sec document
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant /X/
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Check the appropriate box:
/X/ Preliminary Proxy Statement
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Rule 14a-6(e)(2))
/ / Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to ss. 240.14a-12
The LGL Group, Inc.
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THE LGL GROUP, INC.
140 GREENWICH AVE, 4TH FLOOR
GREENWICH, CONNECTICUT 06830
NOTICE OF THE 2007 ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD AUGUST 15, 2007
July 13, 2007
To the Shareholders of The LGL Group, Inc.:
NOTICE IS HEREBY GIVEN that the 2007 Annual Meeting of Shareholders (the
"2007 Annual Meeting") of The LGL Group, Inc., an Indiana corporation (the
"Corporation"), will be held at The Greenwich Library, 101 West Putnam Avenue,
Greenwich, Connecticut on Wednesday, August 15, 2007, at 9:30 a.m. for the
following purposes:
1. To elect nine directors to serve until the 2008 Annual Meeting of
Shareholders and until their successors are duly elected and
qualify;
2. To consider and approve a proposal to reincorporate the Corporation
in the State of Delaware;
3. To ratify the appointment of Ernst & Young LLP as the Corporation's
independent auditors for the fiscal year ending December 31, 2007;
and
4. To transact such other business as may properly come before the 2007
Annual Meeting of Shareholders or any adjournments thereof.
Information relating to the above matters is set forth in the attached
Proxy Statement. As determined by the Board of Directors, only shareholders of
record at the close of business on July 2, 2007 are entitled to receive notice
of, and to vote at, the 2007 Annual Meeting and any adjournments thereof.
THE BOARD OF DIRECTORS ENCOURAGES ALL SHAREHOLDERS TO PERSONALLY ATTEND
THE 2007 ANNUAL MEETING. YOUR VOTE IS VERY IMPORTANT REGARDLESS OF THE NUMBER OF
SHARES YOU OWN. WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING, WE
ENCOURAGE YOU TO READ THIS PROXY STATEMENT AND SUBMIT YOUR PROXY CARD IN THE
ENCLOSED POSTAGE-PAID ENVELOPE AS SOON AS POSSIBLE IN ORDER TO INSURE THAT YOUR
SHARES OF COMMON STOCK WILL BE REPRESENTED AT THE 2007 ANNUAL MEETING. YOUR
COOPERATION IS GREATLY APPRECIATED.
By Order of the Board of Directors
/s/ Steve Pegg
----------------------------------
Steve Pegg
SECRETARY
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THE LGL GROUP, INC.
140 GREENWICH AVENUE, 4TH FLOOR
GREENWICH, CONNECTICUT 06830
PROXY STATEMENT
This Proxy Statement is furnished by the Board of Directors of The LGL
Group, Inc. (the "Corporation") in connection with the solicitation of proxies
for use at the 2007 Annual Meeting of Shareholders (the "2007 Annual Meeting")
to be held at The Greenwich Library, 101 West Putnam Avenue, Greenwich,
Connecticut on Wednesday, August 15, 2007, at 9:30 a.m. and any adjournments
thereof. This Proxy Statement and the accompanying proxy are first being mailed
to shareholders on or about July 13, 2007.
SUMMARY OF THE REINCORPORATION PROPOSAL
The Board of Directors of the Corporation proposes, in Proposal 2 below,
to reincorporate the Corporation in the State of Delaware. Currently, the
Corporation is an Indiana corporation. This summary highlights selected
information about the reincorporation proposal and may not contain all of the
information that is important to you. To better understand the reincorporation
proposal and for a complete description of the legal terms of the
reincorporation, you should read this entire proxy statement carefully, as well
as those additional documents to which we have referred you.
PRINCIPAL TERMS
o In order to reincorporate as a Delaware corporation, the
Corporation will organize a Delaware corporation and will own all
of its stock. The Corporation will then merge into its new
Delaware subsidiary, and the Delaware corporation will be the
corporation that survives the merger (the "Reincorporation
Merger"). The surviving corporation's name will remain "The LGL
Group, Inc." ("LGL Delaware"). The form of Merger Agreement is
included as EXHIBIT A to this Proxy Statement.
o LGL Delaware will succeed to all of the rights, properties and
assets and assume all of the liabilities of the Corporation, which
will cease to exist as a result of the Reincorporation Merger. The
principal offices, business, management and capitalization of LGL
Delaware will be the same as those of the Corporation.
o Upon the effectiveness of the Reincorporation Merger, every one
share of the common stock of the Corporation, par value $0.01 (the
"Common Stock"), will automatically be converted into one share of
common stock of LGL Delaware. The existing stock certificates of the
Corporation will serve as valid stock certificates for LGL Delaware
until replaced.
o As an Indiana corporation, the Corporation is governed by the
Indiana Business Corporation Law ("IBCL") and its Articles of
Incorporation ("Present Articles of Incorporation") and By-Laws
("Present By-Laws"). Following the Reincorporation Merger, LGL
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Delaware will be governed by the Delaware General Corporation Law
("DGCL") and the terms of its Certificate of Incorporation ("New
Certificate of Incorporation") and its By-Laws ("New By-Laws"),
which are attached hereto as EXHIBIT B and EXHIBIT C,
respectively. Because there are differences between the DGCL and
the IBCL and corresponding differences between the Present
Articles of Incorporation and Present By-Laws as compared to the
New Certificate of Incorporation and New By-Laws, the
Reincorporation Merger will result in some differences in the
rights of stockholders. These differences are discussed below.
o Although your rights as a stockholder of LGL Delaware will be
governed by the laws of the State of Delaware, the New Certificate
of Incorporation and New By-Laws of LGL Delaware will be
substantially the same as the Present Articles of Incorporation and
Present By-Laws of the Corporation.
RECOMMENDATION OF THE CORPORATION'S BOARD
o The Board of Directors has unanimously approved the proposed
reincorporation of the Corporation in the State of Delaware and has
determined that the reincorporation is in the best interests of the
Corporation's shareholders. The Board of Directors unanimously
recommends that you vote FOR the reincorporation proposal.
VOTE REQUIRED/CONDITIONS
o No action may be taken on any matter to be acted upon at the meeting
unless a quorum is present with respect to that matter. For each
matter to be acted upon at the meeting, a quorum consists of a
majority of the votes entitled to be cast by the holders of all
shares of Common Stock outstanding on the Record Date for the
meeting. The proposed reincorporation must be approved by a majority
of the outstanding shares of Common Stock.
o Notwithstanding the above, before the reincorporation becomes
effective, the Board of Directors may decide not to cause the
reincorporation to occur if, for any reason, the Board of Directors
determines that the reincorporation is no longer in the best
interests of the Corporation.
FINANCIAL CONDITION OF LGL DELAWARE
o Prior to the consummation of the Reincorporation Merger, LGL
Delaware will have no material assets and no business operations and
will be formed solely for the purpose of the reincorporation.
o Upon consummation of the Reincorporation Merger, LGL Delaware will
succeed to all of the rights, properties and assets and assume all
of the liabilities of the Corporation by operation of law, and its
financial statements will be substantially identical to the
Corporation's financial statements, the only difference being those
appropriate to reflect the Corporation's new corporate identity.
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DISSENTERS' RIGHTS NOT AVAILABLE
o Dissenters' rights will not be available to shareholders who dissent
from the Reincorporation Merger.
GENERAL INFORMATION
HOW TO VOTE
o No action may be taken on any matter to be acted upon at the meeting
unless a quorum is present with respect to that matter. For each
matter to be acted upon at the meeting, a quorum consists of a
majority of the votes entitled to be cast by the holders of all
shares of Common Stock outstanding on the Record Date for the
meeting.
o Shares held directly in your name as the "Shareholder of Record" may
be voted in person at the 2007 Annual Meeting. If you choose to do
so, please bring the enclosed proxy card or proof of identification.
Even if you currently plan to attend the 2007 Annual Meeting, we
recommend that you submit your proxy as described below so that your
vote will be counted if you later decide not to attend the meeting.
Shares held in street name may be voted in person by you only if you
obtain a signed proxy from the record holder giving you the right to
vote the shares.
o Whether you hold shares directly as the shareholder of record or
beneficially in street name, you may direct your vote without
attending the meeting. You may vote by granting a proxy or, for
shares held in street name, by submitting voting instructions to
your broker or nominee. Please refer to the instructions included on
your proxy card or, for shares held in street name, the voting
instruction card included by your broker or nominee.
o Only shareholders of record at the close of business on July 2, 2007
are entitled to notice of, and to vote at, the 2007 Annual Meeting.
As of the close of business on such date, 2,154,702 shares of Common
Stock were outstanding and eligible to be voted by their holders.
Each share of Common Stock is entitled to one vote on each matter
submitted to shareholders. Where specific instructions are given in
the proxy, the proxy will be voted in accordance with such
instructions. If no such instructions are given, the proxy will be
voted FOR the nominees for director named below, FOR approval of a
change of the Corporation's state of incorporation, and FOR
ratification of the appointment of the Corporation's independent
auditors and in the discretion of the proxies with respect to any
other matter that is properly brought before the 2007 Annual
Meeting.
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o Under the laws of Indiana (the Corporation's current domicile),
abstentions and broker non-votes are not counted for purposes of
determining whether a proposal has been approved, but will be
counted for purposes of determining whether a quorum is present. A
broker non-vote occurs when a bank, broker or other nominee holding
shares for a beneficial owner does not receive voting instructions
from the beneficial owner on a particular matter and the nominee
cannot vote the shares under American Stock Exchange ("AMEX") rules.
REVOKING YOUR PROXY
o You may revoke your proxy at any time before it is voted at the 2007
Annual Meeting by any one of the following actions: (1) executing
and returning a proxy bearing a later date to the Corporation's
Secretary at the Corporation's principal offices; (2) giving notice
of such revocation to the Corporation's Secretary; or (3) by
attending the 2007 Annual Meeting and voting in person.
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of July 2, 2007, certain information
with respect to all persons known to the Corporation to own beneficially more
than 5% of the Common Stock, which is the only class of voting stock of the
Corporation outstanding. The table also sets forth information with respect to
the Common Stock beneficially owned by each of the Directors and named executive
officers and by all Directors and executive officers as a group. The number of
shares beneficially owned is determined under rules of the Securities and
Exchange Commission (the "SEC"). Under such rules, beneficial ownership includes
any shares as to which a person has sole or shared voting or investment power or
any shares that such person can acquire within 60 days (e.g., through exercise
of stock options or conversion of securities). Except as otherwise indicated,
the shareholders listed in the table have sole voting and investment power with
respect to the Common Stock indicated. The following information is reflected in
filings with the SEC.
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Amount and Nature
Name and Address of of Beneficial Percent of
Beneficial Owner (1) Ownership Class (2)
------------------------------------------------------------- ----------------- ----------
Marc Gabelli ................................................ 528,383(3) 24.5%
Mario J. Gabelli ............................................ 366,874(4) 17.0%
Bulldog Investors, Phillip Goldstein and Andrew Dakos ....... 143,199(5) 6.6%
Jeremiah M. Healy ........................................... 10,000(6) *
Steve Pegg .................................................. 10,000(7) *
Robert R. Zylstra ........................................... 10,400(8) *
E. Val Cerutti .............................................. 1,445(9) *
Peter DaPuzzo ............................................... 9,000 *
Timothy Foufas .............................................. 0 *
Avrum Gray .................................................. 13,385(10) *
Patrick J. Guarino .......................................... 2,000 *
Kuni Nakamura ............................................... 1,000(11) *
Anthony R. Pustorino ........................................ 3,004 *
Javier Romero ............................................... 0 *
All Directors and executive officers as a
group (11 in total) ......................................... 588,617(12) 27.3%
------------
* Represents holdings of less than 1%
(1) Unless otherwise indicated, the address of each holder of more than 5% of
the Common Stock is 401 Theodore Fremd Ave., Rye, New York 10580-1430.
(2) The applicable percentage of ownership for each beneficial owner is based
on 2,154,702 shares of Common Stock outstanding as of July 2, 2007. Shares
of Common Stock issuable upon exercise of options, warrants or other
rights beneficially owned that are exercisable within 60 days are deemed
outstanding for the purpose of computing the percentage ownership of the
person holding such securities and rights but are not deemed outstanding
for computing the percentage ownership of any other person.
(3) Includes (i) 1,504 shares of Common Stock owned directly by Marc Gabelli
and (ii) 506,879 shares beneficially owned by Venator Fund and Venator
Global, LLC ("Venator Global") and 20,000 shares issuable upon the
exercise of options held by Marc Gabelli at a $13.173 per share exercise
price. Venator Global, which is the sole general partner of Venator Fund,
is deemed to have beneficial ownership of the securities owned
beneficially by Venator Fund. Marc Gabelli is the President of Venator
Global.
(4) Includes (i) 244,396 shares of Common Stock owned directly by Mario J.
Gabelli (including 8,903 held for the benefit of Mario J. Gabelli under
the Lynch Interactive Corporation 401(k) Savings Plan); (ii) 1,203 shares
owned by a charitable foundation of which Mario J. Gabelli is a trustee;
(iii) 96,756 shares owned by a limited partnership in which Mario J.
Gabelli is the general partner and has an approximate 5% interest; and
(iv) 24,519 shares owned by Lynch Interactive Corporation, of which Mario
J. Gabelli is Chairman and the beneficial officer of approximately 24% of
the outstanding common stock. Mario J. Gabelli disclaims beneficial
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ownership of the shares owned by such charitable foundation, by Lynch
Interactive Corporation and by such limited partnership, except to the
extent of his 5% interest in such limited partnership.
(5) Based solely on information contained in a report on Schedule 13D/A filed
with the SEC on June 5, 2007 by Bulldog Investors, Phillip Goldstein and
Andrew Dakos. Mr. Goldstein and Mr. Dakos are investment advisors and
principals of Bulldog Investors. The address of Bulldog Investors and
Phillip Goldstein is 60 Heritage Drive, Pleasantville, NY 10570. The
address of Andrew Dakos is Park 80 West, Plaza Two, Saddle Brook, NJ
07663.
(6) Represents 10,000 shares of restricted stock granted under the
Corporation's 2001 Equity Incentive Plan.
(7) Represents 10,000 shares of restricted stock granted under the
Corporation's 2001 Equity Incentive Plan.
(8) Includes (i) 10,000 shares of restricted stock granted under the
Corporation's 2001 Equity Incentive Plan and (ii) 400 shares jointly owned
with Mr. Zylstra's wife, with whom he shares voting and investment power.
(9) 1,445 shares are jointly owned with Mr. Cerutti's wife, with whom he
shares voting and investment power.
(10) Includes (i) 5,114 shares owned by Mr. Gray; (ii) 751 shares owned by a
partnership of which Mr. Gray is the general partner; (iii) 2,407 shares
owned by a partnership of which Mr. Gray is one of the general partners;
(iv) 2,105 shares owned by Mr. Gray's wife; and (v) 3,008 shares owned by
a partnership of which Mr. Gray's wife is one of the general partners.
(11) These shares are jointly owned with Mr. Nakamura's wife, with whom he
shares voting and investment power.
