<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
AMENDMENT NO. 1
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended AUGUST 30, 1997
Commission file number 0-21800
NORWOOD PROMOTIONAL PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-2553074
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
106 E. SIXTH STREET, SUITE 300, AUSTIN, TEXAS 78701
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (512) 476-7100
Securities registered pursuant to Section 12(b) of the Act:
NONE
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, NO PAR VALUE
(Title of Class)
INDICATE BY CHECK MARK WHETHER THE REGISTRANT: (1) HAS FILED ALL REPORTS
REQUIRED TO BE FILED BY SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF
1934 DURING THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIODS THAT THE
REGISTRANT WAS REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH
FILING REQUIREMENTS FOR THE PAST 90 DAYS. YES [X] NO [ ]
INDICATE BY CHECK MARK IF DISCLOSURE OF DELINQUENT FILERS PURSUANT TO
ITEM 405 OF REGULATION S-K IS NOT CONTAINED HEREIN, AND WILL NOT BE CONTAINED,
TO THE BEST OF REGISTRANT'S KNOWLEDGE, IN DEFINITIVE PROXY OR INFORMATION
STATEMENTS INCORPORATED BY REFERENCE IN PART III OF THIS FORM 10-K OR ANY
AMENDMENT TO THIS FORM 10-K.--
The aggregate market value of the voting stock held by non-affiliates
of the registrant as of November 24, 1997 was approximately $56,100,000 based
upon the last sales price on November 24, 1997 on the NASDAQ National Market
for the Company's common stock. The registrant had 5,070,043 shares of Common
Stock outstanding on November 24, 1997.
DOCUMENTS INCORPORATED BY REFERENCE
None.
<PAGE> 2
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The directors and executive officers of the Company are as follows:
<TABLE>
<CAPTION>
Name Age Position
---- --- --------
<S> <C> <C>
Frank P. Krasovec 54 Chairman, President, Chief Executive Officer and Director
James P. Gunning, Jr. 49 Secretary, Treasurer and Chief Financial Officer
Robert L. Siebert (a)(b) 67 Director
John H. Wilson III (a)(b) 55 Director
John H. Josephson (a)(b) 36 Director
Harold Holland 69 Director
Roy D. Terracina 51 Director
</TABLE>
- ------------------
(a) Member of the Compensation Committee
(b) Member of the Audit Committee
Officers are elected to hold office until the annual meeting of the
Board of Directors and serve at the discretion of the Board of Directors. All
directors serve until the next annual meeting of shareholders and until their
successors have been duly elected and qualified.
Frank P. Krasovec has served as Chairman of the Company since October
1989 and has served as its President since August 1997. From 1976 until May
1994 he served as either the Chairman or President of Radio Cap Company, Inc.,
a subsidiary of the Company ("RCC"). From 1984 until December 1996, Mr.
Krasovec was the Chairman of Littlefield Real Estate Company, a real estate
investment firm, and managed other cable television and venture capital
investments. Mr. Krasovec currently devotes his full time to the business
of the Company.
James P. Gunning, Jr. has served as Secretary, Treasurer and Chief
Financial Officer of the Company since August 1997. He served as Treasury
Director of the Company from January 1997 to August 1997. Prior to joining the
Company, Mr. Gunning was the Chief Financial Officer of Blank, Rome, Comisky &
McCauley, a law firm, from July 1989 to January 1997, Senior Vice President and
Corporate Controller of Continental Bancorp, Inc., a bank holding company, from
May 1981 to January 1989, and served in various professional positions with
Touche Ross & Co. (Deloitte & Touche, L.L.P.) from May 1970 to May 1981.
Robert L. Seibert has served as a director of the Company since
October 1989 and was a director of Norwood Products, Inc. (the "Predecessor
Company") from December 1988 to October 1989. From 1978 until his retirement in
December 1994, he served as chairman of Advertising Unlimited, Inc., a supplier
of promotional product calendars. Mr. Seibert has also been a director of
Northstar Guaranty since 1992.
John H. Wilson III has served as a director of the Company since
December 1991. Since April 1983, he has served as President of U.S. Equity
Corporation, a private venture capital company. Mr. Wilson is a Director of
Capital Southwest Corp., Whitehall Corp., Encore Wire Corporation and Palm
Harbor Homes, Inc.
John H. Josephson has served as a director of the Company since June
1993. Mr. Josephson has been employed by Allen & Company Incorporated since
August 1987 and has been a Director of that firm since February 1995. Mr.
Josephson is also a director of Medical Resources, Inc., OFI Holdings, Inc.,
SESAC Holdings, Inc. and Virgol Servicos de Conveniencia, SA.
2
<PAGE> 3
Harold Holland has served as a director of the Company since July
1994. Mr. Holland was the founder of ArtMold in 1960 and served as its
President and Chairman until July 1994 when ArtMold was acquired by the
Company.
Roy D. Terracina has served as a director since November 1996. Mr.
Terracina was the owner and chief executive officer of Sterling Foods, Inc.
from 1984 until he sold the company in 1993. He is currently a partner of
Jungle Labs, a supplier of chemicals to the pet industry. Mr. Terracina is also
a director of Texas Commerce Bank, National Association, United Services
Advisors, Inc. and Mesirow Partners.
In connection with the initial public offering of Common Stock in
1993, the Company agreed with the underwriters to use reasonable best efforts
until June 1998 to maintain a Board of Directors comprising at least five
members, at least two of whom will be unaffiliated with and independent of the
Company.
BOARD COMMITTEES AND MEETINGS
The Board of Directors has standing Audit and Compensation Committees.
The Audit Committee annually recommends to the Board the appointment of
independent certified accountants as auditors for the Company, discusses and
reviews the scope and the fees of the prospective annual audit and reviews the
results with the auditors, reviews compliance with existing major accounting
and financial policies of the Company, reviews the adequacy of the financial
organization of the Company and considers comments by the auditors regarding
internal controls and accounting procedures and management's response to those
comments. The Audit Committee held one meeting during the fiscal year ended
August 30, 1997.
The Compensation Committee members are Messrs. Wilson (Chairman),
Seibert and Josephson. The Compensation Committee reviews and makes
recommendations to the Board regarding salaries, compensation and benefits of
executive officers and key employees of the Company and administers the
Company's stock option plans and employee stock purchase plan. The Compensation
Committee held four meetings during the fiscal year ended August 30, 1997.
The Board of Directors held four meetings during the fiscal year ended
August 30, 1997. During fiscal 1997 each director attended at least 75% of the
meetings of the Board of Directors and the meetings held by the committees of
the Board of Directors on which such director served.
DIRECTOR COMPENSATION
Members of the Board of Directors who are not employees of the Company
receive annual director's fees of $20,000. In addition, members of the Board of
Directors are reimbursed for their expenses for attending Board and committee
meetings. Non-employee directors are given the option of receiving warrants to
purchase shares of Common Stock in lieu of cash director's fees. These warrants
are exercisable at any time during the five-year period following their
issuance. During fiscal year 1997, Messrs. Josephson, Wilson, Holland and
Terracina each received, in lieu of cash director's fees, warrants to purchase
6,000 shares of Common Stock at an exercise price of $16.875 per share.
Pursuant to the Company's Non-Employee Director Stock Purchase Plan,
warrants to purchase 6,000 shares of Common Stock are granted to each Director
who is not an employee of the Company at the time the Director is first elected
to the Board of Directors. These warrants vest one year after they are granted
and are exercisable at any time during the following four years.
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<PAGE> 4
ITEM 11. EXECUTIVE COMPENSATION
The following table sets forth in summary form information concerning
compensation paid by the Company for services rendered during fiscal years
1995, 1996 and 1997 to the Company's chief executive officer and each other
executive officer who received compensation in excess of $100,000 for fiscal
1997 (collectively, the "named executive officers").
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long Term
Annual Compensation Compensation
------------------------------------- ------------
Other Securities
Fiscal Annual Underlying
Name Year Salary Bonus Compensation Options/SARs (#)
---- ---- -------- ------- ------------ ------
<S> <C> <C> <C> <C> <C>
Frank P. Krasovec 1997 $269,711 -- $27,539(a) 5,000
Chief Executive Officer, 1996 266,346 -- -- 10,000
President and Chairman 1995 241,680 -- -- 9,000
Robert P. Whitesell(b) 1997 210,465 -- -- 5,000(c)
President and Chief 1996 179,322 -- -- 10,000(c)
Operating Officer 1995 152,884 $45,000 9,000(c)
J. Max Waits(d) 1997 136,466 -- -- 5,000
Treasurer and 1996 121,053 -- -- 8,000
Chief Financial Officer 1995 107,230 32,000 -- 4,500
</TABLE>
- -----------------
(a) Represents the estimated value of personal use of corporate aircraft.
See Item 13. "Certain Relationships and Related Transactions."
(b) Mr. Whitesell resigned his positions as President and Chief Operating
Officer of the Company on August 6, 1997.
(c) All unexercised stock options granted to Mr. Whitesell during fiscal
1995, 1996 and 1997 expired upon his resignation in August 1997.
(d) Mr. Waits served as Treasurer and Chief Financial Officer of the
Company until August 1997. He currently is employed as general manager
of Air-Tex Corporation, a subsidiary of the Company.
4
<PAGE> 5
OPTION/SAR GRANTS IN LAST FISCAL YEAR
The following table sets forth information concerning the number and
value of unexercised stock options granted during the last completed fiscal
year to each of the named executive officers.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
------------------------------------------------------------
PERCENT OF POTENTIAL REALIZABLE
NUMBER OF TOTAL VALUE AT
SECURITIES OPTIONS/ ASSUMED ANNUAL RATES OF
UNDERLYING SARS GRANTED STOCK PRICE APPRECIATION
OPTIONS/ TO EMPLOYEES EXERCISE OF FOR OPTION TERM
SARS IN FISCAL BASE PRICE EXPIRATION ------------------------
NAME GRANTED (#) YEAR ($/SH) DATE 5% ($) 10% ($)
---- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Frank P. Krasovec 5,000 6.4% $16.875 11/15/06 $53,079 $134,512
Robert P. Whitesell(a) 5,000 6.4% 16.875 11/15/06 -- --
J. Max Waits 5,000 6.4% 16.875 11/15/06 53,079 134,512
James P. Gunning, Jr. 5,000 6.4% 16.875 11/15/06 53,079 134,512
</TABLE>
- ---------------------
(a) All unexercised stock options granted to Mr. Whitesell during the last
completed fiscal year were forfeited upon his resignation in August 1997.
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR AND
FISCAL YEAR END OPTION/SAR VALUES
The following table sets forth information concerning the number and
value of unexercised stock options held by named executive officers at August
30, 1997.
