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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 10, 1997
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO
SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
WALNUT CAPITAL CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-3217989
(STATE OR OTHER JURISDICTION OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
C/O WALNUT FINANCIAL SERVICES, INC.
8000 TOWERS CRESCENT DRIVE
SUITE 1070
VIENNA, VIRGINIA 22182
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
------------------- ------------------------------
NONE NONE
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(TITLE OF CLASS)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Walnut Capital Corp. (the "Corporation") was incorporated under the laws of the
State of Delaware on September 17, 1980. The Corporation intends to elect to be
regulated as a business development company pursuant to Section 54(a) of the
Investment Company Act of 1940, as amended. The Corporation is licensed as a
small business investment company (as "SBIC") and regulated by the U.S. Small
Business Administration.
The Corporation is a wholly owned subsidiary of Walnut Financial Services, Inc.
which is currently registered under Section 12(g) of the Securities Exchange
Act of 1934, as amended, and intends to elect to be regulated as a business
development company pursuant to Section 54(a) of the Investment Company Act of
1940, as amended.
The total number of shares of stock of all classes which the Corporation has
authority to issue is One Thousand (1,000) shares of capital stock, with a par
value of $0.01 per share, amounting in aggregate par value to Ten Dollars
($10.00). All of such shares are initially classified as "Common Stock." The
Corporation does not intend to list the Common Stock on any exchange or
otherwise seek a public market for the trading of these shares.
All Common Stock issued to date by the Corporation has been duly authorized,
fully paid and nonassessable. Holders of Common Stock are entitled to receive
dividends if, as and when authorized and declared by the Board of Directors of
the Corporation out of assets legally available therefor and to share ratably
in the assets of the Corporation legally available for distribution to its
stockholders in the event of its liquidation, dissolution or winding up after
payment of, or adequate provision for, all known debts and liabilities of the
Corporation.
Each outstanding share of Common Stock entitles the holder to one vote on all
matters submitted to a vote of shareholders, including the election of
directors. There is no cumulative voting in the election of directors, which
means that the holders of a majority of the outstanding Common Stock can elect
all of the directors then standing for election.
Holders of Common Stock have no conversion, sinking fund, redemption, or
preferential rights to subscribe for any securities of the Corporation. Shares
of Common Stock have equal dividend, distribution, liquidation and other
rights, and have no preference, exchange or, except as expressly required by
Delaware law, appraisal rights.
Pursuant to Delaware law, a corporation generally cannot dissolve, amend its
certificate of incorporation or merge, unless approved by the affirmative vote
of stockholders holding at least a majority of the shares entitled to vote on
the matter unless a greater percentage is set forth in the Corporation's
certificate of incorporation. The Corporation's Certificate of Incorporation do
not provide for a greater percentage in such situations.
The Corporation's Certificate of Incorporation and Bylaws are attached hereto
as Exhibit 3.1 and 3.2.
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ITEM 2. EXHIBITS
3.1. Certificate of Incorporation of the Registrant, as amended on January 18,
1996.
3.2. Amended and Restated Bylaws of the Registrant, dated October 8, 1997.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
WALNUT CAPITAL CORP.
/s/ Joel S. Kanter
Joel S. Kanter, President Date October 8, 1997
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EXHIBIT 3.1
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
WALNUT CAPITAL CORP.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
Walnut Capital Corp.
2. The Certificate of Incorporation of the corporation is hereby amended
by striking out Article Tenth thereof and by substituting in lieu of said
Article the following new Article Tenth.
"TENTH: (a) To the extent permitted by the Investment Company Act of
1940, as amended, and any valid rule, regulation or order of the Securities and
Exchange Commission thereunder, in each case as now or hereafter in force (the
"1940 Act"), the corporation shall 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, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) 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 (including attorneys'
fees), 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 so
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.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or pleas of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the person did not act in good faith
and in a manner which 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 reasonable cause to believe that his conduct was unlawful.
(b) To the extent permitted by the 1940 Act, the corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor 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 the corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit. 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
except that no indemnification shall be made in respect of 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 of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of Delaware or such other court shall deem
proper.
(c) Without limiting the generality of the provisions of paragraphs (a)
and (b) of this Article, to the extent that any person referred to therein has
been successful on the merits otherwise in defense of any action, suit or
proceeding referred to therein or in defense of any claim, issue or
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matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this Article
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made in accordance with the by-laws of the corporation
and is permitted by the 1940 Act.
(e) To the extent permitted by the 1940 Act, expenses incurred 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 the specific case upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount unless it shall ultimately by determined that he is
entitled to be indemnified by the corporation.
(f) The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those seeking Indemnification may be
entitled under any statute, by-law, agreement, vote of stockholders of
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
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.
(g) To the extent permitted by the 1940 Act, the corporation shall have
power to purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as director, officer, employee or agent or
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of this Article.
3. This amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of Sections
228 and 242 of the General Corporation Law of the State of Delaware, as the
same now exists or may be hereafter amended.
Dated as of the 8th day of October, 1997.
/s/ Joel S. Kanter
Joel S. Kanter, President of the Corporation
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CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
WALNUT CAPITAL CORP.
Walnut Capital Corp., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY AS FOLLOWS:
1. That the name of the corporation is:
Walnut Capital Corp.
2. The Certificate of Incorporation of the Corporation, as
amended, is hereby further amended by deleting Article FIFTH thereof
in its entirety and substituting the following in its place and
stead:
FIFTH: The total number of shares of stock which the
Corporation shall have authority to issue is One Thousand
(1,000) shares, all of which shall be designated common stock
and are to have a par value of $0.01 per share ("Common
Stock").
3. That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 141, 228 and 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Walnut Capital Corp. has caused this Certificate of
Amendment to be signed by Joel S. Kanter, its President and attested by Michael
Alan Faber, its Secretary this 5th day of January, 1996.
Walnut Capital Corp.
By: /s/ Joel S. Kanter
Joel S. Kanter, President
ATTEST:
By: /s/ Michael Alan Faber
Michael Alan Faber, Secretary
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ARTICLES OF INCORPORATION
OF
WALNUT CAPITAL CORP.
The undersigned, for the purposes hereinafter stated, under and pursuant
to the provisions of the General Corporation Law of Delaware, does hereby
certify as follows:
FIRST: The name of the Corporation is: WALNUT CAPITAL CORP.
SECOND: The Registered Office of the corporation is to be located at 306
South State Street, in the City of Dover, in the County of Kent, in the State
of Delaware. The name of it Registered Agent at that address is the United
States Corporation Company.
