office of president and such other
duties as the board of directors may prescribe from time to time.
SECTION 6. VICE PRESIDENT. In the absence of the president or in the
event of his death, inability or refusal to act, the vice presidents in the
order of their length of service as vice presidents, unless the board of
directors determines otherwise, shall perform the duties of the president.
When acting as the
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president, a vice president shall have all the powers and restrictions of the
Presidency. A vice president shall perform such other duties as the president
or the board of directors may assign to him from time to time.
SECTION 7. TREASURER. The treasurer shall (a) have responsibility
for all funds and securities of the corporation, (b) receive and give receipts
for moneys due and payable to the corporation from any source whatsoever, (c)
deposit all moneys in the name of the corporation in depositories which the
board of directors selects, and (d) perform all of the duties which the
president or the board of directors may assign to him from time to time.
SECTION 8. SECRETARY. The secretary shall (a) keep the minutes of
the meetings of the Stockholders and of the board of directors in one or more
books for that purpose, (b) give all notices which these bylaws or the law
requires, (c) serve as custodian of the records and seal of the corporation,
(d) affix the seal of the corporation to all documents which the board of
directors has authorized execution on behalf of the corporation under seal, (e)
maintain a register of the address of each Stockholder of the corporation, (f)
sign, with the president, a vice president, or any other officer or agent of
the corporation which the board of directors has authorized, certificates for
shares of the corporation, (g) have charge of the stock transfer books of the
corporation, and (h) perform all duties which the president or the board of
directors may assign to him from time to time.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. In the
absence of the secretary or in the event of his death, inability or refusal to
act, the assistant secretaries in the order of their length of service as
assistant secretary, unless the board of directors determines otherwise, shall
perform the duties of the secretary. When acting as the secretary, an
assistant secretary shall have the powers and restrictions of the secretary.
An assistant secretary shall perform such other duties as the president,
secretary or board of directors may assign from time to time. In the absence
of the treasurer or in the event of his death, inability or refusal to act, the
assistant treasurers in the order of their length of service as assistant
treasurer, unless the board of directors determines otherwise, shall perform
the duties of the treasurer. When acting as the treasurer, an assistant
treasurer shall have the powers and restrictions of the treasurer. An
assistant treasurer shall perform such other duties as the treasurer, the
president, or the board of directors may assign to him from time to time.
SECTION 10. SALARIES. The salaries of the officers shall be fixed
from time to time by the board of directors. No officer shall serve the
corporation in any other capacity and receive
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compensation, unless the board of directors authorizes the additional
compensation.
SECTION 11. BOND. The board of directors may require by resolution
any officer, agent, or employee of the corporation to give bond to the
corporation, with sufficient sureties conditioned on the faithful performance
of the duties of his respective office or agency. The board of directors also
may require by resolution any officer, agent or employee to comply with such
other conditions as the board of directors may require from time to time.
SECTION 12. DELEGATION OF AUTHORITY. Notwithstanding any provision
of these bylaws to the contrary, the board of directors may delegate the powers
or duties of any officer to any other officer or agent.
SECTION 13. ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS.
Unless the board of directors directs otherwise, the president shall have the
power to vote and otherwise act on behalf of the corporation, in person or by
proxy, at any meeting of Stockholders of or with respect to any action of
Stockholders of any other corporation in which the corporation holds
securities. Furthermore, unless the board of directors otherwise, the
president shall exercise any and all rights and powers which the corporation
possesses by reason of its ownership of securities in another corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The board of directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation and such
authority may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name,
unless authorized by a resolution of the board of directors.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued by
and in the name of the corporation, shall be signed by the president, any vice
president, the treasurer, any assistant treasurer, and such other persons as
the board of directors shall determine and in such manner as shall from time to
time be determined by resolution of the board of directors.
SECTION 4. DEPOSITS. The treasurer shall deposit all funds of the
corporation not otherwise employed in such banks, trust
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companies, or other depositories as the board of directors may select or as any
officer, assistant, agent or attorney of the corporation to whom the board of
directors has delegated such power may select. For the purpose of deposit and
collection for the account of the corporation, the president or the treasurer
(or any other officer, assistant, agent or attorney of the corporation whom the
board of directors has authorized) may endorse, assign and deliver checks,
drafts and other orders for the payment of money payable to the order of the
corporation.
SECTION 5. GENERAL AND SPECIAL BANK ACCOUNTS. The board of directors
may authorize the opening and keeping of general and special bank accounts with
such banks, trust companies, or other depositories as the board of directors
may select or as any officer, assistant, agent or attorney of the corporation
to whom the board of directors has delegated such power may select. The board
of directors may make such special rules and regulations with respect to such
bank accounts, not inconsistent with the provisions of these bylaws, as it may
deem expedient.
