<PAGE> 1
Form 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Quarterly report pursuant to section 13 or 15(d) of the
Securities Exchange Act of 1934
<TABLE>
<S> <C>
For the quarterly period Commission file number:
ended SEPTEMBER 30, 1997 0-18826
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</TABLE>
ALLIED CAPITAL ADVISERS, INC.
------------------------------------------------------
(exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 52-0812307
- ------------------------- --------------------
(State or jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
</TABLE>
1666 K STREET, N.W.
9TH FLOOR
WASHINGTON, DC 20006
----------------------------------------
(Address of principal executive offices)
Registrant's telephone number, including area code: (202) 331-1112
--------------
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 12 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter periods as the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES X NO
--- ---
On November 7, 1997 there were 9,648,185 shares outstanding of the Registrant's
common stock, $0.001 par value.
<PAGE> 2
ALLIED CAPITAL ADVISERS, INC.
FORM 10-Q INDEX
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheet - As of September 30, 1997 and
December 31, 1996................................................1
Consolidated Statement of Income - For the Three and
Nine Months Ended September 30, 1997 and 1996....................2
Consolidated Statement of Cash Flows - For the
Nine Months Ended September 30, 1997 and 1996....................3
Notes to the Consolidated Financial Statements...................4
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations........................................6
PART II. OTHER INFORMATION
Item 1. Legal Proceedings..................................................8
Item 2. Changes in Securities..............................................8
Item 3. Defaults Upon Senior Securities....................................8
Item 4. Submission of Matters to a Vote of Security Holders................8
Item 5. Other Information..................................................8
Item 6. Exhibits and Reports on Form 8-K...................................8
Signatures...................................................................9
<PAGE> 3
PART I - Financial Information
Item 1. Financial Statements
ALLIED CAPITAL ADVISERS, INC.
CONSOLIDATED BALANCE SHEET
(in thousands, except share amounts)
<TABLE>
<CAPTION>
September 30, 1997 December 31, 1996
------------------ -----------------
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ..................................................... $ 5,745 $ 5,060
Investment advisory and management fees receivable ............................ 3,869 4,282
Other current assets .......................................................... 1,605 1,107
-------- --------
Total current assets ........................................................ 11,219 10,449
Property and equipment, net ..................................................... 4,431 4,279
Deferred compensation trust ..................................................... 1,359 1,514
Deferred income taxes ........................................................... 683 1,087
Other assets .................................................................... 113 194
-------- --------
Total assets ................................................................ $ 17,805 $ 17,523
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accrued salaries and employee benefits ........................................ $ 1,563 $ 3,113
Accounts payable and accrued expenses ......................................... 744 701
-------- --------
Total current liabilities ................................................... 2,307 3,814
Deferred compensation ........................................................... 1,359 2,658
-------- --------
Total liabilities ........................................................... 3,666 6,472
-------- --------
Contingencies
Shareholders' Equity:
Common stock, $0.001 par value; 20,000,000 shares
authorized; 9,611,819 shares and 8,867,430
outstanding as of 9/30/97 and 12/31/96, respectively ........................ 9 9
Additional paid-in capital .................................................... 7,230 5,674
Common stock held in deferred compensation trust .............................. -- (738)
Notes receivable from sale of common stock .................................... (1,138) --
Retained earnings ............................................................. 8,038 6,106
-------- --------
Total shareholders' equity .................................................. 14,139 11,051
-------- --------
Total liabilities and shareholders' equity .................................. $ 17,805 $ 17,523
======== ========
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS
1
<PAGE> 4
ALLIED CAPITAL ADVISERS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENT OF INCOME
(in thousands, except per share amounts)
(unaudited)
<TABLE>
<CAPTION>
For the Three Months Ended For the Nine Months Ended
September 30, September 30,
------------------- -------------------
1997 1996 1997 1996
------- ------- ------- -------
<S> <C> <C> <C> <C>
Revenue:
Investment advisory and management fees .................................. $ 3,835 $ 4,064 $11,804 $11,850
Rental and other income .................................................. 481 318 1,235 899
------- ------- ------- -------
Total revenue .......................................................... 4,316 4,382 13,039 12,749
------- ------- ------- -------
Expenses:
Salary and employee benefit expenses ..................................... 2,302 2,010 6,508 6,277
Rent ..................................................................... 170 160 503 481
General and administrative ............................................... 1,046 840 2,666 2,021
------- ------- ------- -------
Total Expenses ......................................................... 3,518 3,010 9,677 8,779
------- ------- ------- -------
Income before income taxes ................................................. 798 1,372 3,362 3,970
Income tax expense ......................................................... 365 565 1,431 1,644
------- ------- ------- -------
Net income ................................................................. $ 433 $ 807 $ 1,931 $ 2,326
======= ======= ======= =======
Net income per share ....................................................... $ 0.05 $ 0.08 $ 0.20 $ 0.24
======= ======= ======= =======
Weighted average number of shares and share
equivalents outstanding .................................................. 9,606 9,913 9,595 9,877
======= ======= ======= =======
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS
2
<PAGE> 5
ALLIED CAPITAL ADVISERS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
For the Nine Months Ended September 30,
---------------------------------------
1997 1996
------- -------
<S> <C> <C>
Cash Flows from Operating Activities:
Net income ......................................................................... $ 1,931 $ 2,326
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization .................................................... 348 281
Deferred income taxes ............................................................ 404 (135)
Changes in assets and liabilities ................................................ (1,190) (794)
------- -------
Net cash provided by operating activities .......................................... 1,493 1,678
------- -------
Cash Flows from Investing Activities:
Expenditures for property and equipment .......................................... (498) (328)
Acquisition of investments in deferred compensation trust ........................ (608) --
------- -------
Net cash used in investing activities .............................................. (1,106) (328)
------- -------
Cash Flows for Financing Activities:
Acquisition of common stock in deferred compensation trust ....................... (102) --
Proceeds from sale of common stock ............................................... 400 --
------- -------
Net cash provided by financing activities .......................................... 298 --
------- -------
Net increase in cash and cash equivalents .......................................... 685 1,350
Cash and cash equivalents - beginning of period .................................... 5,060 4,386
------- -------
Cash and cash equivalents - end of period .......................................... $ 5,745 $ 5,736
======= =======
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS
3
<PAGE> 6
ALLIED CAPITAL ADVISERS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
(UNAUDITED)
NOTE 1. GENERAL
In the opinion of management, the accompanying unaudited consolidated financial
statements of Allied Capital Advisers, Inc. and Subsidiary (the Company) contain
all adjustments (consisting of only normal recurring accruals) necessary to
present fairly the Company's financial position as of September 30, 1997 and the
results of operations, and cash flows for the periods indicated. Certain
information and footnote disclosures normally included in the financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted. It is suggested that these financial statements
be read in conjunction with the financial statements and notes thereto included
in the Company's December 31, 1996 Annual Report. The results of operations for
the three and nine months ended September 30, 1997 are not necessarily
indicative of the operating results to be expected for the full year. Certain
reclassifications have been made to the 1996 financial statements in order to
conform to the 1997 presentation.
NOTE 2. INVESTMENT ADVISORY SERVICES
The Company has investment advisory or management agreements to manage the
assets of certain companies. The investment advisory or management agreements
are generally annual agreements and remain in effect as long as they continue to
be approved by the board of directors of the companies under management. These
agreements may be terminated at any time on sixty days' notice, without penalty,
by the managed companies' board of directors or by a vote of the holders of a
majority of the managed companies' outstanding shares. In addition, these
agreements will terminate automatically in the event of their assignment.
The Company does not have an ownership interest in most of the companies it
manages; however, certain officers and directors of the Company are also
officers and directors of the companies managed, and therefore they may be
considered affiliates. The Company manages the day-to-day activities of these
companies pursuant to the investment advisory or management agreements and
provides personnel, administrative services and assistance, facilities and other
support. As set forth in the agreements, the Company pays certain operating
expenses, including compensation of the companies' officers and other related
personnel costs, office space, and equipment.
At September 30, 1997 and December 31, 1996, the Company managed assets of
approximately $872,000,000 and $764,000,000, respectively. Included in invested
assets at September 30, 1997 and December 31, 1996, were approximately
$41,000,000 and $53,000,000, respectively, in assets of a company that is
co-managed by another investment manager. The Company pays one-third of its fees
received from this company to the co-manager.
The fees charged pursuant to these agreements generally approximate 2.5 percent
on invested assets and 0.5 percent on interim investments and cash and cash
equivalents on an annual basis. The Company receives payments of advisory and
management fees quarterly in arrears. The Company from time to time will waive
or adjust its advisory or management fees, given certain regulatory or economic
circumstances. The Company believes that it is prudent to waive or adjust its
fees when market conditions dictate such an adjustment, and such actions will
enhance the Company's investment advisory and management performance overall. To
enhance Allied Capital Commercial Corporation's (Allied Commercial's)
competitiveness in the market place, the Company revised its management fee
structure with Allied Commercial. The fee schedule was first revised on May 3,
1996 and that scheduled applied to all loans originated or purchased on or after
January 1, 1996. Advisers and Allied Commercial modified the fees again in
January 1997 for loans originated or purchased on or after January 1, 1997.
