As Filed with the Securities and Exchange Commission on April 27, 1998
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
APPLIED CELLULAR TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
MISSOURI
(State or other jurisdiction of
incorporation or organization)
43-1641533
(I.R.S. Employer
Identification No.)
James River Professional Center
Highway 160 & CC, Suite 5, P.O. Box 2067
Nixa, Missouri 65714
(417) 725-9888
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Richard J. Sullivan
James River Professional Center
Highway 160 & CC, Suite 5, P.O. Box 2067
Nixa, Missouri 65714
(417) 725-9888
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all correspondence to:
Denis P. McCusker, Esq.
Bryan Cave LLP
One Metropolitan Square
211 North Broadway, Suite 3600
St. Louis, Missouri 63102-2750
(314) 259-2000
Approximate date of commencement of proposed sale to public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [__]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [__]
<TABLE>
CALCULATION OF REGISTRATION FEE
- ----------------------------- -------------------- --------------------- ---------------------- ------------------
<CAPTION>
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered offering price per aggregate offering registration fee
unit(1) price(1)
- ----------------------------- -------------------- --------------------- ---------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value per share 2,871,722 shares $3.8125 $10,948,441 $3,230
- ----------------------------- -------------------- --------------------- ---------------------- ------------------
</TABLE>
(1) Pursuant to Rule 457(c), the proposed offering price and registration fee
has been calculated on the basis of the average of the high and low trading
prices for the Common Stock on April 21, 1998 as reported on the Nasdaq
Small-Cap Market.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 27, 1998
PRELIMINARY PROSPECTUS
APPLIED CELLULAR TECHNOLOGY, INC.
[GRAPHIC OMITTED]
2,871,722 Shares
Common Stock
------------------
This Prospectus relates to the proposed sale from time to time of up to
2,871,722 shares (the "Shares") of the common stock, par value $.001 per share
(the "Common Stock"), of Applied Cellular Technology, Inc., a Missouri
corporation (the "Company"), in the amount and in the manner and on terms and
conditions described herein, by the Selling Shareholders. See "Selling
Shareholders." The Selling Shareholders may sell the Shares in one or more
transactions (which may include "block transactions") on the Nasdaq Small-Cap
Market, in the over-the-counter market, in negotiated transactions or in a
combination of such methods of sales, at fixed prices which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Selling Shareholders may
effect such transactions by selling the Shares directly to purchasers, or may
sell to or through agents, dealers or underwriters designated from time to time,
and such agents, dealers or underwriters may receive compensation in the form of
discounts, concessions or commissions from the Selling Shareholders and/or the
purchaser(s) of Shares for whom they may act as agent or to whom they may sell
as principals, or both. The Selling Shareholders and the brokers and dealers
through which the sales of the Shares may be made may be deemed to be
"underwriters" within the meaning set forth in the Securities Act of 1933, as
amended (the "Securities Act"), and their commissions and discounts and other
compensation may be regarded as underwriters' compensation. See "Plan of
Distribution" and "Selling Shareholders." The Company will not receive any
proceeds from the sale of Shares by the Selling Shareholders and will bear all
the expenses incurred in connection with registering this offering of the
Shares.
The Shares have been or will be issued by the Company from time to time
(a)in various acquisition transactions or (b) in consideration for services
rendered, as described herein. See "Selling Shareholders." The registration of
the Shares has been effected pursuant to agreements entered into by the Company
with the Selling Shareholders. Although such registration will allow the sale of
the Shares by the Selling Shareholders from time to time as described herein,
the Company believes that the Selling Shareholders do not currently intend to
sell all or substantially all of the Shares.
The Common Stock of the Company is listed on the Nasdaq Small-Cap Market
under the symbol "ACTC." On April 22,1998, the last reported sale price of the
Common Stock on the Nasdaq Small-Cap Market was $4.59375 per share. See "Price
Range of Common Stock."
--------------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 4 IN THE PROSPECTUS FOR A DISCUSSION
OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE
COMMON STOCK OFFERED HEREBY.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------------------
The date of this Prospectus is ____________, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). These reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional
offices located at Northeast Regional Office, Seven World Trade Center, Suite
1300, New York, New York 10048 and Midwest Regional Office, Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
materials can also be obtained from the Public Reference Section of the
Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission maintains a Web site that contains reports,
proxy and information statements and other materials that are filed through the
Commission's Electronic Data Gathering, Analysis and Retrieval (EDGAR) system.
This Web site can be accessed at http://www.sec.gov. Quotations relating to the
Company's Common Stock appear on the Nasdaq Small-Cap Market, and such reports,
proxy statements and other information concerning the Company can also be
inspected at the offices of the National Association of Securities Dealers,
Inc., 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act with respect to the
shares of Common Stock offered hereby. This Prospectus does not contain all of
the information set forth in the Registration Statement or the exhibits thereto.
As permitted by the rules and regulations of the Commission, this Prospectus
omits certain information contained or incorporated by reference in the
Registration Statement. Statements contained in this Prospectus as to the
contents of any contract or other document filed or incorporated by reference as
an exhibit to the Registration Statement are not necessarily complete, and in
each instance reference is made to the copy of such contract or other document
filed as an exhibit to the Registration Statement. For further information,
reference is hereby made to the Registration Statement and exhibits thereto,
copies of which may be inspected at the offices of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 or obtained from the Commission at the same
address at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference:
1. the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (filed with the Commission on March 30, 1998); and
2. the Company's Registration Statement on Form 8-A filed on May 5,
1995, registering the Company's Common Stock under Section 12(g) of the
Exchange Act.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the termination of the offering shall hereby be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document incorporated or deemed to be incorporated herein by reference, which
statement is also incorporated herein by reference, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
-2-
<PAGE>
This Prospectus incorporates documents by reference which are not presented
herein or delivered herewith. Copies of these documents (excluding exhibits
unless such exhibits are specifically incorporated by reference into the
information incorporated herein) will be provided by first class mail without
charge to each person to whom this Prospectus is delivered, upon written or oral
request by such person to Applied Cellular Technology, Inc., James River
Professional Center, Highway 160 & CC, Suite 5, P.O. Box 2067, Nixa, Missouri
65714; Attention: Kay Langsford, Corporate Controller (telephone: (417)
725-9888.)
No person has been authorized in connection with this offering to give any
information or to make any representation not contained or incorporated by
reference in this Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company,
the Selling Shareholders or any other person. This Prospectus does not
constitute an offer to sell, or a solicitation of an offer to purchase, any
securities other than those to which it relates, nor does it constitute an offer
to sell or a solicitation of an offer to purchase by any person in any
jurisdiction in which it is unlawful for such person to make such an offer or
solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information contained herein is correct as of any time subsequent to the date
hereof or that there has been no change in the affairs of the Company since such
date.
TABLE OF CONTENTS
Available Information........................... 2
Incorporation Of Certain Documents By Reference. 2
Risk Factors.................................... 4
The Company..................................... 6
Selling Shareholders............................ 7
Information Concerning Capital Stock........... 10
Plan Of Distribution........................... 11
Legal Matters.................................. 11
Experts........................................ 11
-3-
<PAGE>
RISK FACTORS
In addition to the other information contained herein, the following
factors should be considered carefully in evaluating the Company and its
business before purchasing any of the Common Stock offered hereby.
Uncertainty of Future Financial Results
While the Company has been profitable for the last three fiscal years,
future financial results are uncertain. There can be no assurance that the
Company will continue to be operated in a profitable manner. Profitability
depends upon many factors, including the success of the Company's various
marketing programs, the maintenance or reduction of expense levels and the
ability of the Company to successfully coordinate the efforts of the different
segments of its business.
Future Sales of and Market for the Shares
As of April 1,1998, the Company had 24,517,290 shares of Common Stock
outstanding. The Shares to which this Prospectus relates consist of 2,871,722
outstanding shares of Common Stock subject to certain restrictions on transfer.
Since January 1, 1998, the Company has issued an aggregate of 3,844,867 shares
of common stock, of which 3,815,478 shares were issued in acquisitions, and
29,389 shares were issued for services rendered.
Management of the Company anticipates that the Company will continue to
effect acquisitions and contract for certain services primarily through the
issuance of Common Stock or other equity securities of the Company. Such
issuances of additional securities may be viewed as being dilutive of the value
of the Common Stock in certain circumstances and may have an adverse impact on
the market price of the Common Stock.
Risks Associated with Acquisitions and Expansion
The Company has engaged in a continuing program of acquisitions of other
businesses which are considered to be complementary to the lines of business
carried on by the Company, and it is anticipated that such acquisitions will
continue to occur. As of December 31, 1997, the total assets of the Company were
$61.3 million. As of December 31, 1996, the total assets of the Company were
$33.2 million, compared to $4.1 million at the end of 1995. Net operating
revenues for 1997 were $103.2 million. Net operating revenues for 1996 were
$19.9 million, compared with $2.3 million in 1995. Managing these dramatic
changes in the scope of the business of the Company will present ongoing
challenges to management, and there can be no assurance that the Company's
operations as currently structured, or as affected by future acquisitions, will
be successful. The businesses acquired by the Company may require substantial
additional capital, and there can be no assurance as to the availability of such
capital when needed, nor as to the terms on which such capital might be made
available to the Company. It is the Company's policy to retain existing
management of acquired companies and to allow the new subsidiary to continue to
operate in the manner which has resulted in its success in the past, under the
overall supervision of senior management of the Company. Accordingly, the
success of the operations of these subsidiaries will depend, to a great extent,
on the continued efforts of the management of the acquired companies.
Competition
Each segment of the Company's business is highly competitive, and it is
expected that competitive pressures will continue. Many of the Company's
competitors have far greater financial and other resources than the Company. The
areas which the Company has identified for continued growth and expansion are
also target market segments for some of the largest and most strongly
capitalized companies in the United States. There can be no assurance that the
Company will have the financial, technical, marketing and other resources
required to compete successfully in this environment in the future.