<TABLE>
<CAPTION>
VALUE OF UNEXERCISED
NUMBER OF UNEXERCISED IN-THE-MONEY
OPTIONS/SARS AT OPTIONS/SARS
FISCAL YEAR-END (#) AT FISCAL YEAR-END ($)
------------------- ----------------------
SHARES ACQUIRED VALUE EXERCISABLE/ EXERCISABLE/
NAME ON EXERCISE (#) REALIZED ($) UNEXERCISABLE UNEXERCISABLE
---- --------------- ------------ ------------- -------------
<S> <C> <C> <C> <C>
Frank P. Krasovec -- -- 2,000/28,000 $2,000/$23,080
Robert P. Whitesell -- -- 2,000/ -- 2,000/ --
J. Max Waits -- -- 5,562/19,100 59,230/11,140
James P. Gunning, Jr. -- -- --/11,000 --/ --
</TABLE>
COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
During fiscal 1997, the Compensation Committee of the Board of
Directors was made up of three independent non-employee Directors. The
Committee is responsible for analyzing the performance of the officers of the
Company and making recommendations to the entire Board of Directors concerning
their salaries, benefits and other compensation. The Committee also administers
the Company's stock option and compensation plans.
5
<PAGE> 6
Compensation of officers consists of three elements: (i) base salary,
(ii) annual incentive bonuses and (iii) long-term incentives in the form of
stock options. Annual cash bonuses are paid if the Company or its operating
companies achieve financial targets designed to reflect above-average
performance relative to the promotional products industry and the general
economy. Stock options are used to align the interests of shareholders and
officers by rewarding performance that builds shareholder value. These elements
are combined to build compensation packages that attract, motivate and retain
the management talent necessary to insure the success of the Company.
Base salaries for officers are determined by evaluating the
responsibilities of the position, individual performance by the officer,
contributions to the growth, revenue and earnings of the Company, the
experience of the officer and the number of years of his or her service with
the Company. These salaries are reviewed annually and adjustments are
determined by the Company's performance and the individual's contribution to
that performance.
For fiscal 1997, the Company's incentive bonus plan covered executives
of the Company and five of the Company's operating subsidiaries: ArtMold
Products Corporation, Barlow Promotional Products, Inc., Key Industries, Inc.,
Air-Tex Corporation and Radio Cap Company, Inc. Under the plan, pre-determined
amounts were available for the payment of cash bonuses based on both individual
performance and achievement of operating income targets by the subsidiaries.
Certain officers and other key managers participated in the bonus plans during
fiscal 1997 based upon percentages set for them at the beginning of the fiscal
year.
Stock options are granted to officers from time to time as determined
by the Committee. Stock options are granted with an exercise price not less
than the fair market value of the Common Stock on the date of grant. Options
are generally exercisable between three and ten years from the date granted.
Stock options are an important part of the overall compensation package
provided to officers. Since the full benefit of the compensation package cannot
be realized unless the Common Stock appreciates over the period that the stock
options vest and become exercisable, the Company believes that the grant of
stock options provides incentive for the creation of long-term shareholder
value.
These compensation policies apply to all officers of the Company,
including the named executive officers. Annual base salaries and incentive
bonus targets for executive officers were determined by the entire Board of
Directors, based upon the recommendations of the Compensation Committee and the
Board's evaluation of the factors described above.
Mr. Krasovec's base annual salary was increased by the Board of
Directors to $275,000 effective January 1, 1996. The Compensation Committee
determined not to increase Mr. Krasovec's base compensation for fiscal 1997.
Compensation Committee:
Robert L. Seibert
John H. Wilson III
John H. Josephson
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
No member of the Compensation Committee is or has been an officer or
employee of the Company or any of its subsidiaries. There are no persons who
participated in deliberations concerning executive officer compensation in
fiscal 1997 that had any relationship that would require disclosure pursuant to
Item 404 of Regulation S-K as promulgated by the Securities and Exchange
Commission.
No executive officer of the Company served as a member of the
compensation committee (or other Board committee performing similar functions)
or board of directors of another corporation, one of whose executive officers
served on the Company's Compensation Committee or Board of Directors.
6
<PAGE> 7
COMMON STOCK PERFORMANCE GRAPH
The Common Stock began trading publicly on June 16, 1993. The
following performance graph compares the cumulative return since June 16, 1993
of the Common Stock with that of Standard and Poor's 500 Stock Index and a
group of the Company's peer corporations (the "Peer Group"). Each index assumes
$100 invested on June 16, 1993 and is calculated assuming quarterly
reinvestment of dividends and quarterly weighting by market capitalization.
[GRAPH]
<TABLE>
<CAPTION>
Research Data Group Total Return - Data Summary
NPPI Begin: 06/16/93
End: 08/31/97
3678VNPP
------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
6/16/93 8/93 11/93 2/94 5/94 8/94 11/94 2/95 5/95 8/95 11/95 2/96 5/96
NORWOOD PROMOTIONAL PRODS NPPI 100 113 105 127 93 95 100 111 130 141 159 166 189
PEER GROUP PPEER0 100 105 117 114 112 106 98 103 97 103 111 113 143
S & P 500 1500 100 104 105 106 105 110 106 114 126 133 145 154 162
<CAPTION>
<C> <C> <C> <C> <C> <C>
8/96 11/96 2/97 5/97 8/97
NORWOOD PROMOTIONAL PRODS NPPI 132 143 159 133 123
PEER GROUP PPEER0 130 166 128 160 176
S & P 500 1500 158 185 194 209 223
</TABLE>
7
<PAGE> 8
<TABLE>
<CAPTION>
JUNE 16, AUG. 28, SEPT. 3, SEPT. 2, AUG. 31, AUG. 31,
1993 1993 1994 1995 1996 1997
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Norwood Promotional Products, Inc. 100 113 95 141 132 123
Standard & Poor's 500 Stock Index 100 104 106 133 158 223
Peer Group 100 105 107 103 130 176
</TABLE>
The Peer Group is composed of the following companies:
<TABLE>
<CAPTION>
COMPANY NAME SYMBOL
------------ ------
<S> <C>
Ha-Lo Industries, Inc. HALO
Tandy Brands Accessories, Inc. TBAC
Lillian Vernon Corp. LVC
CSS Industries, Inc. CSS
Swiss Army Brands, Inc. SABI
</TABLE>
The Companies above were selected as a Peer Group due to similar
industries and market capitalization.
SECTION 16 COMPLIANCE
Under Section 16(a) of the Securities Exchange Act of 1934, directors,
certain officers, and beneficial owners of 10% or more of the Company's Common
Stock are required from time to time to file with the Securities and Exchange
Commission reports on Forms 3, 4 or 5, relating principally to transactions in
Company securities by such persons. Based solely upon a review of Forms 3 and 4
and amendments thereto furnished to the Company during its fiscal year 1997 and
thereafter, Forms 5 and amendments thereto furnished to the Company with
respect to its fiscal year 1997, and written representations received by the
Company from a Director, officer or beneficial owner of more than 10% of the
Common Stock ("reporting persons") that no Form 5 is required, the Company
believes that all reporting persons filed on a timely basis the reports
required by Section 16(a) of the Securities Exchange Act of 1934 during the
Company's fiscal year 1997.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information regarding the beneficial
ownership of Common Stock (i) as of December 10, 1997 by each Director of the
Company, each named executive officer (as defined in Item 11. "Executive
Compensation"), all current executive officers and Directors of the Company as
a group; and (ii) as of September 30, 1997 by each other person known to the
Company to own beneficially more than five percent of the Common Stock as of
September 30, 1997.
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<PAGE> 9
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP (A)
---------------------------
NUMBER OF
NAME OF BENEFICIAL OWNER SHARES PERCENTAGE
------------------------ --------- ----------
DIRECTORS AND EXECUTIVE OFFICERS:
<S> <C> <C>
Frank P. Krasovec (b) 659,917 13.0%
James P. Gunning, Jr 500 *
Robert P. Whitesell 109,023 2.2%
J. Max Waits (c) 13,100 *
Robert L. Seibert (d) 14,587 *
John H. Wilson III (e) 34,651 *
John H. Josephson (f) 24,728 *
Harold Holland (g) 13,000 *
Roy D. Terracina (h) 10,500 *
All directors and executive officers as a group
(Nine persons) 880,006 17.4%
5% SHAREHOLDERS:
Newberger & Berman, L.L.C. (i)(j) 706,500 12.5%
Heartland Advisors, Inc. (i)(k) 486,000 8.6%
Trust Company of the West Group, Inc. (i)(l) 472,400 8.4%
Thomson Horstmann & Bryant, Inc. (i)(m) 460,000 8.1%
</TABLE>
- -------------
*Less than 1%
(a) Except as otherwise indicated, the persons named in the table have sole
voting and investment power with respect to the shares of Common Stock
shown as beneficially owned by them. Beneficial ownership as reported in
the above table has been determined in accordance with Rule 13d-3 of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act"). The
percentages are based upon 5,070,598 shares outstanding as of December 10,
1997.
(b) Mr. Krasovec's business address is 106 East Sixth Street, Suite 300,
Austin, Texas 78701. Includes 7,000 shares of Common Stock issuable upon
exercise of options granted to Mr. Krasovec by the Company under the
Company's 1989 Stock Option Plan (the "1989 Plan"), which are exercisable
within 60 days.
(c) Includes 7,862 shares of Common Stock issuable upon exercise of options
granted to Mr. Waits by the Company under the 1989 Plan, which are
exercisable within 60 days.
(d) Includes 6,000 shares of Common Stock issuable upon exercise of warrants
granted to Mr. Seibert by the Company, which are currently exercisable.
(e) Includes 22,728 shares of Common Stock issuable upon exercise of warrants
granted to Mr. Wilson by the Company, which are currently exercisable.
(f) Includes 22,728 shares of Common Stock issuable upon exercise of warrants
granted to Mr. Josephson by the Company, which are immediately
exercisable. Excludes 150,000 shares of Common Stock issuable upon
exercise of warrants held by Allen & Company Incorporated ("Allen"). Mr.
Josephson, a director of Allen, disclaims beneficial ownership of these
shares.
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<PAGE> 10
(g) Includes 12,000 shares of Common Stock issuable upon exercise of warrants
granted to Mr. Holland by the Company, which are currently exercisable.
(h) Includes 6,000 shares of Common Stock issuable upon exercise of warrants
granted to Mr. Terracina by the Company, which are currently exercisable.
(i) Information regarding beneficial ownership has been obtained from reports
on SEC Schedule 13F and 13G or from the Nasdaq Stock Market. This
information has not been verified by the Company.
(j) The business address of Newberger & Berman, L.L.C. is 605 Third Avenue,
New York, New York 10158-3698.
(k) The business address for Heartland Advisors, Inc. is 790 N. Milwaukee
Street, Milwaukee, Wisconsin 53202-3712.
(l) The business address of Trust Company of the West Group, Inc. is 865
South Figuerga Street, Los Angeles, California 90017.
(m) The business address of Thomson Horstmann & Bryant, Inc. is Park 80
West/Plaza Two, Saddle Brook, New Jersey 07663.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In 1996, Norcorp, Inc., a subsidiary of the Company ("Norcorp"),
acquired an undivided 12.5% interest in a corporate aircraft. Frank Krasovec,
Chief Executive Officer, President and Chairman of the Company, entered into a
Time Sharing Agreement with Norcorp effective November 1996, which required Mr.
Krasovec to reimburse Norcorp for certain expenses related to his personal use
of the aircraft. In November 1997, the Compensation Committee determined to
modify the Time Sharing Agreement to treat Mr. Krasovec's reimbursable expenses
as additional compensation. These expenses for fiscal 1997 totaled approximately
$27,539. See Item 11. "Executive Compensation."