THIRD: As used in these Articles of Incorporation, the term "Act" means
the Small Business Investment Act of 1958, as amended.
FOURTH: This corporation is organized and chartered solely for the
purpose of operating under the Small Business Investment Act of 1958, as
amended, and will operate in the manner and shall have the powers,
responsibilities, and be subject to the limitations provided by said Act and
the regulations issued by the Small Business Administration thereunder.
Said powers and authority shall include, but shall not be limited to, the
following:
(a) To operate under the name set forth in ARTICLE I above;
(b) To borrow money and issue its debenture bonds, promissory notes, or
other obligations under such general conditions and subject to such limitations
and regulations as the Small Business Administration may prescribe;
(c) To provide equity capital to small business concerns (as defined by
the Small Business Administration) under conditions authorized by section 304
of the Act and pertinent sections of the Regulations, with the right to sell or
dispose of securities so acquired in such manner and under such terms and
conditions as the Licensee shall determine;
(d) To make long-term loans (as defined by the Small Business
Administration) to small business concerns (as defined by the Small Business
Administration) for the purposes and in the manner and subject to the
conditions described in section 305 of the Act; with the right to sell or
dispose of such loans in such manner and under such terms and conditions as the
Company shall determine;
(e) To acquire and make commitments for obligations and securities of a
single enterprise only within the limitations established by section 306 of the
Act, unless such limitations are waived by the Small Business Administration;
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(f) To undertake its operations in cooperation with banks or other
financial institutions, as contemplated under section 308(a) of the Act;
(g) To provide consulting and advisory services to small business concerns
on a fee basis;
(h) To invest funds not reasonably needed for its current operations only
in direct obligations of, or obligations guaranteed as to principal and
interest by, the United States Government;
(i) To conduct its operations in accordance with and subject to
regulations prescribed by the Small Business Administration;
(j) To submit to pay for examinations made by direction of the Small
Business Administration by examiners selected, employed, or approved by the
Small Business Administration;
(k) To make reports to the Small Business Administration at such times and
in such form as the Small Business Administration may require;
(l) To conduct its operations under the Act in the State of New York;
without limitation, however, as to the residence, domicile, or place of
business of parties with which it transacts its business or otherwise deals in
accordance with regulations issued by Small Business Administration;
(m) To regulate its business and conduct its affairs in a manner not
inconsistent with the Act and regulations prescribed by the Small Business
Administration thereunder;
(n) To adopt and use a corporate seal;
(o) To have unlimited succession, subject to dissolution in accordance
with the laws of the State of Delaware and subject to forfeiture of its License
from the Small Business Administration for violation of law or of regulation
issued under the Act;
(p) To make contracts;
(q) To sue and be sued, complain, and defend in any court of law or
equity;
(r) By its Board of Directors, to appoint such officers and employees as
may be deemed proper, define their authority and duties, fix their
compensation, require bonds of such them as it deems advisable and fix the
penalty thereof, dismiss. such officers or employees, or any thereof, at
pleasure, and appoint others to fill their places;
(s) To adopt by-laws regulating the manner in which its stock shall be
transferred, its officers and employees appointed, its property transferred,
and the privileges granted to it by law exercised and enjoyed;
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(t) To maintain its principal office in the City of New York County of New
York, and State of New York and to establish branch offices or agencies with
its operating territory, subject to the approval of the Small Business
Administration;
(u) To acquire, hold, operate, and dispose of any property (real, personal
or mixed) whenever necessary or appropriate to the carrying out of its lawful
functions;
(v) To exercise such Incidental powers as may reasonably be necessary to
carry out the business for which the corporation is established.
FIFTH: The total number of shares of stock which the corporation shall
have authority to issue is five thousand (5,000) comprised of shares of the
following classes:
(a) one thousand (1,000) shares of One Dollar ($1.00) par value Class A
preferred stock;
(b) one thousand (1,000) shares of Ten Cent ($.10) par value Class B
preferred stock; and
(c) three thousand (3,000) shares of Ten Cent ($.10) par value common
stock.
The shares of Class B preferred stock may be issued as a class without
series, or if so determined from time to time by the Board of Directors, either
in whole or in part in one or more series, each series to be appropriately
designated by a distinguishing number, letter or title, prior to the issue of
any shares thereof. Whenever the term "shares of Class B preferred stock" is
used in this Article FIFTH, it shall be deemed to mean and include shares of
Class B preferred stock issued as a class without series or one or more series
thereof, or both, unless the context shall otherwise require.
There is hereby expressly granted to the Board of Directors of the
corporation authority to fix or alter the dividend rights, dividend rate,
conversion rights, voting rights, the rights and terms of redemption (including
sinking fund provisions), the redemption price or prices, and the liquidation
preferences of any wholly unissued series of shares of Class B preferred stock,
and the number of shares constituting any such series and the designation
thereof, or any of them; and to increase or decrease the number of shares of
any series subsequent to the issue of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease
shall resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series; provided, however, that
no share of Class B preferred stock may have any greater voting rights than one
(1) share of common stock hereunder and provided, further, that the Board of
Directors of the corporation may not fix any other power, preference, right,
qualification, limitation or restrict/on of any wholly unissued series of
shares of Class B preferred stock that may conflict with any other provision
specifically contained in this Article FIFTH.
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The designations and the powers, preferences and rights, and the
qualifications, limitations and restrictions of shares of Class A preferred
stock and shares of common stock are as follows:
1. Voting. The holders of shares of Class A preferred stock and shares of
common stock shall vote as a single class, except when otherwise required by
law, and each holder of shares of Class A preferred stock or common stock shall
be entitled to cast one vote at every meeting of stockholders for each share of
Class A preferred stock or common stock so held. Cumulative voting for the
election of directors shall not be permitted.
2. Dividends. Each holder of shares of Class A preferred stock shall be
entitled to receive in each fiscal year of the corporation when, as and if
declared by the Board of Directors of the corporation, preferential dividends
out of any assets of the corporation available for dividends pursuant to the
laws of the State of Delaware, either of cash or property, at a rate equal to
$105.00 per share per annum. Each holder of shares of Class A preferred stock
shall be entitled to receive the dividend stated above and no more, payable
annually, semi-annually, or quarterly on such dates as may be determined,
declared and deemed payable by the Board of Directors in its discretion.
Dividends on each share of preferred stock shall not cumulate from year to
year.
