SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
Amendment to Form 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
Fine Host Corporation
---------------------
(Exact name of registrant as specified in its charter)
Delaware 06-1156070
(State of incorporation or organization) (I.R.S. Employer Identification No.)
3 Greenwich Office Park
Greenwich, CT 06831
(Address of principal executive offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to Section 12(b) securities pursuant to Section 12(g)
of the Exchange Act and is effective of the Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), please check the following A.(d), please check the following
box. |_| box. |_|
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- ------------------- ------------------------------
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock,
par value $.05 per share
------------------------
(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
Pursuant to an order, dated May 18, 1999, of the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court")
confirming the Second Amended Plan of Reorganization (the "Plan") of Fine Host
Corporation (the "Company"), (i) the Bankruptcy Court approved the Company's
Restated Certificate of Incorporation, which was filed with the Delaware
Secretary of State on May 27, 1999 (the "Restated Charter"), and (ii) the
Company's existing common stock, $.01 par value per share (the "Old Common
Stock"), was cancelled. Pursuant to the Restated Charter, (i) the par value of
the Company's capital stock was changed to $.05 per share, and (ii) the Company
is authorized to issue 20,000,000 shares, consisting of (a) 15,000,000 shares of
Common Stock, par value $.05 per share (the "New Common Stock"), and (b)
5,000,000 shares of Preferred Stock, par value $.05 per share.
In addition, pursuant to the Plan, the Company will issue
warrants to purchase an aggregate of 1,000,000 shares of New Common Stock to
holders of certain claims against the Company and the holders of the Company's
Old Common Stock. The warrants will have an exercise price of $13.16 per share,
and will be exercisable until May 27, 2001.
Item 2. Exhibits.
1. Restated Certificate of Incorporation of the Company, filed with the
Secretary of State of the State of Delaware on May 27, 1999.
2. Amended and Restated Bylaws of the Company.
3. Specimen of the Company's Common Stock Certificate.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
Date: June 10, 1999
FINE HOST CORPORATION
By: /s/ Ellen Keats
-----------------------------------
Ellen Keats
Senior Vice President and Secretary
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EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
1 Restated Certificate of Incorporation of the Company, filed with the
Secretary of State of the State of Delaware on May 27, 1999.
2 Amended and Restated Bylaws of the Company.
3 Specimen of the Company's Common Stock Certificate.
Exhibit 1
RESTATED CERTIFICATE OF INCORPORATION
OF
FINE HOST CORPORATION
FINE HOST CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Fine Host Corporation. Fine
Host Corporation was originally incorporated under the same name, and the
original Certificate of Incorporation of the corporation was filed with the
Secretary of State of the State of Delaware on November 7, 1985.
2. The original Certificate of Incorporation was amended and
restated pursuant to a Restated Certificate of Incorporation which was filed
with the Secretary of State of the State of Delaware on April 28, 1993, which
was further amended and restated pursuant to a Restated Certificate of
Incorporation which was filed with the Secretary of State of the State of
Delaware on May 10, 1996, which was further amended and restated pursuant to a
Restated Certificate of Incorporation which was filed with the Secretary of
State of the State of Delaware on June 25, 1996.
3. This Restated Certificate of Incorporation, which restates
and integrates and further amends the provisions of the Restated Certificate of
Incorporation of this corporation, is made and filed pursuant to the order,
dated May 18, 1999, of the United States Bankruptcy Court, District of Delaware
in In re Fine Host Corporation No. 99-20 (PJW) and the Plan of Reorganization
filed on March 18, 1999 confirmed therein in connection with the reorganization
of the corporation under Title 11 of the United States Code and in accordance
with Sections 103, 245 and 303 of the General Corporation Law of the State of
Delaware.
4. The text of the Restated Certificate of Incorporation of
the corporation is hereby restated and further amended to read in its entirety
as follows:
ARTICLE I
The name of the Corporation (the "Corporation") is Fine Host
Corporation.
ARTICLE II
The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle, Delaware 19801. The name of the registered
agent at such address is The Corporation Trust Company.
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ARTICLE III
The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
ARTICLE IV
1. The total number of shares which the Corporation shall have
the authority to issue is 20,000,000 shares, which shall consist of (i)
15,000,000 shares of Common Stock, par value $.05 per share (the "Common
Stock"), and (ii) 5,000,000 shares of Preferred Stock, par value $.05 per share
(the "Preferred Stock").