-4-
<PAGE>
Dependence on Key Individuals
The future success of the Company is highly dependent upon the Company's
ability to attract and retain qualified key employees. The Company is organized
with a small senior management team, with each of its separate operations under
the day-to-day control of local managers. If the Company were to lose the
services of any members of its central management team, the overall operations
of the Company could be adversely affected, and the operations of any of the
individual facilities of the Company could be adversely affected if the services
of the local managers should be unavailable.
Lack of Dividends on Common Stock; Issuance of Preferred Stock
The Company does not have a history of paying dividends on its Common
Stock, and there can be no assurance that such dividends will be paid in the
foreseeable future. The Company intends to use any earnings which may be
generated to finance the growth of the Company's businesses. The Board of
Directors has the right to authorize the issuance of preferred stock, without
further stockholder approval, the holders of which may have preferences as to
payment of dividends.
Potential Conflicts of Interests
Mr. Richard Sullivan, the Chief Executive Officer of the Company, is also
Chairman of Great Bay Technology, Inc. and Managing General Partner of the Bay
Group. Both these companies conduct business with the Company, and receive
compensation from the Company for various services, including assistance in
identifying potential acquisition candidates and in negotiating acquisition
transactions. The relationships among such companies, Mr. Sullivan and the
Company may involve conflicts of interest.
Possible Volatility of Stock Price
The Common Stock is quoted on the Nasdaq Small-Cap Market, which stock
market has experienced and is likely to experience in the future significant
price and volume fluctuations which could adversely affect the market price of
the Common Stock without regard to the operating performance of the Company. In
addition, the Company believes that factors such as the significant changes to
the business of the Company resulting from continued acquisitions and
expansions, quarterly fluctuations in the financial results of the Company,
shortfalls in earnings or sales below analyst expectations, changes in the
performance of other companies in the same market sectors as the Company and the
performance of the overall economy and the financial markets could cause the
price of the Common Stock to fluctuate substantially.
Forward-Looking Statements and Associated Risk
This Prospectus, including the information incorporated herein by
reference, contains forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995, including statements regarding, among
other items, (i) the Company's growth strategies, (ii) anticipated trends in the
Company's business and demographics and (iii) the Company's ability to
successfully integrate the business operations of recently acquired companies.
These forward-looking statements are based largely on the Company's expectations
and are subject to a number of risks and uncertainties, certain of which are
beyond the Company's control. Actual results could differ materially from these
forward-looking statements as a result of the factors described in "Risk
Factors," including, among others, regulatory, competitive or other economic
influences. In light of these risks and uncertainties, there can be no assurance
that the forward-looking information contained in this Prospectus will be
accurate.
-5-
<PAGE>
THE COMPANY
The Company is a builder of infrastructure services and solutions for the
communications industry. In 1998, the Company reorganized its business groups
and now operates in five industry segments, as follows:
The Software and Services Group installs, sells and supports new computer
systems and local area and other networks, custom and custom-tailored
software and hardware systems for manufacturers, wholesales, distributors,
retailers, field sales and service organizations and small office/home
(SOHO) and workgroup applications.
The communications Group installs, sells, services and supports cellular phone
and other wireless services, business telephone systems, voice mail and
interactive voice response systems, flat rate extended area calling
services for business and residential customers, commercial long distance
and local telephone services, residential long distance telephone services,
digital satellite television services to business and consumer end-users,
and constructs and installs fiber optic networks and microwave cellular and
digital personal communication services (PCS) towers.
The Computer Group provides leasing, re-marketing, parts-on-demand, consulting
and business continuity services for mainframe, midrange and PC systems to
industrial, commercial and retail organizations.
The Specialty Manufacturing Group manufactures customized analog and digital
and off-the-shelf industrial temperature controls and custom analog and
digital electrical products and controls for factory automation, combustion
and commercial heating and air conditioning systems.
The Specialty Manufacturing Group manufactures customized analog and
digital and off-the-shelf industrial temperature controls and custom analog
and digital electrical products and controls for factory automation,
combustion and commercial heating and air conditioning systems and
manufactures, supports and distributes satellite communication sub-systems,
including satellite modems, data broadcast receivers and antenna
controllers throughout the world.
The largest part of the Company's current operations are the result of
acquisitions completed during the last two years. During 1995, the net operating
revenues of the Company were $2.3 million. For 1996, net operating revenues were
$19.9 million, of which almost $14 million was from the Company's then services
and solutions segment. In 1997, the Company completed 14 additional
acquisitions, of companies whose aggregate net revenues for 1997 were $62.4
million, or 60.5% of the Company's total revenues of $103.2 million in 1997.
Since January 1, 1998, the Company has completed two additional acquisitions of
companies whose aggregate net revenues for 1997 were $33.0 million.
The principal office of the Company is located at Highway 160 and CC, Suite
5, Nixa, Missouri 65714, phone 417-725-9888. Satellite corporate offices are
located in Amherst, New Hampshire, Cambridge, Massachusetts and St. Louis,
Missouri. The Company is relocating its principal and satellite offices to Palm
Beach, Florida and expects to complete this relocation by June 1, 1998.
Each operating business is conducted through a separate subsidiary company
directed by its own management team, and each subsidiary company has its own
marketing and operations support personnel. Each management team reports to a
Group Vice President and ultimately to the Company's President, who is
responsible for overall corporate control and coordination, as well as financial
planning. The Chairman is responsible for the overall business and strategic
planning of the Company.
-6-
<PAGE>
SELLING SHAREHOLDERS
The following table sets forth information regarding the ownership of the
Common Stock by the Selling Shareholders as of the date of this Prospectus and
as adjusted to reflect the sale of the shares of Common Stock offered hereby.
The Shares have been or will be issued by the Company from time to time (a)
in various acquisition transactions or (b) in consideration for services
rendered to the Company, all as described in the footnotes to the following
table. The registration of the Shares has been effected pursuant to agreements
entered into by the Company with the Selling Shareholders. Although such
registration will allow the sale of the Shares by the Selling Shareholders from
time to time as described herein, the Company believes that the Selling
Shareholders do not currently intend to sell all or substantially all of the
Shares.
The percentage owned prior to and after the offering reflects all of the
then outstanding common shares. The amount and percentage owned after the
offering assumes the sale of all of the common shares being registered on behalf
of the selling shareholders.
<TABLE>
<CAPTION>
Number of Ownership After
Ownership Prior Shares Offering if all
Selling Shareholder to the Offering Offered Hereby Shares are Sold
- ------------------- ------------ -------------- ---------------
Shares % Shares %
------ - ------ -
<S> <C> <C> <C> <C> <C>
Sherri Sheerr 195,284 * 36,933 (1) 158,351 *
Harvey H. Newman 256,872 1.05% 21,325 (2) 235,547 *
Martin D. Zuckerman 246,797 1.01% 20,488 (2) 226,309 *
Edward L. Cummings 24,079 * 1,221 (3) 22,858 *
Marc Sherman 697,625 2.85% 154,117 (4) 543,508 2.22
Charles Newman 5,453 * 453 (5) 5,000 *
James Folts 7,770 * 2,597 (6) 5,173 *
Mark Crowley 9,284 * 3,103 (6) 6,181 *
Mark Gilles 1,297 * 434 (6) 863 *
David Hagedorn 648 * 216 (6) 432 *
Todd S. Larchuk 1,038 * 347 (6) 691 *
Vincent Ravo 9,284 * 3,103 (6) 6,181 *
Matthew Runo 778 * 260 (6) 518 *
Edelson Technology
Partners II, LP 948,274 3.87% 623,223 (7) 325,051 1.33%
4C Ventures 122,400 * 40,910 (6) 81,490 *
RH Investment Group No. 1 8,356 * 2,793 (6) 5,563 *
Michael Epstein 23,311 * 7,791 (6) 15,520 *
Roger W. Miller 24,325 * 7,630 (6) 16,695 *
Ian G. Miller Trust 1,465 * 489 (6) 976 *
Helen E. Miller Trust 371 * 124 (6) 247 *
Lee Katherine Miller Trust 371 * 124 (6) 247 *
Charles W. Miller Trust 371 * 124 (6) 247 *
Nicholas J. Miller Trust 371 * 124 (6) 247 *
Ludwig Kapp 65,156 * 21,777 (6) 43,379 *
Charitable Lead Trust 11,803 * 3,945 (6) 7,858 *
Dorothy E. Pattee 23,607 * 7,890 (6) 15,717 *
Douglas Kemmerer 519 * 174 (6) 345 *
Bonnie Jennings 4 * 1 (6) 3 *
Scott Cusins 65 * 22 (6) 43 *
Tara Mezzanotte 5 * 2 (6) 3 *
Tracy Mocha 195 * 65 (6) 130 *
Ron Williamson 13 * 4 (6) 9 *
John F. Reap 39,316 * 13,140 (6) 26,176 *
Edward Feldman 30,569 * 10,217 (6) 20,352 *
Elizabeth B. & Dean C. Lennox,
Joint Tenants 30,484 * 10,188 (6) 20,296 *
George S. & Carol C. Anton,
Joint Tenants 10,867 * 3,632 (6) 7,235 *
Suzann E. & Michael S.
Nielsen, Joint Tenants 2,440 * 816 (6) 1,624 *
Brian J. & Jeanne K. Daly,
Joint Tenants 12,697 * 4,243 (6) 8,454 *
William H. McEvoy 566 * 189 (6) 377 *
-7-
<PAGE>
Robert W. Long 674 * 225 (6) 449 *
Scott Bartolett 6,209 * 2,075 (6) 4,134 *
Jo Ann & Anthony J.