10
<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, thereunto duly authorized.
NORWOOD PROMOTIONAL PRODUCTS, INC.
By: /s/ James P. Gunning, Jr. Date: December 24, 1997
----------------------------------------
James P. Gunning, Jr.
Secretary, Treasurer and
Chief Financial Officer
11
<PAGE> 12
INDEX TO EXHIBITS
Each management contract or compensatory plan or arrangement required to be
filed as an exhibit hereto is indicated by an asterisk (*).
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
<S> <C> <C>
3.1 -- Articles of Incorporation of the Registrant, as amended.(1)
3.2 -- Amended and Restated Bylaws of the Registrant. (filed herewith)
4.1 -- Specimen stock certificate evidencing the Common Stock.(1)
10.1 -- 1993 Non-qualified Stock Option Plan of the Registrant dated June 4, 1993.(1) (Exhibit 10.18) *
10.2 -- 1993 Non-Employee Director Stock Purchase Plan of the Registrant dated November 8, 1993.(2)
(Exhibit 10.26) *
10.3 -- Employee Stock Purchase Plan of the Registrant dated May 18, 1995, as amended and restated
effective as of May 9, 1996. (3) (Exhibit 4.7) *
10.4 -- Amended and Restated 1989 Incentive Stock Option Plan of the Registrant dated August 23, 1996.
(4) *
10.5 -- Amended and Restated 1994 Incentive Stock Compensation Plan of the Registrant dated August 23,
1996. (4) *
10.6 -- Warrant certificate granted by the Registrant to Allen and Company, Incorporated, dated June
23,1993.(1)
10.7 -- Form of Warrant certificate granted by the Registrant to Directors in lieu of Director's fees.
(filed herewith) *
10.8 -- Lease dated March 26, 1973 by and between Don E. Harley Associates, Inc., and Arthur Salm, Inc.
assigned to Exchange National Bank of Chicago on June 12, 1973, assigned to Barlow Specialty
Advertising, Inc. in June 1986, and assigned to Barlow Promotional Products, Inc. as of May 19,
1992.(1) (Exhibit 10.15)
10.9 -- Lease Agreement by and between Wulfe Investments and Radio Cap Company, Inc. commencing August 1,
1992 relating to certain property located at 817 North Frio in San Antonio, Texas.(l) (Exhibit
10.16)
10.10 -- Lease Agreement by and between the Utah State Retirement Fund and Radio Cap Company, Inc. entered
into November 17, 1992 relating to the space at Rittiman East Business Park, Building 12 at 5519
Business Park in San Antonio.(1) (Exhibit 10.17)
10.11 -- Lease Agreement by and between Joseph S. Scher, not individually, but as Trustee under the
Joseph S. Scher Trust dated April 5, 1993, and Key Acquisition Corp., dated as of May 1, 1994.(5)
(Exhibit 10.20)
10.12 -- Sublease by and between MM Realty Associates II, dated November 1, 1981; First Amendment to
Sublease by and between MM Realty Associates II, dated March 1, 1983; Second Amendment to
Sublease by and between Cranston Partnership (Associates II) formerly MM Realty, dated September
1, 1986 and Assignment of and Third Amendment to Sublease by and between Cranston Partnership,
Measured Marketing Services, Inc. and ArtMold Products Corporation, dated March 1, 1992.(5)
10.13 -- Office Sublease dated May 1995 between the Registrant and Frito Lay, Inc. (6) (Exhibit 10.28)
10.14 -- Standard Industrial Commercial-Tenant Lease-Net effective as of November 20, 1995 between Key
Industries, Inc. and Harris/Newell Family Partnership. (6)
10.15 -- Standard Industrial Commercial-Tenant Lease-Net effective as of February 22, 1996 between Barlow
Promotional Products, Inc. and AMG Holding, Inc. (7) (Exhibit 10.34)
10.16 -- Asset Purchase Agreement dated as of November 17, 1995 among Ocean Specialty Manufacturing
Corporation, Steve Sherlin, Ron Silverstein, Key Industries, Inc. and the Registrant. (6)
(Exhibit 10.30)
10.17 -- Asset Purchase Agreement dated January 22, 1996 among TEE-OFF Enterprises, Inc., James W. Schmidt, Vicki M. Schmidt,
ArtMold Products Corporation and the Registrant (8)
10.18 -- Asset Purchase Agreement dated April 1, 1996 among Alpha Products,. Inc., Aladdin Industries,
Inc., Radio Cap Company, Inc. and the Registrant.(9)
</TABLE>
12
<PAGE> 13
<TABLE>
<C> <C> <C>
10.19 -- Credit Agreement dated as of August 28, 1997 among the Registrant, certain Subsidiary Guarantors
Merrill Lynch & Co. and NationsBank, N.A. (10)
10.20 -- Time Sharing Agreement dated as of August 25, 1997 between Norcorp, Inc. and Frank P. Krasovec
(filed herewith)*
11.1 -- Computation of per share earnings. (11)
21.1 -- Subsidiaries of the Registrant.(6) (Exhibit 22.1)
23.1 -- Consent of Ernst & Young L.L.P. (11)
27.1 -- Financial data schedule. (11)
</TABLE>
(1) Previously filed as an Exhibit to the Registrant's Registration Statement
on Form S-1 (File No. 33-61740) filed with the Securities and Exchange
Commission on June 16, 1993 and incorporated herein by reference.
(2) Previously filed as an Exhibit to the Registrant's Form 10-Q for the
quarter ended November 27, 1993 filed with the Securities and Exchange
Commission on January 10, 1994 and incorporated herein by reference
(3) Previously filed as an Exhibit to the Registrant's Form 10-Q filed with the
Securities and Exchange Commission on July 15, 1996 and incorporated herein by
reference.
(4) Previously filed as an Exhibit to the Registrant's Form 10-K for the year
ended August 30, 1996 filed with the Securities and Exchange Commission on
November 26, 1996 and incorporated herein by reference.
(5) Previously filed as an Exhibit to the Registrants Form 10-Q filed with the
Securities and Exchange Commission on May 14, 1994 and incorporated herein by
reference
(6) Previously filed as an Exhibit to the Registrant's Registration Statement
on Form S-1 filed with the Securities and Exchange Commission on October 17,
1995, as amended by Amendment No. 1 filed with the Securities and Exchange
Commission on November 24, 1995, and incorporated herein by reference.
(7) Previously filed as an Exhibit to the Registrant's Form 10-Q filed with the
Securities and Exchange Commission on April 16, 1996 and incorporated herein by
reference.
(8) Previously filed as an Exhibit to the Registrant's Form 8-K filed with the
Securities and Exchange Commission on February 2, 1996 and incorporated herein
by reference.
(9) Previously filed as an Exhibit to the Registrant's Form 8-K filed with the
Securities and Exchange Commission on April 16, 1996 and incorporated herein by
reference.
(10) Previously filed as an Exhibit to the Registrant's Form 8-K filed with the
Securities and Exchange Commission on September 5, 1997 and incorporated herein
by reference.
(11) Previously filed as an Exhibit to the Registrant's Form 10-K for the year
ended August 30, 1997 filed with the Securities and Exchange Commission on
November 28, 1997.
13
<PAGE> 1
EXHIBIT 3.2
NORWOOD PROMOTIONAL PRODUCTS, INC.
AMENDED AND RESTATED BYLAWS
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II MEETINGS OF SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.2. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.3. Notice of Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.5. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.6. Notice of Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.6. Advance Notice of Shareholder Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.7. Closing of Share Transfer Records and Fixing Record Date . . . . . . . . . . . . . . . . . . . . 3
Section 2.8. Shareholder List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.9. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.10. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.11. Votes Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.12. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.13. Conduct of Shareholders Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.14. Inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.2. Number of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.3. Election; Term; Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.4. Vacancies and Newly Created Directorships . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.5. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.6. Nominations for Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV MEETINGS OF THE BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.1. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.2. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.3. Quorum and Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.4. Telephone Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.5. Action by Written Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.1. Executive Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.2. Other Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.3. Committee Rules; Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VI COMPENSATION OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
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<TABLE>
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ARTICLE VII NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 7.1. Methods of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 7.2. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 7.3. Omission of Notice to Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VIII OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 8.1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 8.2. Term, Removal and Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 8.3. Salaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 8.4. Execution of Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 8.5. Duties of Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 8.6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 8.7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 8.8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 8.9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 8.10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 8.11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 8.12. Assistant Treasurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IX SHARES AND SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 9.1. Certificates Representing Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 9.2. Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 9.3. Registered Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 9.4. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE X INDEMNIFICATION OF OFFICERS AND DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 10.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 10.2. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 10.3. Indemnification Not Permissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 10.4. Termination of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 10.5. Extent of Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10.6. Determination of Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10.7. Authorization of Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10.8. Director Successful on Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10.9. Court Awarded Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.10. Advancement of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.11. Appearance as Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.12. Indemnification of Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.13. Indemnification of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 10.14. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 10.15. Reports to Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 10.16. Employee Benefit Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
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ARTICLE XI GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 11.1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 11.2. Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 11.3. Shares of Other Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 11.4. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 11.6. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE XII AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
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AMENDED AND RESTATED BYLAWS
OF
NORWOOD PROMOTIONAL PRODUCTS, INC.
Norwood Promotional Products, Inc. (the "Corporation"), pursuant to
the provisions of Article 2.23 of the Texas Business Corporation Act, as
amended (the "TBCA"), hereby adopts these Amended and Restated Bylaws, which
restate, amend and supersede the Bylaws of the Corporation in their entirety,
as described below:
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of the
Corporation shall be established and maintained at such place within the State
of Texas as the Board of Directors may from time to time determine.
Section 1.2. Other Offices. The Corporation may also have offices at
such other places, either within or outside of the State of Texas, as the Board
of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1. Place of Meetings. Meetings of shareholders may be held
at such time and place, within or outside of the State of Texas, as the Board
of Directors may determine and as stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2.2. Annual Meetings. An annual meeting of shareholders
shall be held on the third Tuesday in January of each year, if not a legal
holiday, and if a legal holiday, then on the next succeeding business day, at
10:00 a.m., local time; provided, however, that if the Board of Directors
determines that it is advisable to delay an annual meeting, then such annual
meeting shall be held on such date not later than 180 days following the third
Tuesday in January as may be designated by the Board of Directors. At each
annual meeting, the shareholders shall elect such directors as shall be
required to be elected by the shareholders at such meeting pursuant to these
Bylaws or as shall otherwise be required by applicable law to be elected at
such meeting. At such annual meeting, the shareholders shall also transact
such other business as may properly be brought before the meeting.
<PAGE> 6
Section 2.3. Notice of Annual Meeting. Written or printed notice of
the annual meeting, stating the place, day and hour thereof, shall be given to
each shareholder entitled to vote at such meeting, not less than 10 days nor
more than 60 days before the date of the meeting
Section 2.4. Special Meetings. Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by the TBCA or the
Articles of Incorporation, may be called only by the Chairman of the Board, and
shall be called by the Chairman of the Board or the Secretary at the request in
writing of a majority of the Board of Directors. Such request shall state the
purpose or purposes of the proposed meeting. Business transacted at all
special meetings of shareholders shall be confined to the purpose or purposes
stated in the notice thereof.