The revised fee schedule tiers the management fee payable to Advisers, based
upon certain characteristics of the outstanding loans held in Allied
Commercial's loan portfolio. The revised fee schedule is based upon credit
quality and other factors associated with the loans, and fees range from
approximately 0.5 percent per annum to 3.5 percent per annum. The revised fee
schedule places a quarterly cap, at a rate of approximately 2.5 percent per
annum, on the total management fees payable to Advisers with respect to Allied
Commercial's portfolio. The new fee schedule does not alter the fees charged on
cash, temporary investments or other assets.
For the nine months ended September 30, 1997 and 1996, investment advisory and
management fees as a percent of total average assets under management were 1.9%
and 2.2%, respectively.
4
<PAGE> 7
NOTE 3. DEFERRED COMPENSATION TRUST
At September 30, 1997, investments made by the Trust included money market
funds, mutual funds, and common stock of certain companies that are under the
management of the Company.
NOTE 4. REVOLVING LINE OF CREDIT AGREEMENT
The Company did not renew its revolving line of credit agreement that expired on
May 31, 1997.
NOTE 5. NET INCOME PER SHARE
In March 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No.128, `Earnings per Share' (SFAS 128). SFAS 128
is effective for financial statements for both interim and annual periods ending
after December 15, 1997. SFAS 128 modifies the method of calculation of net
income per share and also requires a reconciliation between basic and diluted
per share amounts. Early adoption of the statement prior to the end of 1997 is
not allowed.
The following table (in thousands except per share data) presents the effect of
SFAS 128 on the Company's net income per share as if adopted for current period
disclosure:
<TABLE>
<CAPTION>
Three Months Ended September 30, Nine Months Ended September 30,
-------------------------------- -------------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income....................................... $433 $807 $1,931 $2,326
==== ==== ====== ======
Basic average shares outstanding................. 9,226 8,990 9,053 8,990
===== ===== ===== =====
Basic net income per share....................... $0.05 $0.09 $0.21 $0.26
===== ===== ===== =====
Effect of dilutive securities:
Outstanding stock options ...................... 380 923 542 887
=== === === ===
Diluted average shares outstanding............... 9,606 9,913 9,595 9,877
===== ===== ===== =====
Diluted net income per share..................... $0.05 $0.08 $0.20 $0.24
===== ===== ===== =====
</TABLE>
NOTE 6. CONTINGENCIES
The Company is party to certain lawsuits. While the outcome of these legal
proceedings cannot at this time be predicted with certainty, management does not
expect that these actions will have a material effect upon the financial
condition of the Company.
NOTE 7. MERGER
On August 14, 1997, the Company announced that it has entered into an Agreement
and Plan of Merger (the "Merger Agreement") with Allied Capital Corporation,
Allied Capital Corporation II, Allied Capital Commercial Corporation and Allied
Capital Lending Corporation (collectively, the "Companies") pursuant to which
the Company and Allied Capital Corporation, Allied Capital Corporation II and
Allied Capital Commercial Corporation would merge with and into Allied Capital
Lending Corporation through a stock for stock exchange (the "Merger"). Pursuant
to the terms of the Merger Agreement, stockholders of the Company at the
effective time of the Merger will receive 0.31 shares of the merged entity. The
Merger is subject to the approval by at least two-thirds of the stockholders of
each of the merging companies, as well as subject to certain regulatory
approvals, and other customary closing conditions. The Special Meetings of
Stockholders of the Companies to vote on the Merger and the other related
transactions is scheduled to be held on November 26, 1997. The Joint Proxy
Statement/Prospectus relating to the Merger was distributed to stockholders on
or about October 14, 1997.
Applications have been submitted by the Companies to the Securities and Exchange
Commission and the Small Business Administration seeking certain exemptive
relief and approvals in connection with the Merger. Such applications are
currently pending before such agencies. If all required approvals are obtained,
the Company anticipates the Merger would be effective on December 31, 1997.
5
<PAGE> 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion should be read in conjunction with the financial
statements and notes thereto included elsewhere in this report.
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1997, Allied Capital Advisers, Inc. and its subsidiary had $5.7
million in cash and cash equivalents. Current assets were $11.2 million compared
to current liabilities of $2.3 million.
The Company is a service company and does not have a significant budget for
capital expenditures. Capital expenditures during the first three quarters of
1997 were $498,000 and have been largely due to the purchase of computer-related
equipment. Capital resources available at September 30, 1997 appear adequate to
satisfy future operating needs. There are no known demands or uncertainties that
might cause the Company to have an increased or decreased demand for liquidity.
RESULTS OF OPERATIONS
For the Three Months Ended September 30, 1997 and 1996
For the three months ended September 30, 1997, net income was $433,000, or $0.05
per share, as compared to $807,000 or $0.08 per share for the same quarter in
1996. This decrease in earnings is due to several factors, including a decline
in investment advisory revenue, and an increase in operating expenses related to
the Company's pending Merger.
Investment advisory and management fees have declined approximately 6% or
$229,000 even though total assets under management continue to increase. Total
assets under management increased to approximately $872 million as of September
30, 1997 from approximately $755 million at September 30, 1996. This represents
a 15% increase in managed assets. The investment advisory and management fee
percentage pursuant to investment advisory agreements, however, decreased as a
percent of total assets under management. For the third quarter of 1997 and
1996, investment advisory and management fees as a percent of total average
assets under management were 1.8% and 2.2%, respectively. A significant portion
of the increase in assets under management is attributable to the loan portfolio
of Allied Commercial, and the new loans originated have a reduced advisory fee
percentage. The Company believes that its decision to reduce its fees to Allied
Commercial remains appropriate given the competitive nature of the commercial
real estate finance market.
Also, the Company agreed with its co-manager to reduce its management fees
charged on the portfolio of Business Mortgage Investors, Inc. (BMI). BMI is no
longer originating new loans. BMI's total assets were $41 million at September
30, 1997 which resulted in a net fee to the Company in the amount of $100,000
for the quarter.
Rental and other income includes rental income generated from the office
building in Northern Virginia, interest earned on cash and temporary
investments, and earnings from the assets of the deferred compensation trust
(realized and unrealized earnings). Rental and other income increased 51% to
$481,000 for the three months ended September 30, 1997 from $318,000 for the
same period in 1996. For the three months ended September 30, 1997 and 1996, the
office building generated rental income of $231,000 and $226,000, respectively.
Other income and interest income from cash and temporary investments was
$131,000 and $92,000 for the third quarter ended September 30, 1997 and 1996,
respectively. Earnings from the assets held in the deferred compensation trust
equaled $119,000 for the quarter ended September 30, 1997. The first nine months
of 1996 did not have earnings from the deferred compensation trust because it
was not established until December 1996. Earnings in the deferred compensation
trust include interest and dividend income and unrealized appreciation or
depreciation on equity securities.
Total expenses increased 17% to $3.5 million as compared to $3.0 million for the
three months ended September 30, 1997 and 1996, respectively. Salary and
employee benefit expenses increased because of increased staffing and due to the
$119,000 in expenses associated with the deferred compensation trust assets
discussed in the paragraph above. General and administrative expenses increased
$206,000 to $1.0 million, or 25% for the three months ended September 30, 1997,
as compared to the same period in 1996. The increase in general and
administrative expenses is due to several factors including recruiting fees as
the Company continues to recruit for permanent investment professionals, and the
costs of opening offices in Chicago and San Francisco. During the third quarter
of 1997, the Company incurred certain expenses related to the proposed Merger,
announced to shareholders in August 1997. These expenses approximated $138,000
and included expenses related to investment bank fees and legal fees.
6
<PAGE> 9
The Company has increased its costs of operations in anticipation of the
Merger. Management believes that the merged entity will be positioned to grow
its assets and earnings at a faster pace than could any of the merging
companies on a stand-alone basis. In order to develop a platform to capture
that growth, the Company has incurred additional operating costs, primarily the
costs of new investment and other professionals. Management anticipates that
the Company will continue to incur increased operating costs in the fourth
quarter of 1997.
Pre-tax income for the three months ended September 30, 1997 decreased $574,000
over the same period in 1996. The effective tax rate was 46% and 41% for the
quarter ended September 30, 1997 and 1996, respectively. The increase is due to
the merger expenses incurred during the third quarter of 1997.
For the Nine Months Ended September 30, 1997 and 1996
Net income for the nine months ended September 30, 1997 decreased $395,000, as
compared to the nine months ended September 30, 1996. As was discussed above,
the growth in assets under management did not increase investment advisory fee
revenue due to a reduction in the overall fee percentage charged on invested
assets managed. Total revenue was $13.0 million for the nine months ended
September 30, 1997 and $12.7 million for the nine months ended September 30,
1996, which is a 2% increase. The increase during the first nine months of the
year was caused by the same factors discussed in the quarter-to-quarter
comparison above.
Rental and other income increased 37% to $1.2 million for the nine months ended
September 30, 1997 from $899,000 for the same period in 1996. For the nine
months ended September 30, 1997 and 1996, the office building generated rental
income of $694,000 and $672,000, respectively. Other income and interest income
from cash and temporary investments was $299,000 and $227,000 for the nine
months ended September 30, 1997 and 1996, respectively. In addition, earnings
from the assets held in the deferred compensation trust equaled $242,000 for the
nine months ended September 30, 1997. The first nine months of 1996 did not have
earnings from the deferred compensation trust because it was not established
until December 1996.