Nicoletti, Joint Tenants 26 * 9 (6) 17 *
Claire L. & Thomas A. Frew,
Joint Tenants 13 * 4 (6) 9 *
Debora Adams 401 * 134 (6) 267 *
Alice Christensen 389 * 130 (6) 259 *
Karen L. Murphy 401 * 134 (6) 267 *
David Schafer 401 * 134 (6) 267 *
Kevin M. Stewart 316 * 106 (6) 210 *
Donald P. Proefrock 38 * 13 (6) 25 *
Albert V. & Diane J.
Narusberg, Joint Tenants 38 * 13 (6) 25 *
Michael S. Andison 56,248 * 56,248 (8) - --
James G. Knight 56,248 * 56,248 (8) - --
Georges H. Roy 56,248 * 56,248 (8) - --
M.L. Carole Boisvert 517 * 517 (8) - --
Johna L. Giraldi 517 * 517 (8) - --
J. Daniel Grondin 517 * 517 (8) - --
Edward Lorinz 388 * 388 (8) - --
Ronald M. Kaplan 61,867 * 43,663 (9) 18,204 *
Sanne Trust Company Limited as
Trustee of the Smith Trust 663,656 2.61% 657,598(10) 6,058 *
Melvin Barmat 3,567 * 2,619(10) 948 *
Stephen Kinglsey Barton 5,904 * 3,060(10) 2,844 *
Lawrence Jan Martin Smith 18,863 * 9,777(10) 9,086 *
Susan Mary Smith 18,863 * 9,777(10) 9,086 *
MTI Nominees, Ltd. 333,623 1.36% 172,918(10) 160,705 *
Geoffrey John Walker 77,291 * 40,060(10) 37,231 *
Peter Martin Terrell 12,576 * 6,518(10) 6,058 *
Robert Bernard Michaelson 24,774 * 12,840(10) 11,934 *
Andrew Hidalgo 1,000 * 1,000(11) - --
Larry Wasielewski 10,000 * 10,000(12) - --
Gary A. Gray 34,143 * 10,000(13) 24,143 *
Hayden, Buczek & Associates 18,500 * 10,500(13) 8,000 *
Merra, Kanakis, Creme
& Mellor, P.C. 2,955 * 2,015(13) 940 *
Dana Barbera 650 * 650(13) - --
Markus Pope 1,263 * 1,263(13) - --
Ralph E. Davies 71,432 * 15,152(14) 56,280 *
William A. Husa 50,152 * 15,152(14) 35,000 *
Michael A. Erickson 224,325 * 67,200(15) 157,125 *
Joel L. Owens 7,467 * 7,467(15) - --
Donna W. Pizarro 168,556 * 42,723(16) 125,833 --
John K. Murray 485,651 1.98% 485,651(17) - --
Anat Ebenstein 22,075 * 22,075(17) - --
Sidney L. Karp
Holding Company, Inc. 22,075 * 22,075(17) - --
Capital Alliance Corporation 121,270 * 22,075(17) 99,195 *
------- --------- ------
Total 5,456,217 2,871,722 2,584,495
========= ========= =========
</TABLE>
- ---------------------------------------------
* Represents ownership of less than one percent.
(1) Includes (a) 14,335 shares of Common Stock received pursuant to the "price
protection" provision in the Agreement, of Sale in connection with the
Company's subsidiary, Universal Commodities Corp.'s, acquisition of an 80%
interest in Cybertech Station, Inc.; and (b) 22,598 shares of Common Stock
received pursuant to the "earnout" provision in the Agreement of Sale
amongst the Company, the Selling Shareholder and Cybertech Station, Inc.
(2) Represents shares of Common Stock received pursuant to the "price
protection" provision in the Agreement of Sale in connection with the
Company's subsidiary, Universal Commodities Corp.'s, acquisition of an 80%
interest in PPL, Ltd.
(3) Represents additional shares of Common Stock received as a finders fee
pursuant to the "price protection" provisions in the Agreements of Sale in
connection with the Company's subsidiary, Universal Commodities Corp.'s,
acquisitions of 80% interests in Cybertech Station, Inc. and PPL, Ltd.
-8-
<PAGE>
(4) Includes (a) 152,896 shares received pursuant to the deferred "earnout"
provision in the Agreement of Sale in connection with the Company's
acquisition of an 80% interest in Universal Commodities Corp. in 1996, and
(b) 1,221 additional shares of Common Stock received as a finders fee
pursuant to the "price protection" provisions in the Agreements of Sale in
connection with the Company's subsidiary, Universal Commodities Corp.'s,
acquisitions of 80% interests in Cybertech Station, Inc. and PPL, Ltd. Mr.
Sherman is President of Universal Commodities Corp.
(5) Represents additional shares of Common Stock received as a finders fee
pursuant to the "price protection" provisions in the Agreement of Sale in
connection with the Company's subsidiary, Universal Commodities Corp.'s,
acquisition of an 80% interest in PPL, Ltd.
(6) Represents shares of Common Stock received pursuant to the "price
protection" provision in the Agreement of Sale in connection with the
Company's acquisition of a 100% interest in Alacrity Systems, Inc.
(7) Includes (a) 163,179 shares of Common Stock received pursuant to the "price
protection" provision in the Agreement of Sale in connection with the
Company's acquisition of a 100% interest in Alacrity Systems, Inc., and (b)
460,044 shares of Common Stock received pursuant to the Company's
acquisition of an 88.82% interest in Canadian Network Services, Inc.,
effective as of October 1, 1997.
(8) Represents shares of Common Stock received pursuant to the Company's
acquisition of the remaining 11.18% interest in Canadian Network Services,
Inc., effective as of January 1, 1998.
(9) Represents (a) 9,138 additional shares of Common Stock received as a
finders fee pursuant to the "price protection" provisions in the Agreement
of Sale in connection with the Company's acquisition of a 100% interest in
Alacrity Systems, Inc. and (b) 34,525 shares of Common Stock received as a
finders fee pursuant to the Company's acquisition of a 100% interest in
Canadian Network Services, Inc.
(10) Represents shares of Common Stock received pursuant to the "earnout"
provision in the Agreement of Sale amongst the Company, the Selling
Shareholders and Signal Processors Limited.
(11) Represents shares of Common Stock received pursuant to Mr. Hidalgo's
employment agreement with the Company's subsidiary, Alacrity Systems, Inc.
(12) Represents shares of Common Stock received pursuant to Mr. Wasielewski's
employment agreement with the Company's subsidiary, ACT Automotive Group,
Inc.
(13) Represent shares of Common Stock received for services rendered.
(14) Represents shares of Common Stock received as a finders fee in connection
with the Company's acquisition of a 100% interest in C.T. Specialists, Inc.
(15) Represents shares of Common Stock received pursuant to the "earnout"
provision in the Agreement of Sale amongst the Company, the Selling
Shareholders and Norcom Resources, Inc.
(16) Represents shares of Common Stock received pursuant to the "earnout"
provision in the Agreement of Sale amongst the Company, the Selling
Shareholder and Pizarro Re-Marketing, Inc.
(17) Represents shares of common stock received pursuant to the Company's
acquisition of 100% of the outstanding common stock of Information Products
Center, Inc., effective as of January 1, 1998.
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<PAGE>
INFORMATION CONCERNING CAPITAL STOCK
The Company's Amended and Restated Articles of Incorporation authorizes the
issuance of up to 40,000,000 shares of Common Stock and up to 5,000,000 shares
of preferred stock (the "Preferred Stock"). The Preferred Stock may be issued
from time to time and on such terms as are specified by the Company's Board of
Directors, without further authorization from the stockholders of the Company.
As of April 1, 1998, there were outstanding 24,517,290 shares of Common
Stock and 7,000 shares of Preferred Stock, par value $10 per share, redemption
value $100 per share.
As of April 1, 1998, (i) there were outstanding warrants to purchase
2,086,500 shares of Common Stock at a weighted average exercise price of $4.19
per share, and (ii) options held by employees of the Company to purchase
4,936,100 shares of Common Stock at a weighted average exercise price of $3.70
per share. All of the warrants are currently exercisable. Of the outstanding
options, 705,000 are now exercisable at a weighted average exercise price of
$4.44 per share, and the rest become exercisable at various times over the next
three years.
The Company's Common Stock trades on the Nasdaq Small-Cap Market under the
symbol "ACTC." The following table sets forth the high and low sale prices of
the Common Stock as reported by the Nasdaq Small-Cap Market for each of the
quarters since the beginning of 1996.
High Low
---- ---
1996
First Quarter......... 6-7/8 2-3/4
Second Quarter........ 9-1/8 4
Third Quarter......... 7-7/8 3-3/4
Fourth Quarter........ 7-3/8 4-1/2
1997
First Quarter......... 5-7/8 4
Second Quarter........ 4-3/8 2-5/8
Third Quarter ........ 8-3/4 3-1/16
Fourth Quarter ....... 9-3/4 3-15/16
1998
First Quarter ........ 5-1/2 4-1/32
Second Quarter
(through April 22, 1998) 4-3/4 3-1/2
On April 22,1998, the last reported sale price of the Common Stock on the
Nasdaq Small-Cap Market was $4.59375. As of April 1, 1998, there were
approximately 1,110 shareholders of record of the Common Stock and approximately
3,200 beneficial shareholders.
