<PAGE>
As filed with the Securities and Exchange Commission on November 6, 1996
Registration No. 33-_______________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAPITAL ADVISORS ACQUISITION CORP.
(Exact name of registrant as specified in its Charter)
Delaware 75-2254748
- ------------------------- -----------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
4180 La Jolla Village Drive, Suite 500, La Jolla, California 92037
-----------------------------------------------------------------
(Address of principal executive offices and zip code)
Capital Advisors Acquisition Corp. 1996-1997 Stock Compensation Plan
-------------------------------------------------------------
(Full title of the Plan)
Thomas R. Brooksbank, President
Capital Advisors Acquisition Corp., 3900 Paradise Road, Suite 263
Las Vegas, Nevada 89109
(702) 329-5114
(Name, address and telephone number of agent for service)
Copies to:
George G. Chachas, Esq., Wenthur & Chachas
4180 La Jolla Village Drive, Suite 500
La Jolla, California 92037
(619) 457-3800
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Registration
to Be Registered Registered(1) Per Share(2) Offering Price Fee
<S> <C> <C> <C> <C>
Common Stock 3,500,000 $0.02 70,000 $100.00
$.0001 Par Value
================================================================================
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement also covers such number of
additional shares of Common Stock as may become available for issuance pursuant
to the Plans in the event of certain changes in outstanding shares, including
reorganizations, recapitalizations, stock splits, stock dividends and reverse
stock splits.
<PAGE>
(2) Estimated for the purpose of calculating the registration fee pursuant to
(ii) Rule 457(h) with respect to the 3,500,000 shares available for issuance
under the Plans, on the basis of a price of $0.02 per share.
2
<PAGE>
PART I.
The document(s) containing the information called for in Part I., of Form
S-8 will be provided to participants to the Plans set forth above. Such
information is not being filed with or included in this registration statement
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
3
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation by Reference.
The following documents filed by Capital Advisors Acquisition Corp. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in paragraph (a) above, as follows: the
Company's Quarterly Report for the first quarter ended March 31, 1996, and the
Company's Current Report on Form 10-Q dated June 30, 1996.
(c) All reports and documents filed by the Company with the Commission
pursuant to Sections 13(a) or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the filing of a post-effective amendment which
indicates that all Securities officered hereby have been sold or which
deregisters all Securities then remaining unsold. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for the purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersede such statement. Any such statement shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Item 4. Description of Securities.
The Company authorized capitalization is 60,000,000 shares of Common Stock,
par value $.000l per share, of which 19,750 shares were issued and outstanding
as of November 6, 1996. Holders of the Company's Common Stock are entitled to
one vote per share on each matter submitted to vote at any meeting of
shareholders. Shares of Common Stock do not carry cumulative voting rights and
therefore, holders of a majority of the outstanding shares of Common Stock will
be able to elect the entire board of directors and, if they do so, minority
shareholders would not be able to elect any members to the board of directors.
The Company's board of directors has authority, without action by the Company's
shareholders, to issue all or any portion of the authorized but unissued shares
of Common Stock, which would reduce the percentage ownership of the Company of
its shareholders and which may dilute the book value of the Common Stock.
4
<PAGE>
Shareholders of the Company have no preemptive rights to acquire additional
shares of Common Stock. The Common Stock is not subject to redemption and
carries no subscription or conversion rights. In the event of liquidation of the
Company, the shares of Common Stock are entitled to share equally in corporate
assets after satisfaction of all liabilities. Holders of Common Stock are
entitled to receive such dividends as the board of directors may from time to
time declare out of funds legally available for the payment of dividends. The
Company has not paid cash dividends on its Common Stock and does not anticipate
that it will pay cash dividends in the foreseeable future.
Item 5. Interests of Named Experts and Counsel.
George G. Chachas of Wenthur & Chachas, beneficially owns 2,250 shares of
the Company's Common Stock.
Legal Counsel
The validity of the Common Stock offered hereby will be passed upon for the
Company by Wenthur & Chachas of La Jolla, California.
Experts
The consolidated financial statements and financial statement schedules of
the Company incorporated by reference in this Registration Statement have been
examined by McBride & Reeves, CPA's independent public accountants, whose report
thereon is contained in the Company's annual report on Form 10-K for the fiscal
year ended December 31, 1995, and has been incorporated herein by reference in
reliance upon such report of McBride & Reeves given upon their authority as
experts in accounting and auditing
Item 6. Indemnification of Directors and Officers.
The Company has adopted provisions in its Certificate of Incorporation that
eliminates the liabilities of each person who is or was a director, officer,
employee or agent of the Company for in certain circumstances and provides that
each director, officer, employee or agent of the Company shall be indemnified by
the Company against all expenses and liabilities, including counsel fees
reasonably incurred by or imposed upon and in connection with any proceeding to
which the director, officer, employee or agent may be a party, or in which he or
she may become involved by reason of being or having been an officer, director,
employee or agent of the Company settlement thereof, regardless of whether a
director, officer, employee or agent, at the time such expenses are incurred,
except in such cases wherein the director, officer, employee or agent is judged
guilty of willful misfeasance or malfeasance, willful misconduct or gross
negligence in the performance of any duty; provided, however, in the event of a
settlement, the indemnification herein shall only apply when the Board of
Directors approves such settlement and reimbursement as being in the best
interests of the Company. The right of indemnification shall be in addition to
and not exclusive of all other rights to which such director, officer, agent or
employee may be entitled. Subject to any limitations set forth in the
Certificate of Incorporation,
5
<PAGE>
such indemnification shall be to the fullest extent permitted by the Delaware
General Corporation Code or any other applicable laws now in effect or as may
hereafter be amended. No director of the Company shall be personally liable to
the Corporation
The Company's Certificate of Incorporation also provide that no person
shall be liable to the Company for any loss or damage suffered by it on account
of any action or act omitted to be taken by a director, officer, employee or
agent of the Company in good faith if such person (i) exercised or used the same
degree of care and skill as a prudent person would have exercised or used under
the same or similar circumstances in the conduct of his or her own personal
affairs, or (ii) took or omitted to take such action in reliance upon the advice
of counsel for the Company or other statements made or information furnished by
officers or employees of the Company which he or she had reasonable grounds to
believe or upon a financial statement of the Company prepared by an accountant,
officer of the Company in charge of its accounting or employees of the Company
in charge of its accounts or certified by a public accountant or firm of public
accountants. The Company's by-laws provide for the indemnification of its
officers, directors, employees and agents to the full extent permitted by the
Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The following exhibits are filed with this Registration Statement:
Exhibit
Number Document .
