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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A1
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED MARCH 31, 1996 COMMISSION FILE NO. 1-10569
AUTOLEND GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-3137244
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
930 WASHINGTON AVENUE,
MIAMI BEACH, FLORIDA 33139
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (305) 673-2700
Securities registered pursuant to Section 12(b) of the Act:
Title of Class Name of Exchange on Which Registered
Common Stock, $.002 par value Boston Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
-- Units -- Redeemable Class A Warrants
-- Common Stock
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve (12) months (or for such shorter period that
the Registrant was required to file such report(s)), and (2) has been subject to
the filing requirements for the past ninety (90) days. YES X NO
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
As of June 21, 1996 the registrant had 4,634,530 shares of Common Stock
outstanding. The aggregate market value of the Common Stock held by
non-affiliates as of June 21, 1996 was approximately $3,288,834 million.
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON FORM
8-K.
(a) (1) and (2) Financial Statements and Financial Statement Schedules.
See Index to Consolidated Financial Statements on page F-1 for list of financial
statements and financial statement schedules.
(a) (3) Exhibits
2.1 Reorganization Agreement between CAP Rx, Ltd. and
CAPX Corporation (2)
3.1 Certificate of Incorporation of CAP Rx, Ltd. (1)
3.2 Memorandum of Association of CAP Rx, Ltd., including
Memorandum of Increase of Share Capital (1)
3.3 Amended By-Laws of CAP Rx, Ltd. (1)
3.4 Certificate of Incorporation of AutoLend Group, Inc.
(12)
3.5 By-laws of AutoLend Group, Inc. (12)
4.1 Form of 9.5% Convertible Subordinated Debenture (2)
4.2 Warrant Agreement (1)
4.3 Unit Purchase Option (1)
4.4 Stock Purchase Warrant granted to Banque Degroof
Luxembourg, S.A. (2)
4.5 Stock Purchase Warrant granted to Till A. Petrocchi
(2)
4.6 Stock Purchase Warrant granted to Steve Simon and
Helen Porter (6)
10.1 Re-insurance Agreement between CAP Rx Insurance, Ltd.
and Planet Insurance Registrant (1)
10.2 Letter Agreement between CAP Rx, Ltd. and Planet
Insurance Registrant (1)
10.3 Administrative Agreement between CAP Rx, Ltd. and
Parker Risk Management (Bermuda) Ltd. (1)
10.4 1989 Incentive and Non-Statutory Stock Option Plan of
the Registrant (1)
10.5 Letter agreement between Westbroke Limited and the
Registrant (2)
10.6 Acquisition Agreement among Rob T. Worley, Sr. and
Rob T. Worley, Jr., Living Benefits, Inc. and CAP Rx,
Ltd. (2)
10.6.1 Addendum to Acquisition Agreement (2)
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10.6.2 Second Addendum to Acquisition Agreement (2)
10.7 Employment Agreement between LB NM, Inc. and Rob T.
Worley, Sr. (2)
10.8 Employment Agreement between LB NM, Inc. and Rob T.
Worley, Jr. (2)
10.9 Lease Agreement for space at 6100 Seagull Street,
N.E., Albuquerque, New Mexico (2)
10.9.1 Addendum to Lease Agreement (2)
10.9.2 Lease Agreement, dated April 15, 1993, for space at
6100 Seagull Street, N.E., Albuquerque, New Mexico
(8)
10.9.3 Lease, dated March 17, 1992, between Marbrad, Inc.
and American Life Resources Corporation (8)
10.10 Asset Purchase Agreement between American Life
Resources Group, Inc., American Life Resources
Corporation, Steve Simon and Helen Porter (6)
10.11 Employment Agreement between ALRG and Steve Simon (6)
10.12 Employment Agreement between ALRG and Helen Porter
(6)
10.13 Noncompetition Agreement between ALRG and Steve Simon
(6)
10.14 Noncompetition Agreement between ALRG and Helen
Porter (6)
10.15 Guaranty Agreement made by the Registrant for the
benefit of ALRC, Steve Simon and Helen Porter (6)
10.16 Viatical settlement forms (8)
10.17 Agreement between the Registrant and the McLernon
Group Limited dated December 3, 1993 (9)
10.18 Lease Agreement between Arquitectonica International
Corporation and CAPX Corpora-tion dated May 11, 1994
(10)
10.19 Agreement between Nunzio P. DeSantis and CAPX
Corporation dated as of July 1, 1994
10.20 Agreement between Courtlandt G. Miller and CAPX
Corporation dated as of July 1, 1994
10.21 Agreement between Vincent Villanueva and CAPX
Corporation dated as of July 1, 1994
10.22 Employment Agreement between AutoLend Group, Inc. and
Charley A. Pond (11)
21 Subsidiaries of the Registrant (10)
27 Financial Data Schedule (12)
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28.1 Cooperation and Assistance Agreement between Parker
Risk Management (Colorado) Inc. and Health Care
Services, Inc. (1)
(b) Financial Statement Schedules
Independent Auditors' Report
Schedule VIII -- Valuation and Qualifying Accounts - March 31,
1996, 1995 and 1994
All other schedules have been omitted because they are
inapplicable or the information is provided in the financial
statements including notes thereto included in this Annual
Report.
(c) Reports on Form 8-K
No reports on Form 8-K were filed during the three months
ended March 31, 1996.
(1) Filed as an exhibit to the Registrant's Registration Statement on Form
F-1 (Registration No. 33-29251) and incorporated herein by reference.
(2) Filed as an exhibit to the Registrant's Annual Report on Form 10-K for
the year ended March 31, 1991 and incorporated herein by reference.
(3) Filed on December 26, 1991 as an exhibit to the Registrant's
Post-Effective Amendment No. 1 to Registration Statement on Form F-1 on
Form S-1 (Registration No. 33-29251) and incorporated herein by
reference.