ARTICLE VI
CERTIFICATES OF STOCK AND THEIR TRANSFER
SECTION 1. STOCK RECORD AND CERTIFICATES. Records shall be kept by
or on behalf of the corporation by the secretary, transfer agent or registrar
of the corporation, which shall contain the names and addresses of
stockholders, the number of shares held by them respectively, and the number of
certificates, if any, representing the shares, and in which there shall be
recorded all transfers of shares. Every stockholder shall be entitled to a
certificate signed by the president or a vice president, and by the secretary
or an assistant secretary of the corporation, certifying the class and number
of shares owned by him in the corporation, provided that any and all signatures
on a certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he or it were such officer, transfer agent or registrar at
the date of issue. The secretary, transfer agent, or registrar of the
corporation shall cancel every certificate surrendered to the corporation for
exchange or transfer. Except in the case of a lost, destroyed or mutilated
certificate, the secretary, transfer agent, or registrar of the corporation
shall not issue a new certificate in exchange for an existing certificate until
he has canceled the existing certificate. Each certificate representing shares
which are restricted as to their transferability or voting powers, which are
preferred or limited as to their dividends or as to their allocable portion of
the assets upon liquidation or which are redeemable at the option of the
corporation, shall have a statement of such
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restriction, limitation, preference or redemption provision, or a summary
thereof, plainly stated on the certificate. In lieu of such statement or
summary, the corporation may set forth upon the face or back of the certificate
a statement that the corporation will furnish to any stockholder, upon request
and without charge, a full statement of such information.
SECTION 2. TRANSFER AGENTS AND REGISTRARS. The board of directors
may, in its discretion, appoint one or more responsible banks or trust
companies as the board may deem advisable, from time to time, to act as
transfer agents and registrars of shares of the corporation; and, when such
appointments shall have been made, may require the certificate for shares of
the corporation to be countersigned by one of such transfer agents and
registered by one of such registrars.
SECTION 3. STOCKHOLDERS' ADDRESSES. Every stockholder or transferee
shall furnish the secretary or a transfer agent with the address to which
notice of meetings and all other notices may be served upon or mailed to such
stockholder or transferee, and in default thereof, such stockholder or
transferee shall not be entitled to service or mailing of any such notice.
SECTION 4. LOST CERTIFICATES. In case any certificate for shares of
the corporation is lost, stolen or destroyed, the board of directors, in its
discretion, or any transfer agent duly authorized by the board, may authorize
the issue of a substitute certificate in place of the certificate so lost,
stolen or destroyed. The corporation may require the owner of the 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 such new certificate or uncertified shares.
SECTION 5. DISTRIBUTIONS TO STOCKHOLDERS. (a) To the extent
permitted by Maryland Law and subject to any restrictions contained in the
Articles of Incorporation, the directors may declare and pay dividends upon the
shares of its capital stock in the manner and upon the terms and conditions
provided by Maryland Law and the Articles of Incorporation.
(b) Before payment of any dividends, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
board of directors may from time to time, in its absolute discretion, think
proper as a reserve fund for contingencies, for equalizing dividends, for
repairing or maintaining any property of the corporation or for such other
purpose as the board of directors shall determine to be in the best interest of
the corporation, and the board of directors may modify or abolish any such
reserve in the manner in which it was created.
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SECTION 6. RECORD DATES. The board of directors may set, in advance,
a record date for the purpose of determining stockholders entitled to notice
of, or to vote at, any meeting of stockholders, or stockholders entitled to
receive payment of any dividend or the allotment of any other rights, or in
order to make a determination of stockholders for any other proper purpose.
Such date, in any case, shall not be prior to the close of business on the day
the record date is fixed.
In lieu of fixing a record date, the board of directors may provide
that the stock transfer books shall be closed for a stated period but not
longer than 20 days. If the stock transfer books are closed for the purpose of
determining stockholders entitled to notice or of to vote at a meeting of
stockholders, such books shall be closed for at least ten days before the date
of such meeting.
If no record date is fixed and the stock transfer books are not closed
for the determination of stockholders: (a) the record date for the
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day on which the notice
of meeting is mailed or the 30th day before the meeting, whichever is the
closer date to the meeting; and (b) the record date for the determination of
stockholders entitled to receive payment of a dividend or an allotment of any
other rights shall be the close of business on the day on which the resolution
of the directors, declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting
of stockholders has been made as provided in this section, such determination
shall apply to any adjournment thereof, except where the determination has been
made through the closing of the transfer books and the stated period of closing
has expired.