Section 2.5. Notice of Special Meetings. Written or printed notice
of a special meeting of shareholders, stating the place, day and hour and
purpose or purposes thereof, shall be given to each shareholder entitled to
vote at such meeting, not less than 10 days nor more than sixty days before the
date of the meeting.
Section 2.6. Advance Notice of Shareholder Proposals. (a)
In order to properly submit any business to an annual meeting of shareholders,
a shareholder must give timely notice in writing to the Secretary of the
Corporation. To be considered timely, a shareholder's notice must be delivered
either personally or by certified mail, postage prepaid, and received at the
principal or registered office of the Corporation (i) not less than 120 days
nor more than 150 days before the first anniversary date of the Corporation's
proxy statement in connection with the last annual meeting of shareholders or
(ii) if no annual meeting has been called after the expiration of more than 30
days from the date for such meeting contemplated at the time of the previous
year's proxy statement, not less than a reasonable time, as determined by the
Board of Directors, prior to the date of the applicable annual meeting.
(b) Nomination of persons for election to the board of
directors may be made by the Board of Directors or any committee designated by
the Board of Directors or by any shareholder entitled to vote for the election
of directors at the applicable meeting of shareholders. However, nominations
other than those made by the Board of Directors or its designated committee
must comply with the procedures set forth in this Section 2.6, and no person
shall be eligible for election as a director unless nominated in accordance
with the terms of this Section 2.6. A shareholder may nominate a person or
persons for election to the Board of Directors by giving written notice to the
Secretary of the Corporation in accordance with the procedures set forth above.
In addition to the timeliness requirements set forth above for notice to the
Corporation by a shareholder of business to be submitted at an annual meeting
of shareholders, with respect to any special meeting of shareholders called for
the election of directors, written notice must be delivered in the manner
specified above and not later than the close of business on the seventh day
following the date on which notice of such meeting is first given to
shareholders.
(c) The Secretary of the Corporation shall deliver any
shareholder proposals and nominations received in a timely manner for review by
the Board of Directors or a committee designated by the Board of Directors.
2
<PAGE> 7
(d) A shareholder's notice to submit business to an
annual meeting of shareholders shall set forth (i) the name and address of the
shareholder, (ii) the class and number of shares of stock beneficially owned by
such shareholder, (iii) the name in which such shares are registered on the
stock transfer books of the corporation, (iv) a representation that the
shareholder intends to appear at the meeting in person or by proxy to submit
the business specified in such notice, (v) any material interest of the
shareholder in the business to be submitted, and (vi) a brief description of
the business desired to be submitted to the annual meeting, including the
complete text of any resolutions to be presented at the annual meeting, and the
reasons for conducting such business at the annual meeting. In addition, the
shareholder making such proposal shall promptly provide any other information
reasonably requested by the corporation.
(e) In addition to the information required above to be
given by a shareholder who intends to submit business to a meeting of
shareholders, if the business to be submitted is the nomination of a person or
persons for election to the Board of Directors then such shareholder's notice
must also set forth, as to each person whom the shareholder proposes to
nominate for election as a director, (i) the name, age, business address and,
if known, residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of stock of the
Corporation which are beneficially owned by such person, (iv) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors or is otherwise required by
the rules and regulations of the Securities and Exchange Commission promulgated
under the Securities Exchange Act of 1934, as amended, (v) the written consent
of such person to be named in the proxy statement as a nominee to serve as a
director if elected, and (vi) a description of all arrangements or
understandings between such shareholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such shareholder.
(f) Any person nominated for election as director by the
Board of Directors or any committee designated by the Board of Directors shall,
upon the request of the Board of Directors or such committee, furnish to the
Secretary of the Corporation all such information pertaining to such person
that is required to be set forth in a shareholder's notice of nomination.
(g) Notwithstanding the foregoing provisions of this
Section 2.6, a shareholder who seeks to have any proposal included in the
Corporation's proxy statement shall comply with the requirements of Regulation
14A under the Securities Exchange Act of 1934, as amended.
Section 2.7. Closing of Share Transfer Records and Fixing Record
Date. For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, or entitled to
receive a distribution by the Corporation (other than a distribution involving
a purchase or redemption by the Corporation of any of its own shares) or a
share dividend, or in order to make a determination of shareholders for any
other proper purpose, the Board of Directors may provide that the share
transfer records shall be closed for a stated period not to exceed, in any
case, 60 days. If the share transfer records shall be closed for the purpose
of determining shareholders entitled to notice of or to vote at a meeting of
shareholders,
3
<PAGE> 8
such records shall be closed for at least 10 days immediately preceding such
meeting. In lieu of closing the share transfer records, the Board of Directors
may fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than 60 days, and, in case
of a meeting of shareholders, not less than 10 days, prior to the date on which
the particular action requiring such determination of shareholders is to be
taken. If the share transfer records are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders, or shareholders entitled to receive a distribution
by the Corporation (other than a distribution involving a purchase or
redemption by the Corporation of any of its own shares) or a share dividend,
the date on which the notice of the meeting is mailed or given or the date on
which the resolutions of the Board of Directors declaring such distribution is
adopted, as the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof, except where the
determination has been made through the closing of the share transfer records
and the stated period of closing has expired.
Section 2.8. Shareholder List. At least 10 days before each meeting
of shareholders, the officer or agent having charge of the stock transfer books
shall make a complete list of the shareholders entitled to vote at such meeting
or any adjournment thereof, arranged in alphabetical order, with the address of
and the number of shares held by each, shall be prepared by the Secretary.
Such list shall be kept on file at the registered office or principal place of
business of the Corporation and shall be subject to inspection by any
shareholder for any purpose germane to the meeting during ordinary business
hours. Such list shall also be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any shareholder during
the meeting.
Section 2.9. Quorum. The holders of a majority of the votes
attributed to the shares of capital stock issued and outstanding and entitled
to vote thereat, represented in person or by proxy, shall constitute a quorum
at all meetings of the shareholders for the transaction of business except as
otherwise provided in the Articles of Incorporation in accordance with Article
2.28 of the TBCA. Abstentions and broker non-votes will be counted as present
at a meeting of shareholders for purposes of determining the presence or
absence of a quorum at such meeting. The shareholders present may adjourn the
meeting despite the absence of a quorum. When a meeting is adjourned for less
than 30 days in any one adjournment and a new record date is not fixed for the
adjourned meeting, it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and at the
adjourned meeting any business may be transacted that might have been
transacted on the original date of the meeting. When a meeting is adjourned
for 30 days or more, or when after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given as in
the case of an original meeting.
Section 2.10. Voting. Unless otherwise provided by the TBCA or the
Articles of Incorporation, each shareholder shall have one vote for each share
of stock having voting power and held of record by such shareholder.
4
<PAGE> 9
Section 2.11. Votes Required. With respect to any matter other than
the election of directors or a matter for which the affirmative vote of the
holders of a specified portion of the shares entitled to vote is required by
the TBCA or the Articles of Incorporation, the affirmative vote of the holders
of a majority of the shares entitled to vote on that matter and represented in
person or by proxy at a meeting of shareholders at which a quorum is present
shall be the act of the shareholders. Unless otherwise provided in the
Articles of Incorporation in accordance with Article 2.28 of the TBCA,
directors shall be elected by the plurality of the votes cast by the holders of
shares entitled to vote in the election of directors at a meeting of
shareholders at which a quorum is present. In determining the total number of
shares having voting power with respect to a question brought before the
meeting that are represented in person or by proxy at the meeting, broker
non-votes on such question will not be counted.
Section 2.12. Proxies. (a) Each shareholder entitled to vote at a
meeting of shareholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for
him by proxy, but no such proxy shall be valid after 11 months from the date of
its execution unless otherwise provided in the proxy. A proxy shall be
revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest.
(b) Without limiting the manner in which a shareholder
may authorize another person or persons to act for him as proxy pursuant to
subsection (a) of this Section 2.12, the following shall constitute a valid
means by which a shareholder may grant such authority:
(i) A shareholder may execute a writing
authorizing another person or persons to act for him as proxy.
Execution may be accomplished by the shareholder or the authorized
officer, director, employee or agent of a shareholder signing such
writing or causing his or her signature to be affixed to such writing
by any reasonable means including, but not limited to, by facsimile
signature.
(ii) A shareholder may authorize another person or
persons to act for him as proxy by transmitting or authorizing the
transmission of a telegram, telex, cablegram, or other means of
electronic transmission to the person who will be the holder of the
proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be
the holder of the proxy to receive such transmission, provided that
any such telegram, telex, cablegram or other means of electronic
transmission must either set forth or be submitted with information
from which it can be determined that the telegram, telex, cablegram or
other electronic transmission was authorized by the shareholder. If
it is determined that such telegrams, telexes, cablegrams or other
electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify
the information upon which they relied.
(c) Any photographic, photostatic, facsimile or similar
reproduction of a writing or transmission created pursuant to subsection (b) of
this Section 2.12 may be substituted
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or used in lieu of the original writing or transmission for any and all
purposes for which the original writing or transmission could be used, provided
that such reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section 2.13. Conduct of Shareholders Meetings. The Chairman of the
Board, or in his absence, the President, shall call meetings of shareholders to
order and shall act as chairman thereof. In the absence of the Chairman of the
Board and the President, the shareholders present shall elect a chairman of the
meeting. The Secretary of the Corporation shall act as secretary at all
meetings of shareholders, or in his absence, the presiding officer shall
appoint a person to act as secretary thereof. The chairman of the meeting may,
either before or during any meeting of shareholders, prescribe rules which will
govern the orderly conduct, presentation, discussion, tabling and voting,
including the procedures for the presentation, revocation and counting of
proxies, at the meeting with respect to issues to be presented at the meeting
and all other aspects of any annual or special meeting of the shareholders.
The chairman's determination shall be in his reasonable discretion and shall be
final, unless the Articles of Incorporation, these Bylaws, a resolution or
resolutions of the Board of Directors or applicable law establish rules
governing a particular matter, in which case such provision shall be
dispositive, or unless the chairman's ruling is overruled by the affirmative
vote of the holders of at least two-thirds of the shares of the Corporation
entitled to vote on such matters at the meeting and present at the meeting in
person or by proxy.
Section 2.14. Inspectors. (a) The Corporation may, in advance of
any meeting of shareholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Corporation may designate one
or more persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at a meeting of shareholders,
the chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of
shares outstanding and the voting power of each, (ii) determine the shares
represented at a meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors, and (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
(c) The date and time of the opening and the closing of
the polls for each matter upon which the shareholders will vote at a meeting
shall be announced at the meeting. No ballot, proxies or votes, nor any
revocations thereof or changes thereto, shall be accepted by the inspectors
after the closing of the polls unless a court of competent jurisdiction, upon
application by a shareholder, shall determine otherwise.