4.1 Amended and Restated Certificate of Incorporation dated
October 29, 1996.
4.2 Amended and Restated By-Laws of the Corporation.
5 Opinion of Wenthur & Chachas as to the legality of the
Common Stock to be registered hereunder.
10.1 Capital Advisors Acquisition Corp.,
1996-1997 Stock Compensation Plan.
23.1 Consent of McBride & Reeves, CPA's, Independent Auditors.
23.2 Consent of Wenthur & Chachas (contained in Exhibit 5 hereto).
24 Power of Attorney.
6
<PAGE>
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act of 1933 each filing of the
registrants annual report pursuant to section 13(a) or 15(d) of the Securities
Exchange Act of 1934 and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) or the Securities Exchange Act of
1934 that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering or such securities at that tire shall be deemed to be
the initial bona fide offering thereof.
(c) 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 the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any 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.
7
<PAGE>
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 for 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 Las Vegas, State of Nevada on November 6, 1996.
CAPITAL ADVISORS ACQUISITION CORP.
/S/ Thomas R. Brooksbank
-----------------------------
Name: Thomas R. Brooksbank
Title: President and
Chief Financial Officer
/S/ George G. Chachas
-----------------------------
Name: George G. Chachas
Title: Secretary
8
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas R. Brooksbank and George G.
Chachas, to act jointly, as his or her true and lawful attorneys-in-fact, each
with full powers of substitution, for him or her in any and all capacities, to
sign any and all amendments to this Registration Statement on Form S-8, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his or her substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
/S/ Thomas R. Brooksbank Director November 6, 1996
- ---------------------------
Thomas R. Brooksbank
/S/ James F. Franklin Director November 6, 1996
- ---------------------------
James F. Franklin
/S/ E.C. Kaufer Director November 6, 1996
- ---------------------------
E.C. Kaufer
/S/ George G. Chachas Director November 6, 1996
- ---------------------------
George G. Chachas
9
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
EXHIBITS
----------------
Registration Statement on Form S-8
CAPITAL ADVISORS ACQUISITION CORP.
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
4.1 Amended and Restated Articles of Incorporation
dated October 29, 1996. 12
4.2 Amended and Restated By-Laws of the Corporation. 16
5 Opinion of Wenthur & Chachas as to the legality
of the Common Stock to be registered hereunder. 31
10.1 1996-1997 Stock Compensation Plan. 33
23.1 Consent of McBride & Reeves
Certified Public Accountants, Ltd.,
Independent Auditors. 39
23.2 Consent of Wenthur & Chachas
(contained in Exhibit 5 hereto). 40
24 Power of Attorney (See Page 9) 41
<PAGE>
EXHIBIT 4.1
Amended and Restated Certificate of Incorporation dated October 29, 1996
<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CAPITAL ADVISORS ACQUISTITION CORP.
- -------------------------------------------------------------------------------
Capital Advisors Acquisition Corp., incorporated November 22, 1988.
Thomas R. Brooksbank and George G. Chachas hereby certify that:
1. They are the president and secretary, respectively, of Capital Advisors
Acquisition Corp., a Delaware corporation (the "Corporation").
2. The Certificate of Incorporation of this Corporation is amended and
restated in its entirety to read as follows:
ARTICLE 1.
The name of this Corporation (hereinafter called the or this "Corporation")
is CAPITAL ADVISORS ACQUISITION CORP.
ARTICLE 2.
The address of the registered office of this Corporation in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, and the
name of the registered agent of this Corporation in the State of Delaware at
such address is Corporation Service Company, 1013 Centre Road, Wilmington,
Delaware 19805.
ARTICLE 3.
The purpose of this Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE 4.
This Corporation is authorized to issue one (1) class of shares to be
designated as Common Stock ("Common Stock"). The total number of shares of
Common Stock this Corporation shall have the authority to issue is Sixty Million
(60,000,000). The Common Stock shall have a par value of $.0001 per share.
ARTICLE 5.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors shall have the power, both before and after receipt of
any payment for any of the Corporation's capital stock, to adopt, amend, repeal,
or otherwise alter the Bylaws of the Corporation without any action on the part
of the stockholders; provided however, that the grant of such power to the Board
of Directors shall not divest the stockholders of nor limit their power to
adopt, amend, repeal or otherwise alter the Bylaws.
Page 1 of 3
<PAGE>
ARTICLE 6.
Elections of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide.
ARTICLE 7.
The Corporation reserves the right to adopt, repeal, rescind or amend in
any respect any provisions contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by applicable law, and all rights conferred
on stockholders herein are granted subject to this reservation.
ARTICLE 8.
A director of the Corporation shall, to the full extent permitted by the
Delaware General Corporation Law as it now exists or as it may hereafter be
amended, not be liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Neither any amendment nor
repeal of this Article Eighth shall eliminate or reduce the effect of this
Article Eighth in respect of any matter occurring, or any cause of action, suit
or claim that but for this Article Eighth, would accrue or arise, prior to such
amendment, repeal, or adoption of an inconsistent provision."