SECTION 7. TRANSFERS OF SHARES. The holder of record of shares of
the corporation's stock, or his attorney- in-fact authorized by power of
attorney duly executed and filed with the secretary, transfer agent or
registrar of the corporation, may transfer his shares only on the stock
transfer books of the corporation. Such person shall furnish to the secretary,
transfer agent, or registrar of the corporation proper evidence of his
authority to make the transfer and shall properly endorse and surrender for
cancellation his existing certificate or certificates for such shares.
Whenever the holder of record of shares of the corporation's stock makes a
transfer of shares for collateral security, the secretary, transfer agent, or
registrar of the corporation shall state such fact in the entry of transfer if
the transferor and the transferee request.
SECTION 8. HOLDER OF RECORD. The corporation may treat as absolute
owners of shares the person in whose name the shares stand of record as if that
person had full competency, capacity and
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authority to exercise all rights of ownership, despite any knowledge or notice
to the contrary or any description indicating a representative, pledge or other
fiduciary relation, or any reference to any other instrument or to the rights
of any other person appearing upon its record or upon the share certificate.
However, the corporation shall treat any person furnishing proof of his
appointment as a fiduciary as if he were the holder of record of the shares.
SECTION 9. TREASURY SHARES. Treasury shares of the corporation shall
consist of shares which the corporation has issued and thereafter acquired but
not canceled. Treasury shares shall not carry voting or dividend rights.
ARTICLE VII
INDEMNIFICATION AND INSURANCE
To the maximum extent permitted by Maryland law in effect from time to
time, the corporation, without requiring a preliminary determination of the
ultimate entitlement to indemnification, shall indemnify and shall pay or
reimburse reasonable expenses in advance of final disposition of a proceeding
to: (i) any individual who is a present or former director or officer of the
corporation; or (ii) any individual who, while a director of the corporation
and at the request of the corporation, serves or has served another
corporation, partnership, joint venture, trust, employee benefit plan or any
other enterprise as a director, officer, partner or trustee of such
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. The corporation may, with the approval of its board of directors,
provide such indemnification and advancement of expenses to a person who served
as a predecessor of the corporation in any of the capacities described in (i)
or (ii) above and to any employee or agent of the corporation or a predecessor
of the corporation.
Neither the amendment nor repeal of this Article, nor the adoption or
amendment of any other provision of the bylaws or Articles of Incorporation of
the corporation inconsistent with this Article, shall apply to or affect in any
respect the applicability of the preceding paragraph with respect to any act or
failure to act which occurred prior to such amendment, repeal or adoption.
SECTION 1. INSURANCE INDEMNIFICATION. The corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was:
(i) a director, officer, employee, or other agent of this corporation; or (ii)
any person who is or was serving at the request of this corporation as a
director, officer or employee of another foreign or domestic corporation,
partnership, joint venture trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation
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would have the power to indemnify him against such liability under the
provisions of this Article VII.
ARTICLE VIII
SEAL
SECTION 1. SEAL. The board of directors may authorize the adoption
of a seal by the corporation. The seal shall have inscribed thereon the name
of the corporation and the year of its organization. The board of directors
may authorize one or more duplicate seals and provide for the custody thereof.
SECTION 2. AFFIXING SEAL. Whenever the corporation is required to
place its seal to a document, it shall be sufficient to meet the requirements
of any law, rule or regulation relating to a seal to place the word "(SEAL)"
adjacent to the signature of the person authorized to execute the document on
behalf of the corporation.
ARTICLE IX
NOTICES
SECTION 1. GENERAL. Whenever these bylaws require notice to any
Stockholder, director, officer or agent, such notice does not mean personal
notice. A person may give effective notice under these bylaws in ever case by
depositing in writing in a post office or letter box in a postpaid, sealed
wrapper, or by dispatching a prepaid telegram addressed to such Stockholder,
director, officer or agent at his address on the books of the corporation.
Unless these bylaws expressly provide to the contrary, the time when the person
sends notice shall constitute the time of the giving of notice.
SECTION 2. WAIVER OF NOTICE. Whenever the law or these bylaws
require notice, the person entitled to said notice may waive such notice in
writing, either before or after the time stated therein.
ARTICLE X
MISCELLANEOUS
SECTION 1. FACSIMILE SIGNATURES. In addition to the use of facsimile
signatures which these bylaws specifically authorize, the corporation may use
such facsimile signatures of any officer or officers, agents or agent, of the
corporation as the board of directors or a committee of the board of directors
may authorize.
SECTION 2. FISCAL YEAR. The board of directors shall have the
authority to fix and change the fiscal year of the corporation.
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ARTICLE XI
CONTROL SHARES
The provisions of Subtitle 7 of Title 13 of the Maryland Law shall not
apply to "control share acquisitions" (as such term is defined in Section 3-701
of the Maryland Law) of shares of the capital stock of the corporation.