Total expenses were $9.7 million for the nine months ended September 30, 1997,
an increase of 10% over the $8.8 million incurred in the same period of 1996.
The increase in expenses during the first nine months of 1997 are attributable
to the factors discussed in the quarter-to-quarter comparison above. Salary and
benefit expenses included $242,000 in expenses associated with the deferred
compensation trust assets discussed in the above paragraph. The increase in
general and administrative expenses is attributable to the Company's use of
investment consultants as management searched for permanent investment
professionals. The opening of offices in Chicago and San Francisco during the
third quarter of 1997 also increased operating expenses. As discussed in the
quarter-to-quarter comparison, the Company incurred approximately $138,000 in
expenses related to the proposed Merger it announced to shareholders in August
1997.
Pre-tax income for the nine months ended September 30, 1997 decreased by
$608,000 over 1996. The effective tax rate was 42.6% and 41.4% for the nine
months ended September 30, 1997 and 1996, respectively.
Statements included in this report concerning the Company's future prospect are
"forward looking statements" under the Federal securities laws. There can be no
assurance that future results will be achieved and actual results could differ
materially from forecasts and estimates.
7
<PAGE> 10
Part II. OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
The Company is party to certain lawsuits. While the outcome of these
legal proceedings cannot at this time be predicted with certainty,
management does not expect that these actions will have a material
effect upon the financial condition of the Company.
Item 2. CHANGES IN SECURITIES
No material changes have occurred in the securities of the Registrant.
Item 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
Item 5. OTHER INFORMATION
Not applicable
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) List of Exhibits
3(ii) Bylaws
10 Form of Employment Agreement
11 Statement of Computation of Earnings Per Share
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the quarter ended
September 30, 1997.
8
<PAGE> 11
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 thereunder duly authorized.
ALLIED CAPITAL ADVISERS, INC.
-----------------------------
(Registrant)
/s/Jon A. DeLuca
-----------------------------
Date: November 13, 1997 Jon A. DeLuca
Principal and Chief Financial Officer
9
<PAGE> 1
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ALLIED CAPITAL ADVISERS, INC.
(a Maryland corporation)
-----------
BYLAWS
-----------
As adopted by the Board of Directors on August 7, 1990 and as amended
by the Board of Directors on February 27, 1991,
May 6, 1992, November 7, 1995, February 3, 1997, May 16, 1997 and August 11,
1997.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I OFFICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
------
Section 2. Additional Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
------------------
ARTICLE II MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Time and Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
--------------
Section 2. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
--------------
Section 3. Notice of Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
------------------------
Section 4. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
----------------
Section 5. Notice of Special Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
-------------------------
Section 6. Presiding Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
----------------
Section 7. Quorum. Adjournments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
---------------------
Section 8. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
------
Section 9. Action by Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-----------------
ARTICLE III DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1. General Powers; Number; Tenure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
------------------------------
Section 2. Matters for Which Action of the Entire Board is Required . . . . . . . . . . . . . . . . . . . . . . . . . 4
--------------------------------------------------------
Section 3. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
---------
Section 4. Removal; Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
--------------------
Section 5. Place of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
-----------------
Section 6. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
--------------
Section 7. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
----------------
Section 8. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
----------------
Section 9. Quorum; Adjournments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
--------------------
Section 10. Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
------------
Section 11. Action by Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-----------------
Section 12. Meetings by Telephone or Similar Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-----------------------------------------------
ARTICLE IV COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1. Executive Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-------------------
Section 2. Nominating Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
--------------------
Section 3. Compensation Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
----------------------
Section 4. Audit Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
---------------
Section 5. Other Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
----------------
Section 6. Procedure; Notice; Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
---------------------------
Section 7. Quorum; Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
------------
Section 8. Appointments; Vacancies; Changes; Discharges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
--------------------------------------------
Section 9. Tenure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
------
Section 10. Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
------------
Section 11. Action by Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-----------------
Section 12. Meetings by Telephone or Similar Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-----------------------------------------------
ARTICLE V NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Form; Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
--------------
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 2. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
------
ARTICLE VI OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1. Designations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
------------
Section 2. Term of Office; Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-----------------------
Section 3. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
------------
Section 4. The Chairman of the Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
-------------------------
Section 5. The President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
-------------
Section 6. The Managing Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
----------------------
Section 7. Principals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
----------
Section 8. Vice Presidents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
---------------
Section 9. The Secretary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
-------------
Section 10. The Assistant Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
-----------------------
Section 11. Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
----------
Section 12. The Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
-------------
Section 13. The Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
-----------------------
ARTICLE VII INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS . . . . . . . . . . . . . . . . . . . . . . . . .12
Section 1. Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
---------
Section 2. Limitation for Disabling Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
--------------------------------
ARTICLE VIII STOCK CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Section 1. Form of Signatures; Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
------------------------------
Section 2. Registration of Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
------------------------
Section 3. Registered Stockholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
-----------------------
Section 4. Location of Stock Ledger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
------------------------
Section 5. Record Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
-----------
Section 6. Lost, Stolen or Destroyed Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
--------------------------------------
ARTICLE IX GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Section 1. Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
---------
Section 2. Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
--------
Section 3. Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
-----------
Section 4. Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
----
ARTICLE X AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
- -----------
</TABLE>
ii
<PAGE> 4
BYLAWS
ARTICLE I
OFFICES
Section 1. Office. The principal office of the Corporation shall be
at the offices of The Prentice-Hall Corporation System, Maryland, which is
located at 11 East Chase Street, Baltimore, Maryland 21202. The Corporation
also shall have an office at 1666 K Street, N.W., Washington, D.C. 20006-2803.
Section 2. Additional Offices. The Corporation may also have offices
at such other places, both within and without the State of Maryland, as the
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place. Meetings of stockholders for any purpose
may be held at such time and place in the United States as the Board of
Directors may fix from time to time and as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meeting. Annual meetings of stockholders shall be
held during the month of May in each year on a date and at the time set by the
Board of Directors. At the Annual Meeting, the stockholders shall elect a
Board of Directors and transact such other business as may properly be brought
before the meeting.
Section 3. Notice of Annual Meeting. Written notice of the annual
meeting, stating the place, date and time thereof, shall be given by the
Secretary of the Corporation to each stockholder entitled to vote at such
meeting or to notice thereof not less than 10 (unless a longer period is
required by law) nor more than 90 days prior to the meeting.
Section 4. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation, may be called by the Chairman of the Board or the
President and shall be called by the Chairman of the Board, the President or
the Secretary at the request in writing of a majority of the Board of
Directors. Unless otherwise prescribed by statute or by the Articles of
Incorporation, and except as expressly set forth below, the Secretary shall
call a Special Meeting at the request in writing of stockholders entitled to
cast not less than a majority of all the votes entitled to be cast at such
meeting. Such request by stockholders shall state the purpose or purposes of
such meeting and the matters to be acted on thereat. If the request is made by
a majority of the stockholders
1
<PAGE> 5
entitled to cast votes at a meeting, the Secretary shall inform such
stockholders of the reasonably estimated cost of preparing and mailing such
notice of the meeting, and, upon payment to the Corporation of such costs by
such stockholders, the Secretary shall give notice stating the purpose or
purposes of the meeting, as required by these Bylaws, to all stockholders
entitled to notice of such meeting.
Section 5. Notice of Special Meeting. Written notice of a special
meeting, stating the place, date and time thereof and the purpose or purposes
for which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting or to notice thereof not less than 10 (unless a longer
period is required by law) nor more than 90 days prior to the meeting.
Section 6. Presiding Officer. Meetings of stockholders shall be
presided over by the Chairman of the Board or, if he or she is not present, by
the President, or, if he or she is not present, by a Vice President, or, if he
or she is not present, by such person as may have been chosen by the Board of
Directors, or if none of such persons is present, by a chairman to be chosen by
the stockholders owning a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote at the meeting and who
are present in person or represented by proxy. The Secretary of the
Corporation, or, if he or she is not present, an Assistant Secretary, or, if he
or she is not present, such person as may be chosen by the Board of Directors,
or if none of such persons is present, then such person as may be chosen by the
stockholders owning a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote at the meeting and who
are present in person or represented by proxy shall act as secretary of the
meeting.
Section 7. Quorum. Adjournments. The presence in person or by proxy
of stockholders entitled to cast a majority of the votes thereat shall be
necessary to, and shall constitute a quorum for, the transaction of business at
all meetings of the stockholders, except as otherwise provided by statute or by
the Articles of Incorporation. If, however, a quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have the power
to adjourn the meeting from time to time, without notice of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken, until a quorum shall be present or represented. Even if
a quorum shall be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time for good
cause, without notice of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken, until a date
which is not more than 30 days after the date of the original meeting. At any
such adjourned meeting, at which a quorum shall be present in person or
represented by proxy, any business may be transacted which might have been
transacted at the meeting as originally called. If the adjournment is for more
than 30 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 or entitled to notice
thereof.
2
<PAGE> 6
Section 8. Voting.
(a) At any meeting of stockholders, every stockholder
having the right to vote shall be entitled to vote in person or by proxy.