As long as any shares of Class A preferred stock are outstanding, if at
any time all dividends on the Class A preferred stock for all prior dividend
periods shall not have been paid, or if the full dividends on the Class A
preferred stock for the then current dividend period shall not have been paid
or declared and a sum sufficient for the payment thereof set apart, whether or
not there shall be assets of the corporation available for the payment of such
dividends under the laws of the State of Delaware, then: (i) no dividends shall
be declared of paid or any other distribution ordered or made upon the Class B
preferred stock or common stock; and (ii) no shares of Class B preferred stock
or common stock of the corporation shall be purchased or acquired by the
corporation of any subsidiary of the corporation.
3. Liquidation, Etc.
(a) Holders of outstanding shares of Class A preferred stock shall be
entitled, before any assets of the corporation shall be distributed among or
paid to the holders of shares of Class B preferred stock or common stock to
receive cash or property equal in fair market value to $1,000 for each share of
Class A preferred stock then held by each such holder in the event of any
voluntary or involuntary liquidation, dissolution or winding-up. After the
aforesaid payments to the holders of Class A preferred stock, the remaining
assets of the corporation shall be distributed among the holders of shares of
Class B preferred stock and common stock, according to the number of
outstanding shares of each such class and the relative powers, preferences,
rights, qualifications, limitations or restrictions on such shares of Class B
preferred stock and common stock. If, upon such liquidation, dissolution or
winding-up, the assets of the corporation distributable among the holders of
shares of Class A preferred stock shall be insufficient to permit the payment
to them of the entire amount to
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which they are entitled, the entire assets of the corporation shall be
distributed ratably among the holders of the shares of the Class A preferred
stock.
(b) In the event of any merger or consolidation of the corporation in
which the corporation shall not be the surviving entity or in the event of any
recapitalization or reorganization of the corporation, any such transaction
shall be structured so that the fair market value of the consideration
receivable in such transaction by or allocable to the holders of the Class A
preferred stock shall be equal to and shall not exceed the liquidation
preference of the preferred stock determined in accordance with paragraph (a)
of this paragraph 3.
4. Redemption. At the option of the Board of Directors, all or any
part of the shares of Class A preferred stock held by any stockholder or
stockholders may be redeemed at any time. In case less than all of the
outstanding shares of Class A preferred stock are to be redeemed, the Board of
Directors shall determine the number of shares to be redeemed and the holder or
holders whose shares are to be redeemed. Notice of such redemption shall be
mailed to such holder or holders at their respective addresses as they shall
appear on the books of the corporation at least thirty (30) days prior to the
date fixed for redemption in such notice. The redemption price payable by the
corporation shall be $1,020 per share plus any and all declared but unpaid
dividends on the data of such redemption and such redemption price shall be
paid by the corporation to such holder or holders on the redemption date set
forth in the notice or redemption. From and after the date fixed in any such
notice as the date for redemption no further dividends shall be declared or
paid on the shares so called for redemption and all rights of the holder or
holders thereof as stockholders of the corporation shall cease and terminate,
except their right to receive the amount payable on such redemption, unless the
corporation shall fail to pay the redemption price on the date fixed for
redemption. The corporation may, at any time, purchase for retirement from one
or more holders thereof as determined by the Board of Directors or the
corporation any or all of the shares of outstanding Class A preferred stock at
a price not to exceed the redemption price stated above. All shares redeemed or
purchased may be either cancelled and retired or held by the corporation as
treasury shares.
5. Preemptive Shares. No stockholder of this corporation shall by
reason of his holding shares of any class have any preemptive or preferential
rights to purchase or subscribe to any shares of any class of the corporation's
stock, whether now or hereafter authorized, or any notes, debentures, bonds or
other securities convertible into or carrying options or warrants to purchase
shares of any class of the corporation's stock now or hereafter authorized,
whether or not the issuance of any such shares, notes, debentures, bonds or
other securities, would adversely affect the dividend or voting rights of such
stockholders.
SIXTH: The original bylaws of the corporation may be adopted by the sole
incorporator named herein, or by the initial directors of the corporation.
Thereafter, In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors and/or the stockholders
of the corporation are expressly empowered to make, alter, amend or repeal
bylaws in the manner to be determined by the terms of the
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by-laws of the corporation then in existence, subject to the limitations
provided by the Act and the regulations issued by the Small Business
Administration thereunder
SEVENTH: The name and mailing address of the sole incorporator is
Charles H. Winkler
10 South LaSalle Street, Suite 800
Chicago, Illinois 60603
EIGHTH: The corporation shall have perpetual existence
NINTH: No contract or transaction between the corporation and one or more
of its directors or officers, or between the corporation and any other
corporation, partnership, association or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participants in the meeting of
the Board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes as counted for such purposes, if;
(a) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by a vote sufficient for such purpose without counting the vote of
the interested director or directors; or
(b) The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by the vote of the stockholders; or
(c) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders.
Interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
TENTH: (a) The corporation shall 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, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
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 (including attorneys'
fees), 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 so
the best interests of the corporation, and, with respect to any criminal action
or
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proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or pleas of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner
which 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
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor 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
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit 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 except that no indemnification shall
be made in respect of 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 of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
of Delaware or such other court shall deem proper.
(c) Without limiting the generality of the provisions of paragraphs (a)
and (b) of this Article, to the extent that any person referred to therein has
been successful on the merits otherwise in defense of any action, suit or
proceeding referred to therein or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this Article
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum (as defined in the by-laws of the corporation) consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
(e) Expenses incurred 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
the specific case upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation.
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(f) The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those seeking Indemnification may be
entitled under any statute, by-law, agreement, vote of stockholders of
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
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.
(g) The corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as
director, officer, employee or agent or another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this Article.
IN WITNESS WHEREOF, the undersigned, being the incorporator herein before
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware does hereby make this certificate,
declaring and certifying that the facts herein stated are true, and accordingly
has hereunto set his hand this _____ day of _______________, 1980.
/s/ Charles H. Winkler
Charles H. Winkler
9
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
WALNUT CAPITAL CORP.