ARTICLE XII
AMENDMENTS
The stockholders or board of directors shall have the power to adopt,
alter, or repeal any provision of these bylaws and to make new bylaws.
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<PAGE> 1
exhibit 5
COON & SHACH, LLC
ATTORNEYS AT LAW
NINE WEST MULBERRY STREET
BALTIMORE, MARYLAND 21201-4408
Telephone (410) 244-8800
Facsimile (410) 244-8801
Curtis C. Coon*
Marc E. Shach
- ------------------
Jane Poland Sopher
David H. Cole
Kristin J. Case
May 29, 1997
*Also Admitted in D.C.
MBfUSA, Inc.
500 Park Boulevard, Suite 1260
Itasca, Illinois 60143
RE: MBfUSA, Inc.
Registration Statement on Form S-8
Gentlemen:
We have acted as special counsel to MBfUSA, Inc., a Maryland corporation
(the "Company"), in connection with rendering an opinion to be used as an
exhibit to a registration statement on Form S-8 (the "Registration Statement"),
to be filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), with respect to the
public offering of up to 400,000 shares of the Company's common stock, par
value $0.01 (the "Shares"), to be issued in connection with the exercise of
options granted under the Company's Amended and Restated Omnibus Equity
Compensation Plan (the "Plan). In connection with the registration of the
Shares, you have requested our opinion with respect to the matters set forth
below.
For purposes of this opinion, we have reviewed the Registration Statement.
In addition, we have examined the originals or copies certified or otherwise
identified to our satisfaction of: (i) the Company's Certificate of
Incorporation, as amended to date; (ii) the By-laws of the company, as amended
to date; (iii) records of the corporate proceedings of the Company as we deemed
necessary or appropriate as a basis for the opinions set forth herein; and (iv)
those matters of law as we have deemed necessary or appropriate as a basis for
the opinions set forth herein. We have not made any independent review or
investigation of the organization, existence, good standing, assets, business
or affairs of the Company, or of any other matters. In rendering our opinion,
we have assumed without inquiry the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of these documents submitted to us as copies.
<PAGE> 2
MBfUSA, Inc.
May 29, 1997
Page 2
-----------------
We have not undertaken any independent investigation to determine facts
bearing on this opinion, and no inference as to the best of our knowledge of
facts based on an independent investigation should be drawn from this
representation. Further, our opinions, as hereinafter expressed, are subject
to the following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors; and (ii) the effect of general
principles of equity whether enforcement is considered in a proceeding in
equity or at law and the discretion of the court before which any proceeding
therefore may be brought.
We are admitted to the practice of law only in the State of Maryland and,
accordingly, we do not purport to be experts on the laws of any other
jurisdiction nor do we express an opinion as to the laws of jurisdictions other
than the laws of the State of Maryland, as currently in effect.
On the basis of, and in reliance upon, the foregoing, and subject to the
qualifications contained herein, we are of the opinion that the Shares, when
issued pursuant to the Plan, will be validly issued, fully-paid and
nonassessable.
Respectfully submitted,
/s/ COON & SCHACH, LLC
COON & SHACH, LLC
CCC/gi
<PAGE> 1
Exhibit 10
MBf USA, INC.
AMENDED AND RESTATED
OMNIBUS EQUITY COMPENSATION PLAN
1. ESTABLISHMENT AND PURPOSE OF THE PLAN. MBf USA, Inc. amends
and restates its Omnibus Equity Compensation Plan for the purpose of joining
capable and experienced people and entities to the Company's business purposes.
The Plan shall fulfill its purpose by compensating them with equity-based
awards, whose value is connected to the continued growth and profitability of
the Company and whose characteristics of ownership foster a mutual interest
with the Company's shareholders.
2. DEFINITIONS.
(a) Affiliate. Any entity in which the Company has a
substantial direct or indirect interest, as determined by the Committee.
(b) Agent. An officer of the Company or an Employee,
person, or entity performing services for or selling goods to the Company or
transacting business by or through its names, or an employee of such person or
entity.
(c) Award. A compensation grant related to the Company's
equity, including Director Options, Restricted Stock, Options, and any
Equity-Based Award.
(d) Awardee. An Agent to whom an Award is made.
(e) Board of Directors. The Board of Directors of the
Company.