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<PAGE>
PLAN OF DISTRIBUTION
The Selling Shareholders may sell the Shares offered hereby in one or more
transactions (which may include "block" transactions) on the Nasdaq Small-Cap
Market, in the over-the-counter market, in negotiated transactions or in a
combination of such methods of sales, at fixed prices which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Selling Shareholders may
effect such transactions by selling the Shares directly to purchasers, or may
sell to or through agents, dealers or underwriters designated from time to time,
and such agents, dealers or underwriters may receive compensation in the form of
discounts, concessions or commissions from the Selling Shareholders and/or the
purchaser(s) of the Shares for whom they may act as agent or to whom they may
sell as principals, or both. The Selling Shareholders and any agents, dealers or
underwriters that act in connection with the sale of the Shares might be deemed
to be "underwriters" within the meaning of Section 2(11) of the Securities Act,
and any discount or commission received by them and any profit on the resale of
the Shares as principal might be deemed to be underwriting discounts or
commissions under the Securities Act.
The Company will receive no portion of the proceeds from the sale of the
Shares and will bear all of the costs relating to the registration of this
Offering (other than any fees and expenses of counsel for the Selling
Shareholders). Any commissions, discounts or other fees payable to a broker,
dealer, underwriter, agent or market maker in connection with the sale of any of
the Shares will be borne by the Selling Shareholders.
LEGAL MATTERS
Certain legal matters with respect to the Common Stock offered hereby will
be passed upon for the Company by Bryan Cave LLP, St. Louis, Missouri.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1997 and 1996, and for each of the years in the three-year period ended December
31, 1997, have been audited by Rubin, Brown, Gornstein & Co. LLP, independent
public accountants, as indicated in their report with respect thereto, and are
included in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, and are incorporated herein by reference, in reliance upon
the authority of such firm as experts in accounting and auditing in giving said
reports.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses (other than underwriting
discounts and commissions), which other than the SEC registration fee are
estimates, payable by the Company in connection with the sale and distribution
of the shares registered hereby**:
SEC Registration Fee ................. $ 3,230
Accounting Fees and Expenses.......... 2,500 *
Legal Fees and Expenses............... 10,000 *
Miscellaneous Expenses................ 4,270 *
-----------
Total .................... $ 20,000 *
============
- -------------
* Estimated
** The Selling Shareholders will pay any sales commissions or underwriting
discount and fees incurred in connection with the sale of shares
registered hereunder.
Item 15. Indemnification of Directors and Officers.
Sections 351.355(1) and (2) of The General and Business Corporation Law of
the State of Missouri provide that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful, except that, in the case of an action or suit by or in the right
of the corporation, the corporation may not indemnify such persons against
judgments and fines and no person shall be indemnified as to any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the corporation,
unless and only to the extent that the court in which the action or suit was
brought determines upon application that such person is fairly and reasonably
entitled to indemnity for proper expenses. Section 351.355(3) provides that, to
the extent that a director, officer, employee or agent of the corporation has
been successful in the defense of any such action, suit or proceeding or any
claim, issue or matter therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred in connection with
such action, suit or proceeding. Section 351.355(7) provides that a corporation
may provide additional indemnification to any person indemnifiable under
subsection (1) or (2), provided such additional indemnification is authorized by
the corporation's articles of incorporation or an amendment thereto or by a
shareholder-approved bylaw or agreement, and provided further that no person
shall thereby be indemnified against conduct which was finally adjudged to have
been knowingly fraudulent, deliberately dishonest or willful misconduct or which
involved an accounting for profits pursuant to Section 16(b) of the Securities
Exchange Act of 1934.
The bylaws of the Company provide that the Company shall indemnify, to the
full extent permitted under Missouri law, any director, officer, employee or
agent of the Company who has served as a director, officer, employee or agent of
the Company or, at the Company's request, has served as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise.
II-1
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to such provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
Item 16. Exhibits.
See Exhibit Index.
Item 17. Undertakings.
(a) The undersigned small business issuer hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the small business issuer of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the small business issuer
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of St. Louis, State of Missouri, on April 23, 1998.
APPLIED CELLULAR TECHNOLOGY, INC.
By: /S/ DAVID A. LOPPERT
David A. Loppert, Vice President, Treasurer and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Garrett A. Sullivan and David A. Loppert, and each of them (with full power to
each of them to act alone), the true and lawful attorney in fact and agent for
the undersigned, to act on behalf of and in the name of the undersigned in
connection with this Registration Statement, including the authority to sign any
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with exhibits and any and all other documents filed with
respect thereto, with the Securities and Exchange Commission (or any other
governmental or regulatory authority), and each such person ratifies and
confirms all that said attorneys in fact and agents may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
---------- ----------------- ---------
Chairman of the Board of Directors,
Chief Executive Officer and
Secretary(Principal Executive
/S/ RICHARD J. SULLIVAN Officer) April 23, 1998
- -------------------------
(Richard J. Sullivan)
President and Director (Principal
Operating Officer) April 23, 1998
/S/ GARRETT A. SULLIVAN
- -------------------------
(Garrett A. Sullivan)
Vice President, Treasurer and Chief
Financial Officer (Principal
Accounting Officer) April 23, 1998
/S/ DAVID A. LOPPERT
- -------------------------
( David A. Loppert)
Director April 23, 1998
/S/ ANGELA M. SULLIVAN
- -------------------------
(Angela M. Sullivan)
Director April 23, 1998
/S/ DANIEL E. PENNI
- -------------------------
(Daniel E. Penni.)
Director April 23, 1998
ARTHUR F. NOTERMAN*
- -------------------------
(Arthur F. Noterman)
II-3
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Amended and Restated Articles of Incorporation of the Company (incorporated
herein by reference to Exhibit 4.1 to the Company's Registration Statement
on Form S-3 (File No. 333-37713) filed with the Commission on November 19,
1997)
3.(ii)Amended and Restated Bylaws of the Company dated March 31, 1998
5.1 Opinion of Bryan Cave LLP regarding the validity of the Common Stock *
23.1 Consent of Rubin, Brown, Gornstein & Co. LLP *
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1) *
24.1 Power of Attorney (included in Signature Page)
- --------------
* To be filed by amendment.
II-4
AMENDED AND RESTATED BYLAWS
OF
APPLIED CELLULAR TECHNOLOGY, INC.
EFFECTIVE MARCH 31, 1998
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
APPLIED CELLULAR TECHNOLOGY, INC.
INDEX
Page
ARTICLE ONE OFFICES; DEFINITIONS..................................1
Section 1.1 Registered Office............................1
Section 1.2 Other Offices................................1
ARTICLE TWO SHAREHOLDERS' MEETINGS................................1
Section 2.1 Place of Meetings............................1
Section 2.3 Special Meeting..............................1
Section 2.4 Notice of Meetings...........................2
Section 2.5 List of Shareholders Entitled to Vote........2
Section 2.6 Quorum; Adjournment; Postponement............2
Section 2.7 Voting.......................................3
Section 2.8 Action by Consent............................3
Section 2.9 Advance Notice of Nominations and
Shareholder Proposals...................................4
Section 2.10 No Cumulative Voting........................7
ARTICLE THREE BOARD OF DIRECTORS..................................7
Section 3.1 Number, Election and Term....................7
Section 3.2 Powers.......................................7
Section 3.3 Meetings; Quorum.............................8
Section 3.4 Action by Consent............................8
Section 3.5 Resignation of Directors.....................8
Section 3.6 Compensation of Directors....................8
Section 3.7 Committees; General Rules....................9
Section 3.8 Qualifications...............................9
Section 3.9 Emeritus and Advisory Directors..............9
ARTICLE FOUR OFFICERS............................................10
Section 4.1 Number, Election and Term...................10
Section 4.2 Chairman of the Board.......................10
Section 4.3 President...................................10
Section 4.4 Vice Presidents.............................11
Section 4.5 Secretary and Assistant Secretaries.........11
Section 4.6 Treasurer and Assistant Treasurers..........11
Section 4.7 Chief Financial Officer and Controllers.....11
Section 4.8 Appointed Officers..........................12
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<PAGE>
ARTICLE FIVE CAPITAL STOCK.......................................12
Section 5.1 Stock Certificates..........................12
Section 5.2 Transfer of Stock...........................12
Section 5.3 Closing of Transfer Books and
Fixing of Record Date..................................12
Section 5.4 Lost or Destroyed Certificates..............13
Section 5.5 Transfer Agents and Registrars..............13
ARTICLE SIX CORPORATE SEAL.......................................14
ARTICLE SEVEN WAIVER OF NOTICE...................................14
ARTICLE EIGHT BOOKS AND RECORDS..................................14
ARTICLE NINE INDEMNIFICATION.....................................14
Section 9.1 Actions Involving Directors and Officers....14
Section 9.2 Actions Involving Employees or Agents.......15
Section 9.3 Determination of Right to Indemnification
in Certain Circumstances..............................15
Section 9.4 Advance Payment of Expenses.................15
Section 9.5 Article Nine Provisions Not Exclusive Right.16
Section 9.6 Indemnification Agreements Authorized.......16
Section 9.7 Standard of Conduct.........................16
Section 9.8 Insurance...................................16
Section 9.9 Certain Definitions.........................17
Section 9.10 Survival...................................17
Section 9.11 Liability of the Directors.................18
ARTICLE TEN FISCAL YEAR..........................................18
ii
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
APPLIED CELLULAR TECHNOLOGY, INC.
ARTICLE ONE
OFFICES; DEFINITIONS
SECTION 1.1 REGISTERED OFFICE. The registered office of the Corporation in
Missouri shall be located at One Metropolitan Square, 211 N. Broadway, Suite
3600, St. Louis, Missouri 63102, or at such other address within the State of
Missouri as the Board of Directors may from time to time authorize by duly
adopted resolution.
SECTION 1.2 OTHER OFFICES. The Corporation may maintain such other offices
both within and without the State of Missouri as the business of the Corporation
may from time to time require or as the Board of Directors may determine.
ARTICLE TWO
SHAREHOLDERS' MEETINGS
SECTION 2.1 PLACE OF MEETINGS. All meetings of the shareholders shall be
held at such place within or without the State of Missouri as may be, from time
to time, fixed or determined by the Board.