(12) Includes an aggregate of 20,000 shares issuable upon exercise of options
held by all Directors and executive officers as a group.
PROPOSAL NO. 1
ELECTION OF DIRECTORS
Nine directors are to be elected at the 2007 Annual Meeting to serve until
the 2008 Annual Meeting and until their successors are duly elected and qualify.
Except where authority to vote for directors has been withheld, it is intended
that the proxies received pursuant to this solicitation will be voted FOR the
nominees named below. If for any reason any nominee does not stand for election,
such proxies will be voted in favor of the remainder of those named and may be
voted for substitute nominees in place of those who do not stand. Management,
however, has no reason to expect that any of the nominees will be not stand for
election. The election of directors shall be determined by a plurality of the
votes cast.
The by-laws of the Corporation provide that the Board of Directors shall
consist of no fewer than five and no more than 13 members. Each of the nine
nominees currently serves as a director of the Corporation. Biographical
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summaries and ages of the nominees as of July 2, 2007 are set forth below. Data
with respect to the number of shares of Common Stock beneficially owned by each
of the nominees is set forth under the caption "Security Ownership of Certain
Beneficial Owners and Management" herein. All such information has been
furnished to the Corporation by the nominees.
Offices and Positions Held
With the Corporation,
Business Experience and
Principal Occupation for
Last Five Years,
Served as and Directorships in Public
Director Corporations and
Name Age From Investment Companies
------------------------- --- --------- --------------------------------
Marc Gabelli 39 2003 Chairman of the Corporation
(September 2004 to present);
Managing director (1996 to 2004)
and President (2004 to present),
GGCP, Inc., a private
corporation that makes
investments for its own account
and the parent company of GAMCO
Investors, Inc., a NYSE listed
provider of financial advisory
services; President of Gemini
Capital Management LLC;
President of the general partner
of Venator Merchant Fund, LP.
E. Val Cerutti 66 1990 Business Consultant (1992 to
present); Consulting Vice
Chairman (2006 to present) and
President and Chief Operating
Officer (1975 to 1992), Stella
D'Oro Biscuit Co., Inc.,
producer of bakery products;
Director or Trustee of four
registered investment companies
included within the Gabelli
Funds Mutual Fund Complex (1990
to present); Director, Approach,
Inc. (1999 to 2005), a private
company providing computer
consulting services; former
Chairman of Board of Trustees,
Fordham Preparatory School.
Peter DaPuzzo 67 2006 Retired; Senior Managing
Director, Cantor Fitzgerald LP
(2002 to 2005); Co-President and
CEO, Cantor Fitzgerald and
Company, the equity
institutional sales and trading
division of Cantor Fitzgerald LP
(1993 to 2002); former Chairman,
the National Organization of
Investment Professionals, a
professional group of
institutional and broker dealer
senior managers; member, the
Presidential Advisory Committee
to the President of Security
Traders Association of New York;
member and past Chairman, the
Securities Industry Association
- Institutional Traders
Committee; member of the
Advisory Committee to the Board
of Directors, the Shelter for
the Homeless in Stamford, CT;
member, the National
Italian-American Business
Council; member, the Greenwich
Roundtable.
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Timothy Foufas 38 2007 Managing Partner, Plato Foufas &
Co. (2005 to present), a
financial services company;
President, Levalon Properties
(2007 to present), a real estate
property management company;
Senior Vice President, Bayshore
Management Co. (2005 to 2006);
Director of Investments, Liam
Ventures (2000 to 2005), a
private equity investment firm.
Avrum Gray 71 1999 Chairman and Chief Executive
Officer, G-Bar Limited
Partnership and affiliates (1982
to present), proprietary
computer based derivative
arbitrage trading companies;
Chairman of the Board, Lynch
Systems, Inc., (1997 to 2001);
Director, Nashua Corp. (2001 to
present), a NASDAQ listed
manufacturer of paper products
and labels; Director, SL
Industries, Inc. (2001 to
present), an American Stock
Exchange listed manufacturer of
power and data quality equipment
and systems; Director, Material
Sciences Corporation (2003 to
present), a NYSE listed provider
of material-based solutions for
electronic, acoustical, thermal
and coated metal applications;
Director, Lynch Interactive
Corporation (2006 to present),
an operator of independent
telephone companies and
television stations; member,
Illinois Institute of Technology
Financial Markets and Trading
Advisory Board; former member,
Illinois Institute of Technology
Board of Overseers MBA Program;
former Chairman, Chicago
Presidents Organization; former
Chairman of the Board of
Trustees, Spertus College;
former Presidential Appointee to
The U.S. Dept. of Commerce ISAC
16.
Patrick J. Guarino 64 2006 Business Consultant (2005 to
present); Managing Partner of
Independent Board Advisory
Services, LLC (2002 to 2005), a
corporate governance consulting
firm; Executive Vice President,
Ultramar Diamond Shamrock
Corporation (1996 to 2000), a
NYSE, Fortune 200, international
petroleum refining and marketing
company; Senior Vice President
and General Counsel, Ultramar
Corporation (1992 to 1996) a
NYSE, Fortune 200, international
petroleum and marketing company;
Senior Vice President and
General Counsel of Ultramar PLC,
(1986 to 1992), a London Stock
Exchange listed international,
integrated oil company.
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Kuni Nakamura 38 2007 President, Advanced Polymer,
Inc. (1990 to present), a
privately held chemical
manufacturer and distributor.
Anthony R. Pustorino, CPA 81 2002 Retired; Professor Emeritus,
Pace University (2001 to
present); Professor of
Accounting, Pace University
(1965 to 2001); former Assistant
Chairman, Accounting Department,
Pace University; President and
Shareholder, Pustorino, Puglisi
& Co., P.C., CPAs (1961 to
1989); Instructor, Fordham
University (1961-1965);
Assistant Controller,
Olivetti-Underwood Corporation
(1957 to 1961); CPA, Peat,
Marwick, Mitchell & Co., CPAs
(1953 to 1957); former Chairman,
Board of Directors, New York
State Board for Public
Accountancy; former Chairman,
CPA Examination Review Board of
National Association of State
Boards of Accountancy; former
member, Council of American
Institute of Certified Public
Accountants; former Vice
President, Treasurer, Director
and member, Executive Committee
of New York State Society of
Certified Public Accountants;
current Director or Trustee of
fourteen registered investment
companies included within the
Gabelli Funds Mutual Fund
Complex.
Javier Romero 34 2007 Head of Corporate Finance &
Strategy practice (2000 to
present), Arthur D. Little, a
consulting firm; International
Consultant for the World Bank in
Washington DC (1999 to 2000);
attorney, Arthur Andersen Law
Firm, based in Spain and
specializing in corporate law
(1996 to 1998).
TRANSACTIONS WITH RELATED PERSONS, PROMOTERS AND CERTAIN CONTROL PERSONS
For the fiscal year ended December 31, 2006, there were no transactions
that were required to be described under Item 404(a) of Regulation S-K
promulgated by the SEC. All transactions between the Corporation and any of its
officers, directors, director nominees, principal stockholders or their
immediate family members are to be approved by a majority of its independent and
disinterested directors, and are to be on terms no less favorable to it than it
could obtain from unaffiliated third parties. Such policy and procedures are set
forth in a resolution of the Board of Directors.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires
the Corporation's directors, executive officers and holders of more than 10% of
the Corporation's Common Stock to file with the SEC and the AMEX initial reports
of ownership and reports of changes in the ownership of Common Stock and other
equity securities of the Corporation. Such persons are required to furnish the
Corporation with copies of all Section 16(a) filings.
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Based solely upon a review of the copies of the forms furnished to the
Corporation, the Corporation believes that its officers and directors complied
with all applicable filing requirements during the 2006 fiscal year, except as
noted below:
On January 23, 2006, Anthony R. Pustorino filed a Statement of Changes in
Beneficial Ownership of Securities on Form 4 covering one transaction that
occurred on January 12, 2006.
On May 1, 2006, Eugene C. Hynes filed an Annual Statement of Changes in
Beneficial Ownership of Securities on Form 5 covering one stock option grant
that occurred on May 26, 2005.
On May 1, 2006, Marc Gabelli filed an Annual Statement of Changes in
Beneficial Ownership of Securities on Form 5 covering one stock option grant
that occurred on May 26, 2005.
On May 1, 2006, John C. Ferrara filed an Annual Statement of Changes in
Beneficial Ownership of Securities on Form 5 covering one stock option grant
that occurred on May 26, 2005.
VOTES REQUIRED
Each director receiving a plurality of affirmative votes will be elected.
You may withhold votes from any or all nominees. Except for the votes that
shareholders of record withhold from any or all nominees, the persons named in
the proxy card will vote such proxy FOR the nominees.
RECOMMENDATION OF THE BOARD OF DIRECTORS
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ELECTION OF ITS
NOMINEES FOR THE BOARD OF DIRECTORS TO SERVE UNTIL THE 2008 ANNUAL MEETING OF
SHAREHOLDERS AND UNTIL THEIR SUCCESSORS ARE DULY ELECTED AND QUALIFY.
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CORPORATE GOVERNANCE
The Board of Directors met on four occasions during the year ended
December 31, 2006. Each of the directors attended at least 75% of the aggregate
of (i) the total number of meetings of the Board of Directors (held during the
period for which he was a director); and (ii) the total number of meetings held
by all committees of the Board of Directors on which he served (during the
periods that he served). All five members of the Board of Directors nominated
for reelection at last year's annual meeting of the Corporation's shareholders
attended such meeting. The Board of Directors has three committees, the
principal duties of which are described below.
AUDIT COMMITTEE: The members of the Audit Committee are Messrs. Pustorino
(Chairman), Cerutti, DaPuzzo and Gray. The Board of Directors has determined
that all audit committee members are financially literate and independent under
the current listing standards of the AMEX. Mr. Pustorino serves as Chairman and
qualifies as an "audit committee financial expert." The Audit Committee met four
times during 2006. The Audit Committee operates in accordance with its charter,
which is available on our website at WWW.LGLGROUP.COM. The charter gives the
Audit Committee the authority and responsibility for the appointment, retention,
compensation and oversight of our independent auditors, including pre-approval
of all audit and non-audit services to be performed by our independent auditors.
The Audit Committee also reviews the independence of the independent auditors,
reviews with management and the independent auditors the annual financial
statements prior to their filing with the SEC, reviews the report by the
independent auditors regarding management procedures and policies and determines
whether the independent auditors have received satisfactory access to the
Corporation's financial records and full cooperation of corporate personnel in
connection with their audit of the Corporation's records. The Audit Committee
also reviews the Corporation's financial reporting process on behalf of the
Board of Directors, reviews the financial information issued to shareholders and
others, including a discussion of the quality, not just the acceptability, of
the accounting principles; the reasonableness of significant judgments; and the
clarity of discussions in the financial statements, and monitors the systems of
internal control and the audit process. Management has primary responsibility
for the financial statements and the reporting process. See "Report of the Audit
Committee" herein.
COMPENSATION COMMITTEE: The members of the Compensation Committee are
Messrs. Guarino (Chairman), Cerutti, DaPuzzo and Gray. All members of the
Compensation Committee are "independent" in accordance with AMEX rules. The
Compensation Committee met two times during 2006. The responsibilities of the
Compensation Committee are to review and approve compensation and benefits
policies and objectives, determine whether the Corporation's officers and
directors are compensated in accordance with these policies and objectives and
carry out the Board of Directors' responsibilities relating to compensation of
the Corporation's executives. The Compensation Committee Charter is available at
WWW.LGLGROUP.COM.
NOMINATING COMMITTEE: The members of the Nominating Committee are Messrs.
DaPuzzo (Chairman), Gray and Pustorino. All members of the Nominating Committee
are "independent" in accordance with the AMEX rules. The Nominating Committee
met one time during 2006. The responsibilities of the Nominating Committee are
to identify individuals qualified to become Board members and recommend that the
Board select director nominees for the annual meetings of shareholders. The
Nominating Committee Charter is available at www.lglgroup.com.
14
In evaluating and determining whether to nominate a candidate for a
position on the Board of Directors, the Nominating Committee utilizes a variety
of methods and considers criteria such as high professional ethics and values,
relevant management and/or manufacturing experience and a commitment to
enhancing shareholder value. Candidates may be brought to the attention of the
Nominating Committee by current Board members, shareholders, officers or other
persons. The Nominating Committee will review all candidates in the same manner
regardless of the source of the recommendation.
The Nominating Committee will consider nominees recommended by
shareholders when properly submitted. Shareholder recommendations should include
the nominee's name, the nominee's business and professional experience and
membership on other boards sufficient to demonstrate qualifications to serve on
the Corporation's Board of Directors and the shareholder's name and address.
Shareholder recommendations should be addressed to Corporate Secretary, The LGL
Group, Inc., 140 Greenwich Ave, 4th Floor, and Greenwich, Connecticut 06830. For
purposes of potential nominees to be considered at the 2008 Annual Meeting of
Shareholders, the Corporate Secretary must receive this information by February
4, 2008.
Shareholders may communicate with the Board of Directors, including the
non-management directors, by sending an e-mail to SPEGG@LGLGROUP.COM or by
sending a letter to The LGL Group, Inc., 140 Greenwich Ave, 4th Floor,
Greenwich, Connecticut 06830, attention: Corporate Secretary. The Corporate
Secretary will submit such correspondence to the Chairman of the Board or to any
specific director to whom the correspondence is directed.
CODE OF ETHICS: The Corporation has adopted a code of ethics as part of
its Amended and Restated Business Conduct Policy, which applies to all employees
of the Corporation including its principal executive, financial and accounting
officers. The Amended and Restated Business Conduct Policy is available at
WWW.LGLGROUP.COM.
REPORT OF THE AUDIT COMMITTEE
The Audit Committee has reviewed and discussed the consolidated financial
statements for the fiscal year ended December 31, 2006 with both management and
Ernst & Young LLP, the Corporation's independent auditors for the fiscal year
ended December 31, 2006. In its discussion, management has represented to the
Audit Committee that the Corporation's consolidated financial statements for the
fiscal year ended December 31, 2006 were prepared in accordance with generally
accepted accounting principles.
The Audit Committee meets with our independent auditors, with and without
management present, to discuss the results of their examinations, the
evaluations of the Corporation's internal controls and the overall quality of
the Corporation's financial reporting. The Audit Committee discussed with the
independent auditors, matters required to be discussed by Codification of
Statements on Auditing Standards No. 61 (Communication with Audit Committees).
15
The Corporation's independent auditors also provided to the Committee the
written disclosures and the letter required by Independence Standards Board
Standard No. 1 (Independence Discussions with Audit Committees), and the Audit
Committee has considered and discussed with Ernst & Young the firm's
independence and the compatibility of the non-audit services provided by the
firm with its independence.
Based on the Audit Committee's review of the audited financial statements
and the various discussions noted above, the Audit Committee recommended that
the Board of Directors include the audited consolidated financial statements in
the Corporation's Annual Report on Form 10-K for the year ended December 31,
2006, and the Board has approved this recommendation.