2. The Preferred Stock may be issued from time to time as
herein provided in one or more series. The designations, relative rights,
preferences and limitations of the Preferred Stock, and particularly of the
shares of each series thereof, may, to the extent permitted by law, be similar
to or differ from those of any other series. The Board of Directors of the
Corporation is hereby expressly granted authority, subject to the provisions of
this Article IV, to fix, from time to time before issuance thereof, the number
of shares in each series and all designations, relative rights, preferences and
limitations of the shares in each such series, including, but without limiting
the generality of the foregoing, the following:
(a) the designation of the series and the number of shares to
constitute each series;
(b) the dividend rate on the shares of each series, any
conditions on which and times at which dividends are payable, whether dividends
shall be cumulative, and the preference or relation (if any) with respect to
such dividends (including preferences over dividends on the Common Stock or any
other class or classes);
(c) whether the series will be redeemable (at the option of
the Corporation or the holders of such shares or both, or upon the happening of
a specified event) and, if so, the redemption prices and the conditions and
times upon which redemption may take place and whether for cash, property or
rights, including securities of the Corporation or another Corporation;
(d) the terms and amount of sinking, retirement or purchase
fund;
(e) the conversion or exchange rights (at the option of the
Corporation or the holders of such shares or both, or upon the happening of a
specified event), if any, including the conversion or exchange price and other
terms of conversion or exchange;
(f) subject to Article V, the voting rights, if any (other
than any voting rights that the Preferred Stock may have as a matter of law);
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(g) any restrictions on the issue or reissue or sale of
additional Preferred Stock;
(h) the rights of the holders upon voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation
(including preferences over the Common Stock or any other class of classes or
series of stock);
(i) the preemptive rights, if any, to subscribe to additional
issues of stock or securities of the Corporation; and
(j) such other special rights and privileges, if any, for the
benefit of the holders of the Preferred Stock, as shall not be inconsistent with
provisions of this Restated Certificate of Incorporation.
All shares of Preferred Stock of the same series shall be
identical in all respects, except that shares of any one series issued at
different times may differ as to dates, if any, from which dividends thereon may
accumulate. All shares of Preferred Stock of all series shall be of equal rank
and shall be identical in all respects except that any series may differ from
any other series with respect to any one or more of the designations, relative
rights, preferences and limitations described or referred to in subparagraphs
2(a) to 2(j) inclusive above.
ARTICLE V
The Corporation shall not create, designate, authorize or
cause to be issued any class or series of nonvoting stock. For purposes of this
Article V, any class or series of stock, including any series of Preferred
Stock, that has only such voting rights as are mandated by the General
Corporation Law of the State of Delaware, shall be deemed to be nonvoting stock
subject to the restrictions of this Article V.
ARTICLE VI
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors. The number of directors of
the Corporation shall be as from time to time fixed by, or in the manner
provided in, the by-laws of the Corporation. Directors who are elected at an
annual meeting of stockholders, and directors who are elected in the interim to
fill vacancies and newly created directorships, shall hold office until the next
annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal.
ARTICLE VII
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
appeal the by-laws of the Corporation.
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ARTICLE VIII
1. Elections of directors need not be by written ballot unless
the by-laws of the Corporation shall so provide.
2. Meetings of stockholders may be held at such place either
within or without the State of Delaware, as may be designated by or in the
manner provided by the by-laws. The books of the Corporation may be kept
(subject to any provision contained in the statutes of the State of Delaware)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the by-laws of the Corporation.
ARTICLE IX
The Corporation shall indemnify each person who is or was a
director, officer or employee of the Corporation (including the heirs,
executors, administrators or estate of such person) or is or was serving at the
request of the Corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, to the
fullest extent permitted under subsections 145(a), (b) and (c) of the Delaware
General Corporation Law or any successor statute.
The indemnification provided by this Article IX shall not be
deemed exclusive of any other rights to which any of those seeking
indemnification or advancement of expenses 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, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE X
A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is amended
after the date hereof to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
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ARTICLE XI
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation, in
the manner now or hereafter prescribed by the laws of the State of Delaware, and
may add additional provisions authorized by such laws as are then in force. All
rights conferred upon the directors or stockholders of the Corporation herein or
in any amendment hereof are granted subject to this reservation.
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IN WITNESS WHEREOF, Fine Host Corporation has caused this
Restated Certificate of Incorporation to be signed by Ellen Keats, its Senior
Vice President, General Counsel and Secretary this 27th day of May, 1999.
FINE HOST CORPORATION
By: /s/ Ellen Keats
-----------------------------------
Name: Ellen Keats
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Exhibit 2
FINE HOST CORPORATION
Incorporated Under the Laws of
the State of Delaware
AMENDED AND RESTATED BY-LAWS
ARTICLE I
OFFICES.
The registered office of the Corporation in Delaware shall be at 1209
Orange Street in the City of Wilmington, County of New Castle, in the State of
Delaware, and The Corporation Trust Company shall be the resident agent of this
Corporation in charge thereof. The Corporation may also have such other offices
at such other places, within or without the State of Delaware, as the Board of
Directors may from time to time designate or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS.