We further declare under penalty of perjury under the laws of the State of
Delaware that the matters set forth in this certificate are true and correct of
our own knowledge.
Date: October 29, 1996 /S/ Thomas R. Brooksbank
------------------------------
By: Thomas R. Brooksbank
Its: President
/S/ George G. Chachas
-------------------------------
By: George G. Chachas
Its: Secretary
Page 2 of 3
<PAGE>
STATE OF NEVADA }
} SS.
COUNTY OF CLARK }
I, a Notary Public, hereby certify that on the 29th day of October, 1996,
personally appeared before me George G. Chachas, who being by me first duly
sworn, severally declared that they are the persons who signed the foregoing
Certificate of Incorporation of CAPITAL ADVISORS ACQUISITION CORP., as the
Secretary, and that the statements therein contained are true.
/S/ Victoria S. Hessling
- ------------------------
Notary Public
STATE OF NEVADA }
} SS.
COUNTY OF CLARK }
I, a Notary Public, hereby certify that on the 29th day of October, 1996,
personally appeared before me Thomas R. Brooksbank, who being by me first duly
sworn, severally declared that they are the persons who signed the foregoing
Certificate of Incorporation of CAPITAL ADVISORS ACQUISITION CORP., as the
President, and that the statements therein contained are true.
/S/ Victoria S. Hessling
- ------------------------
Notary Public
Page 3 of 3
<PAGE>
EXHIBIT 4.2
Amended and Restated By-Laws of the Corporation
<PAGE>
AMENDED AND RESTATED
BYLAWS
OF
CAPITAL ADVISORS ACQUISITION CORP.
ARTICLE I.
OFFICES
The registered office of the Corporation in the State of Delaware shall be
located in the City of Wilmington , County of New Castle. The Corporation may
establish or discontinue, from time to time, such other offices within or
without the State of Delaware as may be deemed proper for the conduct of the
Corporation's business.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of Shareholders shall be held at
such place or places, within or without the State of Delaware, as may from time
to time be fixed by the Board of Directors, or as shall be specified in the
respective notices, or waivers of notice, thereof.
Section 2. Annual Meeting. The annual meeting of Shareholders for the
election of Directors and the transaction of other business shall be held on
such date and at such time as may designated by the Board of Directors.
Section 3. Special Meetings. A special meeting of the Shareholders, or any
class thereof entitled to vote, for any purpose or purposes, may be called at
any time by the Chairman or the President or by order of the Board of Directors
and shall be called by the President or Secretary upon the written request of
Shareholders holding of record at least 50% of the outstanding shares of stock
of the Corporation entitled to vote at such meeting. Such written request shall
state the purpose for which such meeting is to be called.
Section 4. Notice of Meeting. Except as otherwise provided by law, written
notice of each meeting of Shareholders, whether annual or special, stating the
place, date and hour of the meeting shall be given not less than ten (10) days
or more than sixty (60) days before the date on which the meeting is to be hold
to each Shareholder of record entitled to vote thereat by delivering a notice
thereof to him personally or by mailing such notice in a postage prepaid
envelope directed to him at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices intended
Page 1 of 14
<PAGE>
for him be directed to another address, in which case such notice shall be
directed to him at the address designated in such request. Notice shall not be
required to be given to any Shareholder who shall waive such notice in writing,
whether prior to or after such meeting, or who shall attend such meeting in
person or by proxy unless such attendance is for the express purpose of
objecting, at the beginning of such meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Every notice of a
special meeting of the Shareholders, besides the time and place of the meeting,
shall state briefly the objects or purposes thereof.
Section 5. Shareholder List. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten (10) days before every
meeting of Shareholders, a complete list of the Shareholders entitled to vote at
the meeting, arranged in alphabetical order and showing the address of each
Shareholder and the number of shares registered in the name of each Shareholder.
Such a list shall be open to the examination of any Shareholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any Shareholder who is
present.
Section 6. Quorum and Adjourned Meetings. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
Shareholders for the transaction of business, except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, such quorum shall
not be present or represented at any meeting of the Shareholders, the
Shareholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting form time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournments for more than thirty
days, or if after the adjournment, a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each Shareholder of
record entitled to vote at the meeting.
Page 2 of 14
<PAGE>
Section 7. Organization. Except where otherwise provided by statute, the
President, and in his absence the highest ranking officer shall act as chairman
of such meeting. In the absence of the President and the Vice President, a
chairman shall be chosen by the Shareholders present. The Secretary of the
Company shall act as Secretary, in his absence the presiding officer may appoint
any person to act as Secretary of the meeting.
Section 8. Voting. At any meeting of the Shareholders, every Shareholder of
record who is entitled to vote shall at every meeting of the Shareholders be
entitled to one vote for each share of stock held by him on the record date;
except, however, that shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the share entitled to vote in the election
of directors of such other corporation is held by the corporation, shall neither
be entitled to vote nor counted for quorum purposes. Nothing in this Section
shall be construed as limiting the right of the Corporation to vote its own
stock held by it in a fiduciary capacity. At all meetings of the Shareholders, a
quorum being present, all matters shall be decided by majority note of the
shares of stock entitled to vote by Shareholders present in person or by proxy,
except as otherwise required by law or the Certificate of Incorporation. Unless
otherwise provided in the Certificate of Incorporation, all elections of
directors shall be by written ballot. Unless demanded by a Shareholder of the
Corporation present in person or by proxy at any meeting of the Shareholders and
entitled to vote thereat or so direct by the chairman of the meeting or required
by law, the vote thereat on any question need not be by written ballot, except
for elections of directors. On a vote by written ballot, each ballot shall be
signed by the Shareholder voting, or in his name by his proxy, if there be such
a proxy, and shall state the number of shares voted by him and the number of
votes to which each share is entitled.