(4) Filed on February 18, 1992 as an exhibit to the Registrant's
Post-Effective Amendment No. 3 to Registration Statement on Form F-1 on
Form S-1 (Registration No. 33-29251) and incorporated herein by
reference.
(5) Filed on March 27, 1992 as an exhibit to the Registrant's
Post-Effective Amendment No. 4 to Registration Statement on Form F-1 on
Form S-1 (Registration No. 33-29251) and incorporated herein by
reference.
(6) Filed as an exhibit to the Registrant's Current Report on Form 8-K,
filed with the Commission on April 21, 1993 and incorporated herein by
reference.
(7) Filed on May 12, 1993 as an exhibit to the Registrant's Post-Effective
Amendment No. 6 to Registration Statement on Form F-1 on Form S-1
(Registration No. 33-29251) and incorporated herein by reference.
(8) Filed on October 29, 1993 as an exhibit to the Registrant's
Post-Effective Amendment No. 7 to Registration Statement on Form F-1 on
Form S-1 (Registration No. 33-29251) and incorporated herein by
reference.
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(9) Filed on March 7, 1994 as an exhibit to the Registrant's Post-Effective
Amendment No. 8 to Registration Statement on Form F-1 on Form S-1
(Registration No. 33-29251) and incorporated herein by reference.
(10) Filed on June 26, 1994 as an exhibit to the Registrant's Annual Report
on Form 10-K for the year ended March 31, 1994 and incorporated herein
by reference.
(11) Filed on June 29, 1995 as an exhibit to the Registrant's Annual Report
on Form 10-K for the year ended March 31, 1995 and incorporated herein
by reference.
(12) Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereto duly authorized.
AUTOLEND GROUP, INC.
Date: September 12, 1996 By: /s/ Steve Simon
----------------
Steve Simon
Chairman of the Board,
Chief Executive Officer
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EXHIBIT 3.4
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
-----------------------------
I , EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE , DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "CAPX CORPORATION", CHANGING ITS NAME FROM "CAPX CORPORATION" TO
"AUTOLEND GROUP, INC.", FILED IN THIS OFFICE ON THE SIXTH DAY OF FEBRUARY, A.D.
1995, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
-------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7398830
DATE: 02-07-95
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
CAPX CORPORATION
ADOPTED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 242 OF THE
DELAWARE GENERAL CORPORATION LAW
It is hereby certified that:
1. The present name of the corporation (the "Corporation") is CAPX
Corporation.
2. The Certificate of Incorporation of the Corporation was filed with
the Secretary of State of Delaware on May 23, 1989.
3. Article FIRST of the Certificate of Incorporation of the Corporation
is hereby amended to read in its entirety as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is AutoLend Group, Inc.
4. The foregoing amendment was declared advisable by the board of
directors of the Corporation pursuant to a resolution duly adopting the
amendment on November 18, 1994, and was duly adopted in accordance with the
provisions of Section 242 of the Delaware General Corporation Law by the
affirmative vote of the stockholders of the Corporation.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Steve Simon, its President, and J. Michael Mayerfeld, its Assistant
Secretary, this 2 day of February, 1995. AUTOLEND GROUP, INC.
By: /s/ Steve Simon
---------------
Steve Simon, President
Attest:
/s/ J. Michael Mayerfeld
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J. Michael Mayerfeld
Assistant Secretary
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State of Delaware
Office of Secretary of State
I, MICHAEL HAWKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "CAPX CORPORATION" FILED IN THIS OFFICE ON THE TWENTY-NINTH DAY
OF OCTOBER, A.D. 1991, AT 9 O'CLOCK A.M.
* * * * * * * * * *
/s/ Michael Harkins
- -------------------
Michael Harkins, Secretary of State
AUTHENTICATION: #3218389
DATE: 10-29-1991
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CERTIFICATE OF INCORPORATION
OF
CAPX CORPORATION
The undersigned, being over the age of eighteen (18), in order to form
a corporation for the purposes hereinafter stated, under and pursuant to the
provisions of the General Corporation Law of the State of Delaware, does hereby
certify as follows:
FIRST: The name of the corporation is CAPX Corporation.
SECOND: The registered office of the Corporation is to be located at 32
Loockerman Square Suite L-100, Dover, Delaware 19901. The name of its registered
agent at that address is The Prentice-Hall Corporation System, Inc. County of
Kent.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall be authorized to issue is 45,000,000 shares, of which
40,000,000 shall be designated Common Stock having a par value of $.002 per
share (the "Common Stock") and 5,000,000 shall be designated Preferred Stock
having a par value of $.002 per share (the "Preferred Stock").
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Each Common Stockholder shall be entitled to one vote for each share of
Common Stock held of record on all matters as to which Common Stockholders shall
be entitled to vote.
Each share of Common Stock issued and outstanding shall be identical in
all respects one with each other such share, and no dividends shall be paid on
any shares of Common Stock unless the same dividend is paid on all shares of
Common Stock outstanding at the time of such payment. Except for and subject to
those rights expressly granted to Preferred Stockholders or, except as may be
provided by the laws of the State of Delaware, the Common Stockholders shall
have exclusively all other rights of stockholders, including, without
limitation, (i) the right to receive dividends, when and as declared by the
Board of Directors of the Corporation, out of assets lawfully available
therefor, and (ii) in the event of any distribution of assets upon a liquidation
or otherwise, the right to receive ratably and equally, together with the
holders of the Preferred Stock, if any, all the assets and funds of the
Corporation remaining after the payment to the holders of the Preferred Stock,
if any, of the specific amounts which they are entitled to receive upon such
liquidation.