(f) Change of Control. A change in control of the
Company of a nature that would be required to be reported in response to Item
5(f) of Schedule 14A of Regulation 14A promulgated under the Exchange Act,
whether or not the Company is then subject to such reporting requirements,
provided that, without limitation, a Change in Control shall be deemed to have
occurred if (A) any individual, partnership, firm, corporation, association,
trust, unincorporated organization, or other entity, or any syndicated or group
deemed to be a person under Section 14(d)(2) of the Act, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power of the
Company's then outstanding securities entitled to vote in the election of
directors of the Company; or (B) during any period of two (2) consecutive years
(not including any period prior to the execution of this Plan), individuals who
at the beginning of such period constitute the Board of Directors and any new
directors, whose election by the Board of Directors or nomination for election
by the Company's shareholders was approved by a vote of at least three quarters
( 3/4) of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously approved, cease for any reason to constitute a majority thereof. A
change in control shall not be deemed to be a Change in Control for purposes of
this Plan if the Board of Directors has approved
<PAGE> 2
such change in control prior to either (I) the occurrence of any of the events
described in the foregoing clauses (A) and (B), or (ii) the commencement by any
person other than the Company of a tender offer for the Common Stock.
(g) Code. The Internal Revenue Code of 1986, as amended.
(h) Common Stock. The common stock of the Company, par
value $.01 a share, or such other class or kind of shares or other securities
as may be applicable under Section 10.
(i) Company. MBf USA, Inc., a Maryland corporation, or
any successor to substantially all its business, and any entity owned in whole
or in part by it, if the consent requires or permits.
(j) Committee. The Compensation Committee of the Board
of Directors, or such other committee designated by the Board of Directors,
designated to administer the Plan under Section 4.
(k) Director Options. Non-Qualified Options awarded
under Section 6 of the Plan.
(l) Employee. A full-time managerial, administrative, or
professional person employed by the Company, including an officer or director
who is such an employee.
(m) Equity-Based Award. An award by the Committee under
Section 9 of the Plan.
(n) Exchange Act. The Securities Exchange Act of 1934,
as amended.
(o) Fair Market Value. If the Common Stock is traded on
the over-the-counter market, the mean between the highest closing bid and
lowest closing asked prices for a share of the Common Stock as reported by the
National Association of Securities Dealers Automated Quotion System, or if not
reported by that system, the mean between the closing bid and asked prices as
quoted by a source designated by the Committee; if the Common Stock is listed
on a national or regional stock exchange, on the Nasdaq Stock Market, either on
the National Market System or the SmallCap Market, the closing sales price per
share on such exchange, or the Nasdaq Stock Market; or if the Common Stock is
neither traded in the over-the-counter market nor listed on an exchange or the
Nasdaq Stock Market, the per share value determined in good faith by the
Committee. The Committee may in its discretion average the Fair Market Value
over a period of time, may utilize a fair market value formula required by
federal tax or securities laws, or may modify this definition in such ways as
it deems appropriate and consistent with the purposes of the Plan.
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<PAGE> 3
(p) Incentive Stock Option. Any Option which meets the
requirements of an incentive stock option as defined in Section 422A of the
Code, or any statutory provision that may replace such section, other than an
Option which states that it is not an Incentive Stock Option.
(q) Non-Qualified Option. Any Option which is not an
Incentive Stock Option.
(r) Options. Any option or options granted from time to
time under the Plan other than Director Options.
(s) Plan. The MBf USA, Inc. Amended and Restated Omnibus
Equity Compensation Plan herein set forth as the same may from time to time be
amended.
(t) Predecessor. American Drug Screens, Inc., an
Oklahoma corporation.
(u) Restricted Stock. Common Stock awarded by the
Committee under Section 7 of the Plan.
3. ELIGIBILITY. Any Agent is eligible to receive an Award,
provided that a director of the Company who is a member of the Committee and
who is not an Employee or an officer shall be eligible to receive only Director
Options or Restricted Stock as permitted under Section 6 of the Plan.
4. PLAN ADMINISTRATION.
(a) Administrator. The Plan shall be administered by the
Committee.
(b) Administrative Powers. The Committee shall have full
power to interpret and administer the Plan and full authority to act in
selecting the Agents or class of Agents to whom Awards will be granted, in
determining the type and amount of Awards to be granted to each Agent or class
of Agent, the terms and conditions of Awards granted under the Plan and the
terms of agreements which will be entered into with Awardees. The Committee
shall have the power to make regulations for carrying out the Plan, and to make
changes in such regulations as they from time to time deem proper. Any
interpretation by the Committee of the terms and provisions of the Plan, and
the administration thereof, and all action taken by the Committee, shall be
final, binding, and conclusive on the Company, its shareholders, Affiliates,
all Agents, their respective legal representatives, successors, and assigns and
upon all other persons claiming under or through any of them. As to the
selection of and grants of Awards to Awardees who are not subject to Sections
16(a) and 16(b) of the Exchange Act, the Committee may delegate any or all of
its responsibilities to appropriate Employees of the Company.