AUDIT COMMITTEE
Anthony R. Pustorino (Chairman)
E. Val Cerutti
Peter DaPuzzo
Avrum Gray
EXECUTIVE COMPENSATION
COMPENSATION DISCUSSION AND ANALYSIS
OVERVIEW
The Compensation Committee of the Board of Directors is responsible for
developing and determining the Corporation's executive compensation policies and
administering the Corporation's executive compensation plans. Additionally, the
Compensation Committee determines the compensation to be paid to each of the
principal executive officer and the principal financial officer of the
Corporation (such executives who served during the fiscal year ended December
31, 2006 are hereinafter referred to as "named executive officers"), as well as
other key employees.
COMPENSATION PHILOSOPHY AND OBJECTIVES
The Compensation Committee considers the ultimate objective of an
executive compensation program to be the creation of stockholder value. An
effective executive compensation program pursues this objective by (i) aligning
each executive officer's interests with those of stockholders by rewarding each
executive officer based on the Corporation's performance and (ii) ensuring the
Corporation's continued ability to hire and retain superior employees in key
positions by insuring that compensation provided to such employees remains
competitive with the compensation paid to employees with similar
responsibilities and experience working for companies of comparable size,
capitalization, and complexity. The Compensation Committee designs compensation
packages for named executive officers that include both cash and stock-based
compensation (some of the latter vesting over time) tied to an individual's
experience and performance and the Corporation's achievement of certain
short-term and long-term goals.
16
DETERMINATION OF COMPENSATION AWARDS
The Compensation Committee has the primary authority to determine the
compensation awards available to the named executive officers other than the
Corporation's Chief Executive Officer (with respect to whom it has sole
authority). To assist the Compensation Committee in making such determinations,
the Chief Executive Officer conducts an annual performance review with each of
the named executive officers in which each such officer provides the Chief
Executive Officer with input about his or her contributions to the Corporation's
business during the given fiscal year. Subsequently, the Chief Executive Officer
provides compensation recommendations to the Compensation Committee regarding
each of such officers.
The Compensation Committee conducts an annual review of the Chief
Executive Officer's performance prior to making its determination. During this
review, the Compensation Committee considers the Corporation's performance in
the following categories: the performance of the Common Stock, the achievement
of agreed upon objectives such as cost reductions and other business performance
improvements.
COMPENSATION BENCHMARKING AND PEER GROUP
The Corporation has not retained a compensation consultant to review its
policies and procedures with respect to the compensation of the named executive
officers. The Compensation Committee benchmarks the compensation of the named
executive officers against the median compensation paid by comparable companies
in both related and unrelated industries such as Frequency Electronics, Inc.,
Valpey Fisher Corp., American Technical Ceramics Corp., ARC Wireless Solutions,
Inc., and RF Monolithics, Inc. To that end, the Compensation Committee conducted
a benchmark review of the aggregate level of compensation of the named executive
officers as well as the mix of elements used to compensate the named executive
officers, taking into account input from independent members of the
Corporation's Board of Directors and publicly available data relating to the
compensation practices and policies of other comparable companies. While
benchmarking may not always be appropriate as a stand-alone tool for setting the
compensation of the named executive officers due to the Corporation's
potentially unique aspects and objectives, the Compensation Committee generally
believes that gathering such information is an important part of the
Compensation Committee's decision-making process.
The Compensation Committee recognizes that in order to attract, retain and
motivate the named executive officers, the Compensation Committee may determine
that it is in the Corporation's best interest to negotiate total compensation
packages that deviate from the Compensation Committee's general principal of
benchmarking the compensation of the named executive officers.
ELEMENTS OF COMPENSATION
BASE SALARY
Base salary levels for the Corporation's named executive officers are
designed to be competitive with those of employees with similar responsibilities
working for companies of comparable size, capitalization and complexity. In
determining base salaries, the Compensation Committee takes into account the
named executive officer's experience and performance, as well as the salaries of
similarly positioned executives within the Corporation and general compensation
levels in the region in which the named executive officer is based.
17
ANNUAL PERFORMANCE-BASED CASH INCENTIVE BONUS
The Corporation's bonus plan is designed to award the named executive
officers annually based on objective measures of the Corporation's performance
and subjective evaluations of the individual's performance. Examples of
individual evaluation elements are: division EBIT, inventory reduction and days
sales outstanding management, shipment to plan, cycle time reduction, customer
lead-times and outgoing quality, growth in military and aerospace revenue and
gross margins.
In general, the plan provides for an annual bonus pool equal to 20% of the
excess of the consolidated pre-tax profits of the Corporation for the calendar
year over 25% of the Corporation's shareholders equity at the beginning of such
year. The Compensation Committee, in its discretion, may take other factors into
consideration when determining the size of the bonus pool and individual awards,
such as the Corporation's progress toward the achievement of strategic goals.
The breakdown of the bonus pool is not based on a formula, but on factors such
as the relative importance of a named executive officer's area of responsibility
and contributions to the Corporation's earnings.
DISCRETIONARY LONG-TERM EQUITY INCENTIVE AWARDS
The named executive officers are also eligible for stock option grants and
restricted stock awards. Such stock options and shares of restricted stock
generally vest over a period of two years in order to provide an incentive for
continued employment. Stock options generally expire 10 years after the date of
the grant and are awarded with their exercise price set at the fair market value
of the underlying stock on the date of grant.
The Compensation Committee uses various factors to determine the amount of
stock options and restricted stock it will award to each named executive
officer, including the named executive officer's base salary, evaluations of the
individual's performance and the value of the stock options and restricted stock
at the time of the award. Consequently, an individual's award may increase or
decrease materially from year to year due to, for example, a significant change
in the individual's responsibilities or in recognition of a significant
achievement. Additionally, the Compensation Committee has approved the awarding
of stock options or restricted shares to newly hired named executive officers in
order to ensure the Corporation's ability to attract talented candidates.
THE LGL GROUP, INC. 401(K) SAVINGS PLAN
The 401(k) Savings Plan, which is subject to limitations imposed by the
Internal Revenue Code, permits the Corporation's employees to defer a portion of
their compensation by making contributions to the Plan and thereby obtain
certain tax benefits. Participating employees also benefit from the Plan by
sharing in contributions made by the Corporation to the Plan matching a certain
percentage of each employee's contribution made in a particular year. A
participant's interest in his or her individual contributions, the Corporation's
contributions and earnings thereon is fully vested at all times. The Plan's
proceeds are invested in guaranteed investment contracts, certain mutual funds
or the Common Stock of the Corporation, subject to the discretion of the
participants.
18
The named executive officers and all other employees of the Corporation
and certain of its subsidiaries are eligible to participate in the LGL Group,
Inc. 401(k) Savings Plan after having completed three months of service and
reached the age of 18. Certain of the named executive officers participated in
the 401(k) Savings Plan in 2006.
OTHER BENEFITS
The Corporation provides the named executive officers with medical
insurance, life insurance and disability benefits that are generally made
available to Corporation's employees to ensure that the Corporation's employees
have access to basic healthcare and income protection for themselves and their
family members.
19
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table sets forth information with respect to compensation
earned by the named executive officers:
-------------- ------- --------- ---------- ---------- ---------- ---------------- ---------------- ---------------- ---------
Name and Year Salary Bonus Stock Option Non-equity Change in All Other Total
Principal ($) ($) Awards Awards Incentive Pension Compensation ($)
Position ($) ($) Plan Value and ($)
Compensation Nonquali-
($) fied Deferred
Compensation
Earnings
($)
-------------- ------- --------- ---------- ---------- ---------- ---------------- ---------------- ---------------- ---------
Jeremiah 2006 60,280 (*) 82,500(2) (*) (*) (*) (*) 142,780
Healy(1) 2005 (*) (*) (*) (*) (*) (*) (*) (*)
2004 (*) (*) (*) (*) (*) (*) (*) (*)
-------------- ------- --------- ---------- ---------- ---------- ---------------- ---------------- ---------------- ---------
John C. 2006 250,000 (*) (*) (*) (*) (*) (*) 250,000
Ferrara(3) 2005 250,000 100,000 (*) 24,592(4) (*) (*) (*) 374,592
2004 79,808 (*) (*) (*) (*) (*) (*) 79,808
-------------- ------- --------- ---------- ---------- ---------- ---------------- ---------------- ---------------- ---------
Robert 2006 183,750 154,554 82,500(6) (*) (*) 164,000(7) (*) 584,804
Zylstra(5) 2005 183,750 91,175 (*) (*) (*) (*) (*) 274,925
2004 183,750 43,609 (*) (*) (*) (*) (*) 227,359
-------------- ------- --------- ---------- ---------- ---------- ---------------- ---------------- ---------------- ---------
Eugene C. 2006 80,769 50,000 (*) 10,357(9) (*) (*) (*) 141,126
Hynes(8) 2005 150,000 50,000 (*) 8,197(9) (*) (*) (*) 208,197
2004 43,269 (*) (*) (*) (*) (*) (*) 43,269
-------------- ------- --------- ---------- ---------- ---------- ---------------- ---------------- ---------------- ---------
(1) Mr. Healy has served as the Corporation's Chief Executive Officer since
January 1, 2007. Mr. Healy also served as the Corporation's Chief
Financial Officer from September 5, 2006 to March 19, 2007.
(2) On September 5, 2006, the Corporation granted Mr. Healy 10,000 shares of
restricted stock under the Corporation's 2001 Equity Incentive Plan. Mr.
Healy currently exercises full voting rights with respect to such
restricted stock, which shall vest as follows: 5,000 shares on September
5, 2007 and 1,250 shares on each of December 5, 2007, March 5, 2008, June
5, 2008 and September 5, 2008.
(3) Mr. Ferrara was elected as President and Chief Executive Officer of the
Corporation on October 1, 2004. Mr. Ferrara resigned from his positions
with the Corporation effective December 31, 2006.
(4) On May 26, 2005, the Corporation granted Mr. Ferrara an option to purchase
75,000 shares of Common Stock at an exercise price of $13.173. Such option
lapsed as a result of his resignation from his positions with the
Corporation.
(5) Mr. Zylstra was elected as Senior Vice President of Operations of the
Corporation as of September 5, 2006. Mr. Zylstra's salary is paid by
M-tron Industries, Inc., a subsidiary of the Corporation, where he has
served as the President and Chief Executive Officer since January 24,
2000.
(6) On September 5, 2006, the Corporation granted Mr. Zylstra 10,000 shares of
restricted stock under the Corporation's 2001 Equity Incentive Plan. Mr.
Zylstra currently exercises full voting rights with respect to such
restricted stock, which shall vest as follows: 5,000 shares on September
5, 2007 and 1,250 shares on each of December 5, 2007, March 5, 2008, June
5, 2008 and September 5, 2008.
(7) Mr. Zylstra has an agreement entitling him to 3% of the increase in the
economic value of the Corporation from January 1, 2000 through the end of
the last fiscal quarter next preceding termination of his employment. For
additional information regarding Mr. Zylstra's potential payments upon
termination, please see "Potential Payments Upon Termination or Change-in
Control" below.
(8) Mr. Hynes resigned from his positions with the Corporation effective July
7, 2006.
20
(9) On May 26, 2005, the Corporation granted Mr. Hynes the option to purchase
25,000 shares of Common Stock under the Corporation's 2001 Equity
Incentive Plan. Such option lapsed as a result of his resignation from his
positions with the Corporation.
GRANT OF PLAN-BASED AWARDS
The following table sets forth certain information regarding grants made
to named executive officers during the fiscal year ended December 31, 2006:
------------- -------- -------------------------------- -------------------------------- --------- ------------ --------- ---------
Name Grant Estimated Future Payouts Estimated Future Payouts All All Other Exercise Grant
Date Under Non- Equity Incentive Under Equity Incentive Plan Other Option or Date
Plan Awards Awards Stock Awards: Base Fair
-------------------------------------------------------------- Awards: Number Price Value
Threshold Target Maximum Threshold Target Maximum Number of of of
($) ($) ($) (#) (#) (#) of Securities Option Stock
Shares Underlying Awards and
of Options ($/Sh) Option
Stock (#) Awards
or ($)
Units
(#)
------------- -------- ----------- -------- ----------- ----------- -------- ----------- --------- ------------ --------- ---------
Jeremiah 9/5/06 10,000(1) 82,500
Healy
------------- -------- ----------- -------- ----------- ----------- -------- ----------- --------- ------------ --------- ---------
Robert 9/5/06 10,000(2) 82,500
Zylstra
------------- -------- ----------- -------- ----------- ----------- -------- ----------- --------- ------------ --------- ---------
(1) On September 5, 2006, the Corporation granted Mr. Healy 10,000 shares of
restricted stock under the Corporation's 2001 Equity Incentive Plan. Mr.
Healy currently exercises full voting rights with respect to such
restricted stock, which shall vest as follows: 5,000 shares on September
5, 2007 and 1,250 shares on each of December 5, 2007, March 5, 2008, June
5, 2008 and September 5, 2008.
(2) On September 5, 2006, the Corporation granted Mr. Zylstra 10,000 shares of
restricted stock under the Corporation's 2001 Equity Incentive Plan. Mr.
Zylstra currently exercises full voting rights with respect to such
restricted stock, which shall vest as follows: 5,000 shares on September
5, 2007 and 1,250 shares on each of December 5, 2007, March 5, 2008, June
5, 2008 and September 5, 2008.
OUTSTANDING EQUITY AWARDS AT FISCAL-YEAR END
The following table presents information regarding unexercised options,
stock that has not vested and equity incentive plan awards for each named
executive officer as of the end of the fiscal year ended December 31, 2006:
21
------------- ---------------------------------------------------------------------- ---------------------------------------------
Name Option Awards Stock Awards
-------------- --------------- -------------- ---------- ------------- ---------- --------- ------------ -----------
Number of Number of Equity Option Option Number Market Equity Equity
Securities Securities Incentive Exercise Expiration of Value Incentive Incentive
Underlying Underlying Plan Price ($) Date Shares of Plan Plan
Unexercised Unexercised Awards: or Shares Awards: Awards:
Options Options Number of Units or Number Market
(#) (#) Securities of Units of or
Exercisable Unexercisable Underlying Stock of Unearned Payout
Unexercised That Stock Shares, Value of
Unearned Have That Units or Unearned
Options Not Have Other Shares,
(#) Vested Not Rights Units or
(#) Vested That Other
($) Have Not Rights
Vested That
(#) Have
Not
Vested
($)
------------- -------------- --------------- -------------- ---------- ------------- ---------- --------- ------------ -----------
John 75,000(1) 13.173 3/31/07
Ferrara
------------- -------------- --------------- -------------- ---------- ------------- ---------- --------- ------------ -----------
Jeremiah 10,000(2) 70,000
Healy
------------- -------------- --------------- -------------- ---------- ------------- ---------- --------- ------------ -----------
Robert 10,000(3) 70,000
Zylstra
------------- -------------- --------------- -------------- ---------- ------------- ---------- --------- ------------ -----------
(1) Mr. Ferrara resigned from his positions with the Corporation effective
December 31, 2006. Under the 2001 Equity Incentive Plan, the option to
purchase 75,000 shares of Common Stock lapsed three months after Mr.
Ferrara's resignation.