The Board of Directors is hereby expressly authorized to provide for,
designate and issue, out of the authorized but unissued shares of Preferred
Stock, one or more series of Preferred Stock, subject to the terms and
conditions set forth herein. Before any shares of any such series are issued,
the Board of Directors shall fix, and hereby is expressly empowered to fix, by
resolution or resolutions, the following provisions of the shares of any such
series:
(a) the designation of such series, the number of shares to
constitute such series and the stated value thereof, if different from the par
value thereof;
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(b) whether the shares of such series shall have voting rights or
powers, in addition to any voting rights required by law, and, if so, the terms
of such voting rights or powers, which may be full or limited;
(c) the dividends, if any, payable on such series, whether any
such dividends shall be cumulative, and, if so, from what dates, the conditions
and dates upon which such dividends shall be payable, the preference or relation
which such dividends shall bear to the dividends payable on any shares of stock
or any other class or any other series of this class;
(d) whether the shares of such series shall be subject to
redemption by the Corporation, and, if so, the times, prices and other
conditions of such redemption;
(e) the amount or amounts payable upon shares of such series upon,
and the rights of the holders of such series in, the voluntary or involuntary
liquidation, dissolution or winding up, or upon any distribution of the assets,
of the Corporation;
(f) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund and, if so, the extent to and manner
in which any such retirement or sinking fund shall be applied to the purchase or
redemption of the shares of such series for retirement or other corporate
purposes and the terms and provisions relative to the operation thereof;
(g) whether the shares of such series shall be convertible into,
or exchangeable for, shares of stock of any other class or any other series of
this class or any other securities and, if so, the price or prices or the rate
or rates of conversion or exchange and the method, if any, of adjusting the
same, and any other terms and condition or exchange;
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(h) the limitations and restrictions, if any, to be effective
while any shares of such series are outstanding upon the payment of dividends or
the making of other distributions on, and upon the purchase, redemption or other
acquisition by the Corporation of, the Common Stock or shares of stock of any
other class or any other series of this class;
(i) the conditions or restrictions, if any, to be effective while
any shares of such series are outstanding upon the creation of indebtedness of
the Corporation or upon the issue of any additional stock, including additional
shares of such series or of any other series of this class or of any other
class; and
(j) any other powers, designations, preferences and relative,
participating, optional or other special rights, and any qualifications,
limitations or restrictions thereof. The powers, designations, preferences and
relative, participating, optional or other special rights of each series of
Preferred Stock, and the qualifications, limitations or restrictions thereof, if
any, may differ from those of any and all other series at any time outstanding.
The Board of Directors is hereby expressly authorized from time to time to
increase (but not above the total number of authorized shares of Preferred
Stock) or decrease (but not below the number of shares thereof then outstanding)
the number of shares of stock of any series of Preferred Stock designated to any
one or more series of Preferred Stock.
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FIFTH: The name and address of the incorporator is as follows:
NAME ADDRESS
---- -------
Marc S. Goldfarb Bachner, Tally, Polevoy & Misher
380 Madison Avenue
New York, New York 10017
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders: (1) The number of directors of the Corporation
shall be such as from time to time shall be fixed by, or in the manner provided,
in the by-laws. Election of directors need not be by ballot unless the by-laws
so provide.
(2) The Board of Directors shall have power without
the assent or vote of the stockholders:
(a) to make, alter, amend, change, add to or repeal the ByLaws of
the Corporation; to fix and vary the amount to be reserved for any proper
purpose; to authorize and cause to be executed mortgages and liens upon all
or any part of the property of the Corporation; to determine the use and
disposition of any surplus or net profits; and to fix the times for the
declaration and payment of dividends; and
(b) to determine from time to time whether, and to what extent,
and at what times and places, and under what conditions and regulations, the
accounts and books of the Corporation (other than the stock ledger) or any
of them, shall be open to the inspection of the stockholders.
(3) The directors in their discretion may submit any contract or
act for approval or ratification at any annual meeting of the stockholders or at
any meeting of the stockholders called for the purpose of considering any such
act or contract, and any contract
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or act that shall be approved or be ratified by the vote of the holders of a
majority of the stock of the Corporation which is represented in person or by
proxy at such meeting and entitled to vote thereat (provided that a lawful
quorum of stockholders be there represented in person or by proxy) shall be as
valid and as binding upon the Corporation and upon all the stockholders as
though it had been approved or ratified by every stockholder of the Corporation,
whether or not the contract or act would otherwise be open to legal attack
because of directors' interest, or for any other reason.
(4) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation; subject, nevertheless, to the provisions of the
statutes of Delaware, of this certificate, and to any by-lays from time to time
made by the stockholders; provided, however, that no by-laws so made shall
invalidate any prior act of the directors which would have been valid if such
by-laws had not been made.
SEVENTH: Any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (whether or not by or
in the right of the Corporation) by reason of the fact that he is or was a
director, officer, incorporator, employee, or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer,
incorporator, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise shall be entitled to be indemnified by the
Corporation to the full extent then permitted by law or to the extent that a
court of competent jurisdiction shall deem proper or permissible under the
circumstances, whichever is greater against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement incurred by him in
connection with such action, suit or proceeding. Such right of indemnification
shall inure whether or not the claim
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asserted is based on matters which antedate the adoption of this Article
SEVENTH. Such right of indemnification shall continue as to a person who has
ceased to be a director, officer, incorporator, employee, or agent and shall
inure to the benefit of the heirs and personal representatives of such person.
EIGHTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on application in a summary way
of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or a class of stockholders of the Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
NINTH: The personal liability of directors of the Corporation is hereby
eliminated to the fullest extent permitted by paragraph 7 of Subsection (b) of
Section 102 of the
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General Corporation Law of the State of Delaware as the same may be amended and
supplemented.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
IN WITNESS THEREOF, I have hereunto signed my name and affirm that the
statements made herein are true under the penalties of perjury, this 28th day of
October, 1991.
/s/ Mark S. Goldfarb
--------------------
Marc S. Goldfarb
Bachner, Tally, Polevoy & Misher
380 Madison Avenue
New York, New York 10017
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EXHIBIT 3.5
CAPX CORPORATION
Incorporated Under the
Laws of the State of Delaware
BY-LAWS
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.