Section 9. Proxies. Each Shareholder entitled to vote at a meeting of
Shareholders or to express consent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy. A proxy
acting for any Shareholder shall be duly appointed by an instrument in writing
subscribed by such Shareholder. No proxy shall be valid after the expiration of
three years from the date thereof unless the proxy provides for a longer period.
Section 10. Action without a Meeting. Any action required to be taken at
any annual or special meeting of Shareholders or any action which may be taken
at any annual or special meeting of Shareholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing setting forth
the action so taken shall be signed by the holders of
Page 3 of 14
<PAGE>
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Each written consent shall bear
the date of signature of each Shareholder who signs the consent and no written
consent shall be effective to take the corporate action referred to in that
consent unless, within sixty days after the earliest date consent delivered to
the Corporation, written consents signed by a sufficient number of Shareholders
to take the action referred to therein are delivered to the Corporation (by hand
or by certified or registered mail, return receipt requested) at its registered
office in the State of Delaware or its principal place of business or to an
officer or agent of the Corporation having custody of the Corporation's minutes
books. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent hall be given to those Shareholders who have
not consented in writing.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. Powers. The business, property and affairs of the Corporation
shall be managed under the direction of the Board of Directors.
Section 2. Nomination of Directors. Except as to directors elected pursuant
to the rights, if any, of holders of Common Stock, nominations for the election
of directors may be made by the Board of Directors or a committee appointed by
the Board of Directors or by any Shareholder entitled to vote in the election of
directors generally. However, any Shareholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such Shareholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the Corporation
not later than (i) with respect to an election to be held at an annual meeting
of Shareholders, ninety (90) days prior to the anniversary date of the
immediately proceeding annual meeting, and (ii) with respect to an election to
be held at a special meeting of Shareholders for the election of directors, the
close of business on the tenth day following the date on which notice of such
meeting is first given to Shareholders. Each such notice shall set forth: (a)
the name and address of the Shareholder who intends to make the nomination and
of the person or persons to be nominated; (b) a representation that the
Shareholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate
Page 4 of 14
<PAGE>
the person or persons specified in the notice; (c) a description of all
arrangements or understanding between the Shareholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the Shareholder; (d) such other
information regarding each nominee proposed by such Shareholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission; and (e) the consent of each nominee
to serve as a director of the Corporation if so elected. The presiding officer
of the meeting may refuse to acknowledge the nomination of any person not made
in compliance with the foregoing procedure.
Section 3. Election and Term. Except as to directors elected pursuant to
the rights, (if any) of holders of Common Stock, the Board of Directors shall be
divided into three classes as nearly equal in number as may be, with the term of
office of one class expiring each year. In case of any vacancies by reason of an
increase in the number of directors or otherwise, each additional director may
be elected by the Board of Directors, even though less than a quorum of the
Board of Directors, until the end of the term such additional director is
elected to fill and until his or her successor shall have been elected.
Directors shall continue in office until others are chosen and qualified in
their stead. When the number of directors is changed, any newly created
directorships or any decrease in directorships shall be so assigned among the
classes by a majority of the directors then in office, though less than a
quorum, as to make all classes as nearly equal in number as may be feasible. No
decrease in the number of directors shall shorten the term of any incumbent
director.
Section 4. Number. The number of directors to constitute the whole Board of
Directors shall be such number (not less than one nor more than eleven) as shall
be fixed from time to time by resolution of the Board of Directors.
Section 5. Quorum and Manner of Acting. Place of Meeting. Unless otherwise
provided by law, the presence of 50% of the whole Board of Directors shall be
necessary to constitute a quorum for the transaction of business. In the absence
of a quorum, a majority of the Directors present may adjourn the meeting from
time to time until a quorum shall be present. The Board of Directors may hold
its meetings at such place or places within or without the Sate as the Board of
Directors may from time to time determine.
Section 6. Annual and Organization Meeting. The Board of Directors shall
meet for the purpose of organization, the election of officers and the
transaction of other business, as soon
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<PAGE>
as practical following each annual election of directors. Such meeting shall be
called and held at the place and time specified in the notice or waiver of
notice thereof as in the case of a special meeting of the Board of Directors.
Section 7. Regular and Special Meetings. Regular meetings of the Board of
Directors shall be held at such places and at such times as the Board of
Directors shall determine. Notice of regular meetings of the Board of Directors
need not be given. Special meetings of the Board of Directors shall be held
whenever called by one-third of the directors then in office or by the
President. Notice of each such meeting shall be mailed by the Secretary to each
director, addressed to him at his residence or usual place of business, or shall
be sent to him at his residence or at such place of business by telegraph,
facsimile, or be delivered personally or by telephone, not later than eighteen
hours before the meeting. Each such notice shall state the time and place of the
meeting but need not state the purposes thereof except as otherwise herein
expressly provided. Notice of any such meeting need not be given to any
director, however if waived by him.
Section 8. Organization. At each meeting of the Board of Directors, the
President, or in the absence of him the highest ranking director shall preside.
any director chosen by a majority of the directors present thereat, shall
preside. The Secretary, or in his absence, a person whom the presiding director
of such meeting shall appoint, shall act as secretary of such meeting and keep
the minutes thereof.
Section 9. Action by Written Consent. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if a written consent thereto is signed by all
members of the Board or of such committee, as the case may be, and such written
consent is filed with the minutes of the proceedings of the Board of Directors
or such committee.
Section 10. Telephone Participation in Meetings. Members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or committee, by means of a
conference telephone or similar communications equipment.
Section 11. Resignation. Any director of the corporation may resign at any
time by giving written notice of his resignation to the Chairman of the Board,
the President or the Secretary of the Corporation. Any such resignation shall
take effect at the time specified therein, or if not stated, when accepted.