October 8, 1997
Prepared by:
Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 W. Wacker Drive, Suite 2700
Chicago, Illinois 60606
<PAGE> 2
WALNUT CAPITAL CORP. BYLAWS
Table of Contents
<TABLE>
<S> <C>
ARTICLE I OFFICES..........................................................1
SECTION 1.1 PRINCIPAL OFFICES...........................................1
SECTION 1.2 OTHER OFFICES...............................................1
ARTICLE II MEETING OF STOCKHOLDERS..........................................1
SECTION 2.1 ANNUAL MEETING..............................................1
SECTION 2.2 SPECIAL MEETINGS............................................1
SECTION 2.3 NOTICE......................................................1
SECTION 2.4 STOCKHOLDER LIST............................................1
SECTION 2.5 QUORUM......................................................2
SECTION 2.6 VOTING......................................................2
SECTION 2.7 WRITTEN CONSENT.............................................2
ARTICLE III DIRECTORS........................................................3
SECTION 3.1 NUMBER.....................................................3
SECTION 3.2 VACANCIES..................................................3
SECTION 3.3 DUTIES OF DIRECTORS........................................3
SECTION 3.4 MEETINGS...................................................3
SECTION 3.5 REGULAR MEETINGS...........................................3
SECTION 3.6 SPECIAL MEETINGS...........................................3
SECTION 3.7 NOTICE.....................................................3
SECTION 3.8 QUORUM.....................................................4
SECTION 3.9 VOTING.....................................................4
SECTION 3.10 UNANIMOUS WRITTEN CONSENT..................................4
SECTION 3.11 COMMITTEES OF DIRECTORS....................................4
SECTION 3.12 RECORDS OF COMMITTEES......................................4
SECTION 3.13 COMPENSATION OF DIRECTORS..................................4
ARTICLE IV OFFICERS.........................................................5
SECTION 4.1 NUMBER.....................................................5
SECTION 4.2 ELECTION...................................................5
SECTION 4.3 COMPENSATION...............................................5
SECTION 4.4 TERM.......................................................5
SECTION 4.5 DUTIES OF OFFICERS.........................................5
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V CERTIFICATES OF STOCK............................................8
SECTION 5.1 DESCRIPTION.................................................8
SECTION 5.2 FACSIMILE OF SIGNATURE......................................8
SECTION 5.3 TRANSFER OF STOCK...........................................8
SECTION 5.4 REGISTERED STOCKHOLDERS.....................................9
ARTICLE VI GENERAL PROVISIONS................................................9
SECTION 6.1 DIVIDENDS...................................................9
SECTION 6.2 STATEMENTS AND REPORTS......................................9
SECTION 6.3 CHECKS AND NOTES............................................9
ARTICLE VII FISCAL YEAR......................................................9
ARTICLE VIII INDEMNIFICATION................................................10
SECTION 8.1 GENERAL....................................................10
SECTION 8.2 PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT
OF THE CORPORATION........................................10
SECTION 8.3 PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION..........10
SECTION 8.4 INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL.........................................10
SECTION 8.5 INDEMNIFICATION FOR EXPENSES OF A WITNESS..................11
SECTION 8.6 ADVANCEMENT OF EXPENSES....................................11
SECTION 8.7 PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION...........................................11
SECTION 8.8 PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.............12
SECTION 8.9 REMEDIES OF INDEMNITEE.....................................13
SECTION 8.10 NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION...............................................14
SECTION 8.11 SEVERABILITY..............................................15
SECTION 8.12 CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES...................................15
SECTION 8.13 LIMITATION FOR DISABLING CONDUCT...........................15
SECTION 8.14 DEFINITIONS................................................17
SECTION 8.15 NOTICES....................................................18
SECTION 8.16 MISCELLANEOUS..............................................18
ARTICLE IX AMENDMENTS.......................................................18
ARTICLE X NOTICE............................................................18
SECTION 10.1 NOTICE.....................................................18
SECTION 10.2 WAIVER OF NOTICE...........................................19
</TABLE>
ii
<PAGE> 4
BYLAWS
OF
WALNUT CAPITAL CORP.
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICES. The principal offices of the Corporation
shall be in the City of Dover, State of Delaware.
SECTION 1.2 OTHER OFFICES. The Corporation may also have offices at such
other place both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETING OF STOCKHOLDERS
SECTION 2.1 ANNUAL MEETING. The annual meeting of stockholders of the
Corporation shall be held on the second Tuesday in April, of each year if not a
legal holiday, or if a legal holiday, then on the next day that is not a legal
holiday, at 10:00 a.m., or at such other date and time as may be fixed by the
Board of Directors. Such meeting shall be within or without the State of
Delaware, at which meeting the stockholders shall elect by a plurality vote a
Board of Directors, and transact such other business as may properly be brought
before the meeting. If the election of directors shall not be held on the day
designated herein for any annual meeting, or any adjournment thereof, the Board
of Directors shall cause the election to be held at a meeting of the
stockholders as soon thereafter as may be convenient.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the President and shall be
called by the President or Secretary at the request in writing of a majority of
the Board of Directors or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at any special meeting
of stockholders shall be limited to the purposes stated in the notice.
SECTION 2.3 NOTICE. Written notice of the annual or special meeting
shall be given to each stockholder entitled to vote thereat, in person or by
mailing to him at his last known address, not less than 10 nor more than 60 days
before the date of meeting, unless such notice is waived in writing by each
stockholder entitled thereto.
SECTION 2.4 STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the Corporation shall, not less than 10 nor more than 60 days prior
to any election of directors, prepare a list of all stockholders of record (the
date of such list being hereafter referred to as the ("record
<PAGE> 5
date"), which list shall be in alphabetical order and shall show the
address and number of shares registered in the name of each such stockholder.
At such election, each stockholder of record on the record date shall be
entitled to vote the shares owned by him, as disclosed by such list,
irrespective of any transfers thereof subsequent to the record date. Such list
shall also govern the voting of shares; provided, however, that the Board of
Directors may, but shall not be required to, fix a new record date for any
adjourned meeting. Such list shall be open to the examination of any
stockholder or his duly authorized legal representative, during ordinary
business hours, for a period of at least 10 days prior to the election, either
at a place within the city, town or village where the election is to be held,
and which place shall be specified in the notice of the meeting, or, if not
specified, at the place where said meeting is to be held, and the list shall be
produced and kept at the time and place of election during the whole time
thereof, and shall be subject to the inspection of any stockholder who may be
present.
SECTION 2.5 QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have the power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be presented or represented, at which time any
business may be transacted which might have been transacted at the meeting as
originally notified. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express statutory provision or by
express provision of the certificate of incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
SECTION 2.6 VOTING. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from the date of such proxy, unless the proxy provides for a
longer period.