The annual meeting of the stockholders of CAPX Corporation (hereinafter
called the "Corporation") for the election of directors and for the transaction
of such other business as may come before the meeting shall be hold on the date
and at the time fixed, from time to time, by the directors, provided, that the
first annual meeting shall be held on a date within thirteen months after the
organization of the Corporation, and each successive annual meeting shall be
held on a date within thirteen months after the date of the preceding annual
meeting.
Section 2. Special Meeting.
Special meetings of the stockholders, unless otherwise prescribed by
statute, may be called at any time by the Board or the Chairman of the Board or
the President. The Board of Directors shell call a special meeting of the
stockholders when requested in writing by stockholders holding not less than 10%
of the outstanding stock of the Corporation; such written request shell state
the object of the meeting proposed to be held.
Section 3. Notice of Meetings.
Notice of the place, date and time of the holding of each annual and
special meeting of the stockholders and, in the case of a special meeting, the
purpose or purposes thereof shall be given personally or by mail in a postage
prepaid envelope to each stockholder entitled to vote at such meeting, not less
than ten (10) nor more then sixty (60) days before the date of such meeting,
and, if mailed, it shall be directed to him at such stockholder 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 to him be mailed
to some other address, in which case it shall be directed to him at some other
address. If mailed, such notice shall be deemed to be delivered when deposited
in United States mail so addressed with
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postage thereon prepaid. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy. Unless the Board shall fix after the
adjournment a new record date for an adjourned meeting, notice of such adjourned
meeting need not be given if the time and place to which the meeting shall be
adjourned were announced at the meeting at which the adjournment is taken. At
the adjourned meeting the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is 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
stockholder of record entitled to vote at the meeting.
Section 4. Place of Meetings.
Meetings of the stockholders may be held at such place, within or
without the State of Delaware, as the Board or other officer calling the same
shall specify in the notice of such meeting, or in a duly executed waiver of
notice thereof.
Section 5. Quorum.
At all meetings of the stockholders the holders of a majority of the
votes of the shares of stock of the Corporation issued and outstanding and
entitled to vote shall be present in person or by proxy to constitute a quorum
for the transaction of any business, except when stockholders are required to
vote by class, in which event a majority of the issued and outstanding shares of
the appropriate class shall be present in person or by proxy, or except as
otherwise provided by statute or in the Certificate of Incorporation. In the
absence of a quorum, the holders of a majority of the votes of the shares of
stock present in person or by proxy and entitled to vote, or if no stockholder
entitled to vote is present, then any officer of the Corporation may adjourn the
meeting from time to time. At any such adjourned meeting at which a quorum may
be present any business may be transacted which might have been transacted at
the meeting as originally called.
Section 6. Organization.
At each meeting of the stockholders the Chairman of the Board, or in
his absence or inability to act, the President, or in the absence or inability
to act of the Chairman of the Board and the President, a Vice President, or in
the absence of all the
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foregoing, any person chosen majority of those stockholders present, shall act
as chairman of the meeting. The Secretary, or, in his absence or inability to
act, the Assistant Secretary or any person appointed by the chairman of the
meeting, shall act as secretary of the meeting and keep the minutes thereof.
Section 7. Order of Business.
The order of business at all meetings of the stockholders shall be as
determined by the chairman of the meeting.
Section 8. Voting.
Except as otherwise provided by statute, the Certificate of
Incorporation, or any certificate duly filed in the office of the Secretary of
State of Delaware, each holder of record of shares of stock of the Corporation
having voting power shall be entitled at each meeting of the stockholders to one
vote for every shareof such stock standing in his name on the record of
stockholders of the Corporation on the date fixed by the Board as the record
date for the determination of the stockholders who shall be entitled to notice
of and to vote at such meeting; or if such record date shall not have been so
fixed, then at the close of business on the day next preceding the day on which
the meeting is held, or each stockholder entitled to vote at any meeting of
stockholders may authorize another person or persons to act for him by a proxy
signed by such stockholder or his attorney-in-fact. Any such proxy shall be
delivered to the secretary of such meeting at or prior to the time designated in
the order of business for so delivering such proxies. No proxy shall be valid
after the expiration of three years from the date thereof, unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the
stockholder executing it, except in those cases where an irrevocable proxy is
permitted by law. Except as otherwise provided by statute, these By-Laws, or the
Certificate of Incorporation, any corporate action to be taken by vote of the
stockholders shall be authorized by a majority of the total votes, or when
stockholders are required to vote by class by a majority of the votes of the
appropriate class, cast at a meeting of stockholders by the holders of shares
present in person or represented by proxy and entitled to vote on such action.
Unless required by statute, or determined by the chairman of the meeting to be
advisable, the vote on any question need not be by written ballot. On a vote by
written ballot, each ballot shall be signed by the stockholder voting or by his
proxy, if there be such proxy, and shall state the number of shares voted.
Section 9. List of Stockholders.
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The officer who has charge of the stock ledger of the Corporation, or
the transfer agent of the Corporation's stock, if there be one then acting,
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
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, at
the place where the meeting is to be held, or at the office of the transfer
agent. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
Section 10. Inspectors.
The Board may, in advance of any meeting of stockholders, appoint one
or more inspectors to act at such meeting or any adjournment thereof. If the
inspectors shall not be so appointed or if any of them shall fail to appear or
act, the chairman of the meeting may, and on the request of any stockholder
entitled to vote thereat shall, appoint inspectors. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors shall
determine the number of shares outstanding and the voting power of each, the
number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting or any
stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as inspector of an election of directors.
Inspectors need not be stockholders.
Section 11. Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided in the Certificate of Incorporation, any
action required by Subchapter VII of the General Corporation Law, to be taken at
any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents
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in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the
corporation by delivery to its registered office in this State, its principal
place of business, or an officer or agent of the corporation having custody of
the book in which proceedings of meetings of stockholders are recorded. Delivery
made to a corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers.
The business and affairs of the Corporation shall be managed by the
Board. The Board may exercise all such authority and powers of the Corporation
and do all such lawful acts and things as are not by statute or the Certificate
of Incorporation or by these By-Laws directed or required to be exercised or
done by the stockholders.