(c) Administration Liability. Members of the Board of
Directors, members of the Committee, or Employees acting under the Plan shall
incur no liability except for gross negligence or willful misconduct in the
performance of their duties.
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<PAGE> 4
5. SHARES SUBJECT TO GRANT. Subject to adjustment as provided in
Section 11, the total number of shares of Common Stock which the Company may
grant under the Plan shall be Four Hundred Thousand (400,000) shares of Common
Stock. Any shares issued by the Company through the assumption or substitution
of outstanding grants from an acquired company shall not reduce the shares
available for grants under the Plan. Any shares issued hereunder may consist,
in whole or in part, of authorized and unissued shares or treasury shares. If
any shares necessary to an Award are forfeited or the Award otherwise
terminates without the issuance of shares, the shares subject to such Award, to
the extent of any such forfeiture or termination, shall again be available for
grant under the Plan.
6. DIRECTOR OPTIONS; RULES AND CONDITIONS. Each director who is
not an incumbent director shall receive upon his election and qualification
(subject to paragraph (a) below) Non-Qualified Options to purchase 10,000
shares of Common Stock. The grant is further subject to the following rules
and conditions:
(a) Director Option Grants. Director Options shall be
evidenced by a Director Option agreement providing for the grant as of the date
of the director's election and qualification, provided that the Committee
(excluding the director, if he or she is a member) may defer the grant for up
to six months from such date. The agreements shall conform to the requirements
of the Plan and may contain such other provisions (including methods of options
exercises and provisions for protection of the Director Options in the event of
mergers, consolidations, dissolutions, and liquidations) as the Committee shall
deem advisable.
(b) Director Option Price. The Committee shall determine
the exercise price of a Director Option, provided that the exercise price shall
be not less than the lowest Fair Market Value of the Common Stock during the
six months preceding the election and qualification.
(c) Terms of Director Options. The Director Option
agreements shall specify when a Director Option may be exercisable and the
terms and conditions applicable in the event of the director's termination of
service during the Director Option's term.
(d) Payment of Director Option Price. The price of the
shares of Common Stock for which a Director Option shall be exercised shall be
paid in full in cash at the time of the exercise or, with the consent of the
Committee (excluding the exercising director, if he or she is a member), in
whole or in part in other consideration including Common Stock or Restricted
Stock valued at Fair Market Value. A director shall have no voting rights with
respect to any shares of Common Stock subject to Director Options unless and
until a stock certificate for such shares shall have been issued to him or her,
but may have such other rights and privileges as the Committee provides in the
Director Option Agreement.
(e) Further Restrictions. The Committee may impose
restrictions in the Director Option agreements so that the Plan will qualify
for an exemption from the provisions of Section 16(b) of the Exchange Act.
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<PAGE> 5
(f) Exclusivity. The Director Options shall not be the
exclusive means by which the Company may compensate its directors. Directors
may receive, in lieu of some or all of their authorized cash compensation,
Restricted Stock awards having a value not greater than the cash foregone, with
the Committee's consent (excluding the electing director, if he or she is a
member).
7. RESTRICTED STOCK RULES AND CONDITIONS. The grant of Restricted
Stock shall be upon the following rules and conditions:
(a) Restricted Stock Grants. Restricted Stock shall be
evidenced by Restricted Stock agreements. The agreements shall conform to the
requirements of the Plan and may contain such other provisions (including
provisions for the protection of Restricted Stock in the event of mergers,
consolidations, dissolutions, and liquidations, affecting either the agreement
or the stock issued thereunder) as the Committee shall deem advisable.
(b) Issuance of Restricted Stock. Upon determination of
the number of shares of Restricted Stock to be granted to an Awardee, the
Committee shall direct that a certificate representing the number of shares of
Common Stock be issued to the Awardee with the Awardee as the registered owner.
The certificate representing such shares shall either be legended to restrict
the sale, transfer, assignment, pledge, or other encumbrances during the
restricted period or deposited by the Awardee, together with a stock power
endorsed in blank, with the Company.
(c) Dividends and Voting Rights. During the restricted
period the Awardee shall have the right to receive dividends from and to vote
the shares of Restricted Stock.
(d) Delivery. The Restricted Stock agreement shall
specify the duration of the restricted period and the performance and/or
employment conditions under which the Restricted Stock may be forfeited to the
Company. At the end of the restricted period the restrictions imposed
hereunder shall lapse with respect to the number of shares of Restricted Stock
as determined by the Committee, and the legend may be removed or the shares
delivered, as the case may be, with respect to such number. The Committee may,
in its sole discretion, modify or accelerate the vesting of shares of
Restricted Stock.