SECTION 2.7 WRITTEN CONSENT. Whenever the vote of stockholders at a
meeting thereof is required or permitted to be taken in connection with any
corporate action by any statutory provision or by any provision of the
certificate of incorporation or of these bylaws, such meeting and vote of
stockholders may be dispensed with if a majority of the stockholders who would
have been entitled to vote upon the action if such meeting were held shall
consent in writing to such corporate action being taken. Prompt notice of the
taking of any corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing,
as required by statutory provision.
2
<PAGE> 6
ARTICLE III
DIRECTORS
SECTION 3.1 NUMBER. The number of directors of the Corporation shall be
not less than 3, nor more than 9, as set forth by resolution of the Board of
Directors. The directors shall be elected at the annual or special
meeting of the stockholders (except as provided in Section 2 of this Article),
and each director elected shall hold office until his successor is elected and
qualified or until his or her earlier resignation or removal, in accordance
with Delaware General Corporation Law Section 141(k). The election shall be
decided by a majority vote. Directors need not be stockholders.
SECTION 3.2 VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced.
SECTION 3.3 DUTIES OF DIRECTORS. The business of the Corporation
shall be managed by or under the direction of its Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the certificate of incorporation or by these
bylaws directed or required to be exercised or done by the stockholders.
SECTION 3.4 MEETINGS. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
SECTION 3.5 REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held immediately following the annual meeting of the stockholders. In
the event such meeting is not held immediately following the annual meeting of
the stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors.
SECTION 3.6 SPECIAL MEETINGS. Special meetings of the board may be
called by the President with notice to each of the directors as provided in
Section 7 of Article III hereof; special meetings shall be called by the
President or Secretary in like manner and on like notice on the written request
of two directors.
SECTION 3.7 NOTICE. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall from time to time
be determined by the Board. Notice of meetings other than regular meetings
shall be given to each director, in person or by mailing or by telegram. Any
such notice shall be given to a director at his last known address not less
than 10 nor more than 60 days prior to the date designated therein for such
meeting, including the date of mailing, unless said notice is waived in writing
by such director. Said notice shall be written, specifying the time and place
of such meeting.
3
<PAGE> 7
SECTION 3.8 QUORUM. At all meetings of the Board of Directors, a
majority of the directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 3.9 VOTING. At all meetings of the Board of Directors, each
director is to have one vote, irrespective of the number of shares of stock
that he may hold.
SECTION 3.10 UNANIMOUS WRITTEN CONSENT. Unless otherwise restricted by
the certificate of incorporation or by these bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors, or any
committee thereof, may be taken without a meeting if all members of the board
or committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of the proceedings of the board or
committee.
SECTION 3.11 COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, except as
otherwise provided by statute, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, including the power and authority to declare
dividends, and may authorize the seal of the Corporation to be affixed to all
papers which may require it. Such committee or committees shall have such name
or names as may be determined from time to time by resolution adopted by the
Board of Directors.
SECTION 3.12 RECORDS OF COMMITTEES. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
SECTION 3.13 COMPENSATION OF DIRECTORS. Unless otherwise restricted by
the certificate of incorporation or by these bylaws, the Board of Directors
shall have the authority to fix the compensation of directors. The directors
may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and, subject to the above, may be paid a fixed sum for attendance
at each meeting of the Board of Directors or a stated salary as director. No
such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
4
<PAGE> 8
ARTICLE IV
OFFICERS
SECTION 4.1 NUMBER. The officers of the Corporation shall be chosen by
the Board of Directors and may be a President, a Vice-President, a Secretary
and a Treasurer. The Board of Directors may also choose one or more
Vice-Presidents, one or more Assistant Secretaries and Assistant Treasurers.
Any number of offices may be held by the same person. The Board of Directors
may appoint such other officers and agents as it shall deem necessary, who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board.
SECTION 4.2 ELECTION. The Board of Directors at its first meeting after
each annual meeting of stockholders shall elect a President, a Secretary and a
Treasurer.
SECTION 4.3 COMPENSATION. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors. Any payments made to or
on behalf of any officer of the Corporation (including but not limited to
salary, bonus, rent or reimbursement for expenses) shall be determined by the
Board of Directors in its sole discretion. In the event, however, that any
such payment, whether it shall be in the form of cash, kind or services, which,
subsequent to such payment, is finally determined either by any governmental
taxing authority (with the consent of the Corporation) or any court of
competent jurisdiction as not being a deductible expense by the Corporation for
purposes of computing such taxes, shall be repaid by such officer to the
Corporation to the extent disallowed. The Board of Directors and officers of
the Corporation shall take whatever action is necessary to enforce such
repayment. Each officer of the Corporation shall, upon his entering into
office, be formally notified of this bylaw by the Board of Directors of the
Corporation.
SECTION 4.4 TERM. The officers of the Corporation shall hold office
until their successors are chosen and qualify. Anything to the contrary herein
notwithstanding, any officer elected or appointed by the Board of Directors may
be removed at any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors.
SECTION 4.5 DUTIES OF OFFICERS. The duties and powers of the officers
shall be as follows:
Chairman of the Board
The Chairman of the Board of the Corporation shall be responsible for
formulating general policies and programs for the Corporation for submission to
the Board of Directors. The Chairman of the Board shall cause to be called
regular and special meetings of the stockholders and Board of Directors in
accordance with these bylaws and he shall preside at all such meetings. The
Chairman of the Board shall also have such other powers and duties as shall be
assigned to him by the Board of Directors.
5
<PAGE> 9
President
In the absence or disability of the Chairman of the Board, or in the event
for any reason it is impracticable for the Chairman of the Board to act
personally, the President shall have the powers and duties of the Chairman of
the Board. The President shall be the chief executive officer and the general
manager of the Corporation and shall, in general, be responsible for the
administration and operation of all of the business and affairs of the
Corporation and for carrying out the programs and policies approved by the
Board of Directors.
He shall present annually to the stockholders and directors a report of
the condition of the business of the Corporation.
He shall appoint and remove, employ and discharge, and fix the
compensation of all agents, employees, and clerks of the Corporation, within
the scope of his authority as general manager.
He shall sign and make all contracts and agreements in the name of the
Corporation, within the scope of his authority as general manager.
He shall see that the books, reports, statements and certificates required
by the statutes are properly kept, made and filed according to law.
He shall sign all certificates of stock, notes, drafts or bills of
exchange, warrants or other orders for the payments of money duly drawn by the
Treasurer.