Section 2. Number, Qualification, Election and Term of Office.
The number of directors of the Corporation shall be fixed from time to
time by the vote of a majority of the entire Board then in office and the number
thereof may thereafter by like vote be increased or decreased to such greater or
lesser number (not less than three) as may be so provided, subject to the
provisions of Section 11 of this Article II. All of the directors shall be of
full age and need not be stockholders. Except as otherwise provided by statute
or these By-Laws, the directors shall be elected at the annual meeting of the
stockholders for the election of directors at which a quorum is present, and the
persons receiving a plurality of the votes cast at such meeting shall be
elected. Each director shall hold office until the next annual meeting of the
stockholders and until his successor shall have been duly elected and qualified,
or until his death, or until he shall have resigned or have been removed, as
hereinafter provided in these By-Laws, or as otherwise provided by statute or
the Certificate of Incorporation.
Section 3. Place of Meetings.
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Meetings of the Board may be held at such place, within or without the
State of Delaware, as the Board may from time to time determine or as shall be
specified in the notice or waiver of notice of such meeting.
Section 4. Annual Meeting.
The Board shall meet for the purpose of organization, the election of
officers and the transaction of other business, as soon as practicable after
each annual meeting of the stockholders on the same day and at the same place
where such annual meeting shall be held. Notice of such meeting need not be
given. Such meeting may be held at any other time or place (within or without
the State of Delaware) which shall be specified in a notice thereof given as
hereinafter provided in Section 7 of this Article II.
Section 5. Regular Meetings.
Regular meetings of the Board shall be held at such time and place as
the Board may from time to time determine. If any day fixed for a regular
meeting shall be a legal holiday at the place where the meeting is to be held,
then the meeting which would otherwise be held on that day shall be held at the
same hour on the next succeeding business day. Notice of regular meetings of the
Board need not be given except as otherwise required by statute or these
By-Laws.
Section 6. Special Meetings.
Special meetings of the Board may be called by two or more directors of
the Corporation or by the Chairman of the Board or the President.
Section 7. Notice of Meetings.
Notice of each special meeting of the Board (and of each regular
meeting for which notice shall be required) shall be given by the Secretary as
hereinafter provided in this Section 7, in which notice shall be stated the time
and place (within or without the State of Delaware) of the meeting. Notice of
each such meeting shall be delivered to each director either personally or by
telephone, telegraph, cable or wireless, at least twenty-four hours before the
time at which such meeting is to be held or by first-class mail, postage
prepaid, addressed to him at his residence, or usual place of business, at least
three days before the day on which such meeting is to be held. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail.
Notice of any such meeting
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need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. Except
as otherwise specifically required by these By-Laws, a notice or waiver of
notice of any regular or special meeting need not state the purposes of such
meeting.
Section 8. Quorum and Manner of Acting.
A majority of the entire Board shall be present in person at any
meeting of the Board in order to constitute a quorum for the transaction of
business at such meeting, and, except as otherwise expressly required by statute
or the Certificate of Incorporation, 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. Any one or more members of the Board or any committee thereof may
participate in a meeting of the Board or such committee by means of a conference
telephone or similar communications equipment allowing all participants in the
meeting to hear each other at the same time and participation by such means
shall constitute presence in person at a meeting. In the absence of a quorum at
any meeting of the Board, a majority of the directors present thereat, or if no
director be present, the Secretary, may adjourn such meeting to another time and
place, or such meeting, unless it be the annual meeting of the Board, need not
be held. At any adjourned meeting at which a quorum is present, any business may
be transacted which might have been transacted at the meeting as originally
called. Except as provided in Article III of these By-Laws, the directors shall
act only as a Board and the individual directors shall have no power as such.
Section 9. Organization.
At each meeting of the Board, the Chairman of the Board (or, in his
absence or inability to act, the President, or, in his absence or inability to
act, another director chosen by a majority of the directors present) shall act
as chairman of the meeting and preside thereat. The Secretary (or, in his
absence or inability to act, any person appointed by the chairman) shall act an
secretary of the meeting and keep the minutes thereof.
Section 10. Resignations.
Any director of the Corporation may resign at any time by giving
written notice of his resignation to the Board or Chairman of the Board or the
President or the Secretary. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified
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therein, immediately upon its receipt; and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 11. Vacancies.
Vacancies, including newly created directorships, may be filled by a
majority of the directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in this Section for the filling
of other vacancies.
Section 12. Removal of Directors.
Except as otherwise provided in the Certificate of Incorporation or in
these By-Laws, any director may be removed, either with or without cause, at any
time, by the affirmative vote of a majority of the votes of the issued and
outstanding shares of stock entitled to vote for the election of the
stockholders called and held for that purpose, or by a majority vote of the
Board of Directors at a meeting called for such purpose, and the vacancy in the
Board caused by any such removal may be filled by such stockholders or
directors, as the case may be, at such meeting, and if the stockholders shall
fail to fill such vacancy, such vacancy shall be filled in the manner as
provided by these By-Laws.
Section 13. Compensation.
The Board shall have authority to fix the compensation, including fees
and reimbursement of expenses, of directors for services to the Corporation in
any capacity, provided no such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
Section 14. Action by the Board.
To the extent permitted under the laws of the State of Delaware, any
action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board or
committee.
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ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive and Other Committees.
The Board may by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of two or more of
the directors of the Corporation. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the Committee. Any such committee, to the
extent provided in the resolution, shall have and may exercise the powers of the
Board in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that in the absence or disqualification of any
member of such committee or committees, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board to act
at the meeting in the place of any such absent or disqualified member. Each
committee shall keep minutes of its proceedings and shall report such minutes to
the Board when required.
Section 2. General.