SECTION 2.2 ANNUAL MEETINGS. The annual meeting of shareholders for the
election of Directors and for the transaction of such other business as properly
may come before such meeting shall be held on the first Wednesday of June in
each year if not a legal holiday or, if a legal holiday, on the next succeeding
business day not a legal holiday, provided, however, the day fixed for such
meeting in any year may be changed, by resolution of the Board of Directors, to
such other day which is not a legal holiday, as the Board of Directors may deem
to be desirable or appropriate, subject to any applicable limitations of law.
Every meeting of the shareholders shall be convened at the hour stated in the
notice for the meeting and continue until declared adjourned by a vote of the
shareholders present or declared adjourned by the presiding officer.
SECTION 2.3 SPECIAL MEETING. Special meetings of the shareholders or of the
holders of any special class of stock of the Corporation, unless otherwise
prescribed by statute or by the Corporation's Restated Articles of Incorporation
(the "Articles"), may be called only by the affirmative vote of a majority of
the entire Board of Directors or by the Chairman of the Board of Directors or
the President by request of such a meeting in writing. Such request shall be
delivered to the Secretary of the Corporation and shall state the purpose or
purposes of the proposed meeting. Upon such direction or request, subject to any
requirements or limitations imposed by the Articles, by these Bylaws or by law,
it shall be the duty of the Secretary to call a special meeting of the
shareholders to be held at such time as is specified in the request.
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<PAGE>
SECTION 2.4 NOTICE OF MEETINGS. Written or printed notice of each meeting
of shareholders, stating the place, day and hour of the meeting and, in case of
a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered or given not less than ten (10) nor more than seventy (70)
days before the date of the meeting, either personally or by mail, by or at the
direction of the Secretary to each shareholder of record entitled to vote at
such meeting. Attendance of a shareholder at any meeting shall constitute a
waiver of notice of such meeting except where such shareholder attends the
meeting for the sole and express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Any notice of a
shareholders' meeting sent by mail shall be deemed to be delivered when
deposited in the United States mail with first class postage thereon prepaid,
addressed to the shareholder at such shareholder's address as it appears on the
records of the Corporation.
SECTION 2.5 LIST OF SHAREHOLDERS ENTITLED TO VOTE. At least ten (10) days
before each meeting of the shareholders, a complete list of the shareholders
entitled to vote at such meeting shall be prepared and arranged in alphabetical
order with the address of each shareholder and the number of shares held by
each, which list, for a period of ten (10) days prior to such meeting, shall be
kept on file at the registered office of the Corporation and shall be subject to
inspection by any shareholder at any time during usual 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 whole time of
the meeting. The original share ledger or transfer book, or a duplicate thereof
kept in the State of Missouri, shall be prima facie evidence as to who are the
shareholders entitled to examine such list or share ledger or transfer book or
to vote at any meeting of the shareholders. Failure to comply with the above
requirements in respect of lists of shareholders shall not affect the validity
of any action taken at such meeting.
SECTION 2.6 QUORUM; ADJOURNMENT; POSTPONEMENT. The holders of a majority of
the outstanding shares entitled to vote at any meeting, represented in person or
by proxy, shall be requisite and shall constitute a quorum at a meeting of
shareholders, except as otherwise provided by law, the Articles or these Bylaws.
The shareholders present at a meeting at which a quorum is present may continue
to transact business until adjournment, notwithstanding the withdrawal of such
number of shareholders as to reduce the remaining shareholders to less than a
quorum. Whether or not a quorum is present, the chairman of the meeting or a
majority of the shareholders entitled to vote thereat, present in person or by
proxy, shall have power, except as otherwise provided by statute, successively
to adjourn the meeting to such time and place as they may determine, to a date
not longer than ninety (90) days after each such adjournment, and no notice of
any such adjournment need be given to shareholders if the time and place of the
adjourned meeting are announced at the meeting at which the adjournment is
taken. At any adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally called.
A shareholder's meeting may be successively postponed by resolution of the
Board of Directors to a specified date up to a date ninety (90) days after such
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<PAGE>
postponement or to another place, provided public notice of such postponement is
given prior to the date previously scheduled for the meeting. Such notice shall
state the new date and place of such postponed meeting.
For purposes of this Section 2.6, "adjournment" means a delay in the date,
which may also be combined with a change in the place, of a meeting after the
meeting has been convened; "postponement" means a delay in the date, which may
be combined with a change in the place, of the meeting before it has been
convened, but after the time and place thereof have been set forth in a notice
delivered or given to shareholders; and public notice shall be deemed to have
been given if a public announcement is made by press release reported by a
national news service or in a publicly available document filed with the United
States Securities and Exchange Commission.
SECTION 2.7 VOTING. Subject to the voting rights of any holders of
preferred stock, each outstanding share of common stock entitled to vote under
the provisions of the Articles shall be entitled to one vote on each matter
submitted to a vote at a meeting of shareholders and, if a quorum is present,
the affirmative vote of a majority of the shares represented at the meeting
shall be the act of the shareholders unless the vote of a greater number of
shares is required by the Articles, by these Bylaws or by law. No person shall
be admitted to vote on any shares belonging or hypothecated to the Corporation.
A shareholder may vote either in person or by proxy, but no proxy shall be voted
after eleven (11) months from the date of its execution unless otherwise
provided in the proxy. Without limiting the manner in which a shareholder may
authorize a person to act for the shareholder as proxy, the following shall
constitute a valid means by which a shareholder may grant such authority:
(1) A shareholder or the shareholder's duly authorized attorney in
fact may execute a writing authorizing another person to act for the
shareholder as proxy. Execution may be accomplished by the shareholder or
duly authorized attorney in fact signing such writing or causing the
shareholder's signature to be affixed to such writing by any reasonable
means, including, but not limited to, facsimile signature;
(2) A shareholder may authorize another person to act for the
shareholder as proxy by transmitting or authorizing transmission of a
telegram, cablegram, facsimile 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, cablegram, facsimile or
other means of electronic transmission shall either set forth or be
submitted with information from which it can be determined that the
telegram, cablegram, facsimile or other electronic transmission was
authorized by the shareholder. If it is determined that such telegrams,
cablegrams, facsimiles or other electronic transmissions are valid, the
inspectors or, if there are no inspectors, such other persons making such
determination shall specify the information upon which they relied.
SECTION 2.8 ACTION BY CONSENT. Unless otherwise prescribed by the Articles,
any action required or permitted to be taken by the shareholders of the
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<PAGE>
Corporation may, if otherwise allowed by law, be taken without a meeting of
shareholders only if consents in writing, setting forth the action so taken, are
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof.
SECTION 2.9 ADVANCE NOTICE OF NOMINATIONS AND SHAREHOLDER PROPOSALS. All
nominations of individuals for election to the Board and proposals of business
to be considered at any meeting of the shareholders shall be made as set forth
in this Section 2.9 of Article Two.
(a) ANNUAL MEETING OF SHAREHOLDERS.
(1) Nominations of individuals for election to the Board and the
proposal of other business to be considered by the shareholders may be made
at an annual meeting of shareholders (i) pursuant to the Corporation's
notice of meeting, (ii) by or at the direction of the Directors or (iii) by
any shareholder of the Corporation who was a shareholder of record at the
time of giving of notice provided for in this Section 2.9(a) of Article
Two, who is entitled to vote at the meeting and who complied with the
notice procedures set forth in this Section 2.9(a) of Article Two.
(2) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (iii) of paragraph
(a)(1) of this Section 2.9 of Article Two, the shareholder must have given
timely notice thereof in writing to the Secretary. To be timely, a
shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than sixty (60) days nor more
than ninety (90) days prior to the first anniversary of the preceding
year's annual meeting or not less than sixty (60) days nor more than ninety
(90) days prior to June 6, 1998 in the case of the next annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced by more than thirty (30) days or delayed by more than sixty (60)
days from such anniversary date, notice by the shareholder to be timely
must be so delivered not earlier than the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th
day prior to such annual meeting or the tenth day following the day on
which public announcement of the date of such meeting is first made. Such
shareholder's notice shall set forth: (i) as to each person whom the
shareholder proposes to nominate for election or reelection as a Director,
(a) the name, age, business and residential addresses, and principal
occupation or employment of each proposed nominee, (b) the class and number
of shares of capital stock that are beneficially owned by such nominee on
the date of such notice, (c) a description of all arrangements or
understandings between the shareholder and each nominee and the name of any
other person or persons pursuant to which the nomination or nominations are
to be made by the shareholder, (d) all other information relating to such
person that is required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and (e) the written consent of each proposed nominee to
being named as a nominee in the proxy statement and to serve as a Director
of the Corporation if so elected; (ii) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such shareholder and of the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the shareholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
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proposal is made, (x) the name and address of such shareholder, as they
appear on the Corporation's books, and of such beneficial owner, (y) the
class and number of shares of stock of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial owner,
and (z) a representation that the shareholder intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in
the notice or to propose such other business. The Corporation may require
any proposed nominee to furnish any information, in addition to that
furnished pursuant to clause (i) above, it may reasonably require to
determine the eligibility of the proposed nominee to serve as a Director of
the Corporation.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 2.9 of Article Two to the contrary, in the event
that the number of Directors to be elected to the Board is increased and
there is no public announcement naming all of the nominees for Director or
specifying the size of the increased Board made by the Corporation at least
seventy (70) days prior to the first anniversary of the preceding year's
annual meeting, a shareholder's notice required by this Section 2.9(a) of
Article Two shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following
the day on which such public announcement is first made by the Corporation.