He shall enforce these bylaws and perform all the duties incident to the
position and office, and which are required by law and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Vice-President
The Vice-President, if there shall be one, or if there shall be more than
one, the Vice-Presidents in the order determined by the Board of Directors (or
if there be no such determination, then in the order of their election), shall,
in the absence or disability of the Chairman of the Board and the President,
perform the duties and exercise all the powers of the Chairman of the Board, or
the President, and be subject to all the restrictions upon the Chairman of the
Board or the President. The Vice-Presidents shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
Secretary
The Secretary shall attend all meetings of the Board of Directors and all
meetings of the stockholders and record all the proceedings of the meetings of
the Corporation and of the Board of Directors in a book to be kept for that
purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or President,
under whose supervision he shall be. He shall have custody of the corporate
seal of the Corporation and he, or an Assistant Secretary, shall
6
<PAGE> 10
have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by his signature or by the signature of such
Assistant Secretary. He shall also perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe. The
Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature.
Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there be
no such determination, then in the order of their election), shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
Treasurer
The Treasurer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all monies and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors.
He 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 the Board of Directors at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
Treasurer and the financial condition of the Corporation.
If required by the Board of Directors, he shall give the Corporation and
maintain 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 office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
In the event there are no Vice-Presidents of the Corporation, the
Treasurer shall, in the absence of the Chairman of the Board and the President
or in the event of their inability to act, perform the duties of the Chairman
of the Board and the President, and when so acting shall have all the powers of
and be subject to all the restrictions upon the Chairman of the Board and the
President. In addition, the Treasurer shall perform such other duties and have
such other powers as the Board of Directors may from time to time prescribe.
Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there shall
be no such determination, then in the order of their election), shall, in the
absence or disability of the Treasurer, perform the duties and
7
<PAGE> 11
exercise the powers of the Treasurer and shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
ARTICLE V
CERTIFICATES OF STOCK
SECTION 5.1 DESCRIPTION. Every holder of stock in the Corporation shall
be entitled to have a certificate, signed by, or in the name of the Corporation
by, the President or a Vice-President, and countersigned by the Treasurer or
Assistant Treasurer, Secretary or Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation, and sealed
with the seal of the Corporation. If the Corporation shall be authorized to
issue more than one class of stock, or more than one series of any class, the
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class of stock; provided, however,
that except as otherwise provided in Section 202 of the General Corporation Law
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation will
furnish without charge to each stockholder who so requests, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
SECTION 5.2 FACSIMILE OF SIGNATURE. Where a certificate is signed (1) by
a transfer agent, or (2) by a transfer clerk, acting on behalf of the
Corporation and a registrar, the signature of any such President,
Vice-President, Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary may be facsimile. In case any officer or officers who have signed,
or whose facsimile signature or signatures have been used on any such
certificate or certificates, shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the
Corporation.
SECTION 5.3 TRANSFER OF STOCK. The stock of the Corporation,
irrespective of class, shall be assignable and transferable on the books of the
Corporation only by the person in whose name it appears on said books, or his
legal representatives. In case of transfer by attorney, the power of attorney,
duly executed and acknowledged shall be deposited with the Secretary. In all
cases of transfer, the former certificate must be surrendered up and canceled
before a new certificate be issued; however, in the event of loss, mutilation or
destruction of a certificate, a duplicate certificate may be issued upon such
terms as the Board of Directors shall prescribe. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignation or
authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel
8
<PAGE> 12
the old certificate and record the transaction upon its books, subject,
however, to any restrictions or limitations on the transfer thereof which may be
set forth in the certificate of incorporation or referred to on the certificate
so surrendered or which may be imposed by law or by any agreement to which the
holder of such shares is subject.
SECTION 5.4 REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote or take other action as
such owner, and to hold liable for calls and assessments a person registered on
its books as the owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1 DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum as the directors
from time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Corporation, or for such other purpose as the
directors shall think conducive to the interest of the Corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
SECTION 6.2 STATEMENTS AND REPORTS. The Board of Directors shall present
at each annual meeting, and at any special meeting of the stockholders when
called for by vote of the stockholders, a full and clear statement of the
business and condition of the Corporation.
SECTION 6.3 CHECKS AND NOTES. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such other
persons as the Board of Directors may from time to time designate.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
9
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 GENERAL. The Corporation shall indemnify, and advance
Expenses (as hereinafter defined) to, any Indemnitee (as hereinafter defined)
as provided in this Article and to the fullest extent permitted by applicable
law.
SECTION 8.2 PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 8.2 if, by reason of his Corporate Status (as
hereinafter defined), he is, or is threatened to be made, a party to any
threatened, pending, or completed Proceeding (as hereinafter defined), other
than a Proceeding by or in the right of the Corporation. Pursuant to this
Section 8.2, Indemnitee shall be indemnified against Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal Proceeding, had no reasonable
cause to believe his conduct was unlawful.
SECTION 8.3 PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 8.3 if, by reason of his Corporate Status, he is, or is threatened to be
made, a party to any threatened, pending or completed Proceeding brought by or
in the right of the Corporation to procure a judgment in its favor. Pursuant to
this Section, Indemnitee shall be indemnified against Expenses actually and
reasonably incurred by him or on his behalf in connection with such 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. Notwithstanding the
foregoing, no indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which Indemnitee shall have
been adjudged to be liable to the Corporation if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Corporation
in such event if and only to the extent that the Court of Chancery of the State
of Delaware, or the court in which such Proceeding shall have been brought or is
pending, shall determine.
SECTION 8.4 INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provision of this Article, to the
extent that Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, the
Corporation shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section and
without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
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SECTION 8.5 INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding
any other provision of this Article, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.
SECTION 8.6 ADVANCEMENT OF EXPENSES. The Corporation shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within 20 days after the receipt by the Corporation of a
statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the
Expenses incurred by Indemnitee and shall include or be preceded or accompanied
by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced
if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses.
SECTION 8.7 PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(a) To obtain indemnification under this Article, Indemnitee shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the Board of
Directors in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the
first sentence of Section 8.7(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto shall be made
in the specific case: (i) if a Change in Control (as hereinafter defined)
shall have occurred by Independent Counsel (as hereinafter defined) (unless
Indemnitee shall request that such determination be made by the Board of
Directors or the stockholders, in which case by the person or persons or in the
manner provided for in clauses (ii) or (iii) of this Section 8.7(b)) in a
written opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee; (ii) if a Change of Control shall not have occurred, (A) by the
Board of Directors by a majority vote of a quorum consisting of Disinterested
Directors (as hereinafter defined), or (B) if such a quorum of Disinterested
Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee or
(C) by the stockholders of the Corporation; or (iii) as provided in Section
8.8(b); and, if it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within 10 days after such
determination.
Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee's entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or expenses (including
attorneys' fees and disbursements) incurred by Indemnitee in so cooperating
with the person, persons or entity making
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such determination shall be borne by the Corporation (irrespective of
the determination as to Indemnitee's entitlement to indemnification) and the
Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(c) In the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 8.7(b), the Independent
Counsel shall be selected as provided in this Section 8.7(c). If a Change of
Control shall not have occurred, the Independent Counsel shall be selected by
the Board of Directors, and the Corporation shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel, so
selected. If a Change in Control shall have occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board of Directors, in which event the preceding
sentence shall apply), and Indemnitee shall give written notice to the
Corporation advising it of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the Corporation, as the case may be, may, within
7 days after such written notice of selection shall have been given, deliver to
the Corporation or to Indemnitee, as the case may be, a written objection to
such selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 8.13, and the objection shall set forth with
particularity the factual basis of such assertion. If such written objection
is made, the Independent Counsel so selected may not serve as Independent
Counsel unless and until a court has determined that such objection is without
merit. If, within 20 days after submission by Indemnitee of a written request
for indemnification pursuant to Section 8.7(a) hereof, no Independent Counsel
shall have been selected and not objected to, either the Corporation or
Indemnitee may petition the Court of Chancery of the State of Delaware or other
court of competent jurisdiction for resolution of any objection which shall
have been made by the Corporation or Indemnitee to the other's selection of
Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the Court or by such other person as the Court shall
designate, and the person with respect to whom an objection is so resolved or
the person so appointed shall act as Independent Counsel under Section 8.7(b)
hereof. The Corporation shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in connection with
acting pursuant to Section 8.7(b) hereof, and the Corporation shall pay all
reasonable fees and expenses incident to the procedures of this Section 8.7(c),
regardless of the manner in which such Independent Counsel was selected or
appointed. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 8.9(a)(iii), Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
SECTION 8.8 PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) If a Change of Control shall have occurred, in making a
determination with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Article if Indemnitee has
submitted a request for indemnification in accordance with Section 8.7(a), and
the Corporation shall have the burden of proof to overcome that presumption in
connection with the making by any person, persons or entity of any
determination contrary to that presumption.
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(b) If the person, persons or entity empowered or selected under
Section 8.7 to determine whether Indemnitee is entitled to indemnification
shall not have made such determination within 60 days after receipt by the
Corporation of the request therefor, the requisite determination of entitlement
to indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable
law; provided, however, that such 60-day period may be extended for a
reasonable time, not to exceed an additional 30 days, if the person, persons or
entity making the determination with respect to entitlement to indemnification
in good faith requires such additional time for the obtaining or evaluation of
documentation and/or information relating thereto; and provided, further, that
the foregoing provisions of this Section 8.8(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 8.7(b) and if (A) within 15 days after receipt
by the Corporation of the request for such determination the Board of Directors
has resolved to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within 75 days after such
receipt and such determination is made thereat, or (B) a special meeting of
stockholders is called within 15 days after such receipt for the purpose of
making such determination, such meeting is held for such purpose within 60 days
after having been so called and such determination is made thereat, or (ii) if
the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8.7(b).
(c) The termination of any Proceeding or of any claim, issue or matter
therein by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided
in this Article) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner in which he reasonably believed to be in or not opposed
to the best interests of the Corporation or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that his conduct
was unlawful.
SECTION 8.9 REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to Section
8.7 that Indemnitee is not entitled to indemnification under this Article,
(ii) advancement of Expenses is not timely made pursuant to Section 8.6, (iii)
the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 8.7(b) and such determination shall not
have been made and delivered in a written opinion within 90 days after receipt
by the Corporation of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 8.5 within 10
days after receipt by the Corporation of a written request therefor, or (v)
payment of indemnification is not made within 10 days after a determination has
been made that Indemnitee is entitled to indemnification or such determination
is deemed to have been made pursuant to Section 8.8, Indemnitee shall be
entitled to an adjudication in an appropriate court of the State of Delaware,
or in any other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single arbitrator
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pursuant to the rules of the American Arbitration Association. Indemnitee
shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee first has
the right to commence such proceeding pursuant to this Section 8.9(a). The
Corporation shall not oppose Indemnitee's right to seek any such adjudication
or award in arbitration.
(b) In the event that a determination shall have been made pursuant
to Section 8.7 that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 8.9 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination. If
a Change of Control shall have occurred, in any judicial proceeding or
arbitration commenced pursuant to this Section 8.9 the Corporation shall have
the burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been
made pursuant to Section 8.7 or 8.8 that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 8.9,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statement not materially
misleading, or (ii) a prohibition of such indemnification under applicable law.
(d) The Corporation shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 8.9 that the
procedure and presumptions of this Article are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Article.
(e) In the event that Indemnitee, pursuant to this Section 8.9, seeks
a judicial adjudication of or an award in arbitration to enforce his rights
under or to recover damages for breach of, this Article, Indemnitee shall be
entitled to recover from the Corporation, and shall be indemnified by the
Corporation against, any and all expenses (of the types described in the
definition of Expenses in Section 8.13) actually and reasonably incurred by him
in such judicial adjudication or arbitration, but only if he prevails therein.
If it shall be determined in said judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the indemnification or
advancement of expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be
appropriately prorated.
SECTION 8.10 NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION.
(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Article shall not be deemed exclusive of any other
rights to which Indemnitee may at any time be entitled under applicable law,
the certificate of incorporation, these bylaws, any agreement between the
Corporation and any of its directors, officers, employees or agents, or
otherwise, a vote of stockholders or a resolution of directors or otherwise.
No amendment, alteration or repeal of this Article or of any provision hereof
shall be effective as to any Indemnitee with respect to any action taken or
omitted by such Indemnitee in his Corporate Status prior to such amendment,
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alteration or repeal. The provisions of this Article shall continue as
to an Indemnitee whose Corporate Status has ceased and shall inure to the
benefit of his heirs, executors and administrators.
(b) To the extent that the Corporation maintains an insurance policy or
policies providing liability insurance for directors, officers, employees,
agents or fiduciaries of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Corporation, Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies.