A majority of any committee may determine its action and fix the time
and place of its meetings, unless the Board shall otherwise provide. Notice of
such meetings shall be given to each member of the committee in the manner
provided for in Article II, Section 7. The Board shall have the power at any
time to fill vacancies in, to change the membership of, or to dissolve any such
committee. Nothing herein shall be deemed to prevent the Board from appointing
one or more committees consisting in whole or in part of persons who are
directors of the Corporation; provided, however, that no such committee shall
have or may exercise any authority of the Board.
ARTICLE IV
OFFICERS
Section 1. Number and Qualifications.
The officers of the Corporation shall include the Chairman of the
Board, the President, one or more Vice Presidents (one or more of whom may be
designated Executive Vice President or Senior Vice President), the Treasurer,
and the Secretary. Any two or more offices may be held by the same person. Such
officers shall
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be elected from time to time by the Board, each to hold office until the meeting
of the Board following the next annual meeting of the stockholders, or until his
successor shall have been duly elected and shall have qualified, or until his
death, or until he shall have resigned, or have been removed, as hereinafter
provided in these By-Laws. The Board may from time to time elect a Vice Chairman
of the Board, and the Board may from time to time elect, or the Chairman of the
Board, or the President may appoint, such other officers (including one or more
Assistant Vice Presidents, Assistant Secretaries, and Assistant Treasurers), as
may be necessary or desirable for the business of the Corporation. Such other
officers and agents shall have such duties and shall hold their offices for such
terms as may be prescribed by the Board or by the appointing authority.
Section 2. Resignation.
Any officer of the Corporation may resign at any time by giving written
notice of his resignation to the Board, the Chairman of the Board, the President
or the Secretary. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt; and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 3. Removal.
Any officer or agent of the Corporation may be removed, either with or
without cause, at any time, by the vote of the majority of the entire Board at
any meeting of the Board or, except in the case of an officer or agent elected
or appointed by the Board, by the Chairman of the Board or the President. Such
removal shall be without prejudice to the contractual rights, if any, of the
person so removed.
Section 4. Vacancies.
A vacancy in any office, whether arising from death, resignation,
removal or any other cause, may be filled for the unexpired portion of the term
of the office which shall be vacant, in the manner prescribed in these By-Laws
for the regular election or appointment to such office.
Section 5. a. The Chairman of the Board.
The Chairman of the Board, if one be elected, shall, if present,
preside at each meeting of the stockholders and of the Board and shall be an ex
officio member of all commit-
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tees of the Board. He shall perform all duties incident to the office of
Chairman of the Board and such other duties as may from time to time be assigned
to him by the Board.
b. The Vice Chairman of the Board.
The Vice Chairman of the Board, if one be elected, shall have such
powers and perform all such duties as from time to time may be assigned to him
by the Board or the Chairman of the Board and, unless otherwise provided by the
Board, shall in the case of the absence or inability to act of the Chairman of
the Board, perform the duties of the Chairman of the Board and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
Chairman of the Board.
Section 6. The President.
The President shall be the chief operating and executive officer of the
Corporation and shall have general and active supervision and direction over the
business and affairs of the Corporation and over its several officers, subject,
however, to the direction of the Chairman of the Board and the control of the
Board. If no Chairman of the Board is elected, or at the request of the Chairman
of the Board, or in the case of his absence or inability to act, unless there be
a Vice Chairman of the Board so designated to act, the President shall perform
the duties of the Chairman of the Board and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the Chairman of the
Board. He shall perform all duties incident to the office of President and such
other duties as from time to time may be assigned to him by the Board or the
Chairman of the Board.
Section 7. Vice Presidents.
Each Executive Vice President, each Senior Vice President and each Vice
President shall have such powers and perform all such duties as from time to
time may be assigned to him by the Board, the Chairman of the Board, or the
President. They shall, in the order of their seniority, have the power and may
perform the duties of the Chairman of the Board and the President.
Section 8. The Treasurer.
The Treasurer shall be the chief financial officer of the Corporation
and shall exercise general supervision over the receipt, custody and
disbursement of Corporate funds. He shall have such further powers and duties as
may be conferred upon him from time to time by the President or the Board of
Directors. He
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shall perform the duties of controller if no one is elected to that office.
Section 9. The Secretary.
The Secretary shall
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board, the committees of the Board
and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and
affix and attest the seal to all stock certificates of the Corporation (unless
the seal be a facsimile, as hereinafter provided) and affix and attest the seal
to all other documents to be executed on behalf of the Corporation under its
seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept and
filed; and
(e) in general, perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the Board, the Chairman of the Board, or the President.
Section 10. Officer's Bonds or Other Security.
If required by the Board, any officer of the Corporation shall give a
bond or other security for the faithful performance of his duties, in such
amount and with such surety or sureties as the Board may require.
Section 11. Compensation.
The compensation of the officers of the Corporation for their services
as such officers shall be fixed rom time to time by the Board, provided,
however, that the Board may delegate to the Chairman of the Board or the
President the power to fix the compensation of officers and agents appointed by
the Chairman of the Board or the President, as the case may be. An officer of
the Corporation shall not be prevented from receiving compensation by reason of
the fact that he is also a director of the Corporation, but any such officer who
shall also be a director
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shall not have any vote in the determination of the amount of compensation paid
to him.
ARTICLE V
INDEMNIFICATION
Section 1. Right to Indemnification.
The corporation shall indemnify and hold harmless, to the fullest
extent permitted by applicable law as it presently exists or may hereafter be
amended, any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact that he,
or a person for whom he is the legal representative, is or was a director or
officer of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys' fees) reasonably incurred
by such person. The corporation shall be required to indemnify a person in
connection with a proceeding (or part thereof) initiated by such person only if
the proceeding (or part thereof) was authorized by the Board of Directors of the
corporation.
Section 2. Prepayment of Expenses.
The corporation shall pay the expenses (including attorneys' fees)
incurred in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a director or
officer in advance of the final disposition of the proceeding shall be made only
upon receipt of an undertaking by the director or officer to repay all amounts
advanced if it should be ultimately determined that the director or officer is
not entitled to be indemnified under this Article or otherwise.
Section 3. Claims.