Except as otherwise provided by law or the Articles of Incorporation, each
stockholder of record shall be entitled to one vote for each share of capital
stock registered in his, her or its name on the books of the Corporation, on
each matter submitted to a vote at a meeting of stockholders, except that no
stockholder shall be entitled to vote in respect of any shares of capital stock
if any installment payable thereon is overdue and unpaid.
(b) Except as otherwise provided by law or the Articles of
Incorporation, a majority of the votes cast at a meeting of stockholders at
which a quorum is present, shall be sufficient to take or authorize action upon
any matter which may properly come before such meeting.
Section 9. Action by Consent. Any action required or permitted to be
taken by law or the Articles of Incorporation at any meeting of stockholders
may be taken without a meeting, without prior notice and without a vote, if a
written consent, setting forth such action, is signed by all the stockholders
entitled to vote on the subject matter thereof and any other stockholders
entitled to notice of a meeting of stockholders (but not to vote thereat) have
waived in writing any rights which they may have to dissent from such action,
and such consent and waiver are filed with the records of stockholders'
meetings.
ARTICLE III
DIRECTORS
Section 1. General Powers; Number; Tenure. The business and affairs
of the Corporation shall be managed under the direction of its Board of
Directors, which may exercise all powers of the Corporation and perform all
lawful acts and things which are not by law, the Articles of Incorporation or
these Bylaws directed or required to be exercised or performed by, or are
conferred upon or reserved to, the stockholders. The number of directors shall
be six until increased or decreased pursuant to the following provisions, but
shall never be greater than ten or fewer than three unless otherwise permitted
by law. A majority of the entire Board of Directors may, at any time and from
time to time, increase or decrease the number of directors of the Corporation
as set forth in the Articles of Incorporation or these Bylaws, subject to the
foregoing limitation. The tenure of office of a director shall not be affected
by any decrease in the number of directors so made by the Board. The directors
shall be elected, by a majority of all the votes cast at the annual meeting of
the stockholders, except as provided in Section 3 of this Article, and
3
<PAGE> 7
each director elected shall hold office until the next succeeding annual
meeting or until his or her successor is elected and shall qualify. Directors
need not be stockholders.
Section 2. Matters for Which Action of the Entire Board is Required.
Notwithstanding anything to the contrary in these Bylaws, the following actions
shall require the approval by the affirmative vote of a majority of the entire
Board of Directors:
(a) entering into or materially amending any contract
pursuant to which the Corporation will provide investment advisory services;
(b) appointing any director to a committee of the Board of
Directors pursuant to Article IV of these Bylaws;
(c) appointing any employee, officer, or director of the
Corporation, or any person who is to become an employee, officer, or director
of the Corporation, to serve as an officer at the level of principal or above,
or as a director, trustee, or manager, of any corporation, partnership, trust,
association or other entity for which the Corporation provides investment
advisory or any other services; and
(d) altering, amending or repealing these Bylaws or
adopting new bylaws.
Section 3. Vacancies. Any vacancy occurring in the Board of Directors
for any cause other than by reason of an increase in the number of directors
may, unless otherwise provided in these Bylaws, be filled by a majority of the
remaining members of the Board of Directors, although such majority is less
than a quorum. Any vacancy occurring by reason of an increase in the number of
the directors may, unless otherwise provided in these Bylaws, be filled by
action of a majority of the directors constituting the entire Board of
Directors. A director elected by the Board of Directors to fill a vacancy
shall be elected to hold office until the next annual meeting of the
stockholders or until his or her successor is elected and shall qualify. If
there are no directors in office, any officer or stockholder may call a special
meeting of stockholders in accordance with the provisions of the Articles of
Incorporation or these Bylaws, at which meeting such vacancies shall be filled.
Section 4. Removal; Resignation.
(a) Except as otherwise provided by law or the Articles of
Incorporation, at any meeting of stockholders at which a quorum is present, the
stockholders may, by the affirmative vote of the holders of a majority of the
votes entitled to be cast thereon, remove any director or directors from office
with or without cause and may elect a successor or successors to fill any
resulting vacancy or vacancies for the unexpired terms of any removed director
or directors.
4
<PAGE> 8
(b) Any director may resign at any time by giving written
notice to the Board of Directors, the Chairman of the Board, the President or
the Secretary of the Corporation. Unless otherwise specified in such written
notice, a resignation shall take effect upon delivery thereof to the Board of
Directors or the designated officer. It shall not be necessary for a
resignation to be accepted before it becomes effective.
Section 5. Place of Meetings. The Board of Directors may hold
meetings, annual, regular or special, either within or without the State of
Maryland.
Section 6. Annual Meeting. The annual meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present.
Section 7. Regular Meetings. Additional regular meetings of the Board
of Directors may be held without notice, at such time and place as may from
time to time be determined by the Board of Directors.
Section 8. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President on at
least two days' notice to each director, if such notice is delivered personally
or sent by messenger, telegram, telecopy, facsimile transmission, or mail.
Special meetings shall be called by the Chairman of the Board, the President or
the Secretary in like manner and on like notice on the written request of two
or more of the number of directors then in office. Except as otherwise
provided by law, the Articles of Incorporation or Article X of these Bylaws,
any such notice need not state the purpose or purposes of such meeting.
Section 9. Quorum; Adjournments. At all meetings of the Board of
Directors, a majority of the number of directors then in office shall
constitute a quorum for the transaction of business, and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by law, the Articles of Incorporation or these Bylaws. If a quorum is not
present at any meeting of the Board of Directors, the directors present may
adjourn the meeting from time to time until a quorum shall be present, provided
that an announcement is made at such meeting, and notice is provided to any
directors not present at such meeting, of the time and place of the next
meeting.
Section 10. Compensation. Directors shall be entitled to such
compensation for their services as directors and to such reimbursement for any
reasonable expenses incurred in attending directors' meetings as may from time
to time be fixed by the Board of Directors. The compensation of directors (if
any) may be on such basis as is determined by the Board of Directors. Any
director may waive compensation for any meeting. Any director receiving
compensation under these provisions shall not be barred from serving the
Corporation in any
5
<PAGE> 9
other capacity and receiving compensation and reimbursement for reasonable
expenses for such other services.
Section 11. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting
if a written consent to such action is signed by all members of the Board of
Directors and such written consent is filed with the minutes of the proceedings
of the Board.
Section 12. Meetings by Telephone or Similar Communications. The
Board of Directors may participate in a meeting by means of a conference
telephone or similar communications equipment by means of which all directors
participating in the meeting can hear each other at the same time, and
participation by such means shall be conclusively deemed to constitute presence
in person at such meeting.
ARTICLE IV
COMMITTEES
Section 1. Executive Committee. The Board of Directors may appoint
an Executive Committee consisting of not fewer than three members, one of whom
shall be designated as Chairman of the Executive Committee. The Chairman of
the Board and the President shall be elected members of the Executive
Committee. The Executive Committee shall have and may exercise those rights,
powers and authority of the Board of Directors as may from time to time be
granted to it by the Board of Directors subject to any limitations imposed by
law and may authorize the seal of the Corporation to be affixed to all papers
which may require the same.
Section 2. Nominating Committee. The Board of Directors shall appoint
a Nominating Committee consisting of not fewer than three members, one of whom
shall be designated as Chairman of the Nominating Committee. A majority of
members of the Nominating Committee shall not be officers of the Corporation.
The Nominating Committee shall have and may exercise those rights, powers and
authority of the Board of Directors as may from time to time be granted to it
by the Board of Directors; provided, however, that in addition to any such
rights, powers or authority, the Nominating Committee shall (i) have the
exclusive right to recommend candidates for election as directors to the Board
of Directors; and (ii) be responsible for recommending the initial members of
the Board of Directors, Board of Trustees, Board of Managers, or any equivalent
body of any investment fund established by the Corporation for which the
Corporation will serve as the investment adviser or as provider of any other
services.
Section 3. Compensation Committee. The Board of Directors may appoint
from its membership a Compensation Committee consisting of not fewer than three
members, one of whom shall be designated as Chairman of the Compensation
Committee. None of the members of the Compensation Committee shall be officers
of the Corporation. The Compensation
6
<PAGE> 10
Committee shall have and may exercise those rights, powers and authority of the
Board of Directors as may from time to time be granted to it by the Board of
Directors; provided, however, that the Compensation Committee shall not have
the authority to determine the salary for any officer of the Corporation
holding a position of principal or above, although such committee shall have
the exclusive right to recommend salary and bonuses for any such officer to the
Board of Directors for its approval.
Section 4. Audit Committee. The Board of Directors may appoint from
its membership an Audit Committee consisting of not fewer than three, members
one of whom shall be designated as Chairman of the Audit Committee. A majority
of members of the Audit Committee shall not be officers of the Corporation.
The Audit Committee shall have and may exercise those rights, powers and
authority of the Board of Directors as may from time to time be granted to it
by the Board of Directors; provided, however, that in addition to any such
rights, powers or authority, the Audit Committee shall: (i) issue instructions
to and receive reports from outside accounting firms and to serve as the
liaison between the Corporation and the said firms; and (ii) review all
potential conflict-of-interest situations arising in respect of the
Corporation's affairs and involving the Corporation's affiliates or employees,
and to make a report, verbal or written, to the full Board of Directors with
recommendations for their resolutions.