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<PAGE>
Section 12. Compensation. Each director, in consideration of serving as
such, shall be entitled to receive from the Corporation such fixed amount per
annum or such fees for attendance at directors' meetings. The Board of Directors
may likewise provide that the Corporation shall reimburse each director or
member of a committee for any expenses incurred by him on account of his
attendance at any such meeting.
Section 13. Removal. Any Director may be removed from office without cause
only by the affirmative vote of the holders of 80% of the combined voting power
of the then outstanding shares of stock entitled to vote generally in the
election of Directors, voting together as a single class.
Section 14. Powers. The Board of Directors may, except as otherwise
required by law, exercise all such powers and do all such acts and things as may
be exercised or done by the corporation, including, without limiting the
generality of the foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law; (2) To
purchase or otherwise acquire any property, rights or privileges on
such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form as it may
determine, of written obligations of every kind, negotiable or non-negotiable,
secured or unsecured, and to do all things necessary in connection therewith'
(4) To remove any officer of the corporation with or without cause, and
from time to time to devolve the powers and duties of any officer upon any other
person for the time being;
(5) To confer upon any officer of the corporation the power to appoint,
remove and suspend subordinate officers and agents;
(6) To adopt from time to time such stock, option, stock purchase, bonus or
other compensation plans for directors, officers, consultants, attorneys and
agents of the corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers and agents of the corporation and its
subsidiaries as it may determine; and,
(8) To adopt from time to time regulations, not inconsistent with these
by-laws, for the management of the corporation's business and affairs.
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<PAGE>
ARTICLE IV.
COMMITTEES
The Board of Directors may, by resolution or resolutions, passed by a
majority of the whole of the Board of Directors, designate one or more
committees, each such committee to consist of one or more directors of the
Corporation, which to the extent provided in said resolution or resolutions
shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation to be affixed to all
papers which may require it, such committee or committees to have such name or
names as may be determined from time to time by resolution adopted by the Board
of Directors. A majority of all the members of any such committee may determine
its action and fix the time and place of its meetings, unless the Board of
Directors shall have power to change the members of any such committee at any
time, to fill vacancies and to discharge any such committee, either with or
without cause, at any time.
ARTICLE V.
OFFICERS
Section 1. Number. The principal officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, Vice-President, a
Secretary and a Treasurer/Chief Financial Officer. The Board may also elect any
subordinate officers, agents and employees as may be appointed in accordance
with the provisions of Section 3 of this Article. Any two or more offices may be
held by the same person. The offices of the Corporation for which officers may
be elected shall be set forth, from time to time, by resolution of the Board of
Directors.
Section 2. Election and Term. Each officer of the Corporation, except such
officers as may be appointed, shall be elected annually by the Board of
Directors, and shall hold office until his successor shall have been duly
elected or until death.
Section 3. Other Officers. The Corporation may have such other officers,
agents and employees as the Board of Directors may deem necessary, including one
or more Assistant Secretaries, one or more Assistant Treasurers, a Controller
and one or more Controllers, each of whom shall hold office for such period,
have such authority, and perform such duties as the Board of Directors or the
Chairman of the Board or the President may from time to time determine. The
Board of Directors may delegate to any principal officer the power to appoint or
remove any such subordinate officers, agents or employees.
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<PAGE>
Section 4. Removal. Any officer may be removed, either with or without
cause, by the vote of a majority of the whole Board of Directors or, except in
case of any officer elected by the Board of Directors, by any officer upon whom
the power of removal may be conferred by the Board of Directors.
Section 5. Resignation. Any officer may resign at any time by giving
written notice to the Board of Directors or to the Chairman of the Board or the
President. Any such resignation shall take effect at the time specified therein
or, if not stated, upon acceptance.
Section 6. President. The President shall be responsible for the active
management of the business of the Corporation, and shall perform such other
duties as may be prescribed by the Board of Directors.
Section 7. Vice President. The Vice President, shall, in the absence or
inability of the President for any reason, to perform the duties of the
President, and, when so acting, have all the powers of, and be subject to all
the restrictions upon, the President. The Vice President shall perform such
other duties and perform such other powers as the Board of Directors or
President may from time to time prescribe.
Section 8. Secretary. The Secretary shall record or cause to be recorded in
books provided for the purpose the minutes of the meetings of the Shareholders,
the Board of Directors, and all committees of which a secretary shall not have
been appointed; shall see that all notices are duly given; shall be custodian of
all corporate records (other than financial) and of the seal of the Corporation
and shall see that the seal is affixed to all appropriate documents; shall see
that the books, reports, statements, certificates and all other documents and
records required by law are properly kept and filed; and, in general, shall
perform all duties as may, from time to time, be assigned to him by the Board of
Directors or the President.
Section 9. Assistant Secretary. Any Assistant Secretary shall, in the
absence or inability of the Secretary for any reason, perform the duties and
exercise the powers of the Secretary and perform such other duties and have such
other powers as the Board of Directors or President may from time to time
prescribe. Any Assistant Secretary shall have authority to affix the corporate
seal and attest by his signature to he same extent as the Secretary.
Section 10. Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds and securities of the Corporation, and shall
deposit all funds to the credit of the Corporation in such banks, trust
companies or other depositories as shall be selected in accordance with the
provisions of these By-Laws; he shall disburse the funds of the
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Corporation as may be ordered by the Board of Directors, making proper vouchers
for such disbursements, and shall render to the Board of Directors, where the
Board may require him so to do, and shall present at the annual meeting of the
Shareholders a statement of all his transactions as Treasurer; and, in general,
he shall perform all the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the Board of
Directors or the President.
Section 11. Assistant Treasurer. Any Assistant Treasurer shall in the
absence or inability of the Treasurer, perform the duties and exercise the
powers of the Treasurer, and perform such other duties and have such other
powers as the Board and President may from time to time prescribe.