If a claim for indemnification or payment of expenses under this
Article is not paid in full within sixty days after a written claim therefor has
been received by the corporation, the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the corporation shall have the burden of proving that the
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claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
Section 4. Non-exclusivity of Rights.
The rights conferred on any person by this Article V shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the certificate of incorporation, these by-laws,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. Other Indemnification.
The corporation's obligation, if any, to indemnify any person who was
or is serving at its request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, enterprise or nonprofit
entity shall be reduced by any amount such person may collect as indemnification
from such other corporation, partnership, joint venture, trust, enterprise or
nonprofit enterprise.
Section 6. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this Article
V shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNT, ETC.
Section 1. Execution of Contracts.
Except as otherwise required by statute, the Certificate of
Incorporation or these By-Laws, any contracts or other instruments may be
executed and delivered in the name and on behalf of the Corporation by such
officer or officers (including any assistant officer) of the Corporation as the
Board may from time to time direct. Such authority may be general or confined to
specific instances as the Board may determine. Unless authorized by the Board or
expressly permitted by these By-Laws, an officer or agent or employee shall not
have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it pecuniarily liable for any
purpose or to any amount.
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Section 2. Loans.
Unless the Board shall otherwise determine, either (a) the Chairman of
the Board, the Vice Chairman of the Board or the President, singly, or (b) a
Vice President, together with the Treasurer, may effect loans and advances at
any time for the Corporation or guarantee any loans and advances to any
subsidiary of the Corporation, from any bank, trust company or other
institution, or from any firm, corporation or individual, and for such loans and
advances may make, execute and deliver promissory notes, bonds or other
certificates or evidences of indebtedness of the Corporation, or guarantee of
indebtedness of subsidiaries of the Corporation, but no officer or officers
shall mortgage, pledge, hypothecate or transfer any securities or other property
of the Corporation, except when authorized by the Board.
Section 3. Check, Drafts, etc.
All checks, drafts, bills of exchange or other orders for the payment
of money out of the funds of the Corporation, and all notes or other evidences
of indebtedness of the Corporation, shall be signed in the name and on behalf of
the Corporation by such persons and in such manner as shall from time to time be
authorized by the Board.
Section 4. Deposits.
All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies or other depositories as the Board may from time to time designate or
as may be designated by any officer or officers of the Corporation to whom such
power of designation may from time to time be delegated by the Board. For the
purpose of deposit and for the purpose of collection for the account of the
Corporation, checks, drafts and other orders for the payment of money which are
payable to the order of the Corporation may be endorsed, assigned and delivered
by any officer or agent of the Corporation, or in such manner as the Board may
determine by resolution.
Section 5. General and Special Bank Accounts.
The Board may from time to time authorize the opening and keeping of
general and special bank accounts with such banks, trust companies or other
depositories as the Board may designate or as may be designated by any officer
or officers of the Corporation to whom such power of designation may from time
to time be delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not
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inconsistent with the provisions of these By-Laws, as it may deem expedient.
Section 6. Proxies in Respect of Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman of the Board, the President, or a Vice President may
from time to time appoint an attorney or attorneys or agent or agents, of the
Corporation, in the name and on behalf of the Corporation to cast the votes
which the Corporation may be entitled to cast as the holder of stock or other
securities in any other corporation, any of whose stock or other securities may
be held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporation, or to consent in writing, in the name of
the Corporation as such holder, to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal, or otherwise
all such written proxies or other instruments as he may deem necessary or proper
in the premises.
ARTICLE VII
SHARES, ETC.
Section 1. Stock Certificates.
Each holder of shares of stock of the Corporation shall be entitled to
have a certificate, in such form as shall be approved by the Board, certifying
the number of shares of the Corporation owned by him. The certificates
representing shares of stock shall be signed in the name of the Corporation by
the Chairman of the Board or the President or a Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
and sealed with the seal of the Corporation (which seal may be a facsimile,
engraved or printed); provided, however, that where any such certificate is
countersigned by a transfer agent other than the Corporation or its employee, or
is registered by a registrar other than the Corporation or one of its employees,
the signature of the officers of the Corporation upon such certificates may be
facsimiles, engraved or printed. In case any officer who shall have signed or
whose facsimile signature has been placed upon such certificates shall have
ceased to be such officer before such certificates shall be issued, they may
nevertheless be issued by the Corporation with the same effect as if such
officer were still in office at the date of their issue.
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Section 2. Books of Account and Record of Shareholders.
The books and records of the Corporation may be kept at such places
within or without the state of incorporation as the Board of Directors may from
time to time determine. The stock record books and the blank stock certificate
books shall be kept by the Secretary or by any other officer or agent designated
by the Board of Directors.
Section 3. Transfer of Shares.
Transfers of shares of stock of the Corporation shall be made on the
stock records of the Corporation only upon authorization by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary or with a transfer agent or transfer
clerk, and on surrender of the certificate or certificates for such shares
properly endorsed or accompanied by a duly executed stock transfer power and the
payment of all taxes thereon. Except as otherwise provided by law, the
Corporation shall be entitled to recognize the exclusive right of a person in
whose name any share or shares stand on the record of stockholders as the owner
of such share or shares for all purposes, including, without limitation, the
rights to receive dividends or other distributions, and to vote as such owner,
and the Corporation may hold any such stockholder of record liable for calls and
assessments and the Corporation shall not be bound to recognize any equitable or
legal claim to or interest in any such share or shares on the part of any other
person whether or not it shall have express or other notice thereof. Whenever
any transfers of shares shall be made for collateral security and not
absolutely, and both the transferor and transferee request the Corporation to do
so, such fact shall be stated in the entry of the transfer.
Section 4. Regulations.
The Board may make such additional rules and regulations, not
inconsistent with these By-Laws, as it may deem expedient concerning the issue,
transfer and registration of certificates for shares of stock of the
Corporation. It may appoint, or authorize any officer or officers to appoint,
one or more transfer agents or one or more transfer clerks and one or more
registrars and may require all certificates for shares of stock to beat the
signature or signatures of any of them.