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(d) In determining the validity and counting of proxies
and ballots, the inspectors shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information provided in
accordance with Section 2.12, ballots and the regular books and records of the
corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons that represent more
votes than the holder of a proxy is authorized by the record owner to cast, or
more votes than the shareholder holds of record. If the inspectors consider
other reliable information for the limited purpose permitted herein, the
inspectors at the time they make their certification pursuant to subsection
(b)(v) of this Section shall specify the precise information considered by them
including the person or persons from whom they obtained the information, when
the information was obtained, the means by which the information was obtained
and the basis for the inspector's belief that such information is accurate and
reliable.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. Powers. The process of the Corporation shall be
exercised by or under the authority, and the business and affairs of the
Corporation shall be managed under the direction of the Board of Directors.
The Board of Directors may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by the TBCA, by the Articles of
Incorporation or these Bylaws directed or required to be exercised or done by
the shareholders.
Section 3.2. Number of Directors. The number of directors which
shall constitute the whole Board of Directors shall be seven.
Section 3.3. Election; Term; Qualifications. Except as provided in
Section 3.4, each director shall be elected to serve for a term expiring at the
next succeeding annual meeting of shareholders and until his or her successor
shall have been elected and shall qualify, or until his or her death,
resignation or removal from office. Directors need not be shareholders of the
Corporation.
Section 3.4. Vacancies and Newly Created Directorships. If the
office of any director becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office, or otherwise, or the number
of directors constituting the whole Board of Directors shall be increased, a
majority of the remaining directors, though less than a quorum, may choose a
successor or the director or directors to fill the new directorship or
directorships, who shall hold office for the unexpired term in respect to which
such vacancy occurred or, in the case of a new directorship or directorships,
until the next annual meeting of the shareholders.
Section 3.5. Removal. A director of the Corporation may be removed
by the shareholders of the Corporation only for cause and only by the
affirmative vote of a majority of the shareholders then entitled to vote in the
election of directors. For this purpose, "cause" means (i) the director's
commission of an act of fraud or embezzlement against the Corporation, (ii) the
director's
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conviction or entry of a plea of guilty to a felony crime or (iii) upon the
recommendation of the Board of Directors after a determination by the Board of
Directors in its sole discretion, that the removal of such director is in the
best interests of the Corporation and its shareholders.
Section 3.6. Nominations for Directors. Nominations for election to
the Board of Directors of the Corporation at a meeting of the shareholders may
be made by the Board of Directors or on behalf of the Board of Directors by a
committee appointed by the Board of Directors or by any shareholder of the
Corporation in accordance with Section 2.6 of these Bylaws.
ARTICLE IV
MEETINGS OF THE BOARD
Section 4.1. Regular Meetings. Regular meetings of the Board of
Directors may be held at such times and at such places, either within or
outside of the State of Texas, as from time to time shall be determined by the
Board of Directors. Notice of the time and place of each meeting must be given
to all directors at least 24 hours prior to the meeting.
Section 4.2. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President on not
less than 24 hours' notice to each director, delivered either personally or by
mail or by telegram or facsimile telecommunication. Special meetings shall be
called by the President or the Secretary in like manner and on like notice on
the written request of [ONE] director.
Section 4.3. Quorum and Voting. At all meetings of the Board of
Directors, a majority of the directors at the time in office shall constitute a
quorum for the transaction of business, and the act of a majority of 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 the TBCA, the
Articles of Incorporation or these Bylaws. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present at such meeting
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 4.4. Telephone Meetings. Directors may attend any meeting of
the Board of Directors or any committee by conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear each other. Participation in such a meeting shall constitute
presence in person at the meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
Section 4.5. Action by Written Consent. Any action required or
permitted to be taken by the Board of Directors or any committee thereof may be
taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all the members of the Board of Directors or committee, as
the case may be. Such consent shall have the same force and effect as a
unanimous vote at a meeting of the Board of Directors or the committee. A
telegram, telex,
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cablegram or similar transmission by a director, or a photographic,
photostatic, facsimile or similar reproduction of a writing signed by a
director, shall be regarded as signed by the director for purposes of this
Section 4.5.
ARTICLE V
COMMITTEES
Section 5.1. Executive Committee. The Board of Directors, by
resolution adopted by a majority of the whole Board, may designate one or more
directors to constitute an Executive Committee, which Committee, to the extent
provided in such resolution, shall have and may exercise all of the authority
of the Board of Directors in the business and affairs of the corporation except
where action by the Board of Directors is expressly required by statute. The
Executive Committee shall keep regular minutes of its proceedings and report
the same to the Board of Directors when required.
Section 5.2. Other Committees. The Board of Directors may similarly
create other committees for such terms and with such powers and duties as the
Board of Directors deems appropriate.
Section 5.3. Committee Rules; Quorum. Each committee may adopt rules
governing the method of calling and time and place of holding its meetings.
Unless otherwise provided by the Board of Directors, a majority of any
committee shall constitute a quorum for the transaction of business, and the
act of a majority of the members of such committee present at a meeting at
which a quorum is present shall be the act of such committee.
ARTICLE VI
COMPENSATION OF DIRECTORS
The Board of Directors shall have authority to determine, from time to
time, the amount of compensation, if any, which shall be paid to its members
for their services as directors and as members of committees. Compensation
payable to directors may be payable in cash, shares of capital stock of the
Corporation, options, warrants or other rights to purchase or acquire shares of
capital stock of the Corporation, or any combination of the foregoing, as may
be determined by the Board of Directors from time to time, in its discretion.
The Board of Directors shall also have power in its discretion to provide for
and to pay to directors rendering services to the Corporation not ordinarily
rendered by directors as such, special compensation appropriate to the value of
such services as determined by the Board of Directors from time to time.
Nothing contained in this Article VI shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
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ARTICLE VII
NOTICES
Section 7.1. Methods of Notice. Whenever any notice is required to
be given to any shareholder, director or committee member under the provisions
of any statute, the Articles of Incorporation or these Bylaws, such notice
shall be given in writing (i) by mail addressed to such shareholder, director
or committee member at such address as appears on the books of the corporation,
which notice shall be deemed to be given at the time it is deposited in the
United States mail with postage thereon prepaid, (ii) by telegram, which notice
shall be deemed to be given at the time it is delivered to the telegraph
office, (iii) by facsimile telecommunication, which notice shall be deemed to
be given at the time it is transmitted, or (iv) in person, which notice shall
be deemed to be given when received.
Section 7.2. Waiver of Notice. Whenever any notice is required to be
given to any shareholder, director or committee member under the provisions of
any statute, the Articles of Incorporation or these Bylaws, a waiver thereof in
writing signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Attendance at any meeting shall constitute a waiver of notice
thereof except as otherwise provided by statute.
Section 7.3. Omission of Notice to Shareholders. Any notice required
to be given to any shareholder under any provision of the TBCA, the Articles of
Incorporation or these Bylaws need not be given to the shareholder if (i)
notice of two consecutive annual meetings and all notices of meetings held
during the period between those annual meetings, if any, or (ii) all but in no
event less than two, payments of distributions or interest on securities during
a 12 month period have been mailed (if sent by first class mail) to that
person, addressed at his address as shown on the share transfer records of the
corporation, and have been returned undeliverable. Any action or meeting taken
or held without notice to such a person shall have the same force and effect as
if the notice had been duly given. If such a person delivers to the
Corporation a written notice setting forth his then current address, the
requirement that notice be given to that person shall be reinstated.
ARTICLE VIII
OFFICERS
Section 8.1. Officers. The executive officers of the Corporation
shall consist of at least a President and a Secretary, each of whom shall be
elected by the Board of Directors. The Board of Directors may also elect as
officers of the Corporation one or more Vice Presidents, one or more of whom
may be designated Executive or Senior Vice Presidents and may also have such
descriptive titles as the Board of Directors shall deem appropriate, a
Treasurer, Assistant Vice Presidents, Assistant Secretaries and Assistant
Treasurers, and such other officers and agents as it shall deem necessary. Any
two or more offices may be held by the same person except that the offices of
President and Secretary shall not be held by the same person.
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Section 8.2. Term, Removal and Vacancies. The officers of the
Corporation shall hold office until their successors are chosen and qualify.
Any officer or agent of the Corporation may be removed at any time by the
affirmative vote of a majority of the Board of Directors, or, in the case of
any officer other than the Chairman of the Board or the President, by the
Chairman of the Board or the President. Any vacancy occurring in any office of
the Corporation may be filled by the Board of Directors or otherwise as
provided in this Article VIII.
Section 8.3. Salaries. The salaries and other compensation of all
officers of the Corporation shall be fixed by or in the manner determined by
the Board of Directors.
Section 8.4. Execution of Instruments. The Chairman of the Board,
the President, the Secretary and the Treasurer (and such other officers as are
authorized thereunto by resolution of the Board of Directors) may execute in
the name of the Corporation bonds, notes, debentures and other evidences of
indebtedness, stock certificates, deeds, mortgages, deeds of trust, indentures,
contracts, leases, agreements and other instruments, requiring a seal under the
seal of the Corporation, and may execute such documents where not requiring a
seal, except where such documents are required by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
exclusively delegated to some other officer or agent of the corporation.
Section 8.5. Duties of Officers. The duties and powers of the
officers of the Corporation shall be as provided in these Bylaws, or as
provided for pursuant to these Bylaws, or (except to the extent inconsistent
with these Bylaws or with any provision made pursuant hereto) shall be those
customarily exercised by corporate officers holding such offices.
Section 8.6. Chairman of the Board. The Chairman of the Board shall
preside when present at all meetings of the shareholders and of Board of
Directors. He shall advise and counsel the other officers of the Corporation
and shall exercise such powers and perform such duties as shall be assigned to
or required of him from time to time by the Board of Directors. If the
Chairman of the Board is designated Chief Executive Officer, the Chairman of
the Board shall have all of the powers granted by Section 8.7(a) to the
President and from time to time may delegate all, or any, of his powers to the
President.
Section 8.7. President. (a) The President shall have general powers
of oversight, supervision and management of the business and affairs of the
Corporation, and see that all orders and resolutions of the Board of Directors
are carried into effect.
(b) In the event another officer has been designated
Chief Executive Officer of the Corporation by the Board of Directors, then (i)
such other executive officer shall have the powers granted in Section 8.7(a) to
the President, and (ii) the President shall, subject to the powers of
supervision and control conferred upon the Chief Executive Officer, be the
chief operating officer of the Corporation and shall have all necessary powers
to discharge such responsibility, including general supervision of the affairs
of the Corporation and general and active control of all of its operations.
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(c) The President shall perform all the duties and have
all of the powers of the Chairman of the Board in the absence of the Chairman
of the Board.
Section 8.8. Vice Presidents. The Vice Presidents, in the order
determined by the Board of Directors, shall, in the absence or disability of
the President, perform the duties and exercise the powers of the President, and
shall perform such other duties as the Board of Directors, the Chairman of the
Board and the President may prescribe.