8. OPTIONS RULES AND CONDITIONS. The grant of Options shall be
upon the following rules and conditions:
(a) Options and Grants. Options shall be evidenced by
Option agreements. The agreements shall conform to the requirements of the
Plan, and may contain such other provisions (including restrictions upon the
exercise of the Option, and provisions for the protection of Options in the
event of mergers, consolidations, dissolutions, and liquidations) as the
Committee shall deem advisable.
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<PAGE> 6
(b) Option Price. The price at which Common Stock may be
purchased upon exercise of an Option shall be determined by the Committee in
accordance with its rules, or, in their absence, by the Committee's discretion.
(c) Terms of Options. The Option agreements shall
specify when an Option may be exercisable and the terms and conditions
applicable in the event of the Awardee's termination of employment during the
Option's term.
(d) Incentive Stock Option. Each provision of the Plan
and each Option agreement relating to an Incentive Stock Option shall be
construed so that each Incentive Stock Option shall be an incentive stock
option as defined in Section 422A of the Code, or any statutory provision that
may replace such Section, and any provisions thereof that cannot be so
construed shall be disregarded. In no event may an Awardee be granted
Incentive Stock Options which do not comply with such grant and vesting
limitations as may be prescribed by Section 422A(b)(7) of the Code, or any
successor section or limitation and any implementing regulations.
(e) Payment of Option Price. The Option Price of the
shares of Common Stock for which an Option shall be exercised shall be paid in
full in cash at the time of the exercise or, with the consent of the Committee,
in whole or in part in other consideration. An Awardee shall have no rights of
a shareholder with respect to any shares of Common Stock subject to an Option
unless and until a stock certificate for such shares shall have been issued to
him or her.
9. EQUITY-BASED AWARDS. The grant of Equity-Based Awards shall
be upon the following rules and regulations:
(a) Equity-Based Awards. The Committee may grant awards
which are valued, in whole or in part, by reference to or otherwise based on
the Common Stock. All grants shall be evidenced by written agreements which
conform to the requirements of the Plan and may contain such other provisions
as the Committee shall deem advisable.
(b) In Conjunction with Other Awards. Any Equity-Based
Award may be granted alone, in addition to, or in tandem with Restricted Stock,
Options, or other Equity-Based Awards as the Committee may determine.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the Event of a
reorganization, recapitalization, stock dividend, combination of shares,
merger, consolidation or any other change in the corporate structure of the
Company affecting Common Stock, or a sale by the Company of all or part of its
assets, or any distribution to shareholders other than normal cash dividend,
the Board of Directors shall make appropriate adjustment to the number and kind
of shares authorized by the Plan and any adjustments to outstanding Awards as
it determines appropriate. No fractional shares of Common Stock shall be
issued pursuant to such an adjustment, however, and the Fair Market Value of
any fractional shares resulting from adjustments pursuant to this section shall
be paid in cash to the Awardee.
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<PAGE> 7
11. EFFECTIVE DATE, TERMINATION AND AMENDMENT. The Plan became
effective with the Predecessor on February 12, 1991. The Plan shall remain in
full force and effect until terminated by the Board of Directors, who shall
have the power to amend, suspend or terminate the Plan at any time; provided,
however, that the provisions pertaining to Director Options shall not be
amended more than once every six (6) months, other than to comport with changes
in the Code or the rules thereunder.
12. FORFEITURE. Awards may be forfeited if the Awardee terminates
his or her employment or contractual relationship with the Company or an
Affiliate for any reason other than death or retirement, except that the
Committee shall have the authority to provide for the Award's continuation, in
whole or in part, to the extent and for such period of time that the Awardee
is subject to a covenant not to compete with the Company or whenever it shall
determine that such continuation is in the best interest of the Company.
Awards may furthermore be forfeited by an Awardee if the Committee determines
that the Awardee has at any time engaged in any activity harmful to the
interest of the Company or Affiliates; engages in competition with the Company
or Affiliates; or accepts employment with a competitor of the Company or
Affiliates.
13. TAX WITHHOLDING.
(a) The Company shall have the power to withhold from any source,
or require an Awardee to remit to the Company, an amount sufficient to satisfy
any withholding or other tax due from the Company with respect to any amount
payable and/or shares issuable under the Plan, and the Company may defer such
payment or issuance unless indemnified to its satisfaction.
(b) Subject to the consent of the Committee, due to the exercise
of a Nonstatutory Option or the issuance of any other stock award under the
Plan, an Awardee may make an irrevocable election (an "Election") to (a) have
Shares otherwise issuable upon exercise withheld, or (b) tender back to the
Company Common Stock received pursuant to such exercise or issuance or (c)
deliver back to the Company pursuant to such exercise or issuance previously
acquired Common Stock having a Fair Market Value sufficient to satisfy all or
part of the Awardee's estimated tax obligations associated with the
transaction. Such Election must be made by an Awardee prior to the date on
which the relevant tax obligation arises (the "Tax Date"). The Committee may
disapprove of any Election, may suspend or terminate the right to make
Elections, or may provide with respect to any Option under this Plan that the
right to make Elections shall not apply to such Options.