Section 5. Lost, Destroyed or Mutilated Certificates.
The holder of any certificate representing shares of stock of the
Corporation shall immediately notify the Corporation of any loss, destruction or
mutilation of such certificate, and the
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Corporation may issue a new certificate of stock in the place of any certificate
theretofore issued by it which the owner thereof shall allege to have been lost,
stolen, or destroyed or which shall have been mutilated, and the Board may, in
its discretion, require such owner or his legal representative to give the
Corporation a bond in such sum, limited or unlimited, and in such sum, limited
or unlimited, and in such form and with such surety or sureties as the Board in
its absolute discretion shall determine, 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 a new certificate.
Anything herein to the contrary notwithstanding, the Board, in its absolute
discretion, may refuse to issue any such new certificate, except pursuant to
legal proceedings under the laws of the State of Delaware.
Section 6. Fixing Date for Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more than
sixty nor less than ten days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than sixty
days prior to such other action. If no record date is fixed: (1) the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (2) the record date
for determined stockholders entitled to express consent to corporate action in
writing without a meeting when no prior action of the Board of Directors is
required by law shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation in accordance with applicable law, or, if prior action by the Board
of Directors is required by law, shall be at
- 30 -
<PAGE>
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action; and (3) the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
ARTICLE VIII
OFFICES
Section 1. Principal or Registered Office.
The principal registered office of the Corporation shall be at such
place as may be specified in the Certificate of Incorporation of the Corporation
or other certificate filed pursuant to law, or if none be so specified, at such
place as may from time to time be fixed by the Board.
Section 2. Other Offices.
The Corporation also may have an office or offices other than said
principal or registered office, at such place or places either within or without
the State of Delaware.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board.
ARTICLE X
SEAL
The Board shall provide a corporate seal which shall contain the name
of the Corporation, the words "Corporate Seal" and the year and State of
Delaware.
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<PAGE>
ARTICLE XI
AMENDMENTS
Section 1. Shareholders.
These By-Laws may be amended or repealed, or new By-Laws may be
adopted, at any annual or special meeting of the stockholders, by a majority of
the total votes of the stockholders or when stockholders are required to vote by
class by a majority of the appropriate class, in person or represented by proxy
and entitled to vote on such action; provided, however, that the notice of such
meeting shall have been given as provided in these By-Laws, which notice shall
mention that amendment or repeal of these ByLaws, or the adoption of new
By-Laws, is one of the purposes of such meeting.
Section 2. Board of Directors.
These By-Laws may also be amended or repealed or new By-Laws may be
adopted, by the Board at any meeting thereof; provided, however, that notice of
such meeting shall have been given as provided in these By-Laws, which notice
shall mention that amendment or repeal of the By-Laws, or the adoption of new
ByLaws, is one of the purposes of such meetings. By-Laws adopted by the Board
may be amended or repealed by the stockholders as provided in Section 1 of this
Article XI.
ARTICLE XII
MISCELLANEOUS
Section 1. Interested Directors.
No contract or other transaction between the Corporation and any other
corporation shall be affected and invalidated by the fact that any one or more
of the Directors of the Corporation in or are interested in or is a Director or
officer or are Directors or officers of such other corporation, and any Director
or Directors, individually or jointly, may be a party or parties to or may be
interested in any contract or transaction of the Corporation or in which the
Corporation is interested; and no contract, act or transaction of the
Corporation with any person or persons, firm or corporation shall be affected or
invalidated by the fact that any Director or Directors of the Corporation is a
party or are parties to or interested in such contract, act or transaction, or
in any way connected with such person or persons, firms or associations, and
each and every person who may become a Director of the Corporation is hereby
relieved from any liability that might otherwise exist from contracting with the
Corporation
- 32 -
<PAGE>
for the benefit of himself, any firm, association or corporation in which he may
be in any way interested.
Section 2. Ratification.
Any transaction questioned in any stockholders' derivative suit on the
grounds of lack of authority, defective or irregular execution, adverse interest
of director, officer or stockholder, nondisclosure, miscomputation, or the
application of improper principles or practices of accounting, may be ratified
before or after judgment, by the Board of Directors or by the stockholders in
case less than a quorum of Directors are qualified, and, if so ratified, shall
have the same force and effect as if the questioned transaction had been
originally duly authorized, and said ratification shall be binding upon the
Corporation and its stockholders, and shall constitute a bar to any claim or
execution of any judgment In respect of such questioned transaction.
- 33 -
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM 10-K
FOR THE FISCAL YEAR ENDED MARCH 31, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> MAR-31-1996
<PERIOD-END> MAR-31-1996
<CASH> 3,168,730
<SECURITIES> 175,000
<RECEIVABLES> 16,952,084
<ALLOWANCES> 3,995,296
<INVENTORY> 0
<CURRENT-ASSETS> 16,300,518
<PP&E> 1,410,793
<DEPRECIATION> 397,620
<TOTAL-ASSETS> 24,485,089
<CURRENT-LIABILITIES> 2,752,009
<BONDS> 22,050,000
9,269
0
<COMMON> 0
<OTHER-SE> (326,189)
<TOTAL-LIABILITY-AND-EQUITY> 24,485,089
<SALES> 0
<TOTAL-REVENUES> 9,135,075
<CGS> 0
<TOTAL-COSTS> 10,699,838
<OTHER-EXPENSES> 390,926
<LOSS-PROVISION> 8,839,461
<INTEREST-EXPENSE> 3,289,876
<INCOME-PRETAX> (13,116,333)
<INCOME-TAX> (4,935,676)
<INCOME-CONTINUING> (8,180,657)
<DISCONTINUED> (47,595)
<EXTRAORDINARY> 7,306,970
<CHANGES> 176,735
<NET-INCOME> (744,547)
<EPS-PRIMARY> (0.16)
<EPS-DILUTED> (0.16)
</TABLE>