Section 5. Other Committees. The Board of Directors, by resolutions
adopted by a majority of the entire Board, may appoint a committee or
committees, as it shall deem advisable and impose upon such committee or
committees such functions and duties, and grant such rights, powers and
authority, as the Board of Directors shall prescribe (except the power to
declare dividends or distributions on stock, to issue stock except to the
extent permitted by law, to recommend to stockholders any action requiring
stockholders' approval, to amend these Bylaws or to approve any merger or share
exchange which does not require stockholders' approval).
Section 6. Procedure; Notice; Meetings. Each committee shall fix its
own rules of procedure and shall meet at such times and at such place or places
as may be provided by such rules or as the members of such committee shall
provide. Committee meetings may be called by the Chairman of the Board, the
President, the Chairman of the Committee, if any, or any two or more committee
members on at least twenty-four (24) hours notice, if such notice is delivered
personally or sent by messenger, telegram, telecopy, facsimile transmission, or
mail. Each committee shall keep regular minutes of its meetings and deliver
such minutes to the Board of Directors. The Chairman of each committee, or, in
his or her absence, a member of such committee chosen by a majority of the
members of such committee present, shall preside at the meetings of such
committee, and another member thereof, or any other person, chosen by such
committee shall act as Secretary of such committee, or in the capacity of
Secretary for purposes of such meeting.
Section 7. Quorum; Vote. With respect to each committee, a majority
of its members shall constitute a quorum for the transaction of business, and
the affirmative vote of a majority of the members thereof shall be required for
any action of such committee.
7
<PAGE> 11
Section 8. Appointments; Vacancies; Changes; Discharges. The Board of
Directors shall have the exclusive power at any time, through the approval by
the affirmative vote of a majority of the entire Board of Directors, to appoint
directors to, fill vacancies in, change the membership of, or discharge any
committee.
Section 9. Tenure. Each member of a committee shall continue as a
member thereof until the expiration of his or her term as a director, or his or
her earlier resignation as a member of such committee or as a director, unless
sooner removed as a member of such committee by a vote of a majority of the
entire Board of Directors or as a director in accordance with these Bylaws.
Section 10. Compensation. Members of any committee shall be entitled
to such compensation for their services as members of any such committee and to
such reimbursement for any reasonable expenses incurred in attending committee
meetings as may from time to time be fixed by the Board of Directors. The
compensation (if any) of members of any committee may be on such basis as is
determined by the Board of Directors. Any member may waive compensation for
any meeting. Any committee member receiving compensation under these
provisions shall not be barred from serving the Corporation in any other
capacity and from receiving compensation and reimbursement of reasonable
expenses for such other services.
Section 11. Action by Consent. Any action required or permitted to be
taken at any meeting of any committee of the Board of Directors may be taken
without a meeting if a written consent to such action is signed by all members
of the committee and such written consent is filed with the minutes of its
proceedings.
Section 12. Meetings by Telephone or Similar Communications. The
members of any committee which is designated by the Board of Directors may
participate in a meeting of such committee by means of a conference telephone
or similar communications equipment by means of which all members participating
in the meeting can hear each other at the same time, and participation by such
means shall be conclusively deemed to constitute presence in person at such
meeting.
ARTICLE V
NOTICES
Section 1. Form; Delivery. Whenever, under the provisions of law, the
Articles of Incorporation or these Bylaws, notice is required to be given to
any director or stockholder, it shall not be construed to mean exclusively
personal notice unless otherwise specifically provided, but such notice may be
given in writing, by mail, addressed to such director or stockholder, provided,
in the case of a stockholder, such notice is addressed to his, her or its post
office address as such address appears on the records of the Corporation, with
postage thereon
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prepaid. Any such notice shall be deemed to have been given at the time it is
deposited in the United States mail. Notice to a director also may be given
personally or sent by messenger, telegram, telecopy or facsimile transmission.
Section 2. Waiver. Whenever any notice is required to be given under
the provisions of law, the Articles of Incorporation or these Bylaws, a written
waiver thereof, signed by the person or persons entitled to said notice and
filed with the records of the meeting, whether before or after the time stated
therein, shall be conclusively deemed to be equivalent to such notice. In
addition, any stockholder who attends a meeting of stockholders in person, or
is represented at such meeting by proxy, without protesting at the commencement
of the meeting the lack of notice thereof to him or her, or any director who
attends a meeting of the Board of Directors without protesting at the
commencement of the meeting such lack of notice, shall be conclusively deemed
to have waived notice of such meeting.
ARTICLE VI
OFFICERS
Section 1. Designations. From and after the date of adoption of these
Bylaws, the officers of the Corporation shall be a Chairman of the Board,
President, Secretary and Treasurer. The officers of the Corporation also may
include one or more Managing Directors, Principals, Vice Presidents, Associates
and such other officers and/or agents as deemed necessary or appropriate,
provided, however, that a person may hold the position of Associate without
being designated an officer of the Corporation. All officers of the
Corporation shall exercise such powers and perform such duties as shall from
time to time be determined by the Board of Directors and permitted by law or
these Bylaws. Any number of offices may be held by the same person, unless the
Articles of Incorporation or these Bylaws otherwise provide, and no person
shall execute, acknowledge or verify any instrument in more than one capacity,
if such instrument is required by law, the Articles of Incorporation or these
Bylaws to be executed, acknowledged or verified by two or more officers.
Section 2. Term of Office; Removal. The Board of Directors shall
choose a Chairman of the Board, President and one or more Managing Directors.
The Chairman, President and any Managing Director shall have the authority to
appoint a Secretary, Treasurer, and one or more Principals, Vice Presidents
and/or Associates who are officers of the Corporation, and such other officers
and agents as they shall deem necessary or appropriate. The officers of the
Corporation shall hold office until their successors are chosen and shall
qualify or until any such officer's resignation. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the directors then in office when, in their
judgment, the best interests of the Corporation will be served thereby. Any
officer appointed other than by the Board of Directors may be removed by the
Board of Directors or the Chairman of the Board at any time. Such removal by
the Board or by the Chairman shall not prejudice the contractual
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rights, if any, of the person so removed. Any vacancy occurring in any office
of the Corporation may be filled for the unexpired portion of the term by the
Board of Directors, where such office was held by an officer elected or
appointed by the Board, or by the Chairman, the President and any Managing
Director, where such office was held by their appointee.
Section 3. Compensation. The salaries of all officers of the
Corporation (if any) shall be fixed from time to time by the Board of Directors
and no officer shall be prevented from receiving such salary by reason of the
fact that he or she is also a director of the Corporation.
Section 4. The Chairman of the Board. The Chairman of the Board shall
be the chief executive officer of the Corporation and shall be responsible for
the overall strategic direction of the Corporation and, subject to the
direction of the Board of Directors, shall perform such executive, supervisory
and management functions and duties as may be assigned to him or her from time
to time by the Board. He or she shall, if present, preside at all meetings of
the stockholders and of the Board of Directors. The Chairman of the Board
shall execute in the corporate name all appropriate deeds, mortgages, bonds,
contracts or other instruments requiring a seal, under the Seal of the
Corporation, except in cases where such execution shall be expressly delegated
to another by the Board of Directors. The Chairman of the Board shall be a
member of the Executive Committee and an ex-officio member of each standing
committee.
Section 5. The President. The President, subject to the direction of
the Board of Directors and reporting to the Chairman of the Board, shall have
general charge of the business, affairs and property of the Corporation and
general supervision over its officers and agents. In general, he or she shall
perform all duties incident to the office of President, and shall see that all
orders and resolutions of the Board of Directors are carried into effect. In
the absence of the Chairman of the Board, the President shall preside at all
meetings of the stockholders and of the Board of Directors. The President
shall be a member of the Executive Committee and an ex-officio member of each
standing committee. Unless otherwise prescribed by the Board of Directors, the
President shall have full power and authority on behalf of the Corporation to
attend, act and vote at any meeting of stockholders of other corporations in
which the Corporation may hold securities. At such meeting, the President
shall possess and may exercise any and all rights and powers incident to the
ownership of such securities which the Corporation might have possessed and
exercised if it had been present. The President shall execute in the corporate
name all appropriate deeds, mortgages, bonds, contracts or other instruments
requiring a seal of the Corporation, except in cases in which the signing or
execution thereof shall be expressly delegated by the Board of Directors to
some other officer or agent of the Corporation. The Board of Directors may
from time to time confer like powers and authority upon any other person or
persons.
Section 6. The Managing Directors. The Managing Directors, subject to
the direction of the Board of Directors and reporting to the Chairman of the
Board and President, shall assist in the general charge of the business of the
Corporation and general supervision over its officers and agents. In the
absence of the Chairman of the Board or President, at the direction of the
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Board of Directors, a Managing Director may preside at all meetings of the
stockholders and of the Board of Directors. Unless otherwise prescribed by
the Chairman of the Board or President, the Managing Directors shall have full
power and authority on behalf of the Corporation to attend, act and vote at any
meeting of stockholders of other corporations in which the Corporation may hold
securities. At such meeting, the Managing Director shall possess and may
exercise any and all rights and powers incident to the ownership of such
securities which the Corporation might have possessed and exercised if it had
been present. At the direction of the Chairman of the Board or the President,
a Managing Director may execute in the corporate name all appropriate deeds,
mortgages, bonds, contracts or other instruments requiring a seal of the
Corporation, except in cases in which the signing or execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Corporation. The Board of Directors may from time to time confer like
powers and authority upon any other person or persons.