(b) SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall be
conducted, and only such proposals shall be acted upon, at a special meeting of
shareholders as shall have been brought before a meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board may be made at a special meeting of shareholders at which Directors are to
be elected (i) pursuant to the Corporation's notice of meeting, (ii) by or at
the direction of the Board, or (iii) provided that the Board has determined that
Directors shall be elected at such special meeting, by any shareholder of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this Section 2.9(b) of Article Two, who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this
Section 2.9(b) of Article Two. In the event the Corporation calls a special
meeting of shareholders for the purpose of electing one or more Directors to the
Board, any such shareholder may nominate a person or persons (as the case may
be) for election to such position as specified in the Corporation's notice of
meeting, if the shareholder's notice required by clause (iii) of this Section
2.9(b) of Article Two shall be delivered to the Secretary at the principal
executive offices of the Corporation not earlier than the 90th day prior to such
special meeting and not later than the close of business on the later of the
60th day prior to such special meeting or the tenth day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board to be elected at such meeting. Such
shareholder's notice shall set forth: (i) as to each person whom the shareholder
proposes to nominate for election as a Director, (a) the name, age, business and
residential addresses, and principal occupation or employment of each proposed
nominee, (b) the class and number of shares of capital stock that are
beneficially owned by such nominee on the date of such notice, (c) a description
of all arrangements or understandings between the shareholder and each nominee
and the name of any other person or persons pursuant to which the nomination or
nominations are to be made by the shareholder, (d) all other information
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relating to such person that is required to be disclosed in solicitations of
proxies for election of Directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act, and (e) the written consent
of each proposed nominee to being named as a nominee in the proxy statement and
to serve as a Director of the Corporation if so elected; (ii) as to the
shareholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made, (x) the name and address of such
shareholder, as they appear on the Corporation's books, and of such beneficial
owner, (y) the class and number of shares of stock of the Corporation which are
owned beneficially and of record by such shareholder and such beneficial owner,
and (z) a representation that the shareholder intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the notice
or to propose such other business. The Corporation may require any proposed
nominee to furnish any information, in addition to that furnished pursuant to
clause (i) above, it may reasonably require to determine the eligibility of the
proposed nominee to serve as a Director of the Corporation. No other proposals
of business by a shareholder other than the nomination of persons for election
to the Board requested by a shareholder, as provided in this Section 2.9(b) of
Article Two, may be considered at a special meeting of the shareholders.
(c) GENERAL.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.9 of Article Two shall be eligible
to serve as Directors and only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 2.9 of Article
Two. The Board of Directors may reject any nomination or shareholder
proposal submitted for consideration at any meeting of shareholders which
is not made in accordance with the terms of this Section 2.9 of Article Two
or which is not a proper subject for shareholder action in accordance with
provisions of applicable law. Alternatively, if the Board of Directors
fails to consider the validity of any nomination or shareholder proposal,
the presiding officer of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with the procedures set forth in
this Section 2.9 of Article Two and, if any proposed nomination or business
is not in compliance with this Section 2.9 of Article Two, to declare that
such defective nomination or proposal be disregarded. This provision shall
not prevent the consideration and approval or disapproval at the meeting of
reports of officers, Directors and committees of the Board of Directors,
but, in connection with such reports, no new business shall be acted upon
at the meeting unless stated, filed and received as herein provided.
(2) For purposes of this Section 2.9 of Article Two, "public
announcement" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press, Reuters or comparable news service or
in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(3) Notwithstanding the foregoing provisions of this Section 2.9 of
Article Two, a shareholder must also comply with all applicable
requirements of state law and of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this
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Section 2.9 of Article Two. Nothing in this Section 2.9 of Article Two
shall be deemed to affect any rights of shareholders to request inclusion
of proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
SECTION 2.10 NO CUMULATIVE VOTING. All cumulative voting rights are hereby
denied, so that the capital stock of the Corporation shall not carry with it,
and no shareholder shall have any right to, cumulative voting in the election of
Directors or for any other purpose.
ARTICLE THREE
BOARD OF DIRECTORS
SECTION 3.1 NUMBER, ELECTION AND TERM.
(a) The Board of Directors shall consist of five (5) persons; provided,
however, that in no event shall the number of Directors be less than three (3);
provided, further, that except as otherwise provided in the Articles, the number
of Directors provided herein may be amended from time to time only by the
affirmative vote of a majority of the Board of Directors; and provided, further,
that any change in the number of Directors shall be reported to the Secretary of
State of the State of Missouri within thirty (30) calendar days of such change.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as possible. In the event of any increase in the number of
Directors, any additional Directors shall be added to such classes as may be
necessary so that all classes shall be as nearly equal in number as possible. In
the event of any decrease in the number of Directors, all classes of Directors
shall be decreased as nearly equally as may be possible. No reduction in the
number of Directors shall affect the term of office of any incumbent Director.
Subject to the foregoing, the Board of Directors shall determine the class or
classes to which any additional Directors shall be added and the class or
classes which shall be decreased in the event of any decrease in the number of
Directors.
(c) With respect to the current Board of Directors of the Corporation, the
first class of Directors shall hold office until the annual meeting of
shareholders in 1998, the second class of Directors shall hold office until the
annual meeting of shareholders in 1999 and the third class of Directors shall
hold office until the annual meeting of shareholders in 2000, or in each case,
until his or her successor is elected and qualified. Thereafter, Directors shall
be elected to hold office for a term of three years or, in each case, until his
or her successor is elected and qualified, and at each annual meeting of
shareholders, the successors to the class of Directors whose terms shall then
expire shall be elected for a term expiring at the third succeeding annual
meeting after that election.
SECTION 3.2 POWERS. The property and business of the Corporation shall be
managed and controlled by or under the direction of the Board of Directors,
which shall exercise or direct the exercise of all of the powers of the
Corporation and do or cause to be done all acts and things as are not, by the
Articles, by these Bylaws or by law, directed or required to be done or
exercised by the shareholders.
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SECTION 3.3 MEETINGS; QUORUM. Regular meetings of the Board of Directors
shall be held at such places, within or without the State of Missouri, and on
such days and at such times as shall be fixed from time to time by the Board of
Directors. Rules of procedure for the conduct of such meetings may be adopted by
resolution of the Board of Directors. Notice of such regular meetings need not
be given. A majority of members of the Board of Directors shall constitute a
quorum for the transaction of business at any meeting of the Board of Directors,
but a lesser number may adjourn a meeting to another time or day if a quorum is
not present. The act of the majority of the Directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors, unless the
act of a greater number is required by the Articles, by these Bylaws or by law.
Special meetings of the Board of Directors may be held at any time and place,
within or without the State of Missouri, upon the call of the Chairman of the
Board of Directors, the President or Secretary of the Corporation by oral,
written, telefax, telegraphic or electronic notice duly given, sent or mailed to
each Director, at such Director's last known address, not less than twenty-four
hours before such meeting; provided, however, that any Director may, at any
time, in writing or by telegram, waive notice of any meeting at which he or she
may not be or may not have been present. Attendance of a Director at any meeting
shall constitute a waiver of notice of the meeting except where a Director
attends a meeting for the sole and express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
Members of the Board of Directors or of any committee designated by the
Board of Directors may participate in a meeting of the Board of Directors or
committee by means of conference telephone or similar communications equipment
whereby all persons participating in the meeting can hear each other, and
participation in a meeting in this manner shall constitute presence in person at
the meeting.
SECTION 3.4 ACTION BY CONSENT. Any action which is required to be or may be
taken at a meeting of the Directors may be taken without a meeting if consents
in writing, setting forth the action so taken, are signed by all the Directors.
Any action which is required to be or may be taken at a meeting of a committee
of Directors may be taken without a meeting if consents in writing, setting
forth the action so taken, are signed by all the members of the committee.
SECTION 3.5 RESIGNATION OF DIRECTORS. Any Director of the Corporation may
resign at any time by giving written notice of such resignation to the Board of
Directors, the Chairman of the Board of Directors, the President, or the
Secretary of the Corporation. Any such resignation shall take effect at the time
specified therein or, if no time be specified, upon receipt thereof by the Board
of Directors or one of the above-named Officers; and, unless specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 3.6 COMPENSATION OF DIRECTORS. Directors, as such, may receive such
compensation and be reimbursed for expenses of attendance at any meeting of the
Board of Directors as shall be determined by resolution of the Board of
Directors. Nothing herein contained shall be construed to preclude any Director
from serving the Corporation in any other capacity and receiving compensation
therefor.
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SECTION 3.7 COMMITTEES; GENERAL RULES. The Board of Directors, by
resolution adopted by a majority of the entire Board of Directors, may designate
two or more Directors to constitute a committee. Each committee, to the extent
provided in such resolution, shall have and may exercise the authority of the
Board of Directors, as so delegated in the resolution, in the management of the
Corporation. Each committee of the Board of Directors shall keep regular minutes
of its proceedings and report the same to the Board of Directors when required.
Vacancies in the membership of each committee shall be filled by the Board of
Directors at any regular or special meeting of the Board of Directors. At all
meetings of a committee, a majority of the committee members then in office
shall constitute a quorum for the purpose of transacting business, and the acts
of a majority of the committee members present at any meeting at which there is
a quorum shall be the acts of the committee. A Director who may be disqualified,
by reason of personal interest, from voting on any particular matter before a
meeting of a committee may nevertheless be counted for the purpose of
constituting a quorum of the committee.
SECTION 3.8 QUALIFICATIONS. No person shall be qualified to be elected and
to hold office as a Director if such person is determined by a majority of the
entire Board of Directors to have acted in a manner contrary to the best
interests of the Corporation, including, but not limited to, the violation of
either Federal or State law, maintenance of interests not properly authorized
and in conflict with the interests of the Corporation, or breach of any
agreement between that Director and the Corporation relating to his or her
services as a Director, employee or agent of the Corporation. A Director need
not be a shareholder.