(2) On September 5, 2006, the Corporation granted Mr. Healy 10,000 shares of
restricted stock under the Corporation's 2001 Equity Incentive Plan. Mr.
Healy currently exercises full voting rights with respect to such
restricted stock, which shall vest as follows: 5,000 shares on September
5, 2007 and 1,250 shares on each of December 5, 2007, March 5, 2008, June
5, 2008 and September 5, 2008.
(3) On September 5, 2006, the Corporation granted Mr. Zylstra 10,000 shares of
restricted stock under the Corporation's 2001 Equity Incentive Plan. Mr.
Zylstra currently exercises full voting rights with respect to such
restricted stock, which shall vest as follows: 5,000 shares on September
5, 2007 and 1,250 shares on each of December 5, 2007, March 5, 2008, June
5, 2008 and September 5, 2008.
POTENTIAL PAYMENTS UPON TERMINATION OR CHANGE IN CONTROL
An agreement between Mr. Zylstra and the Corporation entitles him to 3% of
the increase in the economic value of the Corporation from January 1, 2000
through the end of the last fiscal quarter next preceding termination of his
employment (the "Valuation Date"). The economic value of the Corporation for
January 1, 2000 is deemed to be 7.5 times the earnings before interest, taxes,
depreciation and amortization ("EBITDA") (plus cash and marketable securities
and minus debt) of the Corporation for the year ended December 31, 1999 and the
economic value of the Corporation for the last fiscal quarter next preceding
termination shall be deemed to be 7.5 times the EBITDA (plus cash and marketable
securities and minus debt) of the Corporation for the 12 months ended on the
Valuation Date. At the Corporation's option, the amount of the benefit shall be
payable either in one lump sum or in three equal installments payable on the
first, second and third anniversary dates of the termination of Mr. Zylstra's
employment. Any such deferred payments shall bear interest at an annual rate
equal to 8%, which interest shall be payable in arrears on each said anniversary
date, at the Corporation's option, in cash or in the Common Stock of the
Corporation, valued at the average closing market price thereof for the 10
trading days on which the stock traded prior to the date of the payment.
22
DIRECTOR COMPENSATION
COMPENSATION OF DIRECTORS
A director who is an employee of the Corporation is not compensated for
services as a member of the Board of Directors or any committee thereof. In
2006, Directors who were not employees received (i) a cash retainer of $5,000
per quarter; (ii) a fee of $2,000 for each meeting of the Board of Directors
attended in person or telephonically that had a duration of at least one hour;
(iii) a fee of $1,500 for each Audit Committee meeting attended in person or
telephonically that had a duration of at least one hour; and (iv) a fee of $750
for each Compensation Committee, each Executive Committee and each Nominating
Committee meeting attended in person. The Audit Committee Chairman receives an
additional $4,000 annual cash retainer and the Nominating and Compensation
Committee Chairmen receive additional $2,000 annual retainers.
Marc Gabelli, the Chairman, receives a $100,000 annual fee, payable in
equal quarterly installments. Mr. Gabelli has elected to defer payment of his
annual fee for fiscal 2006 to a later date.
The following table sets forth information with respect to compensation
earned by or awarded to each Director of the Corporation who is not a named
executive officer and who served on the Board of Directors during the fiscal
year ended December 31, 2006:
---------------- ------------ ------------- ------------- ---------------- ---------------- ------------------- ------------
Name Fees Stock Option Non-equity Change in All Other Total
Earned Awards Awards Incentive Pension Compensation ($)
or Paid in ($) ($) Plan Value and ($)
Cash Compensation Nonqualified
($) ($) Deferred
Compensation
Earnings
---------------- ------------ ------------- ------------- ---------------- ---------------- ------------------- ------------
Marc Gabelli 100,000(1) 100,000
---------------- ------------ ------------- ------------- ---------------- ---------------- ------------------- ------------
E. Val Cerutti 34,500 34,500
---------------- ------------ ------------- ------------- ---------------- ---------------- ------------------- ------------
Peter 9,167 9,167
DaPuzzo(2)
---------------- ------------ ------------- ------------- ---------------- ---------------- ------------------- ------------
Avrum Gray 34,000 34,000
---------------- ------------ ------------- ------------- ---------------- ---------------- ------------------- ------------
Patrick J. 9,417 9,417
Guarino(2)
---------------- ------------ ------------- ------------- ---------------- ---------------- ------------------- ------------
Anthony R. 36,000 36,000
Pustorino
---------------- ------------ ------------- ------------- ---------------- ---------------- ------------------- ------------
(1) Mr. Gabelli has elected to defer the payment of his annual fee to a later
date.
(2) Elected effective September 2006; paid for one third of the third quarter
and the entirety of the fourth quarter of the fiscal year ending December
31, 2006.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During the fiscal year ended December 31, 2006, the Compensation Committee
comprised only non-employee independent directors. There were no interlocks or
other relationships among the Corporation's executive officers and directors
that are required to be disclosed under applicable executive compensation
disclosure regulations.
23
COMPENSATION COMMITTEE REPORT
The Compensation Committee of the Board oversees our compensation program
on behalf of the Board of Directors. In fulfilling its oversight
responsibilities, the Compensation Committee reviewed and discussed with
management the Compensation Discussion and Analysis set forth in the
Corporation's Annual Report on Form 10-K, as amended, and this Proxy Statement.
In reliance on the review and discussions referred to above, the Compensation
Committee recommended to the Board of Directors that the Compensation Discussion
and Analysis be included in the Corporation's Annual Report on Form 10-K, as
amended, and this Proxy Statement.
COMPENSATION COMMITTEE
Patrick J. Guarino (Chairman)
E. Val Cerutti
Peter DaPuzzo
Avrum Gray
24
PROPOSAL NO. 2
REINCORPORATION OF THE CORPORATION IN THE STATE OF DELAWARE
The Board has unanimously approved the reincorporation proposal and
recommends that the Shareholders approve and adopt the reincorporation proposal.
The reincorporation proposal will be effected by merging the Corporation with
and into its wholly-owned subsidiary incorporated in the State of Delaware ("LGL
Delaware") pursuant to an Agreement and Plan of Merger (the "Merger Agreement")
entered into between the Corporation and LGL Delaware. The form of Merger
Agreement is included as EXHIBIT A to this Proxy Statement.
LGL Delaware will be newly incorporated in Delaware solely for the purpose
of effecting the Reincorporation Merger, and the Corporation will be its sole
stockholder. LGL Delaware will have no material assets and no business
operations prior to the Reincorporation Merger. In the Reincorporation Merger,
the Corporation will merge with and into LGL Delaware, and LGL Delaware will be
the surviving entity and will maintain the name "The LGL Group, Inc." The
address of the principal executive offices of LGL Delaware will be the same as
the current principal executive offices of the Corporation.
REASONS FOR THE REINCORPORATION MERGER
The Board believes that the Reincorporation Merger will provide added
flexibility for both the management and business of the Corporation. Delaware is
recognized both domestically and internationally as a favorable legal and
regulatory environment within which to operate. Such an environment should
enhance the Corporation's operations and its ability to effect acquisitions and
other transactions. For many years, Delaware has followed a policy of
encouraging incorporation in that state and, in furtherance of that policy, has
adopted comprehensive, modern and flexible corporate laws, which are
periodically updated and revised to meet changing business needs. In addition,
the Delaware courts have developed considerable expertise in dealing with
corporate issues, and a substantial body of case law has developed in the
construction of Delaware law, resulting in greater predictability with respect
to corporate legal affairs. Consequently, various major companies have either
incorporated or have subsequently reincorporated in Delaware.
THE REINCORPORATION MERGER
As a result of the Reincorporation Merger, the Corporation will be
reincorporated as a new Delaware corporation that will succeed to all of the
rights, properties, assets and liabilities of the Corporation. The terms and
conditions of the Reincorporation Merger are set forth in the Merger Agreement,
and the summary of the terms and conditions of the Merger set forth above is
qualified by reference to the full text of the Merger Agreement included as
EXHIBIT A to this Proxy Statement. Following the Reincorporation Merger, the
composition of the Board of Directors of the Corporation will remain the same,
and the rights of stockholders and the Corporation's corporate affairs will be
governed and controlled by the General Corporation Law of the State of Delaware
(the "DGCL") and the New Certificate of Incorporation and New By-Laws of LGL
Delaware, rather than by the Indiana Business Corporation Law (the "IBCL") and
the Present Articles of Incorporation and Present By-Laws. Set forth below,
under the heading "Delaware and Indiana Corporate Laws," is a comparison of the
25
material rights of shareholders and other matters of corporate governance before
and after the Reincorporation Merger. The forms of the New Certificate of
Incorporation and New By-Laws of LGL Delaware are included as EXHIBIT B and
EXHIBIT C to this Proxy Statement, respectively. The summary of the New
Certificate of Incorporation and the New By-Laws set forth below is qualified by
reference to the full text of the New Certificate of Incorporation and New
By-Laws. The Present Articles of Incorporation and Present By-Laws and LGL
Delaware's New Certificate of Incorporation and New By-Laws are available, upon
request by stockholders of the Corporation, at the principal offices of the
Corporation located at 140 Greenwich Ave, 4th Floor, Greenwich, Connecticut
06830.
Upon the effectiveness of the Reincorporation Merger, and without any
action on the part of the Corporation or the holder of any securities of the
Corporation, every one share outstanding of Common Stock of the Corporation will
be automatically converted into one share of common stock, $0.01 par value, of
LGL Delaware. Until replaced by new stock certificates, each outstanding
certificate representing shares of Common Stock of the Corporation will be
deemed for all corporate purposes to evidence ownership of shares of common
stock of LGL Delaware.
Consummation of the Reincorporation Merger is subject to the approval of
the Corporation's shareholders. The affirmative vote of the holders of a
majority of the outstanding shares of Common Stock, whether or not present at
the 2007 Annual Meeting, who are entitled to vote at the 2007 Annual Meeting is
required for the approval and adoption of the reincorporation proposal. The
Reincorporation Merger is expected to become effective as soon as practicable
after shareholder approval is obtained and all other conditions to the
Reincorporation Merger have been satisfied, including the receipt of all
consents, orders and approvals necessary for consummation of the Reincorporation
Merger. Prior to its effectiveness, however, the Reincorporation Merger may be
abandoned by the Board if, for any reason, the Board determines that
consummation of the Reincorporation Merger is no longer in the best interests of
the Corporation.
Dissenters' rights are not available to shareholders of the Corporation
with respect to the proposed Reincorporation Merger.
ACCOUNTING TREATMENT OF THE REORGANIZATION
The Reincorporation Merger will have no accounting implications on the
historical financial statements of the Corporation.
FEDERAL INCOME TAX CONSEQUENCES OF THE REINCORPORATION MERGER
The Corporation intends the Reincorporation Merger to be a tax free
"reorganization" within the meaning of the Internal Revenue Code of 1986, as
amended. If the Reincorporation Merger qualifies as a reorganization, the
material federal income tax consequences of the Reincorporation Merger will be
as follows:
o No gain or loss will be recognized by holders of the
Corporation's Common Stock;
26
o Each shareholder of LGL Delaware will have the same tax basis in his
LGL Delaware common stock as he had in the Corporation's Common
Stock immediately prior to the Reincorporation Merger;
o The holding period of the LGL Delaware's common stock will include
the period during which a shareholder held the Corporation's Common
Stock prior to the Reincorporation Merger, provided such shareholder
held the Corporation's Common Stock as a capital asset at the time
of the Reincorporation Merger;
o Neither the Corporation nor LGL Delaware will recognize a gain or
loss as a result of the Reincorporation Merger; and
o LGL Delaware will succeed, without adjustment, to the tax attributes
of the Corporation.
The Corporation has not requested a ruling from the IRS or received an
opinion of counsel with respect to the federal income tax consequences of the
Reincorporation Merger. The foregoing summary of federal income tax consequences
is included for general information only and does not address all income tax
consequences to all of the Corporation's shareholders. The Corporation's
shareholders are urged to consult their own tax advisors as to the specific tax
consequences of the Reincorporation Merger, including the application and effect
of state, local and foreign income and other tax laws.
COMPARISON OF RIGHTS OF SHAREHOLDERS
The DGCL differs from the IBCL in many respects. The material differences
in these statutes are discussed below. The material differences between the
Present Articles of Incorporation and Present By-Laws as compared to the New
Certificate of Incorporation and New By-Laws are also discussed below.
CAPITAL STOCK
The Reincorporation Merger will not affect the capital stock of the
Corporation, except to the extent that the rights of shareholders will be
governed by Delaware law rather than Indiana law. The number of authorized
shares of common stock will remain at 10,000,000, $0.01 par value per share. The
common stock will remain the only class of capital stock of the Corporation.
After the Reincorporation Merger, holders of the Corporation's Common
Stock will continue to be entitled to one vote per share on all matters
submitted to a vote of the shareholders, including the election of directors.
The holders of the Corporation's Common Stock will be entitled to such dividends
as may be declared from time to time by the Board of Directors from funds
legally available therefor, and will be entitled to receive, pro rata, all
assets available for distribution to such holders upon liquidation. No shares of
the Corporation's Common Stock have any preemptive, redemption or conversion
rights, or the benefits of any sinking fund. All of the shares issued by the
surviving corporation in the Reincorporation Merger will be validly issued,
fully paid and nonassessable.
27
Both the IBCL and the DGCL permit the certificate or articles of
incorporation to allow the board of directors to issue and fix dividend, voting
and redemption rights, liquidation preferences and other rights and privileges
without further shareholder action.
SIZE AND CLASSIFICATION OF THE BOARD OF DIRECTORS
Section 23-1-33-3 of the IBCL provides that the board of directors of an
Indiana corporation must consist of one or more individuals, with the number
specified in or fixed in accordance with the articles of incorporation or
by-laws. Section 141(b) of the DGCL provides that the board of directors of a
Delaware corporation shall consist of one or more members. The number of
directors shall be fixed by, or in the manner provided in, the by-laws unless
the certificate of incorporation fixes the number of directors, in which case a
change in the number of directors shall be made only by amendment of the
certificate.
Pursuant to Section 23-1-33-6 of the IBCL, the articles of incorporation
or the by-laws, may provide for staggering the terms of directors by dividing
the total number of directors into either two or three classes. Section 141(d)
of the DGCL provides that the directors may, by the certificate of
incorporation, by an initial by-law or by a by-law adopted by a vote of the
shareholders, be divided into one, two or three classes. Neither the Present
Articles of Incorporation nor the New Certificate of Incorporation provides for
a classified Board of Directors.
The Corporation's Board of Directors currently comprises nine members,
which number may be changed by the Board of Directors, provided that the number
of directors must not be less than five or more than thirteen. The Board of
Directors of the Corporation following the Reincorporation Merger will have the
same number of directors and composition as the Corporation's current Board of
Directors.
REMOVAL OF DIRECTORS
Under Section 23-1-33-8 of the IBCL, directors may be removed in any
manner provided in the articles of incorporation. In addition, unless the
articles of incorporation provide otherwise, the shareholders or directors may
remove one or more directors with or without cause. A director may be removed by
the shareholders, if they are otherwise authorized to do so, only at a meeting
called for that purpose and such purpose must be stated in the notice of the
meeting. A director elected by a voting group of shareholders may be removed
only by that voting group.