Section 1. Annual Meeting: The annual meeting of stockholders for the
election of directors and the transaction of any other business shall be held
each year at such date and time, in such city and state and at such place as may
be designated by the Board of Directors, and set forth in the notice of such
meeting. If said day be a legal holiday, said meeting shall be held on the next
succeeding business day. At the annual meeting any business may be transacted
and any corporate action may be taken, whether stated in the notice of meeting
or not, except as otherwise expressly provided by statute or the Restated
Certificate of Incorporation.
Section 2. Special Meetings: Special meetings of the stockholders for
any purpose may be called at any time by the Board of Directors and shall be
called by the President at the request of the holders of a majority of the
outstanding shares of capital stock entitled to vote. Special meetings shall be
held at such place or places within or without the State of Delaware as shall
from time to time be designated by the Board of Directors and stated in the
notice of such meeting. At a special meeting no business shall be transacted and
no corporate action shall be taken other than that stated in the notice of the
meeting.
Section 3. Notice of Meetings: Written notice of the time and place of
any stockholder's meeting, whether annual or special, shall be given to each
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stockholder entitled to vote thereat, by personal delivery or by mailing the
same to him at his address as the same appears upon the records of the
Corporation at least ten (10) days but not more than sixty (60) days before the
day of the meeting. Notice of any adjourned meeting need not be given other than
by announcement at the meeting so adjourned, unless otherwise ordered in
connection with such adjournment. Such further notice, if any, shall be given as
may be required by law.
Section 4. Quorum: Any number of stockholders, together holding at
least a majority of the capital stock of the Corporation issued and outstanding
and entitled to vote, who shall be present in person or represented by proxy at
any meeting duly called, shall constitute a quorum for the transaction of all
business, except as otherwise provided by law, by the Restated Certificate of
Incorporation or by these By-laws.
Section 5. Adjournment of Meetings: If less than a quorum shall attend
at the time for which a meeting shall have been called, the meeting may adjourn
from time to time by a majority vote of the stockholders present or represented
by proxy and entitled to vote without notice other than by announcement at the
meeting until a quorum shall attend. Any meeting at which a quorum is present
may also be adjourned in like manner and for such time or upon such call as may
be determined by a majority vote of the stockholders present or represented by
proxy and entitled to vote. At any adjourned meeting at which a quorum shall be
present, any business may be transacted and any corporate action may be taken
which might have been transacted at the meeting as originally called.
Section 6. Voting List: The Secretary shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote, arranged in alphabetical order and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
meeting, or at the place where the meeting is to be held, for said ten (10)
days, to the examination of any stockholder, and shall be produced and kept at
the time and place of election during the whole time thereof, and subject to the
inspection of any stockholder who may be present.
Section 7. Voting: Each stockholder entitled to vote at any meeting may
vote either in person or by proxy, but no proxy shall be voted on or after three
years from its date, unless said proxy provides for a longer period. Each
stockholder entitled to vote shall at every meeting of the stockholders be
entitled to one vote for each share of stock registered in his name on the books
of the Corporation on the applicable record date fixed in accordance herewith
and with applicable law. At all meetings of stockholders all matters, except as
otherwise provided by statute, shall be determined by the affirmative vote of
the majority of shares present in person or by proxy and entitled to vote on the
subject matter. Voting at meetings of stockholders need not be by written
ballot.
Section 8. Record Date of Stockholders: The Board of Directors is
authorized to fix in advance a date not exceeding sixty (60) days nor less than
ten (10) days preceding the date of any meeting of stockholders, or the date for
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the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining the consent of stockholders for
any purposes, as a record date for the determination of the stockholders
entitled to notice of, and to vote at, any such meeting, and any adjournment
thereof, or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, or to give such consent, and, in such
case, such stockholders and only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting, and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation, after such record date fixed as
aforesaid.
Section 9. Action Without Meeting: Any action required or permitted to
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 or consents 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 and shall be delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
ARTICLE III
DIRECTORS.
Section 1. Number and Qualifications: The board of directors shall
consist initially of five directors, and thereafter shall consist of such number
as may be fixed from time by resolution of the Board. The directors need not be
stockholders. The use of the phrase "whole Board" herein refers to the total
number of directors which the Corporation would have if there were no vacancies.
Section 2. Election of Directors: The directors shall be elected by the
stockholders at the annual meeting of stockholders.
Section 3. Duration of Office: The directors chosen at any annual
meeting shall hold office until the next annual election, as set forth in the
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Restated Certificate of Incorporation, and until their successors are elected
and qualify, or until their earlier resignation or removal.
Section 4. Removal and Resignation of Directors: Any director may be
removed from the Board of Directors, with or without cause, by the holders of a
majority of the shares of capital stock entitled to vote, either by written
consent or consents or at any special meeting of the stockholders called for
that purpose, and the office of such director shall forthwith become vacant.