SECTION 3.9 EMERITUS AND ADVISORY DIRECTORS. The Board of Directors may
from time to time create one or more positions of Director Emeritus and Advisory
Director and may fill such position or positions for such terms as the Board of
Directors deems proper. Each Director Emeritus and Advisory Director shall, upon
the invitation of the Board of Directors, have the privilege of attending
meetings of the Board of Directors but shall do so solely as an observer. Notice
of meetings of the Board of Directors to a Director Emeritus or Advisory
Director shall not be required under any applicable law, the Articles or these
Bylaws. Each Director Emeritus and Advisory Director shall be entitled to
receive such compensation as may be fixed from time to time by the Board of
Directors. No Director Emeritus or Advisory Director shall be entitled to vote
on any business coming before the Board of Directors, nor shall they be counted
as members of the Board of Directors for the purpose of determining the number
of Directors necessary to constitute a quorum, for the purpose of determining
whether a quorum is present or for any other purpose whatsoever. In the case of
a Director Emeritus or Advisory Director, the occurrence of any event which in
the case of a Director would create a vacancy on the Board of Directors, shall
be deemed to create a vacancy in such position; but the Board of Directors may
declare the position terminated until such time as the Board of Directors shall
again deem it proper to create and to fill the position.
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ARTICLE FOUR
OFFICERS
SECTION 4.1 NUMBER, ELECTION AND TERM. The officers of the Corporation
shall be a Chairman of the Board, a President and a Secretary who shall be
chosen by the Board of Directors at its first meeting after each annual meeting
of shareholders. The Board of Directors may also choose one or more Vice
Presidents, a Treasurer, one or more Assistant Secretaries and Assistant
Treasurers and such other officers as the Board of Directors may deem
appropriate. Any two or more offices, except those of President and Vice
President or President and Secretary, may be held by the same person. Officers
of the Corporation may be given distinctive designations such as Executive Vice
President, Group Vice President, Senior Vice President, Chief Operating Officer,
Chief Administrative Officer and Chief Financial Officer. All officers, unless
sooner removed, shall hold their respective offices until the first meeting of
the Board of Directors after the next succeeding election of the Board of
Directors and until their successors shall have been duly elected and qualified.
Any officer or agent elected or appointed by the Board of Directors may be
removed by the Board of Directors with or without cause whenever, in its
judgment, the best interests of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Any vacancy occurring in any such office of the Corporation may be
filled only by the Board of Directors.
SECTION 4.2 CHAIRMAN OF THE BOARD. The Chairman shall be the Chief
Executive Officer of the Corporation. In addition to his duties as Chairman and
Chief Executive Officer, he or she shall be responsible for the general and
active management of the business and affairs of the Corporation, subject only
to the control of the Board of Directors, shall have full authority in respect
to the signing and execution of deeds, bonds, mortgages, contracts and other
instruments of the Corporation; and, in the absence or disability of the
President, shall exercise all of the powers and discharge all of the duties of
the President. Unless otherwise determined by the Board of Directors, he or she
shall also be, ex officio, a member of all standing Committees of the Board of
Directors, shall preside at all meetings of the shareholders and Directors at
which he or she is present and shall perform any other duties prescribed by the
Board of Directors or these Bylaws.
SECTION 4.3 PRESIDENT. In the absence of the Chairman of the Board of
Directors, the President shall preside at all meetings of the shareholders and
Directors at which he or she is present. He or she shall perform any duties
prescribed by the Chairman or the Board of Directors and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
The President shall have equal authority with the Chairman to execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
Corporation, except where permitted by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly delegated
by the Board of Directors to some other officer or agent of the Corporation.
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SECTION 4.4 VICE PRESIDENTS. The Vice Presidents, if any, in the order of
their seniority shall, in the absence or disability of the President, perform
the duties and exercise the powers of the President, and shall perform any other
duties prescribed by the Chairman, the President or the Board of Directors.
SECTION 4.5 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall keep
or cause to be kept a record of all meetings of the shareholders and the Board
of Directors and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. He or she 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 any other duties prescribed by the Board of
Directors or the President, under whose supervision he or she shall be. He or
she shall keep in safe custody the seal of the Corporation and shall affix the
same to any instrument requiring it.
The Assistant Secretaries, if any, in order of their seniority shall, in
the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform any other duties prescribed by the
Chairman, the President or the Board of Directors.
SECTION 4.6 TREASURER AND ASSISTANT TREASURERS. The Treasurer, if any,
shall have the custody of the corporate funds and securities, shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Corporation, shall deposit all moneys 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 and shall perform any other duties prescribed by the
Chairman, the President or the Board of Directors.
The Treasurer shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the President and Directors, at the regular meetings of the
Board of Directors, or whenever they may require it, an account of all his or
her transactions as Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his or her office and for the restoration to the Corporation, in case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his or her
possession or under his or her control belonging to the Corporation.
The Assistant Treasurers, if any, in the order of their seniority shall, in
the absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform any other duties prescribed by the
Board of Directors.
SECTION 4.7 CHIEF FINANCIAL OFFICER AND CONTROLLERS. The Chief Financial
Officer, if one is elected by the Board of Directors, shall have charge of the
accounting records of the Corporation, shall maintain appropriate internal
control and auditing of the Corporation, and shall perform such other duties as
directed by the Board of Directors, the Chairman or other senior officers. The
Controllers, if any, in order of their seniority shall, in the absence or
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disability of the Chief Financial Officer, perform the duties and exercise the
powers of the Chief Financial Officer and shall have any other duties prescribed
by the Board of Directors.
SECTION 4.8 APPOINTED OFFICERS. In addition to the corporate officers
elected by the Board of Directors, the Chairman may, from time to time, appoint
one or more other persons as appointed officers who shall not be deemed to be
corporate officers, but may, respectively, be designated with such titles as the
Chairman may deem appropriate. The Chairman may prescribe the powers to be
exercised and the duties to be performed by each such appointed officer, may
designate the term for which each such appointment is made, and may, from time
to time, terminate any or all of such appointments with or without cause. Such
appointments and termination of appointments shall be reported periodically to
the Board of Directors.
ARTICLE FIVE
CAPITAL STOCK
SECTION 5.1 STOCK CERTIFICATES. Every holder of stock in the Corporation
shall be entitled to have a certificate, in any form approved by the Board of
Directors, certifying the number and class of shares owned by the shareholder in
the Corporation, signed by the Chairman, the President or a Vice President and
by the Secretary or Treasurer or an Assistant Secretary or Assistant Treasurer
of the Corporation and sealed with the seal of the Corporation. If the
certificate is countersigned by a transfer agent other than the Corporation or
its employee, or by a registrar other than the Corporation or its employee, any
other signature on the certificate may be a facsimile signature, or may be
engraved or printed. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed on the certificate shall
have ceased to be an officer, transfer agent or registrar before the certificate
is issued, the certificate may nevertheless be issued by the Corporation with
the same effect as if such person were an officer, transfer agent or registrar
at the date of issue.
SECTION 5.2 TRANSFER OF STOCK. The shares of stock of the Corporation shall
be transferable only upon its books by the holders thereof in person or by their
duly authorized attorneys or legal representatives. Upon transfer, the old
certificates shall be surrendered to the Corporation by the delivery thereof to
the person in charge of the stock and transfer books and ledgers, or to such
other persons as the Board of Directors may designate, by whom they shall be
cancelled and new certificates shall thereupon be issued. Except as otherwise
expressly provided by the statutes of the State of Missouri, the Corporation
shall be entitled to treat the holder of record of any share or shares of stock
as the absolute owner thereof for all purposes and, accordingly, shall not be
bound to recognize any legal, equitable or other claim to or interest in such
share or shares on the part of any other person whether or not it or they shall
have express or other notice thereof.
SECTION 5.3 CLOSING OF TRANSFER BOOKS AND FIXING OF RECORD DATE. The Board
of Directors shall have the power to close the transfer books of the Corporation
for a period not exceeding seventy (70) days prior to the date of any meeting of
shareholders, or the date for payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
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shares shall go into effect. In lieu of so closing the transfer books, the Board
of Directors may fix in advance a record date for the determination of the
shareholders entitled to notice of and to vote at any meeting and any
adjournment thereof, or entitled to receive payment of any dividend or any
allotment of rights, or entitled to exercise the rights in respect of any
change, conversion or exchange of shares, up to seventy (70) days prior to the
date of any meeting of shareholders, or the date for the payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of shares shall go into effect. In such case only the
shareholders who are shareholders of record on the record date so fixed shall be
entitled to receive notice of and to vote at such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after the date of closing
of the transfer books or the record date fixed as aforesaid. If the Board of
Directors does not close the transfer books or set a record date for the
determination of the shareholders entitled to notice of and to vote at any
meeting of shareholders, only the shareholders who are shareholders of record at
the close of business on the 20th day preceding the date of the meeting shall be
entitled to notice of and to vote at the meeting and upon any adjournment of the
meeting, except that if prior to the meeting written waivers of notice of the
meeting are signed and delivered to the Corporation by all of the shareholders
of record at the time the meeting is convened, only the shareholders who are
shareholders of record at the time the meeting is convened shall be entitled to
vote at the meeting and any adjournment of the meeting.
SECTION 5.4 LOST OR DESTROYED CERTIFICATES. The holder of any shares of
stock of the Corporation shall immediately notify the Corporation and its
transfer agents and registrars, if any, of any loss or destruction of the
certificates representing the same. The Corporation may issue a new certificate
in place of any certificate theretofore issued by it which is alleged to have
been lost or destroyed and the Board of Directors may require the owner of the
lost or destroyed certificate or the owner's legal representative to give the
Corporation a bond in a sum and in a form approved by the Board of Directors,
and with a surety or sureties which the Board of Directors finds satisfactory,
to indemnify the Corporation and its transfer agents and registrars, if any,
against any claim or liability that may be asserted against or incurred by it or
any transfer agent or registrar on account of the alleged loss or destruction of
any certificate or the issuance of a new certificate. A new certificate may be
issued without requiring any bond when, in the judgment of the Board of
Directors, it is proper so to do. The Board of Directors may delegate to any
Officer or Officers of the Corporation any of the powers and authorities
contained in this section.