Section 141(k) of the DGCL provides that any director or the entire board
of directors may generally be removed with or without cause by a majority
stockholder vote.
NEWLY CREATED DIRECTORSHIPS AND VACANCIES
Under Section 23-1-33-9 of the IBCL, unless the articles of incorporation
provide otherwise, if a vacancy occurs on the board of directors, including a
vacancy resulting from an increase in the number of directors, the remaining
directors may fill the vacancy by majority vote. If the remaining directors do
not comprise a quorum, the remaining directors may fill the vacancy by majority
vote of the remaining directors. If the vacant office was held by a director
elected by a voting group of shareholders, only the holders of shares of that
voting group may vote to fill the vacancy if it is filled by shareholders. A
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vacancy that will occur at a specific later date by reason of resignation of a
director effective at a later date may be filled before the vacancy occurs, but
the new director may not take office until the vacancy occurs.
Under Section 223 of the DGCL, unless the certificate of incorporation or
the by-laws of a corporation provide otherwise, a majority vote of the directors
then in office may fill vacancies and newly created directorships, even if the
number of directors then in office is less than a quorum or only one director
remains. If the directors filling a vacancy on the board constitute less than a
majority of the whole board (as measured before an increase in the size of the
board), the Delaware Court of Chancery may, upon application of stockholders
holding at least 10% of the outstanding voting shares, summarily order an
election to fill the vacancy or replace directors chosen by the directors then
in office. Unless otherwise provided in the certificate of incorporation or
by-laws, when one or more directors resign effective at a future date, a
majority of directors then in office, including those who have so resigned, may
vote to fill the vacancy.
The Present Articles of Incorporation permit vacancies and newly created
directorships to be filled as provided by the Present By-Laws or relevant
corporate law. The New Certificate of Incorporation contains the same provision.
QUORUM AND VOTE REQUIRED TO TAKE ACTION
Under Section 23-1-34-5 of the IBCL, unless the articles of incorporation
or by-laws require a greater number, a majority of the fixed or prescribed
number of directors constitutes a quorum. Additionally, the articles of
incorporation or by-laws may authorize a quorum of no fewer than one-third of
the fixed or prescribed number of directors. If a quorum is present when a vote
is taken, the affirmative vote of a majority of the directors present is the act
of the board of directors unless the articles of incorporation or by-laws
provide otherwise.
Section 141(b) of the DGCL provides that a majority of the total number of
directors shall constitute a quorum for the transaction of business unless the
certificate of incorporation or by-laws of the incorporation require a greater
number. In addition, unless the certificate of incorporation provides otherwise,
the by-laws may provide for a quorum of less than a majority, which in no case
shall be less than one-third of the total number of directors. The board of
directors shall act by the vote of a majority of the directors present at a
meeting at which a quorum is present, unless the certificate of incorporation or
the by-laws require a vote of a greater number.
The Present By-Laws provide that a majority of the total number of
directors constitutes a quorum for the transaction of business and that, unless
otherwise provided by law, the certificate of incorporation, the Present By-Laws
or any contract or agreement to which the Corporation is a party, the act of a
majority of the directors present at any meeting at which there is quorum is the
act of the Board of Directors. The New By-Laws contain the same provision.
LIMITATION ON DIRECTORS' LIABILITY
Section 23-1-35-1 of the IBCL provides that a director is not liable for
any action taken as a director, or any failure to act, unless the director has
breached or failed to perform the duties of the director's office in compliance
with Section 23-1-35-1 and the breach or failure to perform constitutes willful
misconduct or recklessness.
29
Section 102(b)(7) of the DGCL allows a corporation, through its
certificate of incorporation, to limit or eliminate the personal liability of
directors to the corporation and its shareholders for damages for breach of
fiduciary duty. However, this provision excludes any limitation on liability
for: (i) any breach of the director's duty of loyalty to the corporation or its
shareholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) willful or negligent
violation of the laws governing the payment of dividends or the purchase or
redemption of stock; or (iv) any transaction from which the director derives an
improper personal benefit.
The Present Articles of Incorporation contain a provision limiting
director liability as permitted by law. The New Certificate of Incorporation
contains the same provision.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 23-1-37-8 and Section 23-1-37-13 of the IBCL provide that a
corporation may indemnify any individual made a party to a proceeding (including
a proceeding by or in the right of the corporation) because the individual is or
was a director, officer, employee or agent of the corporation against liability
incurred in the proceeding if the individual acted in good faith and reasonably
believed (i) in the case of conduct in the individual's official capacity with
the corporation, that the individual's conduct was in the corporation's best
interests and (ii) in all other cases, that the individual's conduct was at
least not opposed to the corporation's best interests. In the case of any
criminal proceeding, the individual must have had either reasonable cause to
believe the conduct was lawful or no reasonable cause to believe that it was
unlawful. In addition, Section 23-1-37-9 and Section 23-1-37-13 provide that a
corporation, unless limited by its articles of incorporation, must indemnify a
director or officer who was wholly successful, on the merits or otherwise, in
the defense of any proceeding to which the director or officer was a party
because the director or officer is or was a director or officer of the
corporation against reasonable expenses incurred by the director or officer in
connection with the proceeding.
Section 145 of the DGCL provides that a corporation may indemnify any
person made a party or threatened to be made a party to any threatened, pending
or completed proceeding (other than certain actions by or in right of the
corporation) because he or she is or was a director, officer, employee or agent
of the corporation or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, against expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation; or in a criminal proceeding, if he or she had no
reasonable cause to believe his or her conduct was unlawful. Expenses incurred
by an officer or director (or other employees or agents as deemed appropriate by
the board of directors) in defending a civil, criminal or administrative
proceeding may be paid by the corporation in advance of the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it is ultimately determined that such person is not
entitled to be indemnified by the corporation. To indemnify a party, the
corporation must determine that the party met the applicable standards of
conduct.
30
The provisions concerning indemnification in the Present Articles of
Incorporation are substantially identical to the IBCL provisions. The New
Certificate of Incorporation provides for indemnification to the fullest extent
permitted by Delaware law.
DIVIDENDS
Section 23-1-28-1 of the IBCL allows a board of directors to make
distributions to shareholders, unless otherwise provided in the articles of
incorporation. However, pursuant to Section 23-1-28-3 of the IBCL, no
distribution may be made if after giving effect to the distribution the
corporation would be unable to pay its debts as they become due in the ordinary
course of business or the corporation's assets would be less than the sum of its
liabilities plus (except as otherwise specifically allowed by the articles of
incorporation) the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential rights
are superior to those receiving the distribution.
Subject to any restrictions in a corporation's certificate of
incorporation, Section 170 of the DGCL allows the board of directors of a
Delaware corporation to declare and pay dividends out of surplus, or if there is
no surplus, out of its net profits for the fiscal year in which the dividend is
declared and/or the preceding fiscal year.
ACTION BY SHAREHOLDERS THROUGH WRITTEN CONSENT
Under Section 23-1-29-4 of the IBCL, any action required or permitted to
be taken at a meeting of shareholders may be taken without a meeting if a
written consent thereto is signed by all of the shareholders entitled to vote on
the action.
Under Section 228(a) of the DGCL, unless otherwise provided in a
corporation's certificate of incorporation, any action required to be taken at
an annual or special meeting of the stockholders may be taken in the absence of
a meeting, without prior written notice and without a vote. Such action may be
taken by the written consent of stockholders in lieu of a meeting setting forth
the action so taken and signed by the holders of outstanding stock representing
the number of shares necessary to take such action at a meeting at which all
shares entitled to vote were present and voted. There is no contrary provision
in the New Certificate of Incorporation.
SPECIAL MEETINGS OF SHAREHOLDERS
Section 23-1-29-2 of the IBCL provides that a corporation with more than
50 shareholders must hold a special meeting of shareholders on demand of its
board of directors or the person or persons specifically authorized to do so by
the articles of incorporation or by-laws.
Under Section 211(d) of the DGCL, special meetings of stockholders may be
called by the board of directors and by such other person or persons as may be
authorized to do so by the corporation's certificate of incorporation or
by-laws.
Under the Present By-Laws, special meetings of the shareholders may be
called by the Board of Directors, the Chairman of the Board or the President.
The Board of Directors must call a special meeting if the Secretary receives
appropriate demand for a special meeting from holders of shares representing at
least 25% of all votes entitled to be cast on any issue proposed to be
considered at the proposed special meeting. The New By-Laws contain the same
provision.
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CUMULATIVE VOTING
Both Section 23-1-30-9 of the IBCL and Section 214 of the DGCL allow a
corporation to provide for cumulative voting in the articles of incorporation or
the certificate of incorporation. Neither the Present Articles of Incorporation
nor the New Certificate of Incorporation provides for cumulative voting.
NECESSARY VOTE TO EFFECT MERGER (NOT INVOLVING INTERESTED SHAREHOLDER)
Section 23-1-40-3 of the IBCL requires a majority vote of the shares
entitled to vote in order to effectuate a merger or share exchange. However, the
vote of the shareholders of the surviving corporation under a plan of merger is
not required if: (i) the articles of incorporation of the surviving corporation
will not differ from its articles of incorporation before the merger; (ii) each
shareholder of the surviving corporation whose shares were outstanding
immediately before the effective date of the merger will hold the same
proportionate number of shares relative to the number of shares held by all such
shareholders (except for shares of the surviving corporation received solely as
a result of the shareholder's proportionate shareholdings in the other
corporations party to the merger), with identical designations, preferences,
limitations and relative rights, immediately after the merger; (iii) the number
of voting shares outstanding immediately after the merger, plus the number of
voting shares issuable as a result of the merger (either by the conversion of
securities issued pursuant to the merger or the exercise of rights and warrants
issued pursuant to the merger), will not exceed by more than 20% the total
number of voting shares of the surviving corporation outstanding immediately
before the merger; and (iv) the number of participating shares outstanding
immediately after the merger, plus the number of participating shares issuable
as a result of the merger (either by the conversion of securities issued
pursuant to the merger or the exercise of rights and warrants issued pursuant to
the merger), will not exceed by more than 20% the total number of participating
shares of the surviving corporation outstanding immediately before the merger.
The DGCL requires a majority vote of the shares outstanding and entitled
to vote in order to effectuate a merger between two Delaware corporations
(Section 251(c)) or between a Delaware corporation and a corporation organized
under the laws of another state (a "foreign corporation") (Section 252(c)).
However, unless required by the certificate of incorporation, Sections 251(f)
and 252(e) do not require a vote of the shareholders of a constituent
corporation surviving the merger if: (i) the merger agreement does not amend
that corporation's certificate of incorporation; (ii) each share of that
corporation's stock outstanding before the effective date of the merger is
identical to an outstanding or treasury share of the surviving corporation after
the merger; and (iii) in the event the merger plan provides for the issuance of
common stock or securities convertible into common stock by the surviving
corporation, the common stock issued plus the common stock issuable upon
conversion of the issued securities do not exceed 20% of the shares outstanding
immediately before the effective date of the merger.
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BUSINESS COMBINATIONS INVOLVING INTERESTED SHAREHOLDERS
Sections 23-1-43-1 to 23-1-43-23 of the IBCL restrict the ability of a
"resident domestic corporation" to engage in any business combination with an
"interested shareholder" for five years after the interested shareholder's date
of acquiring shares unless the business combination or the purchase of shares by
the interested shareholder on the interested shareholder's share acquisition
date is approved by the board of directors of the resident domestic corporation
before that date. If the combination was not previously approved, the interested
shareholder may effect a combination after the five-year period only if such
shareholder receives approval from a majority of the disinterested shares or the
offer meets certain fair price criteria. For purposes of the above provisions,
"resident domestic corporation" means an Indiana corporation that has 100 or
more shareholders. "Interested shareholder" means any person, other than the
resident domestic corporation or its subsidiaries, who is (i) the beneficial
owner, directly or indirectly, of 10% or more of the voting power of the
outstanding voting shares of the resident domestic corporation or (ii) an
affiliate or associate of the resident domestic corporation and at any time
within the five-year period immediately before the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting power of
the then outstanding shares of the resident domestic corporation. The above
provisions do not apply to corporations that so elect in its original articles
of incorporation or in an amendment to its articles of incorporation approved by
a majority of the disinterested shares. Such an amendment, however, would not
become effective for 18 months after its passage and would apply only to stock
acquisitions occurring after its effective date.
Section 203 of the DGCL provides that, with certain exceptions, a Delaware
corporation may not engage in any of a broad range of business combinations,
such as mergers, consolidations and sales of assets, with an "interested
stockholder" for a period of three years from the date that such person became
an interested stockholder unless: (i) the transaction that results in the
person's becoming an interested stockholder or the business combination is
approved by the board of directors of the corporation before the person becomes
an interested stockholder; (ii) upon consummation of the transaction which
results in the stockholder becoming an interested stockholder, the interested
stockholder owns 85% or more of the voting stock of the corporation outstanding
at the time the transaction commenced, excluding shares owned by persons who are
directors and also officers and shares owned by certain employee stock plans; or
(iii) on or after the date the person becomes an interested stockholder, the
business combination is approved by the corporation's board of directors and by
holders of at least 66 2/3% of the corporation's outstanding voting stock,
excluding shares owned by the interested stockholder, at a meeting of
stockholders. Under Section 203, an "interested stockholder" is defined as any
person, other than the corporation and any direct or indirect majority-owned
subsidiary, (i) that is the owner of 15% or more of the outstanding voting stock
of the corporation or (ii) an affiliate or associate of the corporation and was
the owner of 15% or more of the outstanding voting stock of the corporation at
any time within the three-year period immediately prior to the date on which it
is sought to be determined whether such person is an interested stockholder.
Section 203 does not apply to a corporation that so provides in an amendment to
its certificate of incorporation or by-laws passed by a majority of its
outstanding shares at any time. Such stockholder action does not become
effective for 12 months following its adoption and would not apply to persons
who were already interested stockholders at the time of the amendment.
33
Neither the Present Articles of Incorporation nor the New Certificate of
Incorporation excludes the Corporation from restrictions imposed under Sections
23-1-43-1 to 23-1-43-23 of the IBCL or Section 203 of the DGCL.
CONTROL SHARE ACQUISITIONS
Pursuant to Sections 23-1-42-1 to 23-1-42-11 of the IBCL, an acquiring
person who makes a "control share acquisition" in an "issuing public
corporation" may not exercise voting rights on any "control shares" unless such
voting rights are conferred by a majority vote of the disinterested shareholders
of the issuing corporation. Unless otherwise provided in a corporation's
articles of incorporation or by-laws before a control share acquisition has
occurred, in the event that control shares acquired in a control share
acquisition are accorded full voting rights and the acquiring person acquires
control shares with a majority or more of all voting power, all shareholders of
the issuing corporation have dissenters' rights to receive the fair value of
their shares. Under the IBCL, "control shares" means shares acquired by a person
that, when added to all other shares of the issuing public corporation owned by
that person or in respect of which that person may exercise or direct the
exercise of voting power, would entitle that person (directly or indirectly,
alone or as a part of a group) to exercise voting power of the issuing public
corporation in the election of directors within any of the following ranges of
voting power: (i) one-fifth or more but less than one-third; (ii) one-third or
more but less than a majority; or (iii) a majority or more. "Control share
acquisition" means, subject to certain exceptions, the acquisition, directly or
indirectly, by any person of ownership of, or the power to direct the exercise
of voting power with respect to, issued and outstanding control shares. Shares
acquired within 90 days or pursuant to a plan to make a control share
acquisition are considered to have been acquired in the same acquisition.