Section 7. Principals. The Principals, if any, shall, in the absence
of the President and all Managing Directors or in the event of the disabilities
of all such persons, perform the duties and exercise the powers of the
President or a Managing Director and shall generally assist the President and
any and all Managing Directors and perform such other duties and have such
other powers as may from time to time be prescribed by the Board of Directors.
Section 8. Vice Presidents. The Vice Presidents, if any, shall
generally assist the President and any and all Managing Directors and/or the
Principals as directed by such officers and perform such other duties and have
such other powers as may from time to time be prescribed by the Board of
Directors.
Section 9. The Secretary. The Secretary shall attend all meetings of
the Board of Directors and meetings of the stockholders and record all votes
and the proceedings of the meetings in a book to be kept for that purpose and
shall perform like duties for the Executive Committee or other committees, if
required. He or she shall give, or cause to be given, notice of all meetings
of stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may from time to time be prescribed by the Board
of Directors, Chairman of the Board or the President, under whose supervision
he or she shall act; provided, however, that in addition to any such duties,
the Secretary shall: (i) provide each director with a copy of the Bylaws of the
Corporation upon his or her election as a director; and (ii) upon any amendment
to these Bylaws, provide each director with a copy of the Bylaws, as amended,
promptly after such Bylaws have been approved by the Board of Directors. The
Secretary shall have custody of the seal of the Corporation, and he or she, or
an Assistant Secretary, shall have authority to affix the same to any
instrument requiring it, and, when so affixed, the seal may be attested by his
or her signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing thereof by his or her signature.
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Section 10. The Assistant Secretary. The Assistant Secretary, if any
(or, in the event there be more than one, the Assistant Secretaries in the
order designated, or, in the absence of any designation, in the order of their
election), shall, in the absence of the Secretary or in the event of his or her
disability, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
Section 11. Associates. The Associates who are designated officers of
the Corporation, if any, shall assist the President, any and all Managing
Directors, Principals, and Vice Presidents of the Corporation as directed by
such officers and perform such other duties and have such other powers as may
from time to time be prescribed by the Board of Directors.
Section 12. The Treasurer. The Treasurer shall have the custody of
the corporate funds and other valuable effects, including securities, and shall
keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories
as may from time to time be designated by the Board of Directors. He or she
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Chairman of the Board, the President and the Board of Directors, at regular
meetings of the Board of Directors, or whenever the Board of Directors may
require it, an account of all his or her transactions as Treasurer and of the
financial condition of the Corporation.
Section 13. The Assistant Treasurer. The Assistant Treasurer, if any
(or in the event there shall be more than one, the Assistant Treasurers in the
order designated, or, in the absence of any designation, in the order of their
election), shall, in the absence of the Treasurer or in the event of his or her
disability, perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 1. Generally. Reference is made to Section 2-418 (and any
other relevant provisions) of the Corporations and Associations Article of the
Annotated Code of Maryland (1993), as amended. Particular reference is made to
the class of persons (hereinafter called "Indemnitees") who may be indemnified
by a Maryland corporation pursuant to the provisions of such Section 2-418,
namely, any person (or the heirs, executors or administrators of such 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, by reason of the fact that such person is or
was a director, officer, employee or agent of such corporation, or is or was
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serving at the request of such corporation as a director, manager, partner,
officer, trustee, employee, agent or similar title of another corporation,
partnership, joint venture, trust or other enterprise or employee benefit plan.
(a) The Corporation shall (and is hereby obligated to)
indemnify the Indemnitees, and each of them, in each and every situation where
the Corporation is obligated to make such indemnification pursuant to the
aforesaid statutory provisions or pursuant to the Articles of Incorporation.
(b) The Corporation shall indemnify the Indemnitees, and
each of them, in each and every situation where, under the aforesaid statutory
provisions, the Corporation is not obligated, but is nevertheless permitted or
empowered, to make such indemnification, if the Board of Directors determines
that such Indemnitee acted in good faith and in a manner such Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, in the case of any criminal action or proceeding, that such
Indemnitee had no reasonable cause to believe that such Indemnitee's conduct
was unlawful.
Section 2. Limitation for Disabling Conduct.
(a) Notwithstanding anything to the contrary in Section 1
hereof, the Corporation may not indemnify any director or officer of the
Corporation against any liability, nor shall any director or officer of the
Corporation be exculpated from any liability, to the Corporation or its
stockholders to which such director or officer might otherwise be subject by
reason of "disabling conduct," as hereinafter defined. Accordingly, each
determination with respect to the permissibility of the indemnification of a
director or officer of the Corporation because such director or officer has met
the applicable standard of conduct shall include a determination that the
liability for which such indemnification is sought did not arise by reason of
such person's disabling conduct. The determination required by this Subsection
2(a) may be based on:
(i) a final decision on the merits by a court or
other body before whom the action, suit or proceeding was brought that the
person to be indemnified was not liable by reason of disabling conduct, or
(ii) in the absence of such a decision, a
reasonable determination, based on a review of the facts, that the person to be
indemnified was not liable by reason of such person's disabling conduct by: (A)
the vote of a majority of a quorum of directors who are disinterested,
non-party directors; or (B) an independent legal counsel in a written opinion.
In making such determination, such disinterested, non-party directors or
independent legal counsel, as the case may be, may deem the dismissal for
insufficiency of evidence of any disabling conduct of either a court action or
an administrative proceeding against a person to be indemnified to provide
reasonable assurance that such person was not liable by reason of disabling
conduct.
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(b) For the purpose of this Section:
(i) "disabling conduct" of a director or officer
shall mean such person's willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office or any
other conduct prohibited under Section 17(h) of the Investment Company Act of
1940, as amended (the "1940 Act"), or any other applicable securities laws;
(ii) "disinterested, non-party director" shall mean
a director of the Corporation who is neither an "interested person" of the
Corporation as defined in Section 2(a)(19) of the 1940 Act nor a party to the
action, suit or proceeding in connection with which indemnification is sought;
(iii) "independent legal counsel" shall mean a
member of the Bar of the State of Maryland who is not, and for at least two (2)
years prior to his or her engagement to render the opinion in question has not
been, employed or retained by the Corporation, by any investment adviser to or
principal underwriter for the Corporation, or by any person affiliated with any
of the foregoing; and
(iv) "the Corporation" shall include, in addition
to the resulting Corporation, any constituent Corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents.
(c) The Corporation may purchase insurance to cover the
payment of costs incurred in performing the Corporation's obligations under
Section 1 hereof, but it is understood that no insurance may be obtained for
the purpose of indemnifying any disabling conduct.
(d) The Corporation may advance legal fees and other
expenses pursuant to the indemnification rights set forth in Section 1 hereof
so long as, in addition to the other requirements therefor, the Corporation
either:
(i) obtains security for the advance from the
Indemnitee;
(ii) obtains insurance against losses arising by
reason of lawful advances; or
(iii) it shall be determined, pursuant to the means
set forth in Section 2 (a)(ii) hereof, that there is reason to believe that the
Indemnitee ultimately will be found entitled to indemnification.
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ARTICLE VIII
STOCK CERTIFICATES
Section 1. Form of Signatures; Statements.
(a) Every stockholder in the Corporation shall be entitled
to have a certificate, signed by the Chairman of the Board or the President or
a Vice President and countersigned by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary of the Corporation, exhibiting the
number and class (and series, if any) of shares owned by him, her or it, and
bearing the seal of the Corporation. Such signatures and seal may be facsimile
transmission. In case any officer who has signed, or whose facsimile signature
was placed on, a certificate shall have ceased to be such officer before such
certificate is issued, it may nevertheless be issued by the Corporation with
the same effect as if he or she were such officer at the date of its issue.
(b) Every certificate representing stock issued by the
Corporation, if it is authorized to issue stock of more than one class, shall
set forth upon the face or back of the certificate, a full statement or summary
of the designations and any preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, and terms
and conditions of redemptions of the stock of each class which the Corporation
is authorized to issue and, if the Corporation is authorized to issue any
preferred or special class of stock in series, the differences in the relative
rights and preferences between the shares of each series to the extent they
have been set and the authority of the Board of Directors to set the relative
rights and preferences of subsequent series. In lieu of such full statement or
summary, there may be set forth upon the face or back of each certificate a
statement that the Corporation will furnish to the stockholder, upon request
and without charge, a full statement of such information.
(c) Every certificate representing shares which are
restricted as to transferability by the Corporation shall either (i) set forth
on the face or back of the certificate a full statement of such restriction or
(ii) state that the Corporation will furnish to the stockholder, upon request
and without charge, information about the restriction.
Section 2. Registration of Transfer. Upon surrender to the
Corporation or any transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the Corporation or
its transfer agent to issue a new certificate to the person entitled thereto,
to cancel the old certificate and to record the transaction upon its books.
Section 3. Registered Stockholders.