Section 8.9. Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the shareholders and record all
votes and the minutes of all proceedings in a book to be kept for that purpose
and shall perform like duties for the committees of the Board of Directors
when required. Except as may be otherwise provided in these Bylaws, he shall
give, or cause to be given, notice of all meetings of the shareholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors, the Chairman of the Board and
the President. He shall keep in safe custody the seal of the Corporation, if
any, and shall have authority to affix the same to any instrument requiring it,
and when so affixed it may be attested by his signature. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature. In the absence of
the Treasurer and all Assistant Treasurers, the Secretary shall perform all the
duties and have all the powers of the Treasurer.
Section 8.10. Assistant Secretaries. The Assistant Secretaries, in
the order determined by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties as the Board of Directors, the
Chairman of the Board and President may prescribe. Assistant secretaries may be
appointed by the President without prior approval of the Board of Directors.
Section 8.11. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. Unless another officer has been designated Chief Financial Officer
of the Corporation by the Board of Directors, the Treasurer shall be the chief
financial officer of the Corporation and shall have all necessary powers to
discharge such responsibility. He shall disburse the funds of the Corporation
as may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the Board of Directors, the Chairman of the Board and the
President, whenever they may require it, an account of all of his transactions
as Treasurer and of the financial condition of the Corporation.
Section 8.12. Assistant Treasurers. The Assistant Treasurers, in the
order determined by the Board of Directors, shall, in the absence or disability
of the Treasurer, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties as the Board of Directors, the Chairman of
the Board and the President may prescribe.
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ARTICLE IX
SHARES AND SHAREHOLDERS
Section 9.1. Certificates Representing Shares. (a) The Corporation
shall deliver certificates representing shares to which shareholders are
entitled, or the shares of the Corporation may be uncertificated shares. The
Board of Directors may provide by resolution that some or all of any or all
classes and series of its shares shall be uncertificated shares, provided that
such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered by the Corporation. Certificates representing
shares shall be signed by the Chairman of the Board, the President, a Vice
President or the Treasurer, and by the Secretary or an Assistant Secretary, and
may be sealed with the seal of the Corporation or a facsimile thereof. The
signatures of such officers upon a certificate may be facsimiles. In case any
officer who has signed or whose facsimile signature has been placed upon such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer at the date of its issuance.
(b) In the event the Corporation is authorized to issue shares of
more than one class or series, each certificate representing shares issued by
the Corporation (i) shall conspicuously set forth on the face or back of the
certificate a full statement of all the designations, preferences, limitations,
and relative rights of the shares of each class or series to the extent they
have been fixed and determined and the authority of the Board of Directors to
fix and determine the designations, preferences, limitations, and relative
rights of subsequent series, or (ii) shall conspicuously state on the face or
back of the certificate that (A) such a statement is set forth in the Articles
of Incorporation and (B) the Corporation will furnish a copy of such statement
to the record holder of the certificate without charge on written request to
the Corporation at its principal place of business or registered office.
(c) Each certificate representing shares issued by the Corporation
(i) shall conspicuously set forth on the face or back of the certificate a full
statement of the limitation or denial of preemptive rights contained in the
Articles of Incorporation, or (ii) shall conspicuously state on the face or
back of the certificate that (A) such a statement is set forth in the Articles
of Incorporation and (B) the Corporation will furnish a copy of such statement
to the record holder of the certificate without charge on request to the
Corporation at its principal place of business or registered office.
(d) In accordance with Chapter 8 - Investment Securities of the
Texas Business & Commerce Code, as amended, the Corporation shall, after
issuance or transfer of uncertificated shares, send to the registered owner of
uncertificated shares a written notice containing the information required to
be set forth or stated on certificates pursuant to the TBCA. Except as
otherwise expressly provided by law, the rights and obligations of the holders
of uncertificated shares and the rights and obligations of the holders of
certificates representing shares of the same class and series shall be
identical. No shares shall be issued until the consideration therefor, fixed
as provided by law, has been fully paid.
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(e) In the event any restriction on the transfer, or registration
of the transfer, of shares shall be imposed or agreed to by the Corporation, as
permitted by the TBCA, each certificate representing shares so restricted (i)
shall conspicuously set forth a full or summary statement of the restriction
on the face of the certificate, or (ii) shall set forth such statement on the
back of the certificate and conspicuously refer to the same on the face of the
certificate, or (iii) shall conspicuously state on the face or back of the
certificate that such a restriction exists pursuant to a specified document and
(A) that the Corporation will furnish to the record holder of the certificate
without charge upon written request to the Corporation at its principal place
of business or registered office a copy of the specified document, or (B) if
such document is one required or permitted to be and has been filed under the
TBCA, that such specified document is on file in the office of the Secretary of
State of Texas and contains a full statement of such restriction.
Section 9.2. Transfer of Shares. Subject to valid transfer
restrictions and to stop-transfer orders directed in good faith by the
Corporation to any transfer agent to prevent possible violations of federal or
state securities laws, rules or regulations, or for any other lawful purpose,
upon surrender to 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 to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 9.3. Registered Shareholders. Unless otherwise provided in
the TBCA, and subject to the provisions of Chapter 8 - Investment Securities of
the Texas Business & Commerce Code, as amended:
(i) The Corporation may regard the person in whose name
any shares of the Corporation are registered in the share transfer records of
the Corporation at any particular time (including, without limitation, as of a
record date fixed pursuant to Section 2.10 or 2.12 of these Bylaws) as the
owner of those shares at that time for purposes of voting those shares,
receiving distributions thereon or notices in respect of those shares,
exercising or waiving any preemptive rights with respect to those shares,
entering into any agreements with respect to those shares in accordance with
Articles 2.22 or 2.30 of the TBCA, or giving proxies with respect to those
shares; and
(ii) Neither the Corporation nor any of its officers,
directors, employees or agents shall be liable for regarding that person as the
owner of those shares at that time for those purposes, regardless of whether
that person does not possess a certificate representing those shares.
Section 9.4. Lost Certificates. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost,
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stolen or destroyed certificate or certificates, or his legal representative,
to advertise the same in such manner as it shall require and/or give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
ARTICLE X
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 10.1. Definitions. As used in this Article, the
following terms shall have the meanings indicated:
(a) "Corporation" includes any domestic or foreign
predecessor entity of the Corporation in a merger, consolidation or
other transaction in which the liabilities of the predecessor are
transferred to the Corporation by operation of law and in any other
transaction in which the Corporation assumes the liabilities of the
predecessor, but does not specifically exclude liabilities that are
the subject matter of this Article.
(b) "Director" means any person who is or was a director
of the Corporation and any person who, while a director of the
Corporation, is or was serving a the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another foreign or domestic
Corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise.
(c) "Expenses" include court costs and attorney's fees.
(d) "Official capacity" means: (i) when used with
respect to a director, the office of director in the Corporation, and
(ii) when used with respect to a person other than a director, the
elective or appointive office in the Corporation held by the officer
or the employment or agency relationship undertaken by the employee or
agent on behalf of the Corporation, but (iii) in both (i) and (ii)
above does not include service for any other foreign or domestic
Corporation or any partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise.
(e) "Proceeding" means any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such an
action, suit or proceeding and any inquiry or investigation that could
lead to such an action, suit or proceeding.
Section 10.2. Indemnification. The Corporation shall
indemnify a person who was, is or is threatened to be made a named defendant or
respondent in a proceeding because the person is or was a director only if it
is determined, in accordance with Section 10.6 of this Article that the person
(a) conducted himself or herself in good faith, (b) reasonably believed, (i)
in the case of conduct in the official capacity as a director of the
Corporation, that the conduct was in the Corporation's best interests, and (ii)
in all other cases, that the conduct was at least not
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opposed to the Corporation's best interests, and (c) in the case of any
criminal proceeding, had no reasonable cause to believe the conduct was
unlawful.
Section 10.3. Indemnification Not Permissible. Except to the
extent permitted in Section 10.5 of this Article, a director shall not be
indemnified by the Corporation as provided in Section 10.2 of this Article in
respect of a proceeding (a) in which the director is found liable on the basis
that a personal benefit was improperly received by the director, whether or not
the benefit resulted from an action taken in the person's official capacity, or
(b) in which the person is found liable to the Corporation.
Section 10.4. Termination of Proceedings. The termination of
a proceeding by judgment, order, settlement or conviction or on a plea of nolo
contendere or its equivalent is not of itself determinative that the person did
not meet the requirements set forth in Section 10.2 of this Article. A person
shall be deemed to have been found liable in respect of any claim, issue or
matter only after the person shall have been so adjudged by a court of
competent jurisdiction after exhaustion of all appeals therefrom.
Section 10.5. Extent of Indemnification. A person may be
indemnified by the Corporation as provided in Section 10.2 of this Article
against judgments, penalties (including excise and similar taxes), fines,
settlements and reasonable expenses actually incurred by the person in
connection with the proceeding; but if the person is found liable to the
Corporation or is found liable on the basis that a personal benefit was
improperly received by the person, the indemnification (a) shall be limited to
reasonable expenses actually incurred by the person in connection with the
proceeding, and (b) shall not be made in respect of any proceeding in which the
person shall have been found liable for willful or intentional misconduct in
the performance of the person's duty to the Corporation.
Section 10.6. Determination of Indemnification. A
determination of indemnification under Section 10.2 of this Article shall be
made (a) by a majority vote of a quorum consisting of directors who at the time
of the vote are not named defendants or respondents in the proceeding, (b) if
such a quorum cannot be obtained, by a majority vote of a committee of the
Board of Directors, designated to act in the matter by a majority vote of all
directors, consisting solely of two or more directors who at the time of the
vote are not named defendants or respondents in the proceeding, (c) by special
legal counsel selected by the Board of Directors or a committee thereof by a
vote as set forth in subsection (a) or (b) of this Section 10.6, or, if such a
quorum cannot be obtained and such a committee cannot be established, by a
majority vote of all directors, or (d) by the shareholders in a vote that
excludes the shares held by directors who are named defendants or respondents
in the proceeding.
Section 10.7. Authorization of Indemnification. Authorization
of indemnification and determination as to reasonableness of expenses shall be
made in the same manner as the determination that indemnification is
permissible, except that if the determination that indemnification is
permissible is made by special legal counsel, authorization of indemnification
and determination as to reasonableness of expenses shall be made in the manner
specified by subsection (c) of Section 10.6 of this Article for the selection
of special legal counsel. Section
16
<PAGE> 21
10.2 makes mandatory the indemnification described therein and shall be deemed
to constitute authorization of indemnification of directors of the Corporation
in the manner required herein and by the TBCA, even though such provision may
not have been adopted or authorized in the same manner as the determination
that indemnification is permissible.
Section 10.8. Director Successful on Merits. The Corporation
shall indemnify a director against reasonable expenses incurred by the director
in connection with a proceeding in which the director is a named defendant or
respondent because the person is or was a director if the director has been
wholly successful, on the merits or otherwise, in the defense of the
proceeding.
Section 10.9. Court Awarded Indemnification. If, upon
application of a director, a court of competent jurisdiction determines, after
giving any notice the court considers necessary, that the director is fairly
and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the director has met the requirements set forth
in Section 10.2 of this Article or has been found liable in the circumstances
described in Section 10.3 of this Article, the Corporation shall indemnify the
director to such further extent as the court shall determine; but if the person
is found liable to the Corporation or is found liable on the basis that
personal benefit was improperly received by the person, the indemnification
shall be limited to reasonable expenses actually incurred by the person in
connection with the proceeding.