"Issuing public corporation" means a corporation which is organized in Indiana,
has 100 or more shareholders, has its principal place of business, its principal
office or substantial assets within Indiana and has either: (i) more than 10% of
its shareholders resident in Indiana; (ii) more than 10% of its shares owned by
Indiana residents; or (iii) 10,000 shareholders resident in Indiana. The above
provisions do not apply if, before a control share acquisition is made, the
corporation's articles of incorporation or by-laws (including board adopted
by-laws) provide that they do not apply.
There is no corresponding provision under the DGCL.
CONSTITUENT INTERESTS
Section 23-1-35-1 of the IBCL provides that the board of directors, in
discharging its duties, may consider, in its discretion, both the long-term and
short-term best interests of the corporation, taking into account, and weighing
as the directors deem appropriate, the effects of an action on the corporation's
shareholders, employees, suppliers and customers and the communities in which
offices or other facilities of the corporation are located and any other factors
the directors consider pertinent. Section 23-1-35-1 specifically provides that
certain judicial decisions in Delaware and other jurisdictions, which might be
looked upon for guidance in interpreting Indiana law, including decisions that
propose a higher or different degree of scrutiny in response to a proposed
acquisition of the corporation, are inconsistent with the proper application of
that section.
34
There is no corresponding provision in the DGCL.
PROCEDURES TO REGULATE CHANGES IN CONTROL
Section 23-1-22-4 of the IBCL provides that, in addition to any other
provision authorized by any other section of the IBCL or contained in the
articles of incorporation or the by-laws, a corporation may establish one or
more procedures to regulate transactions that would, when consummated, result in
a change of "control" of the corporation. Such a procedure may be established in
the original articles of incorporation or by-laws, by an amendment to the
articles of incorporation, or, notwithstanding the fact that a vote of the
shareholders would otherwise be required by any other provision of the IBCL or
the articles of incorporation, by an amendment to the by-laws. For the purposes
of Section 23-1-22-4, "control" means, for any corporation that has 100 or more
shareholders, the beneficial ownership, or the direct or indirect power to
direct the voting, of not less than 10% of the voting shares of a corporation's
outstanding voting shares.
There is no corresponding provision under the DGCL.
DISSENTERS' RIGHTS; APPRAISAL RIGHTS
Both Section 23-1-44-8 of the IBCL and Section 262 of the DGCL provide
that shareholders have the right, in some circumstances, to dissent from certain
corporate reorganizations and to instead demand payment of the fair value of
their shares. Under Section 23-1-44-8 of the IBCL, dissenters do not have rights
of appraisal with respect to shares of any class or series of stock registered
on a national securities exchange or traded on the National Association of
Securities Dealers, Inc. Automated Quotation System Over-the-Counter
Markets-National Market Issues or a similar market or unless the articles of
incorporation, by-laws or resolution of the board of directors provide that
non-voting shares are entitled to dissent, if they were not entitled to vote on
the corporate reorganization.
Under Section 262 of the DGCL, unless a corporation's certificate of
incorporation provides otherwise, dissenting stockholders do not have the rights
of appraisal with respect to a merger or consolidation by a corporation, the
shares of which are either listed on a national securities exchange or held by
more than 2,000 stockholders, if the stockholders receive (a) shares in the
surviving corporation, (b) shares of another corporation that are listed on a
national securities exchange or held by more than 2,000 stockholders, (c) cash
in lieu of fractional shares described in (a) and (b) of this paragraph or (d)
any combination of the above. Further, dissenters' rights are not available to
stockholders of a corporation surviving a merger if no vote of the stockholders
of the surviving corporation is required to approve the merger.
REDEEMABLE SHARES
Section 23-1-25-1 of the IBCL provides that the articles of incorporation
of a corporation may authorize one or more classes of shares that are redeemable
or convertible as specified in the articles of incorporation at the option of
the corporation, the shareholder or another person or upon the occurrence of a
designated event.
Section 151(b) of the DGCL provides that the certificate of incorporation
or a resolution of the board of directors providing for the issuance of a class
of stock may make such class of stock subject to redemption at the option of the
35
corporation or the stockholders, or upon the happening of a specified event, as
long as immediately following any such redemption the corporation has at least
one share of at least one series of stock with full voting powers.
RIGHTS, WARRANTS OR OPTIONS
Under Section 23-1-26-5 of the IBCL, a corporation, acting through its
board of directors, may create or issue rights, options or warrants for the
purchase of shares or other securities of the corporation or any successor in
interest of the corporation. The board of directors is to determine the terms
upon which the rights, options or warrants are issued, their form and content,
and the consideration for which the shares or other securities are to be issued.
Under Section 157 of the DGCL, rights or options to purchase shares of any
class of stock may be authorized by a corporation's board of directors subject
to the provisions of the certificate of incorporation. The terms of such rights
or options must be fixed and stated in the certificate of incorporation or in a
resolution or resolutions adopted by the board of directors.
PREEMPTIVE RIGHTS
Under Section 23-1-27-1 of the IBCL and Section 102(b)(3) of the DGCL,
absent an express provision in a corporation's articles of incorporation or
certificate of incorporation, a shareholder does not, by operation of law,
possess preemptive rights to subscribe to an additional issue of stock. Neither
the Present Articles of Incorporation nor the New Certificate of Incorporation
provide for preemptive rights.
AMENDMENT OF CERTIFICATE OR ARTICLES OF INCORPORATION AND BY-LAWS
Sections 23-1-38-1 - 23-1-38-7 of the IBCL and Section 242 of the DGCL
permit a corporation to amend its certificate of incorporation or articles of
incorporation in any respect, provided the amendment contains only provisions
that would be lawful in an original certificate of incorporation or articles of
incorporation filed at the time of amendment. To amend articles of incorporation
or a certificate of incorporation, the board must adopt a resolution presenting
the proposed amendment. In addition, under the DGCL, a majority of the shares
entitled to vote, as well as a majority of shares of each class entitled to
vote, must approve the amendment to make it effective. Under the IBCL, an
amendment to the articles of incorporation of an Indiana corporation generally
may be adopted if the votes cast favoring the amendment exceed the votes cast
opposing the amendment, except that any amendment that would create dissenters'
rights must be approved by a majority of the votes entitled to be cast. Under
the IBCL and the DGCL, when the substantial rights of a class of shares will be
affected by an amendment, the holders of those shares are entitled to vote as a
class even if the shares are non-voting shares. Additionally, when one or more
series in a class of shares, and not the entire class, will be adversely
affected by an amendment, the affected series may vote as a class.
Under Section 242(b)(2) of the DGCL, the right to vote as a class may be
limited in certain circumstances. Any provision in the certificate of
incorporation that requires a greater vote than required by law cannot be
amended or repealed except by such greater vote. Section 242(c) of the DGCL
provides that, in its resolution proposing an amendment, the board may insert a
provision allowing the board to abandon the amendment, without concurrence by
shareholders, after the amendment has received stockholder approval but before
its filing with the Secretary of State.
36
Section 23-1-39-1 of the IBCL provides that, unless the articles of
incorporation provide otherwise, only the board of directors of a corporation
may amend the by-laws. Section 109 of the DGCL, on the other hand, provides that
the power to amend the by-laws rests with the shareholders entitled to vote,
although the certificate of incorporation may confer the power to amend the
by-laws upon the board of directors. Section 109 further provides that the fact
that the certificate of incorporation confers such power upon the board of
directors neither limits nor divests the shareholders of the power to amend the
by-laws. The New Certificate of Incorporation does not provide otherwise.
The Present Articles of Incorporation and New Certificate of Incorporation
provide that the Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by law, and all rights conferred upon
shareholders herein are granted subject to this reservation.
The Present and New By-Laws provide that the Board of Directors or
stockholders may adopt, alter, amend or repeal them. Such action by the Board of
Directors requires the affirmative vote of a majority of the directors then in
office.
INSPECTION OF BOOKS AND RECORDS
Section 23-1-52-2 of the IBCL entitles any shareholder of a corporation to
inspect and copy, during regular business hours, certain enumerated corporate
records if the shareholder gives the corporation at least five days' advance
written notice. Certain records may be inspected only if: (i) the shareholder's
demand is made in good faith and for a proper purpose, (ii) the shareholder
describes with reasonable particularity the shareholder's purpose, and (iii) the
records to be inspected are directly connected with the shareholder's purpose.
Section 220 of the DGCL entitles any stockholder of record of a
corporation, in person or by an agent, upon written demand under oath stating
the purpose thereof, to inspect during usual business hours, for any proper
purpose, the corporation's stock ledger, a list of its stockholders and its
other books and records, and to make copies or extracts therefrom. A proper
purpose means a purpose reasonably related to such person's interest as a
stockholder.
VOTES REQUIRED
The affirmative vote of the holders of a majority of the outstanding
shares of Common Stock who are entitled to vote at the 2007 Annual Meeting is
required for the approval and adoption of the reincorporation proposal.
RECOMMENDATION OF THE BOARD OF DIRECTORS
THE BOARD RECOMMENDS THAT SHAREHOLDERS VOTE "FOR" THE REINCORPORATION
PROPOSAL.
37
PROPOSAL NO. 3
RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS
The Audit Committee of the Board of Directors has appointed Ernst & Young
LLP as the Corporation's independent auditors for the fiscal year ending
December 31, 2007. Although the selection of independent auditors does not
require ratification, the Board of Directors has directed that the appointment
of Ernst & Young LLP be submitted to shareholders for ratification due to the
significance of their appointment to the Corporation. If shareholders do not
ratify the appointment of Ernst & Young LLP as the Corporation's independent
auditors, the Audit Committee of the Board of Directors will consider the
appointment of other certified public accountants. A representative of Ernst &
Young LLP will be present at the 2007 Annual Meeting, will be available to
respond to appropriate questions and will have the opportunity to make a
statement if he or she desires. The approval of the proposal to ratify the
appointment of Ernst & Young LLP requires the affirmative vote of a majority of
the votes cast by all shareholders represented and entitled to vote thereon.
AUDIT FEES
The aggregate audit fees billed for each of the last two fiscal years by
Ernst & Young LLP were $436,800 for 2006 and $392,500 for 2005. Audit fees
include services relating to auditing the Corporation's annual financial
statements, reviewing the financial statements included in the Corporation's
quarterly reports on Form 10-Q and certain accounting consultations.
AUDIT RELATED FEES
The aggregate audit related fees billed for each of the last two fiscal
years by Ernst & Young LLP totaled $24,000 for 2006 and $22,000 for 2005. Audit
related fees include services relating to employee benefit plans.
TAX FEES
The aggregate tax fees billed for each of the last two fiscal years by
Ernst & Young LLP totaled $25,000 for 2006 and $32,000 for 2005. Tax fees
include services performed relating to tax compliance and customs services.
ALL OTHER FEES
The Corporation was not billed for any other services by Ernst & Young LLP
during 2006 or 2005.
PRE-APPROVAL POLICIES AND PROCEDURES
The Audit Committee policy and procedures for the pre-approval of audit
and non-audit services rendered by our independent auditors are reflected in the
Audit Committee Charter. The Audit Committee Charter provides that the Audit
Committee shall pre-approve all audit and non-audit services provided by the
independent auditors and shall not engage the independent auditors to perform
38
the specific non-audit services proscribed by law or regulation. The Audit
Committee may delegate pre-approval authority to a member of the Audit
Committee. The decisions of any Committee member to whom pre-approval authority
is delegated must be presented to the full Committee at its next scheduled
meeting.
The Audit Committee has determined that the rendering of the services
other than audit services by Ernst & Young LLP was compatible with maintaining
Ernst & Young LLP's independence.
All audit-related and tax services performed by our independent auditors
were pre-approved by the Audit Committee.
VOTES REQUIRED
The affirmative vote of a majority of those shares present in person or
represented by proxy and entitled to vote on the proposal at the annual meeting
is required to ratify the appointment of Ernst & Young LLP as the Corporation's
independent auditors for the fiscal year ending December 31, 2007. Thus,
abstentions will not affect the outcome of the vote on the proposal.
RECOMMENDATION OF THE BOARD OF DIRECTORS
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE RATIFICATION OF THE
APPOINTMENT OF ERNST & YOUNG LLP AS THE CORPORATION'S INDEPENDENT AUDITORS FOR
THE FISCAL YEAR ENDING DECEMBER 31, 2007.
39
SHAREHOLDER PROPOSALS
Proposals of shareholders intended to be presented at the 2008 Annual
Meeting of Shareholders must be received by the Office of the Secretary, The LGL
Group, Inc., 140 Greenwich Avenue, 4th Floor, Greenwich, Connecticut 06830, by
no later than December 16, 2007, for inclusion in the Corporation's proxy
statement and form of proxy relating to the 2008 Annual Meeting.
The date after which notice of a shareholder proposal intended to be
submitted for the 2008 Annual Meeting of Shareholders outside the processes of
Rule 14a-8 will be considered untimely is February 29, 2008. If not received by
that date, the persons named in the form of proxy accompanying the notice of
meeting may vote on any such proposal in their discretion.
MISCELLANEOUS
The Board of Directors knows of no other matters that are likely to come
before the 2007 Annual Meeting. If any other matters should properly come before
the 2007 Annual Meeting, it is the intention of the persons named in the
accompanying form of proxy to vote on such matters in accordance with their best
judgment.
The solicitation of proxies is made on behalf of the Board of Directors of
the Corporation, and the cost thereof will be borne by the Corporation. The
Corporation has employed the firm of Morrow & Co. Inc., 470 West Avenue, 3rd
Floor, Stamford, Connecticut, 06902 to assist in this solicitation at a cost of
$4,000, plus out-of-pocket expenses. The Corporation will also reimburse
brokerage firms and nominees for their expenses in forwarding proxy material to
beneficial owners of the Common Stock of the Corporation. In addition, officers
and employees of the Corporation (none of whom will receive any compensation
therefor in addition to their regular compensation) may solicit proxies. The
solicitation will be made by mail and, in addition, may be made by telegrams,
personal interviews and the telephone.
ANNUAL REPORT
The Corporation's Annual Report to Shareholders for the fiscal year ended
December 31, 2006 is being sent herewith to each shareholder. Such Annual
Report, however, is not to be regarded as part of the proxy soliciting material.
40
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF THE LGL GROUP, INC.