(a) Except as otherwise provided by law, the Corporation
shall be entitled to recognize the exclusive right of a person who is
registered on its books as the owner of shares of
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its capital stock to receive dividends or other distributions, to vote as such
owner, and to hold liable for calls and assessments a person who is registered
on its books as the owner of shares of its capital stock. The Corporation
shall not be bound to recognize any equitable or legal claim to or interest in
such shares on the part of any other person except that the Board of Directors
may adopt by resolution a procedure by which a stockholder may certify in
writing to the Corporation that any shares of its capital stock registered in
the name of such stockholder are held for the account of a specified person
other than such stockholder are held for the account of a specified person
other than such stockholder.
(b) If a stockholder desires that notices and/or dividends
shall be sent to a name or address other than the name or address appearing on
the stock ledger maintained by the Corporation (or by the transfer agent or
registrar, if any), such stockholder shall have the duty to notify the
Corporation (or the transfer agent or registrar, if any), in writing, of such
desire. Such written notice shall specify the alternate name or address to be
used.
Section 4. Location of Stock Ledger. A copy of the Corporation's
stock ledger containing (i) the name and address of each stockholder, and (ii)
the number and shares of stock of each class which the stockholder holds shall
be maintained at the Corporation's office located at 1666 K Street, N.W.,
Washington, DC 20006-2803.
Section 5. Record Date. In order that the Corporation may determine
the stockholders of record who are entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or the allotment of any rights, or to make a
determination with respect to stockholders of record for any other proper
purpose, the Board of Directors may, in advance, fix a date as the record date
for any such determination or meeting. Such date shall not be more than 90 nor
less than 10 days before the date of any such meeting, nor more than 90 days
prior to the date any other determination is made with respect to stockholders.
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 taken
pursuant to Section 7 of Article II; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 6. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation which is claimed to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate to be lost, stolen or destroyed. When
authorizing such issuance of a new certificate, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate to advertise the same
in such manner as it shall require and/or to give the Corporation a bond in
such sum or other security in such form, as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the
certificate claimed to have been lost, stolen or destroyed.
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ARTICLE IX
GENERAL PROVISIONS
Section 1. Dividends. Except as otherwise provided by law or the
Articles of Incorporation, dividends upon the outstanding capital stock of the
Corporation may be declared by the Board of Directors at any annual, regular or
special meeting, and may be paid in cash, in property or in shares of the
Corporation's capital stock.
Section 2. Reserves. The Board of Directors shall have full power,
subject to the provisions of law and the Articles of Incorporation, to
determine whether any, and, if so, what part, of the funds legally available
for the payment of dividends shall be declared as dividends and paid to the
stockholders of the Corporation. The Board of Directors, in its sole
discretion, may fix a sum which may be set aside or reserved over and above the
paid-in capital of the Corporation for working capital or as a reserve for any
proper purpose, and may, from time to time, increase, diminish or vary such
fund or funds.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
as determined from time to time by the Board of Directors.
Section 4. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal" and "Maryland."
ARTICLE X
AMENDMENTS
The Board of Directors shall have the power to make, alter, amend and
repeal these Bylaws, and to adopt new bylaws, by an affirmative vote of a
majority of the entire Board of Directors, provided that notice of the proposal
to make, alter, amend or repeal these Bylaws, or to adopt new bylaws, was
included in the notice of the meeting of the Board of Directors at which such
action takes place.
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CERTIFICATE
We, WILLIAM L. WALTON and TRICIA BENZ DANIELS, President and Secretary,
respectively, of ALLIED CAPITAL ADVISERS, INC. (the "Corporation"), a Maryland
corporation, DO HEREBY CERTIFY that the foregoing is a true and correct copy of
the Corporation's Bylaws as amended and in effect the date hereof.
IN WITNESS WHEREOF, we have hereunto set our hands and affixed the
corporate seal of the Corporation this 11th day of August, 1997.
/s/ WILLIAM L. WALTON
------------------------------
William L. Walton,
Chairman and President
/s/ TRICIA BENZ DANIELS
------------------------------
Tricia Benz Daniels, Secretary
[Corporate Seal]
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EXHIBIT 10
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") dated July 14, 1997, is
entered into between XXX ("Employee") and Allied Capital Advisers, Inc. (the
"Company").
Whereas the Employee is employed by the Company in the position of
XXX; and
Whereas the parties wish to memorialize the terms and conditions of
Employee's continued employment with the Company;
Now, Therefore, in consideration of the mutual covenants set forth
below, the parties agree as follows:
1. Duties. Employee, currently serving XXX of the Company, shall
serve the Company on a full time basis with such powers and duties as may be
assigned to him by his immediate supervisor.
2. Compensation.
a. Salary. The Company shall pay Employee bi-weekly at the
minimum rate of XXX dollars ($XXX) per year while employed pursuant to this
Agreement. Employee's minimum salary may be adjusted, subject to annual
review.
b. Bonus. Employee shall be eligible for performance bonus
compensation. Bonus compensation will be awarded annually by the Compensation
Committee of the Board of Directors, subject to the approval by the Board of
Directors. The amount of bonus compensation awarded will be based upon the
Compensation Committee's assessment of Employee's overall contribution to the
Company.
3. Benefits.
a. Employee Stock Ownership Plan ("ESOP"). Employee shall be
eligible for participation in the Company's ESOP, a retirement plan funded by
employer contributions while employed pursuant to this Agreement.
b. Health and Dental Insurance. Employee shall receive benefits
equivalent to those currently provided by the Company's existing health and
dental insurance policies for employees.
c. Other Insurance. Employee shall be covered by the Company's
various other benefits policies for Company employees, including, but not
necessarily limited to, life insurance coverage and accident and disability
coverage. Employee shall be entitled to the same coverage and benefits as
other Company employees.
<PAGE> 2
d. Vacation. Employee shall be entitled to 4 weeks of vacation
per calendar year, accruing at the beginning of each calendar year. Such
vacation may be taken at any time during the course of that calendar year, at
Employee's discretion, as long as it does not interfere with the normal course
of business. Employee's regular salary shall be paid during this vacation
period.
e. Paid Holidays. Employee shall be entitled to take the same
paid holidays as other Company employees.
4. Severance Package. In the event that Employee's employment with the
Company is terminated pursuant to either paragraph 5a or 5c of this Agreement,
the Company shall provide Employee with the following benefits (the "Severance
Package"):
i. a lump sum payment equal to 9 months of Employee's then-current
salary;
ii. a lump sum payment for any unused accrued vacation days for that
calendar year; and
iii. continued coverage under the Company's existing health and
benefit plans for a 6-month period from the date that written notice of
termination is given. This period will be counted as part of the
continuation period under COBRA.
The Company will pay Employee the amounts specified in paragraphs i and ii
above within two weeks after Employee's last day of employment.
5. Termination. Upon termination of the employment relationship
under any circumstances Employee will not be eligible for any further
compensation or benefits under paragraphs 2 and 3 of this Agreement, other than
those that have already accrued.
a. Company's Termination of Employment. The Company has the
right to terminate Employee's employment with the Company at any time, with or
without cause. If Employee's employment with the Company is terminated by the
Company for any reason other than willful misconduct or gross negligence,
Employee shall receive the Severance Package set forth on paragraph 4 above.
b. Employee's Termination of Employment. Employee has the right
to terminate employment with the Company at any time, with or without cause.
Employee agrees to provide written notice of such termination to the Company.
c. Change of Control, Change of Management. Immediately upon the
occurrence of any of the following events Employee's employment with the
Company will terminate and Employee shall receive the Severance Package set
forth in paragraph 4 above.
<PAGE> 3
i. any person or group of persons acting together acquires direct
or indirect beneficial ownership of twenty five percent or more of the
combined voting power of the then outstanding securities of the Company.
ii. during any period of two consecutive years, the individuals
who at the beginning of such period constitute the Board of Directors of
the Company cease for any reason to constitute at least a majority
thereof unless each new director was elected by, or on the
recommendation of, a majority of the directors then still in office who
were directors at the beginning of the period; or
iii. the shareholders of the Company approve any one of the
following transactions:
(i) any consolidation or merger of the Company in which
the Company is not the surviving corporation, other than a merger of the
Company in which the holders of the common stock of the Company
immediately prior to the merger have in excess of 50% of the combined
voting power of the then outstanding securities of the combined then
surviving corporation immediately after the merger; or
(ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.
iv. Any change in executive management whereby both of the
following occur: William L. Walton ceases to hold the position of
Chairman and Chief Executive Officer and George C. Williams ceases to be
a director of the Company.
Under the circumstances set forth in Attachment A, this paragraph will not be
applicable and Employee's employment will not be affected and Employee will not
be eligible for the Severance Package in paragraph 4.
d. Other In addition to the above, any of the following events
shall be deemed to constitute termination of employment by Employee, effective
upon the occurrence of the event:
i. Employee's death; or
ii. A declaration of insanity or other judicial determination that
Employee is of unsound mind; or
iii. Employee is medically incapable of performing his obligations
under this Agreement for a period of five (5) consecutive months.