Section 10.10. Advancement of Expenses. Reasonable expenses
incurred by a director who was, is or is threatened to be made a named
defendant or respondent in a proceeding may be paid or reimbursed by the
Corporation in advance of the final disposition of the proceeding and without
the determination specified in Section 10.6 of this Article or the
authorization or determination specified in Section 10.7 of this Article, after
the Corporation receives a written affirmation by the director of a good faith
belief that the standard of conduct necessary for indemnification under this
Article has been met and a written undertaking by or on behalf of the director
to repay the amount paid or reimbursed if it is ultimately determined that he
has not met that standard or if it is ultimately determined that
indemnification of the director against expenses incurred by him in connection
with that proceeding is prohibited by Section 10.5 of this Article. A
provision contained in the Articles of in Corporation, these bylaws, a
resolution of the shareholders or directors, or an agreement that makes
mandatory the payment or reimbursement permitted under this Section shall be
deemed to constitute authorization of that payment or reimbursement. The
written undertaking required by this Section 10.10 shall be an unlimited
general obligation of the director, but need not be secured. It may be
accepted without reference to financial ability to make repayment.
Section 10.11. Appearance as Witness. Notwithstanding any
other provision of this Article, the Corporation may pay or reimburse expenses
incurred by a director in connection with an appearance as a witness or other
participation in a proceeding at a time when he or she is not a named defendant
or respondent in the proceeding.
Section 10.12. Indemnification of Officers. An officer of the
Corporation shall be indemnified by the Corporation as and to the same extent
provided for a director by Sections
17
<PAGE> 22
10.8 and 10.9 of this Article and is entitled to seek indemnification under
those sections to the same extent as a director. The Corporation may indemnify
and advance expenses to an officer, employee or agent of the Corporation to the
same extent that it may indemnify and advance expenses to directors under this
Article.
Section 10.13. Indemnification of Others. The Corporation may
indemnify and advance expenses to persons who are not or were not officers,
employees or agents of the Corporation but who are or were serving at the
request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic Corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise, to the same extent that it
may indemnify and advance expenses to directors under this Article and the
TBCA. The Corporation may indemnify and advance expenses to an officer,
employee, agent or person identified in this Section 10.13 and who is not a
director to such further extent, consistent with law, as may be provided by the
Articles of Incorporation, these bylaws, general or specific action of the
board of directors or contract or as permitted or required by the TBCA or by
common law.
Section 10.14. Insurance. The Corporation may purchase and
maintain insurance or another arrangement on behalf of any person who is or was
a director, officer, employee or agent of the Corporation or who is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic Corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, against any
liability asserted against such person and incurred by such person in such a
capacity or arising out of the status as such a person, whether or not the
Corporation would have the power to indemnify such person against that
liability under this Article. If the insurance or other arrangement is with a
person or entity that is not regularly engaged in the business of providing
insurance coverage, the insurance or arrangement may provide for payment of a
liability with respect to which the Corporation would not have the power to
indemnify the person only if including coverage for the additional liability
has been approved by the shareholders of the Corporation. Without limiting the
power of the Corporation to procure or maintain any kind of insurance or other
arrangement, the Corporation may, for the benefit of persons indemnified by the
Corporation (a) create a trust fund, (b) establish any form of self-insurance,
(c) secure its indemnity obligations by grant of a security interest or other
lien on the assets of the Corporation, or (d) establish a letter of credit,
guaranty or surety arrangement. The insurance or other arrangement may be
procured, maintained or established within the Corporation or with any insurer
or other person deemed appropriate by the board of directors, regardless of
whether all or part of the stock or other securities of the insurer or other
person are owned in whole or part by the Corporation. In the absence of fraud,
the judgment of the board of directors as to the terms and conditions of the
insurance or other arrangement and the identity of the insurer or other person
participating in an arrangement shall be conclusive and the insurance or
arrangement shall not be voidable and shall not subject the directors approving
the insurance or arrangement to liability, on any ground, regardless of whether
directors participating in the approval are beneficiaries of the insurance or
arrangement.
18
<PAGE> 23
Section 10.15. Reports to Shareholders. Any indemnification of
or advance of expenses to a director in accordance with this Article shall be
reported in writing to the shareholders with or before the notice or waiver of
notice of the next meeting of shareholders or with or before the next
submission to shareholders of a consent to action without a meeting and, in any
case, within the 12-month period immediately following the date of the
indemnification or advance.
Section 10.16. Employee Benefit Plan. For purposes of this
Article, the Corporation is deemed to have requested a director to serve an
employee benefit plan whenever the performance by the director of the
director's duties to the Corporation also imposes duties on, or otherwise
involves services by, the director to the plan or participants or beneficiaries
of the plan. Excise taxes assessed on a director with respect to an employee
benefit plan pursuant to applicable law shall be deemed to be fines. Action
taken or omitted by the director with respect to an employee benefit plan in
the performance of the director's duties or for a purpose reasonably believed
by the director to be in the interest of the participants and beneficiaries of
the plan shall be deemed to be for a purpose which is not opposed to the best
interests of the Corporation.
ARTICLE XI
GENERAL
Section 11.1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Articles of Incorporation, if
any, or of the resolutions, if any, providing for any series of stock, may be
declared by the Board of Directors at any meeting thereof, or by the Executive
Committee at any meeting thereof. Dividends may be paid in cash, in property
or in shares of the capital stock of the Corporation, subject to the provisions
of the Articles of Incorporation or of the resolutions, if any, providing for
any series of stock.
Section 11.2. Reserves. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the directors from time to time, in their absolute discretion, deem
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose or purposes as the directors shall think conducive to the interests of
the Corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
Section 11.3. Shares of Other Corporations. Each of the Chairman of
the Board, the President, the Secretary, the Treasurer and any Vice President
are each authorized to vote, represent and exercise on behalf of the
Corporation all rights incident to any and all shares of any other corporation
or other entity standing in the name of the Corporation. The authority herein
granted to said officer may be exercised either by said officer in person or by
any person authorized so to do by proxy or power of attorney duly executed by
said officer. Notwithstanding the above, however, the Board of Directors, in
its discretion, may designate by
19
<PAGE> 24
resolution any additional person to vote or represent said shares of other
corporations and other entities.
Section 11.4. Checks. All checks, drafts, bills of exchange or
demands for money of the Corporation shall be signed by such officer or
officers or such other person or persons as the Board of Directors may from
time to time designate.
Section 11.5. Corporate Records. The Corporation shall keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its shareholders giving the names and
addresses of all shareholders and the number and class and series, if any, of
shares held by each. All other books and records of the Corporation may be
kept at such place or places within or outside of the State of Texas as the
Board of Directors may from time to time determine.
Section 11.6. Fiscal Year. The fiscal year of the Corporation shall
be fixed by the Board of Directors; if not so fixed, it shall be the 52-week
period ending on the Saturday that is closest to September 1 in each calendar
year.
ARTICLE XII
AMENDMENTS
These Bylaws may be altered, amended or repealed or new bylaws may be
adopted at any meeting of the board of directors at which a quorum is present,
by the affirmative vote of a majority of the whole Board of Directors, provided
notice of the proposed alteration, amendment or repeal is contained in the
notice of the meeting, subject to repeal or change at any meeting of the
shareholders at which a quorum is present, by the affirmative vote of a
majority of the shareholders present at such meeting, provided notice of the
proposed alteration, amendment or repeal is contained in the notice of the
meeting.
Adopted by the Board of Directors on August 22, 1997.
/s/ James P. Gunning, Jr.
------------------------------------------
Secretary
20
<PAGE> 1
EXHIBIT 10.7
THE WARRANTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE,
AND NEITHER THE WARRANTS NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT CAN BE SOLD OR OTHERWISE TRANSFERRED UNLESS
THEY ARE REGISTERED AND QUALIFIED IN ACCORDANCE WITH SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR IN THE OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY SUCH REGISTRATION AND QUALIFICATION IS NOT
REQUIRED.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE
EXCEPT IN STRICT ACCORDANCE WITH THE PROVISIONS OF THIS CERTIFICATE.
__________, _____ ______ Warrants
NORWOOD PROMOTIONAL PRODUCTS, INC.
WARRANT CERTIFICATE
This warrant certificate ("Warrant Certificate") certifies that for
value received, [Name of Director], or registered assigns (the "Holder") is the
owner of the number of warrants ("Warrants") specified above, each of which
entitles the Holder hereof to purchase, prior to the Expiration Date (as
hereinafter defined) and upon the terms and subject to the conditions
hereinafter set forth, one fully paid and non-assessable share of Common Stock,
no par value ("Common Stock"), of Norwood Promotional Products, Inc., a Texas
corporation (the "Company"), at a purchase price of $[closing price on date of
grant] per share of Common Stock in lawful money of the United States of
America in cash or by certified or cashier's check or a combination of cash and
certified or cashier's check, subject to adjustment as hereinafter provided.
1. Warrant: Purchase Price
Each Warrant shall entitle the Holder to purchase one share of
Common Stock of the Company and the purchase price payable upon exercise of the
Warrants shall initially be $[closing price on date of grant] per share of
Common Stock, subject to adjustment as provided below (the "Purchase Price").
The Purchase Price and number of shares of Common Stock issuable upon exercise
of each Warrant are subject to adjustment as provided in part 6.
2. Exercise: Expiration Date
2.1 The Warrants vest and become exercisable, at the option of the
Holder, at any time and from time to time on and after the date hereof and on
or before the Expiration Date, upon surrender of this Warrant Certificate to
the Company together with a duly completed Notice of Exercise, in the form
attached hereto as Exhibit A, and payment of an amount equal to the Purchase
Price times the number of Warrants to be exercised. In the case of exercise of
less than
<PAGE> 1
EXHIBIT 10.20
TIME SHARING AGREEMENT
This Time Sharing Agreement ("Agreement") is entered on August 25,
1997, by and between Norcorp, Inc., a Delaware corporation ("Norcorp"), and
Frank P. Krasovec ("Krasovec").
Recitals:
Norcorp is the registered owner of an undivided 12.5% interest in that
certain Cessna Citation V Ultra aircraft bearing manufacturer's serial number
560-0382 and United States Registration Number N382QS (the "Aircraft").
Norcorp has engaged the services of Executive Jet Aviation, Inc., a
Delaware corporation ("EJA"), to manage the Aircraft on behalf of Norcorp and
the owners of the remaining interests in the Aircraft (the "Additional Interest
Owners") pursuant to a management agreement (the "Management Agreement") between
Norcorp and EJA dated November 7, 1996. Executive Jet Services, Inc., a Delaware
corporation and an affiliate of EJA ("EJS"), has agreed to administer an
interchange arrangement (the "Program") among Norcorp, the Additional Interest
Owners and owners of other aircraft pursuant to the terms of a master
interchange agreement (the "Master Interchange Agreement"). Norcorp has
furnished to Krasovec true and complete copies of the Management Agreement, the
Master Interchange Agreement, the Purchase Agreement between Norcorp and
Executive Jet Sales, Inc. regarding the purchase by Norcorp of its interest in
the Aircraft (the "Purchase Agreement") and an Owners Agreement among Norcorp
and the Additional Interest Owners regarding ownership, management, use,
operation and maintenance of the Aircraft (the "Owners Agreement") (the
Management Agreement, the Master Interchange Agreement, the Purchase Agreement
and the Owners Agreement are referred to collectively as the "Program
Documents"). Unless the context requires otherwise, capitalized terms defined in
the Program Documents are used herein with the meanings as defined in the
Program Documents.