PROXY -- ANNUAL MEETING OF SHAREHOLDERS AUGUST 15, 2007
The undersigned, a shareholder of The LGL Group, Inc., an Indiana corporation (the
"Corporation"), does hereby appoint Marc Gabelli, Jeremiah Healy and Steve Pegg, and each of
them, the true and lawful attorneys and proxies with full power of substitution, for and in
the name, place and stead of the undersigned, to vote all of the shares of Common Stock of
the Corporation that the undersigned would be entitled to vote if personally present at the
2007 Annual Meeting of Shareholders of the Corporation to be held at The Greenwich Library,
101 West Putnam Avenue, Greenwich, Connecticut, on Wednesday, August 15, 2007 at 9:30 a.m.,
local time, or at any adjournment or adjournments thereof.
(CONTINUED AND TO BE MARKED, DATED AND SIGNED, ON THE OTHER SIDE)
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ADDRESS CHANGE/COMMENTS (MARK THE CORRESPONDING BOX ON THE REVERSE SIDE)
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THIS PROXY WILL BE VOTED IN ACCORDANCE WITH ANY DIRECTIONS HERE BELOW GIVEN. UNLESS OTHERWISE SPECIFIED, THIS Please
PROXY WILL BE VOTED FOR THE ELECTION OF DIRECTORS, FOR THE APPROVAL OF THE REINCORPORATION IN THE STATE OF Mark Here -------
DELAWARE AND FOR RATIFICATION OF THE APPOINTMENT OF THE INDEPENDENT AUDITORS. for Address
Change or
Comments
SEE REVERSE SIDE
FOR ALL WITHHOLD AUTHORITY TO
NOMINEES VOTE FOR ALL NOMINEES FOR AGAINST ABSTAIN
2. APPROVAL OF THE REINCORPORATION IN THE STATE
1. ELECTION OF DIRECTORS: ------ ------ OF DELAWARE. ---- ------- -------
The election of
Marc Gabelli, E. Val Cerutti, Peter DaPuzzo, Timothy 3. RATIFICATION OF THE APPOINTMENT OF ERNST & FOR AGAINST ABSTAIN
Foufas, Avrum Gray, Patrick J. Guarino, Kuni Nakamura, YOUNG AS THE INDEPENDENT AUDITORS FOR THE
Anthony R. Pustorino and Javier Romero to the Board of FISCAL YEAR ENDING DECEMBER 31, 2007. ---- ------- -------
Directors, to serve until the 2008 Annual Meeting of
Shareholders and until their respective successors are
elected and shall qualify.
To withhold authority to vote for any individual
nominee(s), print name(s) below.
The undersigned hereby revokes any proxy or proxies heretofore given,
----------------------------------------------------------- and ratifies and confirms all that the proxies appointed hereby, or any
of them, or their substitutes, may lawfully do or cause to be done by
virtue hereof.
NOTE: PLEASE SIGN EXACTLY AS YOUR NAME OR NAMES APPEAR HEREON. WHEN
SIGNING AS ATTORNEY, EXECUTOR, ADMINISTRATOR, TRUSTEE OR GUARDIAN,
PLEASE INDICATE THE CAPACITY IN WHICH SIGNING. WHEN SIGNING AS JOINT
TENANTS, ALL PARTIES IN THE JOINT TENANCY MUST SIGN. WHEN A PROXY IS
GIVEN BY A CORPORATION, IT SHOULD BE SIGNED WITH FULL CORPORATE NAME BY
A DULY AUTHORIZED OFFICER.
Dated: ___________________________________________________________,2007
_________________________________________________________________(L.S.)
(Signature of Shareholder)
_________________________________________________________________(L.S.)
(Signature of Shareholder)
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
OF
THE LGL GROUP, INC., A DELAWARE CORPORATION
AND
THE LGL GROUP, INC., AN INDIANA CORPORATION
AGREEMENT AND PLAN OF MERGER (the "Merger Agreement"), dated as of August
___, 2007, between The LGL Group, Inc. ("LGL Delaware"), and The LGL Group, Inc.
an Indiana corporation ("LGL Indiana"), pursuant to Section 253 of the Delaware
General Corporation Law (the "DGCL") and Sections 23-1-38.5-5 and 23-1-40-7 of
the Indiana Business Corporation Law (the "IBCL").
W I T N E S S E T H:
WHEREAS, LGL Delaware is a corporation duly organized and in good standing
under the laws of the State of Delaware;
WHEREAS, LGL Indiana is a corporation duly organized and in good standing
under the laws of the State of Indiana;
WHEREAS, the Board of Directors of LGL Delaware and the Board of Directors
of LGL Indiana have determined that it is advisable and in the best interests of
each of them that LGL Indiana merge with and into LGL Delaware upon the terms
and subject to the conditions herein provided;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, the parties hereto agree as follows:
ARTICLE 1: MERGER. Upon the filing of a Certificate of Ownership and
Merger with the Secretary of State of the State of Delaware and the Articles of
Merger with the Secretary of State of the State of Indiana (the "Effective
Time"), LGL Indiana shall be merged (the "Merger") with and into LGL Delaware,
and LGL Delaware shall be the corporation surviving the Merger (hereinafter
referred to as the "Surviving Corporation").
ARTICLE 2: DIRECTORS, OFFICERS AND GOVERNING DOCUMENTS. The directors of
the Surviving Corporation from and after the Effective Time shall be the
directors of LGL Indiana immediately prior to the Effective Time. The officers
of the Surviving Corporation immediately after the Effective Time shall be the
officers of LGL Indiana immediately prior to the Effective Time. These officers
and directors shall hold office in accordance with the Certificate of
Incorporation and By-Laws of the Surviving Corporation. After the Effective
Time, the existing Certificate of Incorporation and By-Laws of LGL Delaware, in
the forms attached hereto as Annex A and B, shall remain the Certificate of
Incorporation and By-Laws of the Surviving Corporation.
ARTICLE 3: NAME. The name of the Surviving Corporation shall be: The
LGL Group, Inc.
ARTICLE 4: EFFECT OF MERGER ON SHARES OF STOCK OF LGL INDIANA. At the
Effective Time, each share of common stock, $0.01 par value, of LGL Indiana
outstanding immediately prior to the Effective Time shall be converted into and
become one share of common stock, $0.01 par value, of the Surviving Corporation.
At the Effective Time, each issued and outstanding share of stock of LGL
Delaware shall be canceled, without the payment of consideration therefor.
ARTICLE 5: EFFECT OF THE MERGER. The Merger shall have the effect set
forth in Section 259 of the DGCL.
ARTICLE 6: APPROVAL. The Plan of Merger herein made and approved shall be
submitted to the shareholders of LGL Indiana and stockholders of LGL Delaware,
respectively, for their approval in the manner prescribed by the provisions of
the IBCL and the provisions of the DGCL.
ARTICLE 7: AUTHORIZATION. The Board of Directors and the proper officers
of LGL Indiana and of the Surviving Corporation, respectively, are hereby
authorized, empowered, and directed to do any and all acts and things, and to
make, execute, deliver, file, and/or record any and all instruments, papers, and
documents which shall be or become necessary, proper, or convenient to carry out
or put into effect any of the provisions of this Agreement and Plan of Merger or
of the merger provided for herein.
ARTICLE 8: FURTHER ASSURANCES. From time to time, as and when required by
the Surviving Corporation or by its successors and assigns, there shall be
executed and delivered on behalf of LGL Indiana such deeds and other
instruments, and there shall be taken or caused to be taken by the Surviving
Corporation all such further and other actions, as shall be appropriate or
necessary in order to vest, perfect or confirm in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers and authority of LGL Indiana, and otherwise to carry out the
purposes of this Merger Agreement. The officers and directors of the Surviving
Corporation are fully authorized, on behalf of the Surviving Corporation and LGL
Indiana, to take any and all such actions and to execute and deliver any and all
such deeds, documents and other instruments.
[The remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the undersigned have executed this Merger Agreement as
of the date first above written.
THE LGL GROUP, INC.
an Indiana corporation
By:
----------------------------------------
Name: Jeremiah M. Healy
Title: President and Chief Executive Officer
THE LGL GROUP, INC.
a Delaware corporation
By:
----------------------------------------
Name: Steve Pegg
Title: Vice President and
Chief Financial Officer
EXHIBIT B
CERTIFICATE OF INCORPORATION
OF
THE LGL GROUP, INC.
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The undersigned, being the sole incorporator herein named, for the purpose
of forming a corporation pursuant to the General Corporation Law of the State of
Delaware, does hereby certify that:
FIRST The name of the corporation is The LGL Group, Inc. (the
"Corporation").
SECOND The address, including street, number, city and county of the
registered office of the Corporation in the State of Delaware is 615 South
DuPont Highway, Dover, Delaware 19901, County of Kent; and the name of the
registered agent of the Corporation in the State of Delaware at such address is
National Corporate Research, Ltd.
THIRD The nature of the business, and the objects and purposes
proposed to be transacted, promoted and carried on, are to do any lawful act or
thing for which a corporation may be organized under the General Corporation Law
of the State of Delaware.
FOURTH The aggregate number of shares of stock that the Corporation
shall have authority to issue is Ten Million (10,000,000) shares of Common
Stock, $.01 par value per share.
FIFTH The name and the mailing address of the incorporator are as
follows:
Mark L. Lakin
Olshan Grundman Frome Rosenzweig & Wolosky
LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
SIXTH The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of the State of Delaware, as
same may be amended and supplemented. Any repeal or modification of this Article
SIXTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation with respect to events
occurring prior to the time of such repeal or modification.
SEVENTH The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
-1-
exclusive of any other rights to which those indemnified may be entitled under
any By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in their official capacities and as to action in
another capacity while holding such offices, 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 person.
EIGHTH The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, and any
other provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted, subject to the limitations set forth in this
Certificate of Incorporation and in the manner now or hereafter provided herein
by statue, and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as amended
are granted subject to the rights reserved in this Article EIGHTH.
NINTH The Corporation hereby confers the power to adopt, amend or
repeal its By-Laws upon the Board of Directors. Notwithstanding the forgoing,
such power shall not divest or limit the power of the stockholders of the
Corporation to adopt, amend or repeal the By-Laws of the Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of _____
2007.
----------------------------------------------
Mark L. Lakin, Incorporator
Olshan Grundman Frome Rosenzweig & Wolosky LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
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EXHIBIT C
THE LGL GROUP, INC.
BY-LAWS
ARTICLE I
STOCKHOLDERS
SECTION 1.1. ANNUAL MEETINGS. An annual meeting of stockholders to
elect directors and transact such other business as may properly be presented to
the meeting shall be held on such date and at such place as the Board of
Directors may from time to time fix, and if that day shall be a legal holiday in
the jurisdiction in which the meeting is to be held, then on the next day not a
legal holiday or as soon thereafter as may be practical, as determined by the
Board of Directors.
SECTION 1.2. SPECIAL MEETINGS. A special meeting of stockholders may
be called at any time by the Chairman of the Board, the Chief Executive Officer,
the President or the Board of Directors pursuant to a resolution adopted by a
majority of the Whole Board (as defined below) and shall be called by any of
them or by the Secretary upon receipt of a written request to do so specifying
the matter or matters, appropriate for action at such a meeting, proposed to be
presented at the meeting and signed by holders of shares representing at least
twenty-five percent (25%) of all votes entitled to be voted on such matter or
matters if the meeting were held on the day such request is received and the
record date for such meeting were the close of business on the preceding day.
Any such meeting shall be held at such time and at such place, within or without
the State of Delaware, as shall be determined by the body or person calling such
meeting and as shall be stated in the notice of such meeting. The Whole Board
shall mean the total number of directors that the Corporation would have if
there were no vacancies.
SECTION 1.3. NOTICE OF MEETING. For each meeting of stockholders,
written notice shall be given stating the place, date and hour and, in the case
of a special meeting, the purpose or purposes for which the meeting is called
and, if the list of stockholders required by Section 1.9 is not to be at such
place at least 10 days prior to the meeting, the place where such list will be.
Except as otherwise provided by Delaware law, the written notice of any meeting
shall be given not less than 10 or more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, notice
shall be deemed to be given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the records
of the Corporation.
SECTION 1.4. QUORUM. Except as otherwise required by Delaware law or
the Certificate of Incorporation, the holders of record of a majority of the
shares of stock entitled to be voted present in person or represented by proxy
at a meeting shall constitute a quorum for the transaction of business at the
meeting, but in the absence of a quorum the holders of record present or
represented by proxy at such meeting may vote to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is obtained. At any such adjourned session of the meeting at which there shall
be present or represented the holders of record of the requisite number of
shares, any business may be transacted that might have been transacted at the
meeting as originally called.
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SECTION 1.5. CHAIRMAN AND SECRETARY AT MEETING. At each meeting of
stockholders the Chairman, or in his absence or should the Chairman so direct,
the President, or in the absence of the Chairman and the President, then a
person designated by the Board of Directors, shall preside as chairman of the
meeting; if no person is so designated, then the meeting shall choose a chairman
by plurality vote. The Secretary, or in his absence a person designated by the
chairman of the meeting, shall act as secretary of the meeting.
SECTION 1.6. VOTING; PROXIES. Except as otherwise provided by
Delaware law or the Certificate of Incorporation, and subject to the provisions
of Section 1.10:
(a) Each stockholder shall at every meeting of the
stockholders be entitled to one vote for each share of capital stock held by
him.
(b) Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
(c) Directors shall be elected by a plurality vote.
(d) Each matter, other than election of directors, properly
presented to any meeting shall be decided by a majority of the votes cast on the
matter.
(e) Election of directors and the vote on any other matter
presented to a meeting shall be by written ballot only if so ordered by the
chairman of the meeting or if so requested by any stockholder present or
represented by proxy at the meeting entitled to vote in such election or on such
matter, as the case may be.
SECTION 1.7. ADJOURNED MEETINGS. A meeting of stockholders may be
adjourned to another time or place as provided in Section 1.4. Unless the Board
of Directors fixes a new record date, stockholders of record for an adjourned
meeting shall be as originally determined for the meeting from which the
adjournment was taken. If the adjournment is for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote. At the adjourned meeting any business may be transacted that might have
been transacted at the meeting as originally called.
SECTION 1.8. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Except as
may otherwise be provided in the Certificate of Incorporation, any action that
may be taken at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Notice of the taking of such
action shall be given promptly to each stockholder that would have been entitled
to vote thereon at a meeting of stockholders and that did not consent thereto in
writing.
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SECTION 1.9. LIST OF STOCKHOLDERS ENTITLED TO VOTE. At least 10 days
before every meeting of stockholders a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder, shall be prepared and shall be open to the examination of any
stockholder for any purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 days prior to the meeting, at a place within
the city where the meeting is to be held. Such list shall be produced and kept
at the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
SECTION 1.10. FIXING OF RECORD DATE. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 60 or less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held; the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed; and the record date for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
SECTION 1.11. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) ANNUAL MEETINGS OF STOCKHOLDERS.
(i) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (a) pursuant
to the Corporation's notice of meeting, (b) by or at the direction of the Board
of Directors or (c) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of notice provided for in this Section 1.11, who
is entitled to vote at the meeting and who complies with the notice procedures
set forth in this Section 1.11.