Section 12. Salaries. The salaries of the officers shall be fixed from time
to time by or in the manner prescribed by the Board of Directors, and none of
such officers shall be prevented from receiving a salary by reason of the fact
that he is also a director of the Corporation.
ARTICLE VI.
INDEMNIFICATION
Section 1. Right to Indemnification. Each person who was or is made party
or is threatened to be made party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person for whom he or
she is the legal representative is or was a director or officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director or officer, employee or agent of another corporation, or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action is an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent. Shall be indemnified and held harmless by the corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent such amendment permits the corporation to provide broader indemnification
right than said law permitted the corporation to provide prior to such
amendment) against all expenses, liability and loss (including attorney's fees,
judgments, fines, ERISA, excise taxes or penalties and amounts paid or to paid
in settlement) reasonably incurred or suffered by such person in connection
therewith. Such right shall be a contract right and shall include the right to
be paid by the corporation expenses incurred in
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<PAGE>
defending any such proceeding in advance of its final disposition; provided,
however, that the payment of such expenses incurred by a director or officer of
the corporation in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of such proceeding, shall be
made only upon delivery to the corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it should be
determined ultimately that such director or officer is not entitled to be
indemnified under this section or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1 of
this Article VI. is not paid in full by the corporation within 90 days after a
written claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim, and if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking has been tendered to the corporation) that the claimant
has not met the standards of conduct which make it permissible under the
Delaware General Corporate Law for the corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including the Board of
Directors, independent legal counsel, or its Shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporate Law,
nor an actual determination by the corporation (including its Board of
Directors, independent counsel, or its Shareholders) that the claimant had not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant had not met the applicable standard of
conduct.
Section 3. Non-Exclusivity of Rights. The rights conferred by Section 1 and
2 shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-law, agreement, vote of Shareholders or disinterested director
or otherwise.
Section 4. Insurance. The corporation may maintain insurance, at its
expense, to protect itself and any such director, officer, employee or agent of
the corporation or another
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corporation, partnership, joint venture, trust of other enterprise against any
such expense, liability or loss, whether or not the corporation would have the
power to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
ARTICLE VII.
BOOKS AND RECORDS
Section 1. Place. The books and records of the Corporation may be kept at
such places as the Board may determine. The Secretary shall maintain the record
books and stock certificates unless otherwise designated by the Board.
Section 2. Addressed of Shareholders.Each shareholder shall designate an
address of the Corporation at which notices may be served upon or mailed to him.
If the Secretary does not receive any such address, then the Secretary shall
mail the notice to that shareholder to their last known address.
ARTICLE VIII.
SHARES AND THEIR TRANSFER
Section 1. Certificate for Stock. Every Shareholder shall be entitled to a
certificate certifying the number of shares of capital stock of the corporation
owned by him in such form as the Board shall prescribe. No certificate shall be
issued for partly paid shares.
Section 2. Stock Certificate Signature. The certificates for such stock
shall be numbered in the order in which they shall be issued and shall be signed
by the Chairman of the Board, if any, or the President and the Secretary or
Treasurer of the Corporation and its seal shall be affixed thereto. If such
certificate is countersigned (1) by a transfer agent other than the Corporation
or its employee, or, (2) by a registrar other than the Corporation or its
employee, the signature of such officers of the Corporation may be facsimiles.
If properly signed or executed, the stock certificate shall remain valid whether
the officer continues in his capacity.
Section 3. Stock Ledger. A stock ledger shall be kept by the Secretary or
the secretary's designee, setting forth the name of each owner of capital stock,
the number of shares represented by and the dates if such shares. If canceled
the respective cancellation date shall be recorded. Every certificate
surrendered for exchange or registration of transfer shall be canceled and no
new certificates issued in exchange for existing certificates until such
existing certificates are canceled. Lost, stolen or mutilated certificates shall
be replaced upon evidence of such destruction or loss.
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Section 4. Registrations of transfers of Stock. Registrations of transfers
of capital stock shall be made on the Corporation books by the registered
holder, or his authorized agent, and filed with the Secretary or the transfer
agent. Upon surrender, the certificates shall be endorsed, and taxes paid. The
person in whose names the shares stand on the books shall be deemed the owner of
the shares; provided however, that if a transfer is made for collateral
security, it shall be so expressed if so provided in writing by both the
transferee and transferor.
Section 5. Regulations. The Board of Directors may make such rules as are
expedient concerning the issue, transfer and registration of certificates of
shares of the Corporate stock and may appoint a transfer agent or registrar to
assist in these processes.
Section 6. Record Dates. For the purpose of determining the Shareholders
entitled to notice of or to vote at any shareholder meeting or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in any other stock
conversion or exchange, the Board may fix, in advance, a record date for any
such determination of shareholders. Such date shall not be more that sixty and
less than ten (10) days before the date of such meeting or more that sixty (60)
days prior to any other action.
Section 7. Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be issued in
its place pursuant to such regulation as the Board of Directors may establish
concerning proof of such loss, theft or destruction and concerning the giving of
satisfactory bond or bonds of indemnity.
ARTICLE IX.
WAIVER OF NOTICE AND AMENDMENTS
Section 1. Whenever these Bylaws or the Certificate of Incorporation
provide for the giving of notice, a written waiver of such notice, regardless of
when delivered by the party entitled to notice, shall be deeded the equivalent
thereto. Attendance of a person at a meeting shall constitute waiver of such
notice unless he expressly states otherwise.
Section 2. Subject to any other provision hereof or any law regulating
these documents, the Board of Directors shall have the power to adopt, amend or
repeal these Bylaws. Shareholders entitled to vote shall also have the power to
amend these bylaws by majority vote.
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ARTICLE X.
MISCELLANEOUS
Section 1. Seal. The Board shall, if required by law, provide a corporate
seal which shall be in any form the Board may designate.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board of Directors.