6. Non-Competition. When Employee's employment with the Company
terminates, Employee will be free to pursue any
<PAGE> 4
professional opportunities Employee may have, except as follows: Employee
agrees that for twenty-four months after Employee's employment with the Company
terminates under any circumstances Employee will not, directly or indirectly,
provide, solicit or seek to provide, or assist another in providing or
soliciting or seeking to provide financial or investment advice or portfolio
management for:
(a) any entity for which the Company provided such services including
any of the following entities or their subsidiaries including Allied
Capital Corporation, Allied Capital Corporation II, Allied Capital
Lending Corporation, Allied Capital Commercial Corporation, Allied
Investment Corporation, Allied Capital Financial Corporation, Allied
Development Corporation, Allied Investment Corporation II, Allied
Financial Corporation II, Allied Capital Property Corporation, ACLC
Limited Partnership, Allied Capital Credit Corporation, Allied Capital
SBLC Corporation, ALCC Holdings, Inc., ALCC Acceptance Corporation,
Allied Capital Funding, LLC, BMI Holdings, Inc., BMI Acceptance
Corporation, Allied Venture Partnership, Allied Management Partners,
Allied Directors Partners, Allied Capital Acquisition Corporation,
Allied Capital Midwest,LLC, Allied Capital Mortgage Corporation, Allied
Capital Mortgage, LLC, AIN Capital Corporation and Business Mortgage
Investors, Inc. (the" Managed Entities").
(b) any material (e.g. more than 10% of any managed entity's
portofolio)assets that were under the Company's management at any time
during the twelve months before Employee's employment with the Company
terminated.
7. Non-Solicitation. Employee further agrees that for twelve
months after Employee's employment with the Company terminates under any
circumstances that Employee will not, directly or indirectly, solicit to hire
or hire, or assist in another in soliciting to hire or hiring any person who
was employed by the Company within the last 12 months before Employee's
employment with the Company terminated. Nothing in the foregoing shall prohibit
employee from maintaining professional and personal contacts with other persons
employed by the Company.
8. Confidential Information. Employee agrees to keep in
confidence all Confidential Information of the Company and to not use or
disclose Confidential Information. Employee may use or disclose Confidential
Information only
a. as authorized and necessary in performing Employee's job
duties during his employment with the Company;
b. with prior written approval of the Company;
or
c. if and when such information enters the public domain
<PAGE> 5
in a manner unrelated to Employee.
Confidential Information includes any information relating to the Company and
its subsidiaries, and all entities managed by the Company which if disclosed,
could result in competitive disadvantage to the Company or the companies it
manages. Confidential Information includes:
All non-public information related to investments by the Managed
Entities;
All non-public information related to prospective investments by the
Managed Entities;
All non-public financial information about the Company and its
subsidiaries and the Managed Entities;
All financial projections and pro forma financial information about
the Company and its subsidiaries and the Managed Entities; and
All non-public information concerning employees, including but not
limited to compensation, performance information, positions held and
personal information; all non-public contracts between either the
Company, its subsidiaries and/or any of the Managed Entities, the third
parties.
Employee acknowledges that any breach of this paragraph would cause the
Company harm.
9. Indemnification. The Company shall indemnify Employee in
accordance with the Company's bylaws in effect at the time the claim arose or
indemnification is sought, whichever provides the maximum indemnification.
10. Governing Law and Severability. Regardless of the choice of
law provisions of the State of Maryland or any other jurisdiction, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Maryland. In the event that any one or more of the provisions
contained in this Agreement should for any reason be held to be unenforceable,
such unenforceability shall not affect any other provisions, but the
unenforceable provisions may be redrawn so as to give effect to the parties'
intent to the maximum extent possible under the law.
11. Resolution of Disputes. Employee agrees to use the Company's
Conflict Resolution Procedure ("Procedure") contained in the Employee Handbook
to resolve any and all disputes with the Company, including any dispute arising
out of or relating to this Agreement, or Employee's employment or termination
of employment. This would include claims such as discrimination, harassment,
retaliation or for violation of any other statutory
<PAGE> 6
right or common law duty. To the extent there are any differences between the
Procedure and this Agreement, the Agreement will control. Arbitration shall be
the exclusive means of final and binding resolution of any dispute covered by
this paragraph. This paragraph shall not apply to disputes arising under the
workers' compensation or unemployment compensation statutes or involving an
alleged breach of paragraphs 6, 7 and/or 8 of this Agreement. The arbitrator's
fees shall be paid by the Company. If Employee is the prevailing party in any
such arbitration, the Company shall pay the Employee's reasonable attorneys'
fees actually incurred.
12. Notice. Any notice to Employee shall be made by certified
mail return receipt requested to:
XXX
Any notice to the Company shall be made by certified mail return receipt
requested:
Mr. William L. Walton
Chairman & CEO
Allied Capital Advisers, Inc.
1666 K Street, NW
Suite 900
Washington, DC 20006
13. Entire Agreement. This instrument contains the entire
agreement of the parties. It may not be changed orally and may be amended or
supplemented only by an agreement in writing signed by the parties, and in case
of the Company, approved by its Board of Directors.
14. Assignment. This Agreement may not be assigned by either
party hereto without the written consent of the other.
15. Effect of Agreement. This Agreement supersedes and cancels
any and all previous agreements of whatever nature between the Company and
Employee with respect to employment and compensation. This Agreement will
remain in effect until amended or superseded by a subsequent written agreement
signed by both parties.
16. Term. This Agreement shall expire and become void the sooner
of the occurrence of the Phoenix Transaction as referenced in Exhibit A or June
30, 1998.
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
Company
By
----------------------------
William L. Walton
Its Chairman & CEO
--------------
Employee
------------------------------
XXX
<PAGE> 8
Attachment A - Description of Phoenix Transaction
In the event Allied Capital Corporation, Allied Capital Corporation II, Allied
Capital Lending Corporation, Allied Capital Commercial Corporation and Allied
Capital Advisers, Inc. (the "Allied Capital Entities") merge into a single
entity, thereby combining their assets, liabilities, equity and operations (the
"Phoenix Transaction"), paragraph 5 of the Employment Agreement will not be
applicable and Employee's employment will not be affected and Employee will not
be eligible for the Severance Package in paragraph 4.
Upon occurrence of the Phoenix Transaction, the Employment Agreement shall
terminate, and the obligations therein shall be void and no longer effective.
Notwithstanding the preceding sentence, the following shall occur: The current
incentive stock option plans for the Allied Capital Entities will terminate.
Prior to their termination, Employee will have the ability to exercise all of
his or her vested but unexercised stock options. With respect to stock options
that are not vested as of the date of termination of the option plan, if the
Employee is still employed by the Company as of a scheduled future vesting
date, the Company will pay to Employee a cash bonus on the scheduled future
vesting dates, equal to the amount of the market value of the underlying shares
at the opening of the market on the date of the public announcement of the
Phoenix Transaction less the option exercise price multiplied by the number of
shares vesting on the scheduled future vesting dates.
<PAGE> 1
Allied Capital Advisers, Inc.
Exhibit 11 Computation of Earnings Per Common Share
Form 10-Q
September 30, 1997
<TABLE>
<CAPTION>
For the Three Months Ended For the Nine Months Ended
September 30, September 30,
----------------------------- -----------------------------
1997 1996 1997 1996
----------------------------- -----------------------------
<S> <C> <C> <C> <C>
Primary Earnings Per Common Share:
Net Income $ 433,000 $ 807,000 $1,931,000 $2,326,000
============================= =============================
Weighted average of common
shares outstanding 9,225,875 8,990,349 9,052,992 8,990,349
Weighted average of common
shares issuable on exercise
of outstanding stock options 379,734 922,612 541,622 886,370
----------------------------- -----------------------------
Weighted average of common
shares outstanding, as adjusted 9,605,609 9,912,961 9,594,614 9,876,719
============================= =============================
Net Income per share $0.05 $0.08 $0.20 $0.24
============================= =============================
Fully Diluted Earnings Per Common Share:
Net Income $433,000 $ 807,000 $1,931,000 $2,326,000
============================= =============================
Weighted average common
shares and common share
equivalents as computed for
primary earnings per share 9,605,609 9,912,961 9,594,614 9,876,719
Weighted average of additional
shares issuable on exercise
of outstanding stock options 19,856 0 0 30,558
----------------------------- -----------------------------
Weighted average of common
shares outstanding, as adjusted 9,625,465 9,912,961 9,594,614 9,907,277
============================= =============================
Net Income assuming full dilution $0.04 $0.08 $0.20 $0.23
============================= =============================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheet, statement of operations and cash flows and is
qualified in its entirety by reference to such Form 10-Q for the nine months
ended September 30, 1997.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 5,745
<SECURITIES> 0
<RECEIVABLES> 3,869
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 11,219
<PP&E> 6,216
<DEPRECIATION> 1,785
<TOTAL-ASSETS> 17,805
<CURRENT-LIABILITIES> 2,307
<BONDS> 0
0
0
<COMMON> 9
<OTHER-SE> 14,130
<TOTAL-LIABILITY-AND-EQUITY> 17,805
<SALES> 0
<TOTAL-REVENUES> 13,039
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 9,677
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 3,362
<INCOME-TAX> 1,431
<INCOME-CONTINUING> 1,931
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,931
<EPS-PRIMARY> .20
<EPS-DILUTED> .20
</TABLE>