(ii) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (a)(i) of this Section 1.11, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation and such other
business must otherwise be a proper matter for stockholder action. To be timely,
a stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
90th day nor earlier than the close of business on the 120th day prior to the
first anniversary of the preceding year's annual meeting; provided, however, in
the event that the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by the stockholder to be
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timely must be so delivered not earlier than the close of business on the 120th
day prior to such annual meeting and not later than the close of business on the
later of the 90th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made by
the Corporation. In no event shall the public announcement of an adjournment of
an annual meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth (a) as to
each person whom the stockholder proposes to nominate for election or reelection
as a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations thereunder (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected) and any additional information reasonably requested by the Board of
Directors; (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial owner, (ii)
the class and number of shares of the Corporation that are owned beneficially
and of record by such stockholder and such beneficial owner, (iii) all
information relating to such stockholder and such beneficial owner that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act, and Rule 11a-11 thereunder, and (iv) any
additional information reasonably requested by the Board of Directors.
Notwithstanding anything in the second sentence of paragraph (a)(ii)
of this Section 1.11 to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the Corporation is increased and
there is no public announcement by the Corporation naming all of the nominees
for director or specifying the size of the increased Board of Directors at least
70 days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 1.11 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (i) by or at the direction of the Board of
Directors or (ii) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 1.11. In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
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who shall be entitled to vote at the meeting may nominate a person or persons
(as the case may be), for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice required by
paragraph (a)(ii) of this Section 1.11 shall be delivered to the Secretary at
the principal executive offices of the Corporation not earlier than the close of
business on the 120th day prior to such special meeting and not later than the
close of business on the later of the 90th day prior to such special meeting or
the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder's notice as described above.
(c) GENERAL.
(i) Only such persons who are nominated in accordance
with the procedures set forth in this Section 1.11 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 1.11. Except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws, either the Board of Directors or
the Chairman of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this Section 1.11 and, if any proposed nomination or business is not in
compliance with this Section 1.11, to declare that such defective proposal or
nomination shall be disregarded.
(ii) For purposes of this Section 1.11, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this
Section 1.11, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 1.11. Nothing in this Section 1.11 shall be
deemed to affect any rights (A) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (B) of the holders of any series of preferred stock to elect
directors under specified circumstances.
ARTICLE II
DIRECTORS
SECTION 2.1. NUMBER; TERM OF OFFICE; QUALIFICATIONS; VACANCIES. The
number of directors that shall constitute the Whole Board shall be fixed from
time to time as determined by action of the Board of Directors, but no less than
five (5) nor more than thirteen (13). Until otherwise fixed by action of the
Board of Directors, the number of directors constituting the Whole Board shall
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be nine (9). Directors shall be elected at the annual meeting of stockholders to
hold office, subject to Sections 2.2 and 2.3, until the next annual meeting of
stockholders and until their respective successors are elected and qualify.
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, although less than a quorum, or by the sole remaining director, and
the directors so chosen shall hold office, subject to Sections 2.2 and 2.3,
until the next annual meeting of stockholders and until their respective
successors are elected and qualified.
SECTION 2.2. RESIGNATION. Any director of the Corporation may resign
at any time by giving written notice of such resignation to the Board of
Directors, the President or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein or, if no time be
specified, upon receipt thereof by the Board of Directors or one of the
above-named officers; and, unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective. When one or more
directors shall resign from the Board of Directors effective at a future date, a
majority of the directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in these By-Laws in the filling
of other vacancies.
SECTION 2.3. REMOVAL. Except for the directors elected pursuant to
and in accordance with the terms of a certificate of designation filed under
Delaware law, whose removal is governed thereby, any one or more directors may
be removed, with or without cause, by the vote or written consent of the holders
of a majority of the shares entitled to vote at an election of directors.
SECTION 2.4. REGULAR AND ANNUAL MEETINGS; NOTICE. Regular meetings
of the Board of Directors shall be held at such time and at such place, within
or without the State of Delaware, as the Board of Directors may from time to
time prescribe. No notice need be given of any regular meeting, and a notice, if
given, need not specify the purposes thereof. A meeting of the Board of
Directors may be held without notice immediately after an annual meeting of
stockholders at the same place as that at which such meeting was held.
SECTION 2.5. SPECIAL MEETINGS; NOTICE. A special meeting of the
Board of Directors may be called at any time by the Board of Directors, its
Chairman, the President or any person acting in the place of the President and
shall be called by any one of them or by the Secretary upon receipt of a written
request to do so specifying the matter or matters, appropriate for action at
such a meeting, proposed to be presented at the meeting and signed by at least
two directors. Any such meeting shall be held at such time and at such place,
within or without the State of Delaware, as shall be determined by the body or
person calling such meeting. Notice of such meeting stating the time and place
and principal purpose or purposes thereof shall be given (a) by deposit of the
notice in the United States mail, first class, postage prepaid, at least two
days before the day fixed for the meeting addressed to each director at his
address as it appears on the Corporation's records or at such other address as
the director may have furnished the Corporation for that purpose, or (b) by
delivery of the notice similarly addressed for dispatch by electronic
transmission, telegraph, cable or radio or by delivery of the notice by
telephone or in person, in each case at least 24 hours before the time fixed for
the meeting.
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SECTION 2.6. CHAIRMAN OF THE BOARD; PRESIDING OFFICER AND SECRETARY
AT MEETINGS. The Board of Directors may elect one of its members to serve at its
pleasure as Chairman of the Board. Each meeting of the Board of Directors shall
be presided over by the Chairman of the Board or in his absence or should the
Chairman so direct, by the President, if a director, or if neither is present by
such member of the Board of Directors as shall be chosen at the meeting. The
Secretary, or in his absence an Assistant Secretary, shall act as secretary of
the meeting, or if no such officer is present, a secretary of the meeting shall
be designated by the person presiding over the meeting.
SECTION 2.7. QUORUM. A majority of the Whole Board shall constitute
a quorum for the transaction of business, but in the absence of a quorum a
majority of those present (or if only one be present, then that one) may adjourn
the meeting, without notice other than announcement at the meeting, until such
time as a quorum is present. Except as otherwise required by the Certificate of
Incorporation or the By-Laws, the vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors.
SECTION 2.8. MEETING BY TELEPHONE. Members of the Board of Directors
or of any committee thereof may participate in meetings of the Board of
Directors or of such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at such meeting.
SECTION 2.9. ACTION WITHOUT MEETING. Unless otherwise restricted by
the Certificate of Incorporation, 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 of Directors or of such committee,
as the case may be, consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or of such
committee.
SECTION 2.10. EXECUTIVE AND OTHER COMMITTEES.
(a) The Board of Directors may, by resolution passed by a
majority of the Whole Board, designate an Executive Committee and one or more
other committees, each such committee, except as otherwise required by
applicable law, to consist of two or more directors (or, in the case of a
special-purpose committee, one or more directors) as the Board of Directors may
from time to time determine. Any such committee, to the extent provided in such
resolution or resolutions or in these By-Laws and not inconsistent with Section
141 of the Delaware General Corporation Law, as from time to time amended (the
"DGCL"), 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 to authorize the seal of the Corporation to be affixed to
all papers that may require it; and unless the resolution or resolutions shall
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
committee member or members or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
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any such absent or disqualified member. Each such committee other than the
Executive Committee shall have such name as may be determined from time to time
by the Board of Directors.
(b) Unless the Board of Directors otherwise provides, each
committee designated by the Board of Directors may adopt, amend and repeal rules
for the conduct of its business. In the absence of a provision by the Board of
Directors or a provision in the rules of such committee to the contrary, a
majority of the entire authorized number of members of such committee shall
constitute a quorum for the transaction of business, the vote of a majority of
the members present at a meeting at the time of such vote if a quorum is then
present shall be the act of such committee, and in other respects each committee
shall conduct its business in the same manner as the Board of Directors conducts
its business pursuant to Article II of these By-Laws.
SECTION 2.11. COMPENSATION. No director shall receive any stated
salary for his services as a director or as a member of a committee but shall
receive such sum, if any, as may from time to time be fixed by the action of the
Board of Directors.
ARTICLE III
OFFICERS
SECTION 3.1. ELECTION; QUALIFICATION. The principal officers of the
Corporation shall be the President, one or more Vice Presidents, a Secretary and
a Treasurer, all of whom shall be elected by the Board of Directors. The Board
of Directors may in addition elect a Chairman of the Board who shall be chosen
from among the Directors. Any two or more offices may be held by the same
person.
SECTION 3.2. TERM OF OFFICE. Each officer shall hold office from the
time of his election and qualification to the time at which his successor is
elected and qualified, unless he shall die or resign or shall be removed
pursuant to Section 3.4 at any time sooner.
SECTION 3.3. RESIGNATION. Any officer of the Corporation may resign
at any time by giving written notice of such resignation to the Chairman of the
Board of Directors, the President or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein or, if no time be
specified, upon receipt thereof by the Board of Directors or one of the
above-named officers; and, unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 3.4. REMOVAL. Any officer may be removed at any time, with
or without cause, by the vote of a majority of the Whole Board.
SECTION 3.5. VACANCIES. Any vacancy however caused in any office of
the Corporation shall be filled by the Board of Directors.
SECTION 3.6. COMPENSATION. Unless otherwise provided by resolution
passed by a majority of the Whole Board, and subject to the requirements of any
national securities exchange or automated quotation system on which the stock of
the Corporation is listed, the salaries of all officers elected by the Board of
Directors shall be fixed by the Board of Directors.
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SECTION 3.7. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
be the chairman of all meetings of the Board of Directors, or in the absence or
in case there shall be no Chairman of the Board, the Chief Executive Officer
shall be the Chairman of all meetings of the Board of Directors.
SECTION 3.8. PRESIDENT. The President, if so designated by the Board
of Directors, shall be the Chief Executive Officer of the Corporation and shall
have general charge of the business and affairs of the Corporation, subject
however to the right of the Board of Directors to confer specified powers on
officers and subject to the control of the Board of Directors and the Executive
Committee, if any. If not designated by the Board of Directors as Chief
Executive Officer, the President shall be the Chief Operating Officer of the
Corporation and shall have general charge of the day-to-day operations of the
business and affairs of the Corporation, subject however to the right of the
Board of Directors to confer specified powers on officers and subject to the
control of the Board of Directors. The Chief Executive Officer shall keep the
Board of Directors appropriately informed regarding the business and affairs of
the Corporation.
SECTION 3.9. TREASURER. The Treasurer shall have charge of and be
responsible for the receipt, disbursement and safekeeping of all funds and
securities of the Corporation. The Treasurer shall deposit all such funds in the
name of the Corporation in such banks, trust companies or other depositories as
shall be selected in accordance with the provisions of these bylaws. From time
to time and whenever requested to do so, the Treasurer shall render statements
of the condition of the finances of the Corporation to the Board of Directors.
The Treasurer shall perform all the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him or her.
SECTION 3.10. VICE PRESIDENT. Each Vice President shall have such
powers and duties as generally pertain to the office of Vice President and as
the Board of Directors or the President may from time to time prescribe. During
the absence of the president or his inability to act, the Vice President, or if
there shall be more than one Vice President, then that one designated by the
Board of Directors, shall exercise the powers and shall perform the duties of
the President, subject to the direction of the Board of Directors and the
Executive Committee, if any.
SECTION 3.11. SECRETARY. The Secretary shall keep the minutes of all
meetings of stockholders and of the Board of Directors. He shall be custodian of
the corporate seal and shall affix it or cause it to be affixed to such
instruments as require such seal and attest the same and shall exercise the
powers and shall perform the duties incident to the office of Secretary, subject
to the direction of the Board of Directors and the Executive Committee, if any.
SECTION 3.12. OTHER OFFICERS. Each other officer of the Corporation
shall exercise the powers and shall perform the duties incident to his office,
subject to the direction of the Board of Directors .
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ARTICLE IV
CAPITAL STOCK
SECTION 4.1. STOCK CERTIFICATES. The interest of each holder of
stock of the Corporation shall be evidenced by a certificate or certificates in
such form as the Board of Directors may from time to time prescribe. Each
certificate shall be signed by or in the name of the Corporation by the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary. Any of or all the signatures appearing
on such certificate or certificates may be a facsimile. If any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
SECTION 4.2. TRANSFER OF STOCK. Shares of stock shall be
transferable on the books of the Corporation pursuant to applicable law and such
rules and regulations as the Board of Directors shall from time to time
prescribe.
SECTION 4.3. HOLDERS OF RECORD. Prior to due presentment for
registration of transfer the Corporation may treat the holder of record of a
share of its stock as the complete owner thereof exclusively entitled to vote,
to receive notifications and otherwise entitled to all the rights and powers of
a complete owner thereof, notwithstanding notice to the contrary.
SECTION 4.4. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. The
Corporation shall issue a new certificate of stock to replace a certificate
theretofore issued by it alleged to have been lost, destroyed or wrongfully
taken, if the owner or his legal representative (i) requests replacement, before
the Corporation has notice that the stock certificate has been acquired by a
bona fide purchaser; (ii) files with the Corporation a bond sufficient to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss or destruction of any such stock certificate or the
issuance of any such new stock certificate; and (iii) satisfies such other terms
and conditions as the Board of Directors may from time to time prescribe.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. INDEMNITY. (a) The Corporation shall indemnify, subject
to the requirements of subsection (d) of this Section, 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
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in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea 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, subject to the
requirements of subsection (d) of this Section, 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 to the Corporation unless and only to the extent that
the Court of Chancery of the State 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 the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery of the State of Delaware or such other court shall deem
proper.
(c) To the extent that a director, officer, employee or agent
of the Corporation, or a person serving in any other enterprise at the request
of the Corporation, has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsection (a) and (b) of this
Section, or in defense of any claim, issue or matter therein, the Corporation
shall indemnify him against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
Section (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 subsections (a) and (b)
of this Section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses incurred by a director, officer, employee or
agent 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 upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Section.
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(f) The indemnification and advancement of expenses provided
by or granted pursuant to, the other subsections of this Section shall not limit
the Corporation from providing any other indemnification or advancement of
expenses permitted by law nor shall it be deemed exclusive of any other rights
to which those seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
(g) The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or who is or was 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 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 Section.
(h) The indemnification and advancement of expenses provided
by, or granted pursuant to this section shall, unless otherwise provided when
authorized or ratified, 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.
(i) For the purposes of this Section, references to "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, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(j) This Section 5.1 shall be construed to give the
Corporation the broadest power permissible by the DGCL, as it now stands and as
hereafter amended.
SECTION 5.2. WAIVER OF NOTICE. Whenever notice is required by the
Certificate of Incorporation, the By-Laws or any provision of the DGCL, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time required for such notice, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors or members of a committee of directors need be
specified in any written waiver of notice.
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SECTION 5.3. FISCAL YEAR. The fiscal year of the Corporation shall
start on such date as the Board of Directors shall from time to time prescribe.
SECTION 5.4. CORPORATE SEAL. The corporate seal shall be in such
form as the Board of Directors may from time to time prescribe, and the same may
be used by causing it or a facsimile thereof to be impressed or affixed or in
any other manner reproduced.
ARTICLE VI
AMENDMENT OF BY-LAWS
SECTION 6.1. AMENDMENT. The By-Laws may be altered, amended
or repealed by the stockholders or by the Board of Directors by a majority
vote.
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