Section 3. Facsimile Signatures. In addition to the provisions for the use
of facsimile signatures elsewhere specifically authorized in these by-laws,
facsimile signatures of any officer or officers of the corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Section 4. Reliance Upon Books, Reports, and Records. Each director, each
member of any committee designed by the Board of Directors, and each officer of
the corporation shall, in the performance of his duties, be fully protected in
relying in good faith upon the books of account or other records of the
corporation, including reports made to the corporation by any of its officers,
by an independent certified public accountant, or by an appraiser selected with
reasonable care.
Section 5. Time Periods. In applying any provisions of these by-laws which
requires that an act be done a specified number of days prior to an event or
that an act be done during a period of a specified number of days prior to an
event, calendar days shall be used, the day of the doing of the act shall be
excluded, and the day of the event shall be included.
CERTIFICATE
The undersigned, being duly elected and acting Secretary of Capital
Advisors Acquisition Corp., a Delaware corporation, hereby certifies that the
foregoing By-Laws constitute the By-Laws of such corporation duly adopted by its
Shareholders and Board of Directors as of October 29, 1996.
/S/ George G. Chachas
-----------------------------
Secretary
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EXHIBIT 5.
Opinion of Wenthur & Chachas
<PAGE>
[ Wenthur & Chachas Letterhead]
November 6, 1996
Capital Advisors Acquisition Corp.
3900 Paradise Road
Suite 263
Las Vegas, Nevada 89109
Re: Capital Advisors Acquisition Corp. - Registration Statement on Form S-8
Ladies and Gentlemen;
We have served as counsel to Capital Advisors Acquisition Corp. (the
"Company") in connection with the filing with the Securities and Exchange
Commission (the "Commission") of the Company's registration statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "1933 Act") covering 3,500,000 shares of common stock, $.0001 par value
(the "Shares") of the Company which may be issued in the future pursuant that
certain 1996-1997 Stock Compensation Plan of the Company (the "Plan").
As such counsel, we have examined the Registration Statement, the Plan and
such other documents, and have obtained such assurances from officers and
representatives of the Company and made such additional inquiries, as we have
deemed necessary for the purpose of rendering this opinion. We have assumed the
genuineness of all signatures on, and the authenticity of, all documents and
instruments submitted to us as originals, and the conformity to original
documents of all documents submitted to us as copies. We have also examined the
proceedings heretofore taken by the Company in connection with the adoption of
the Plan and by the directors administering, authorizing or approving the Plan
(the "Board"), and we assume for the purposes of this opinion that neither the
Company nor the Board has or will grant any award under the Plan pursuant to
which shares of Common Stock could be issued for consideration that is not
adequate in form or amount to support the issuance of fully paid stock under
applicable state law.
On the basis of and in reliance upon the foregoing examinations, inquiries
and assumptions, and such other matters of fact and questions of law as we have
deemed appropriate, and subject to the limitations contained herein, we are of
the opinion that the Shares, when issued and sold in the manner described in the
Plan and pursuant to the agreement that accompanies each grant under the Plan,
will be legally and validly issued, fully paid and nonassessable. We hereby
consent to the filing of this opinion as Exhibit 5 to the Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the 1933 Act or
the General Rules and Regulations of the Commission.
Very truly yours,
WENTHUR & CHACHAS
<PAGE>
EXHIBIT 10.1
1996-1997 Stock Compensation Plan
<PAGE>
CAPITAL ADVISORS ACQUISITION CORP.
1996-1997 STOCK COMPENSATION PLAN
- --------------------------------------------------------------------------------
1. PURPOSE OF PLAN. The purpose of this Plan is to further the growth of
Capital Advisors Acquisition Corp. (the "Company") by allowing the Company to
compensate Officers, Directors, Consultants, Attorneys, Accountants, and certain
other persons providing bona fide services to the Company, through the award of
Capital Advisors Acquisition Corp. Common Stock.
2. DEFINITIONS. Whenever used in this Plan, the following terms shall have
the meanings set forth in this Section:
(a) "Award" means any grant of Capital Advisors Common Stock made
under this Plan.
(b) "Board of Directors" means the Board of Directors of
Capital Advisors Acquisition Corp.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Common Stock" means the common stock, par value $.0001 per
share, of Capital Advisors Acquisition Corp.
(e) "Company" means Capital Advisors Acquisition Corp. and any
Designated Subsidiary of the Company.
(f) "Consultant" means any person, including an advisor, who is
engaged by the Company or any Parent or Subsidiary to render services
and is compensated for such services, and any director of the Company
whether compensated for such services or not provided that if and in
the event the Company registers any class of any equity security
pursuant to the Exchange Act, the term consultant shall thereafter not
include directors who are not compensated for their services or are
paid only a director's fee by the Company.
(g) "Date of Grant" means the day the Board of Directors
authorizes the grant of an Award or such later date as may be
specified by the Board of Directors as the date a particular Award
will become effective.
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(h) "Employee" means any person or entity that renders bona fide
services to the Company (including, without limitation, the following:
a person employed by the Company in a key capacity; an officer or
director of the Company; a person or company engaged by the Company as
a consultant; or a lawyer, law firm, accountant or accounting firm.)
(i) "Plan" means this Capital Advisors Acquisition Corp.
1996-1997 Stock Compensation Plan.
(j) "Share" means a share of the Common Stock, as adjusted in
accordance the Plan.
(k) "Subsidiary" means any corporation that is a subsidiary with
regard to as that term is
defined in Section 424(f) of the Code.
3. EFFECTIVE DATE OF THIS PLAN. The effective date of this Plan is October
5, 1996.