SECTION 5.5 TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint one or more transfer agents or transfer clerks and one or more
registrars which may be banks, trust companies or other financial institutions
located within or without the State of Missouri; may define the authority of
such transfer agents and registrars of transfers; may require all stock
certificates to bear the signature of a transfer agent or a registrar of
transfers, or both; and may change or remove any such transfer agent or
registrar of transfers.
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ARTICLE SIX
CORPORATE SEAL
The corporate seal shall be circular in form and shall bear the name of the
Corporation, the year of its incorporation and the words "Corporate Seal" and
"Missouri" and otherwise shall be such form as shall be approved from time to
time by the Board of Directors.
ARTICLE SEVEN
WAIVER OF NOTICE
Whenever any notice whatsoever is required to be given under the provisions
of these Bylaws or under the provisions of the Articles or under the provisions
of The General and Business Corporation Law of Missouri (the "GBCL"), waiver
thereof, in writing, signed by the person or persons entitled to such notice,
either before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
ARTICLE EIGHT
BOOKS AND RECORDS
The books and records of the Corporation shall be maintained at the
executive offices of the Corporation and shall be available for inspection by
any shareholder during normal business hours, except that the Board of Directors
may limit the right of inspection of any shareholder if the Board of Directors
deems it necessary under all the circumstances, in order to protect the
financial and business interest of the Corporation.
ARTICLE NINE
INDEMNIFICATION
SECTION 9.1 ACTIONS INVOLVING DIRECTORS AND OFFICERS. The Corporation shall
indemnify each person (other than a party plaintiff suing on his or her own
behalf or in the right of the Corporation) who at any time is serving or has
served as a Director or officer of the Corporation against any claim, liability
or expense incurred as a result of such service, or as a result of any other
service on behalf of the Corporation, or service at the request of the
Corporation as a director, officer, employee, member or agent of another
corporation, partnership, joint venture, trust, trade or industry association,
or other enterprise (whether incorporated or unincorporated, for-profit or
not-for-profit), to the maximum extent permitted by law. Without limiting the
generality of the foregoing, the Corporation shall indemnify any such person who
was or is a party (other than a party plaintiff suing on his or her behalf or in
the right of the Corporation), or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, but not limited to, an
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action by or in the right of the Corporation) by reason of such service against
expenses (including, without limitation, attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding.
SECTION 9.2 ACTIONS INVOLVING EMPLOYEES OR AGENTS.
(a) PERMISSIVE INDEMNIFICATION. The Corporation may, if it deems
appropriate and as may be permitted by this Article Nine, indemnify any person
(other than a party plaintiff suing on his or her own behalf or in the right of
the Corporation) who at any time is serving or has served as an employee or
agent of the Corporation against any claim, liability or expense incurred as a
result of such service, or as a result of any other service on behalf of the
Corporation, or service at the request of the Corporation as a director,
officer, employee, member or agent of another corporation, partnership, joint
venture, trust, trade or industry association, or other enterprise (whether
incorporated or unincorporated, for-profit or not-for-profit), to the maximum
extent permitted by law or to such lesser extent as the Corporation, in its
discretion, may deem appropriate. Without limiting the generality of the
foregoing, the Corporation may indemnify any such person who was or is a party
(other than a party plaintiff suing on his or her own behalf or in the right of
the Corporation), or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, but not limited to, an action by or
in the right of the Corporation) by reason of such service, against expenses
(including, without limitation, attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or her in connection
with such action, suit or proceeding.
(b) MANDATORY INDEMNIFICATION. To the extent that an employee or agent of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 9.2(a) hereof, or in defense
of any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the action, suit or preceding.
SECTION 9.3 DETERMINATION OF RIGHT TO INDEMNIFICATION IN CERTAIN
CIRCUMSTANCES. Any indemnification required under Section 9.1 hereof or
authorized by the Corporation in a specific case pursuant to Section 9.2 hereof
(unless ordered by a court) shall be made by the Corporation unless a
determination is made reasonably and promptly that indemnification of the
Director, officer, employee or agent is not proper under the circumstances
because he or she has not met the applicable standard of conduct set forth in or
established pursuant to this Article Nine. Such determination shall be made (1)
by the Board of Directors by a majority vote of a quorum consisting of Directors
who were not parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or even if obtainable a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion, or (3) by majority
vote of the shareholders; provided that no such determination shall preclude an
action brought in an appropriate court to challenge such determination.
SECTION 9.4 ADVANCE PAYMENT OF EXPENSES. Expenses incurred by a person who
is or was a Director or officer of the Corporation in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in advance
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of the final disposition of an action, suit or proceeding, and expenses incurred
by a person who is or was an employee or agent of the Corporation in defending a
civil or criminal action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors, in either case upon receipt of an
undertaking by or on behalf of the Director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he or she is not entitled
to be indemnified by the Corporation as authorized in or pursuant to this
Article Nine.
SECTION 9.5 ARTICLE NINE PROVISIONS NOT EXCLUSIVE RIGHT. The
indemnification provided by this Article Nine shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled, whether
under the Articles or any statute, agreement, vote of shareholders or
disinterested Directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office.
SECTION 9.6 INDEMNIFICATION AGREEMENTS AUTHORIZED. Without limiting the
other provisions of this Article Nine, the Corporation is authorized from time
to time, without further action by the shareholders of the Corporation, to enter
into agreements with any Director, officer, employee or agent of the Corporation
providing such rights of indemnification as the Corporation may deem
appropriate, up to the maximum extent permitted by law. Any agreement entered
into by the Corporation with a Director may be authorized by the other
Directors, and such authorization shall not be invalid on the basis that
different or similar agreements may have been or may thereafter be entered into
with other Directors.
SECTION 9.7 STANDARD OF CONDUCT. Except as may otherwise be permitted by
law, no person shall be indemnified pursuant to this Article Nine (including
without limitation pursuant to any agreement entered into pursuant to Section
9.6 hereof) from or on account of such person's conduct which is finally
adjudged to have been knowingly fraudulent, deliberately dishonest or willful
misconduct. The Corporation may (but need not) adopt a more restrictive standard
of conduct with respect to the indemnification of any employee or agent of the
Corporation.
SECTION 9.8 INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a Director, officer, employee or agent of
the Corporation, or who is or was otherwise serving on behalf or at the request
of the Corporation in any capacity against any claim, liability or expense
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would
have the power to indemnify him or her against such liability under the
provisions of this Article Nine.
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SECTION 9.9 CERTAIN DEFINITIONS. For the purposes of this Article Nine:
1. SERVICE IN REPRESENTATIVE CAPACITY. Any Director or officer of the
Corporation who shall serve as a director, officer or employee of any other
corporation, partnership, joint venture, trust or other enterprise of which the
Corporation, directly or indirectly, is or was the owner of 20% or more of
either the outstanding equity interests or the outstanding voting stock (or
comparable interests), shall be deemed to be so serving at the request of the
Corporation, unless the Board of Directors shall determine otherwise. In all
other instances where any person shall serve as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise of which the Corporation is or was a stockholder or creditor, or in
which it is or was otherwise interested, if it is not otherwise established that
such person is or was serving as a director, officer, employee or agent at the
request of the Corporation, the Board of Directors may determine whether such
service is or was at the request of the Corporation, and it shall not be
necessary to show any actual or prior request for such service.
2. PREDECESSOR CORPORATIONS. References to a corporation include all
constituent corporations absorbed in a consolidation or merger as well as the
resulting or surviving corporation so that any person who is or was a director,
officer, employee or agent of a constituent corporation or is or was serving at
the request of a constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under the provisions of this Article
Nine with respect to the resulting or surviving corporation as he or she would
if he or she had served the resulting or surviving corporation in the same
capacity.
3. SERVICE FOR EMPLOYEE BENEFIT PLAN. The term "other enterprise" shall
include, without limitation, employee benefit plans and voting or taking action
with respect to stock or other assets therein; the term "serving at the request
of the Corporation" shall include, without limitation, any service as a
director, officer, employee or agent of a corporation which imposes duties on,
or involves services by, a director, officer, employee or agent with respect to
any employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have satisfied any standard of care required by or pursuant to this
Article Nine in connection with such plan; the term "fines" shall include,
without limitation, any excise taxes assessed on a person with respect to an
employee benefit plan and shall also include any damages (including treble
damages) and any other civil penalties.
SECTION 9.10 SURVIVAL. Any indemnification rights provided pursuant to this
Article Nine shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. Notwithstanding any other
provisions in these Bylaws or the Articles, any indemnification rights arising
under or granted pursuant to this Article Nine shall survive amendment or repeal
of this Article Nine with respect to any acts or omissions occurring prior to
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the effective time of such amendment or repeal and persons to whom such
indemnification rights are given shall be entitled to rely upon such
indemnification rights with respect to such acts or omissions as a binding
contract with the Corporation.
SECTION 9.11 LIABILITY OF THE DIRECTORS. It is the intention of the
Corporation to limit the liability of the Directors of the Corporation, in their
capacity as such, whether to the Corporation, its shareholders or otherwise, to
the fullest extent permitted by law. Consequently, should the GBCL or any other
applicable law be amended or adopted hereafter so as to permit the elimination
or limitation of such liability, the liability of the Directors of the
Corporation shall be so eliminated or limited without the need for amendment of
these Bylaws.
ARTICLE TEN
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first day of January
of each year.