(c) In the event of any payment under this Article, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary
to enable the Corporation to bring suit to enforce such rights.
(d) The Corporation shall not be liable under this Article to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 8.11 SEVERABILITY. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Article (including without limitation, each portion of any
Section of this Article containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (b) to the fullest
extent possible, the provisions of this Article (including, without limitation,
each portion of any Section of this Article containing any such provision held
to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
SECTION 8.12 CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES. Notwithstanding any other provision of this Article,
no person shall be entitled to indemnification or advancement of Expenses under
this Article with respect to any Proceeding, or any claim therein, brought or
made by him against the Corporation.
SECTION 8.13 LIMITATION FOR DISABLING CONDUCT.
(a) Notwithstanding anything to the contrary in Article VIII hereof, the
Corporation may not indemnify any director or officer of the Corporation
against any liability, nor shall any director or officer of the Corporation by
exculpated from any liability, to the Corporation or its stockholders to which
such director or officer might otherwise be subject by reason of "disabling
conduct," as hereinafter defined. Accordingly, each determination with respect
to the permissibility of indemnification of a director or officer of the
Corporation because such director or officer has met the applicable standard of
conduct shall include a determination that the liability for which such
indemnification is sought did not arise by reason of such person's disabling
conduct. The determination required by this Section 8.13(a) may be based
on:
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(i) a final decision on the merits by a court or other body before
whom the action, suit or proceeding was brought that the person to be
indemnified was not liable by reason of disabling conduct; or
(ii) in the absence of such a decision, a reasonable determination,
based on a review of the facts, that the person to be indemnified was not
liable by reason of such person's disabling conduct, by (A) the vote of a
majority of a quorum of "disinterested, non-party directors," as hereinafter
defined, or (B) an independent legal counsel in a written opinion. In making
such determination, such disinterested, non-party directors or independent legal
counsel, as the case may be, may deem the dismissal of either a court action or
an administrative proceeding against the person to be indemnified, for
insufficiency of evidence of any disabling conduct with which he has been
charged, to provide reasonable assurance that such person was not liable by
reason of disabling conduct.
(b) For purposes of this S[ubs]ection:
(i) "disabling conduct" of a director or officer shall mean such
person's willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office,
or any other conduct prohibited by Section 17(h) of the Investment Company Act
of 1940, as amended (the "1940 Act") or any other applicable securities laws;
(ii) "disinterested, non-party director" shall mean a director of the
Corporation who is neither an "interested person" of the Corporation as defined
in Section 2(a)(19) of the 1940 Act nor a party to the action, suit or
proceeding in connection with which indemnification is sought; and
(iii) "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents.
(c) The Corporation may purchase insurance to cover the payment of costs
incurred in performing the Corporation's obligations under Section(s) 8.13
hereof, but no insurance may be obtained for the purpose of indemnifying any
disabling conduct.
(d) The Corporation may advance legal fees and other expenses pursuant to
the indemnification rights set forth in Section(s) 8.13 hereof, upon both the
undertaking by or on behalf of the person to be indemnified to repay the
advance unless it is ultimately determined that he is entitled to
indemnification and the occurrence of one of the following additional
conditions:
(i) the person to be indemnified shall provide a security for his
undertaking;
(ii) the Corporation shall be insured against losses arising by
reason of any lawful advances; or
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(iii) a majority of a quorum of the disinterested, non-party
directors of the Corporation, or an independent legal counsel in a written
opinion, shall determine, based on a review of the readily available facts (as
opposed to a full trial-type inquiry), that there is reason to believe that the
person to be indemnified ultimately will be found entitled to indemnification.
SECTION 8.14 DEFINITIONS. For purposes of this Article:
(a) "Change in Control" means a change in control of the
Corporation occurring after the Effective Date (as hereinafter defined) of a
nature that would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the Securities Exchange Act of 1934
(the "Act"), whether or not the Corporation is then subject to such reporting
requirement; provided, however, that, without limitation, such a Change in
Control shall be deemed to have occurred if after the Effective Date (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Corporation representing 25% or
more of the combined voting power of the Corporation's then outstanding
securities without the prior approval of at least two-thirds of the members of
the Board of Directors in office immediately prior to such person attaining
such percentage interest; (ii) the Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors in office immediately
prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the Corporation's stockholders was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of such period) cease for any reason to constitute
at least a majority of the Board of Directors.
(b) "Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Corporation or of any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which such person is or was serving at the request of the
Company.
(c) "Disinterested Director" means a director of the Corporation who is
not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(d) "Effective Date" means January 1, 1997.
(e) "Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, or being or preparing to be a witness in
a Proceeding.
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(f) "Indemnitee" includes any person who is, or is threatened to be made,
a witness in or a party to any Proceeding as described in Sections 8.2, 8.3,
8.4 or 8.5 by reason of his Corporate Status.
(g) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Corporation or
Indemnitee in any matter material to either such party, or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Corporation or Indemnitee in an action to determine Indemnitee's rights under
this Article.
(h) "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any
other proceeding whether civil, criminal, administrative or investigative,
except one initiated by an Indemnitee pursuant to Section 8.9 to enforce his
rights under this Article.
SECTION 8.15 NOTICES. Any notice, request or other communication required
or permitted to be given to the Corporation under this Article shall be in
writing and either delivered in person or sent by telex, telegram or certified
or registered mail, postage prepaid, return receipt requested, to the Secretary
of the Corporation and shall be effective only upon receipt by the Secretary.
SECTION 8.16 MISCELLANEOUS. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
ARTICLE IX
AMENDMENTS
These bylaws may be altered, amended or repealed, or new bylaws
may be adopted, at any regular meeting of the Board of Directors or at any
special meeting of the Board of Directors if notice of such alteration,
amendment, repeal, or adoption of new bylaws be contained in the notice of such
special meeting, without the necessity of a vote of the stockholders.
ARTICLE X
NOTICE
SECTION 10.1 NOTICE. Whenever, under any statutory provision or under the
provisions of the certificate of incorporation or these bylaws, notice is
required to be given to any director or
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stockholder, it shall not be construed to mean personal notice, but such
notice may also be given in writing, by first class United States mail, postage
prepaid, or by prepaid telegram and mail, addressed to such director or
stockholder at his address as it appears on the records of the Corporation, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail or, in the case of telegrams, when
transmitted.
SECTION 10.2 WAIVER OF NOTICE. Whenever any notice is required to be
given under any statutory provision or under the provisions of the certificate
of incorporation or these bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
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