4. ADMINISTRATION OF THE PLAN.
4.1 Administrative Authority. The Board of Directors or a committee of
members of the Board appointed by the Board will be responsible for the
administration of this Plan, and will grant Awards under this Plan. Subject to
the express provisions of this Plan, the Board of Directors shall have full
authority and sole and absolute discretion to interpret this Plan, to prescribe,
amend and rescind rules and regulations relating to it, and to make all
determinations which it believes to be necessary or advisable in administering
this Plan. All decisions, determinations and interpretations of the Board of
Directors or a committee of members of the Board appointed by the Board
responsible for administration of the plan shall be final and binding on the
matters referred to in this Section.
4.2. Amendment and Termination. The Board of Directors shall have sole and
absolute discretion to amend, alter, suspend or discontinue the Plan.
4.3. Liability. No member of the Board of Directors shall be liable for any
act or omission in connection with the administration of this Plan unless it
resulted from the member's willful misconduct.
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5. STOCK SUBJECT TO THE PLAN. Subject to the provisions of this Plan, the
maximum number of shares of Common Stock as to which Awards may be granted under
this Plan is 4,000,000 shares. The Shares may be authorized, but unissued, or
reacquired Common Stock. The Board of Directors may increase the maximum number
of shares of Common Stock as to which Awards may be granted at such time as it
deems advisable.
6. REGISTRATION OF PLAN AND SHARES SUBJECT TO THE PLAN. As soon as
practicable, the Company shall undertake to file a Registration Statement on
Form S-8 to register the Plan and Shares to be issued hereunder, pursuant to the
Securities Act of 1933.
7. PERSONS ELIGIBLE TO RECEIVE AWARDS
Section 1. Awards may be granted only to Officers, Directors, Consultants,
Attorneys, Accountants, and certain other persons providing bona fide services
to the Company.
Section 2. The Plan shall not confer upon Officers, Directors, Consultants,
Attorneys, Accountants, or certain other persons providing bona fide services to
the Company any right with respect to continuation of service nor interfere in
any way with a persons right or the Company's right to terminate employment or
consulting relationship at any time, with or without cause.
8. GRANTS OF AWARDS. Except as otherwise provided herein, the Board of
Directors shall have complete discretion to determine when and to which Awards
are to be granted, and the number of shares of Common Stock as to which Awards
granted. No Award will be made if, in the judgment of the Board of Directors,
such a Award would constitute a public distribution within the meaning of the
Securities Act of 1933, as amended (the "Act"), or the rules and regulations
promulgated thereunder.
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9. DELIVERY OF STOCK CERTIFICATES. As promptly as practicable after
authorizing the grant of an Award, Capital Advisors Acquisition Corp. shall
deliver to the person who is the recipient of the Award, a certificate or
certificates registered in that person's name, representing the number of shares
of Common Stock that were granted. If applicable, each certificate shall bear a
legend to indicate that the Common Stock represented by the certificate was
issued in a transaction which was not registered under the Act, and may only be
sold or transferred in a transaction that is registered under the Act or is
exempt from the registration requirements of the Act.
10. LAWS AND REGULATIONS.
10.1. The obligation of Capital Advisors Acquisition Corp. to sell and
deliver shares of Common Stock on the grant of an Award under this Plan shall be
subject to the condition that counsel for Capital Advisors Acquisition Corp. be
satisfied that the sale and delivery thereof will not violate the Act or any
other applicable laws, rules or regulations.
10.2 This Plan is intended to meet the requirements of Rule 16b-3 in order
to provide officers and directors with certain exemptions from Section 16(b) of
the Securities Exchange Act of 1934, as amended.
11. WITHHOLDING OF TAXES. If subject to withholding tax, the Company shall
be authorized to withhold from an Employee's salary or other cash compensation
such sums of money as are necessary to pay the Employee's withholding tax. The
Company may elect to withhold from the shares from the shares to be issued
hereunder a sufficient number of shares to satisfy the Company's withholding
obligations. If the Company becomes required to pay withholding taxes to any
federal, state or other taxing authority as a result of the granting of an Award
and the Employee fails to provide the Company with the funds with which to pay
that withholding tax, the Company may withhold up to 50% of each payment of
salary or bonus to the Employee (which will be in addition to any other required
or permitted withholding), until the Company has been reimbursed for the entire
withholding tax it was required to pay.
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12. DELIVERY OF PLAN. A copy of this Plan shall be delivered to all
participants, together with a copy of the resolutions of the Board of Directors
authorizing the granting of the Award and establishing the terms, if any, of
participation.
13. MISCELLANEOUS.
13.1 Nothing herein shall be deemed to diminish or otherwise restrict the
Directors' right to indemnification under any provision of the certificate of
incorporation or bylaws of the Corporation or under Delaware law.
13.2 This Agreement shall be binding upon all successors and assigns of the
Corporation (including any transferee of all or substantially all of its assets
and any successor by merger or operation of law) and shall inure to the benefit
of the heirs, personal representatives and estate of Directors.
CERTIFICATE
The undersigned, being duly elected and acting President and Secretary of
Capital Advisors Acquisition Corp., a Delaware corporation, hereby certifies
that the foregoing Stock Compensation Plan constitute the Stock Compensation
Plan of such corporation duly adopted by its Board of Directors.
Dated: October 5, 1996
/S/ Thomas R. Brooksbank /S/ George G. Chachas
- ------------------------------- -----------------------------
Thomas R. Brooksbank, President George G. Chachas, Secretary
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EXHIBIT 23.1
[McBride & Reeves CPA's, LTD. Letterhead ]
CONSENT OF MCBRIDE & REEVES, CPA'S, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Capital Advisors Acquisition Corp., of our report dated April 13,
1996, appearing in the Annual Report on Form 10-K of Capital Advisors
Acquisition Corp. for the year ended December 31, 1995.
McBride & Reeves
November 1, 1996
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EXHIBIT 23.2
Consent of Wenthur & Chachas
(See Exhibit 5)
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EXHIBIT 24
Power of Attorney (See Page 9)