(c) If an Awardee is an Officer, then an Election is subject to
the following additional restrictions:
(1) No Election shall be effective for a Tax Date which
occurs within six months of the grant of the award.
(2) The Election must be made and must be effective
during a period beginning on the third business day following the date of
release for publication of the Company's quarterly
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<PAGE> 8
or annual summary statements of sales and earnings and ending on the twelfth
business day following such date.
14. BENEFICIARY UPON AWARDEE'S DEATH. An Awardee's Award shall be
transferable at his or her death to the beneficiary designated by the Awardee
on forms prescribed by and filed with the Committee. Upon the death of an
Awardee, such beneficiary shall succeed to the rights of the Awardee. If no
such designation of a beneficiary has been made, the Awardee's Awards shall
succeed to his or her legal representative and shall be transferable by will or
pursuant to the laws of descent and distribution.
15. GENERAL PROVISIONS.
(a) Nothing contained in the Plan, or in any Award
granted pursuant to the Plan, shall confer upon any Employee any right of
continued employment by the Company or Affiliate, nor alter the right of the
Company or Affiliate to terminate the Employee's employment at any time with or
without cause.
(b) For purposes of this Plan, transfer of employment
between the Company and its subsidiaries and Affiliates shall not be deemed
termination of employment.
(c) Nothing in this Plan, or in any Award granted
pursuant to this Plan, shall confer upon any non- Employee Agent any right of
continued relationship with the Company or Affiliates, or alter the
relationship between them, including any rights of the Company or Affiliate to
terminate its relationship with the non-Employee Agent.
(d) Appropriate provision may be made for all taxes
required to be withheld in connection with any Award, the exercise thereof and
the transfer of shares of Common Stock in respect of any federal, state or
local withholding taxes, whether domestic or foreign. In the case of the
payment of Awards in the form of Common Stock, the Company shall have the right
to retain the number of shares of Common Stock whose fair market value equals
the amount to be withheld.
(e) If any day on or before which action under the Plan
must be taken falls on a Saturday, Sunday or legal holiday, such action may be
taken on the next succeeding day not a Saturday, Sunday or legal holiday.
(f) Without amending the Plan, awards may be granted to
Agents who are foreign nationals or employed outside the United States or both,
on such terms and conditions different from those specified in the Plan as may,
in the judgment of the Committee, be necessary or desirable to further the
purpose of the Plan.
(g) To the extent that federal laws (such as the Exchange
Act, the Code, or the Employee Retirement Income Security Act of 1974) do not
otherwise control the Plan and all
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<PAGE> 9
determinations made and actions taken pursuant hereto shall be governed by the
law of Maryland and construed accordingly.
(h) The Committee may amend or substitute any outstanding
Awards to the extent it deems appropriate. Such amendment or substitution may
be unilateral by the Company, provided that Award substitutions shall be for
comparable value.
(i) The Committee may defer or permit an Awardee to defer
the receipt of consideration upon an Award pursuant to such rules as the
Committee may promulgate or as provided in an Award agreement. The Committee
may provide in Award agreements for the receipt of interest, dividends, or
other consideration which would have been received on the Common Stock
underlying or tied to the Award.
(j) Notwithstanding any other provision of the Plan to
the contrary, at the time of any Change in Control:
(1) The restrictions and limitations applicable
to any Director Options, Options, Restricted Stock and other
Equity-Based Awards, in each case to the extent not already vested
under the Plan, shall lapse and such shares and awards shall be deemed
fully vested.
(2) Any Director Options and Options awarded
under the Plan not previously exercisable and vested shall become
fully exercisable and vested.
(3) The value of all outstanding Director
Options, Options, Restricted Stock, and other Equity-Based Awards, in
each case to the extent vested, shall unless otherwise determined by
the Committee in its sole discretion at or after grant but prior to
any Change in Control, be cashed out on the basis determined by the
Committee as of the date such Change in Control is determined to have
occurred or such other date as the Committee may determine prior to
the Change in Control.
(k) Participation in the Plan shall not be the exclusive
means by which the Company may compensate its Employees, Agents, or directors.
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<PAGE> 1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report dated February 19, 1997, and to all references to our Firm included in
or made a part of this registration statement.
/s/ Arthur Andersen LLP
------------------------
ARTHUR ANDERSEN LLP
Chicago, Illinois
May 23, 1997