Krasovec is the Chairman, President and Chief Executive Officer of
Norwood Promotional Products, Inc. ("NPPI"), the parent of Norcorp, and as such
will use the Aircraft and Program Aircraft within the scope of and incidental to
the business of NPPI, Norcorp and their respective subsidiaries. Krasovec may
also use the Aircraft or Program Aircraft from time to time for business or
personal use not related or incidental to the business of NPPI, Norcorp and
their subsidiaries.
Norcorp and Krasovec desire to enter into this Agreement to provide for
the use by Krasovec of the Aircraft and Program Aircraft and their flight crews
for business or personal use not related to or incidental to the business of
NPPI, Norcorp and their subsidiaries on a time sharing basis as defined in
Section 91.501(c)(1) of the Federal Aviation Regulations, as amended ("FAR").
<PAGE> 2
Therefore, in consideration of the premises, Norcorp and Krasovec,
desiring to be legally bound, hereby agree as follows:
1. Norcorp agrees to make the Aircraft or Program Aircraft and
qualified flight crew available to Krasovec on a time sharing basis upon the
terms and subject to the conditions of this Agreement and in accordance with FAR
section 91.501(c)(1) for specific flights conducted under this Agreement for the
account of Krasovec during the term of this Agreement.
2. For each flight conducted under this Agreement for the account of
Krasovec, Krasovec shall pay Norcorp the actual expenses of such flight as
authorized by FAR section 91.501(d). These expenses include:
(a) Fuel, oil, lubricants and other additives.
(b) Travel expenses of the crew, including food, lodging and
ground transportation. (c) Hangar and tie down costs away
from the Aircraft's base of operation.
(d) Insurance obtained for the specific flight.
(e) Landing fees, airport taxes and similar assessments.
(f) Customs, foreign permit, and similar fees directly
related
to the flight.
(g) Passenger ground transportation.
(h) In-flight food and beverages.
(i) Flight planning and weather contract services.
(j) An additional charge equal to 100% of the expenses
listed in subparagraph (a) of this paragraph.
For purposes of this Agreement, the permanent base of operation of the Aircraft
or Program Aircraft shall be as determined from time to time pursuant to the
Program Documents.
3. Norcorp shall pay expenses related to the operation of the
Aircraft or Program Aircraft when incurred as provided in the Program Documents,
and shall invoice Krasovec for the expenses enumerated in paragraph 2 for each
specific flight conducted under this Agreement for the account of Krasovec on
the last day of the month in which such flight occurs. Krasovec shall pay
Norcorp for said expenses within 45 days of receipt of the invoice therefor.
4. Krasovec shall provide Norcorp with requests for flight time and
proposed flight schedules as far in advance as possible, and in any case, at
least 48 hours in advance of Krasovec's planned departure. Requests for flight
time shall be in a form, whether oral or written, mutually acceptable to the
parties and consistent with the terms of the Program Documents. In addition to
proposed schedules and flight times, Krasovec shall provide at least the
following information for each proposed flight prior to scheduled departure as
required by Norcorp or the flight crew of the Aircraft or Program Aircraft or
pursuant to the Program Documents:
<PAGE> 3
(a) proposed departure point;
(b) destination;
(c) date and time of flight;
(d) the number of anticipated passengers, and their names;
(e) the nature and extent of luggage and/or cargo to be
carried;
(f) the date and time of a return flight, if any; and
(g) any other information concerning the proposed flight
that may be pertinent or required by Norcorp or the
flight crew.
Norcorp shall have final authority over the scheduling of the Aircraft and the
Program Aircraft. Norcorp will use reasonable efforts to accommodate Krasovec's
needs and to avoid conflicts in scheduling, but Norcorp shall not incur any
liability whatsoever for its failure, refusal or delay in scheduling or
furnishing Aircraft or Program Aircraft to Krasovec pursuant to this Agreement.
5. As between Norcorp and Krasovec, Norcorp shall be solely
responsible for securing maintenance, preventive maintenance and inspections of
the Aircraft or Program Aircraft, and shall take such requirements into account
in scheduling the Aircraft or Program Aircraft. No maintenance, preventive
maintenance or inspection shall be delayed or postponed for the purpose of
scheduling the Aircraft or Program Aircraft, unless such maintenance or
inspection can be safely conducted at a later time in compliance with all
applicable laws and regulations and within the sole discretion of the pilot in
command of the Aircraft or the Program Aircraft.
6. Aircraft or Program Aircraft will be furnished with a qualified
flight crew in accordance with the Program Documents. In accordance with the
FAR, the Aircraft or Program Aircraft flight crew will exercise all of its
duties and responsibilities in regard to the safety of each flight conducted
under this Agreement. The pilot in command shall have final and complete
authority regarding the operation of the Aircraft or Program Aircraft,
including, without limitation, the authority to cancel, delay, postpone or
terminate any flight or to take any other action which, in his sole discretion,
is necessitated by considerations of safety. No action of the pilot in command
shall give rise to or support any claim by Krasovec or any other person for
loss, injury, damage, delay or liability.
7. Pursuant to the Management Agreement, EJA has arranged for and
obtained aircraft hull insurance and liability insurance naming EJA, Norcorp and
the Additional Interest Owners as named insureds and loss payees. Copies of such
policies and certificates of insurance have been provided to Krasovec. Norcorp
will use reasonable efforts to obtain such additional insurance coverage as
Krasovec may reasonably request, provided, that the cost of such additional
insurance shall be borne by Krasovec as set forth in paragraph 2(d) hereof.
8. Krasovec represents and warrants that:
(a) he will use the Aircraft or Program Aircraft under
this Agreement for and on account of his own business
or personal use only, and will not use the
<PAGE> 4
Aircraft or Program Aircraft for the purposes of
providing transportation of passengers or cargo in air
commerce for compensation or hire;
(b) he shall refrain from incurring any mechanics' or
other lien in connection with inspection, preventative
maintenance, maintenance or storage of the Aircraft or
Program Aircraft, nor shall he take or permit any action
to convey, mortgage, assign, lease or in any way alienate
the Aircraft or Program Aircraft or that would create or
result in the imposition of any lien or security interest
involving the Aircraft;
(c) during the term of this Agreement and during all flights
conducted under this Agreement for the account of
Krasovec, he will abide by and conform to all such laws,
governmental and airport orders, rules and regulations as
shall from time to time be in effect relating to any way
to the operation and use of the Aircraft or Program
Aircraft by a time sharing lessee; and
(d) he has received copies of the Program Documents and is
familiar with their terms, and during all flights
conducted under this Agreement for the account of
Krasovec, he will abide by and comply with the provisions
of the Program Documents.
9. Notwithstanding any provision of this Agreement to the contrary,
the ownership, scheduling, use, operation and maintenance of the Aircraft and
the Program Aircraft shall be governed by the Program Documents and such
policies and procedures as may from time to time be established by Norcorp, the
Additional Interest Owners, EJA or EJS thereunder. Krasovec acknowledges and
agrees that Norcorp has only those rights to schedule, use and operate the
Aircraft and the Program Aircraft as are set forth in the Program Documents and
that this Agreement shall not be construed to impose on Norcorp any obligation
to provide the Aircraft or Program Aircraft for use by Krasovec if such use is
prohibited or would be inconsistent with or result in a breach of or default by
Norcorp under any term or provision of the Program Documents. In case of any
conflict between any provision of this Agreement and any provision of the
Program Documents, the Program Documents shall prevail.
10. Neither this Agreement nor any party's interest herein shall be
assignable to any other person without the prior written consent of the other
party. Subject to the foregoing, this Agreement shall inure to the benefit of
and be binding upon the parties hereto, their heirs, representatives and
successors.
11. The term of this Agreement shall commence effective as of 12:00
a.m., Central Time, on November 7, 1996 and continue until the earliest to occur
of:
(a) 11:59 p.m., Central Time, on August 29, 1998;
<PAGE> 5
(b) the termination or expiration of the Management Agreement,
the Master Interchange Agreement or any other Program
Document;
(c) the death of Krasovec;
(d) the resignation, removal or other termination of Krasovec's
position as Chairman, President and Chief Executive Officer
of NPPI; or
(e) the written agreement of Norcorp and Krasovec.
12. All notices or other communications to be given under or by reason
of this Agreement shall be in writing and shall be deemed to have been given
when delivered personally or by facsimile transmission or overnight delivery
service or 72 hours after having been mailed by certified or registered mail,
return receipt requested and postage prepaid, to the recipient at the address
indicated below (or to such other address of which the parties may have given
written notice):
If to Norcorp to Norcorp, Inc., 9311 San Pedro, Suite 900, San
Antonio, Texas 78216 (fax: (210) 341-2399).
If to Krasovec to Frank P. Krasovec, 106 E. Sixth Street, Suite
300, Austin, Texas 78701 (fax: (512) 476-5680).
13. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas without giving effect to any choice or
conflict of law provision or rule (whether of the State of Texas or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Texas.
14. This Agreement may be signed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed effective as of the day and year first above written.
* * *
<PAGE> 6
TRUTH IN LEASING STATEMENT UNDER SECTION 91.23 OF THE FEDERAL AVIATION
REGULATIONS.
(a) Norcorp, Inc. (Owner) hereby certifies that the Aircraft has
been inspected and maintained within the 12-month period
preceding the date of this Agreement in accordance with the
provisions of FAR part 91, and all applicable requirements for
the maintenance and inspection thereunder have been met.
(b) Norcorp, Inc. (Owner) agrees, certifies and knowingly
acknowledges that when the Aircraft is operated under this
Agreement, Owner shall be known as, considered, and shall in
fact be the operator of the Aircraft.
(c) The parties understand that an explanation of factors and
pertinent federal aviation regulations bearing on operational
control can be obtained from the nearest FAA flight standards
district office. KRASOVEC (LESSEE) FURTHER CERTIFIES THAT HE
WILL SEND A TRUE COPY OF THIS EXECUTED AGREEMENT TO: FLIGHT
STANDARDS TECHNICAL DIVISION, P. O. BOX 25724, OKLAHOMA CITY,
OKLAHOMA 73125, WITHIN 24 HOURS OF ITS EXECUTION, AS PROVIDED
by FAR 91.23(c)(1).
NORCORP (OWNER):
Norcorp, Inc.
By:
----------------------------
J. Max Waits
Secretary and Treasurer
KRASOVEC (LESSEE):
/s/ FRANK P. KRASOVEC
----------------------------------
Frank P. Krasovec
A COPY OF THIS AGREEMENT MUST BE CARRIED IN THE AIRCRAFT OR PROGRAM AIRCRAFT
WHILE BEING OPERATED HEREUNDER.