Any director may resign at any time. Such resignation shall be made in
writing and shall take effect at the time specified therein, and if no time be
specified, at the time of its receipt by the President or Secretary. The
acceptance of a resignation shall not be necessary to make it effective, unless
so specified therein.
Section 5. Filling of Vacancies: Any vacancy among the directors,
occurring from any cause whatsoever, may be filled by a majority of the
remaining directors, though less than a quorum, provided, however, that the
stockholders removing any director may at the same meeting fill the vacancy
caused by such removal, and provided further, that if the directors fail to fill
any such vacancy, the stockholders may at any special meeting called for that
purpose fill such vacancy. In case of any increase in the number of directors,
the additional directors may be elected by the directors in office prior to such
increase.
Any person elected to fill a vacancy shall hold office, subject to the
right of removal as hereinbefore provided, until the next annual election and
until his successor is elected and qualifies, or until his earlier resignation.
Section 6. Regular Meetings: The Board of Directors shall hold an
annual meeting for the purpose of organization and the transaction of any
business immediately after the annual meeting of the stockholders, provided a
quorum is present. Other regular meetings may be held at such times as may be
determined from time to time by resolution of the Board of Directors.
Section 7. Special Meetings: Special meetings of the Board of Directors
may be called by the Chairman of the Board of Directors, President, Secretary or
by a majority of the directors then in office.
Section 8. Notice and Place of Meetings: Meetings of the Board of
Directors may be held at the principal office of the Corporation, or at such
place as shall be determined in the notice of such meeting. Notice of any
special meeting, and, except as the Board of Directors may otherwise determine
by resolution, notice of any regular meeting also, shall be mailed to each
director addressed to him at his residence or usual place of business at least
two days before the day on which the meeting is to be held, or if sent to him at
such place by telecopy, telegraph or cable, or delivered personally or by
telephone, not later than the day before the day on which the meeting is to be
held. No notice of the annual meeting of the Board of Directors shall be
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required if it is held immediately after the annual meeting of the stockholders
and if a quorum is present.
Section 9. Business Transacted at Meetings, etc.: Any business may be
transacted and any corporate action may be taken at any regular or special
meeting of the Board of Directors at which a quorum shall be present, whether
such business or proposed action be stated in the notice of such meeting or not,
unless special notice of such business or proposed action shall be required by
statute.
Section 10. Quorum: A majority of the Board of Directors at any time in
office shall constitute a quorum. At any meeting at which a quorum is present,
the vote of a majority of the members present shall be the act of the Board of
Directors unless the act of a greater number is specifically required by law or
by the Restated Certificate of Incorporation or these By-laws.
Section 11. Compensation: Directors shall be entitled to such
compensation for their services as may be approved by resolution of the Board of
Directors, including, if so approved by resolution of the Board of Directors, a
fixed sum and expenses for attendance at each regular or special meeting of the
Board of Directors or any committee thereof. Nothing herein contained shall
preclude any director from serving the Corporation in any other capacity, as an
officer, agent or otherwise, and receiving compensation therefor.
Section 12. Action Without a Meeting: Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board or
committee.
Section 13. Meetings Through Use of Communications Equipment: Members
of the Board of Directors, or any committee designated by the Board of
Directors, shall, except as otherwise provided by law, the Restated Certificate
of Incorporation or these By-laws, have the power to participate in a meeting of
the Board of Directors, or any committee, by means of a 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 the meeting.
ARTICLE IV
COMMITTEES.
Section 1. Executive Committee: The Board of Directors may, by
resolution passed by a majority of the whole Board, designate two or more of
their number to constitute an Executive Committee to hold office at the pleasure
of the Board, which Committee shall, during the intervals between meetings of
the Board of Directors, have and exercise all of the powers of the Board of
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Directors in the management of the business and affairs of the Corporation,
subject only to such restrictions or limitations as the Board of Directors may
from time to time specify, or as limited by the Delaware Corporation Law, and
shall have power to authorize the seal of the Corporation to be affixed to all
papers which may require it.
Any member of the Executive Committee may be removed at any time, with
or without cause, by a resolution of a majority of the whole Board.
Any person ceasing to be a director shall ipso facto cease to be a
member of the Executive Committee.
Any vacancy in the Executive Committee occurring from any cause
whatsoever may be filled from among the directors by a resolution of a majority
of the whole Board.
Section 2. Other Committees: Other committees, whose members need not
be directors, may be appointed by the Board of Directors or the Executive
Committee, which committees shall hold office for such time and have such powers
and perform such duties as may from time to time be assigned to them by the
Board of Directors or the Executive Committee.
Any member of such a committee may be removed at any time, with or
without cause, by the Board of Directors or the Executive Committee. Any vacancy
in a committee occurring from any cause whatsoever may be filled by the Board of
Directors or the Executive Committee.
Section 3. Resignation: Any member of a committee may resign at any
time. Such resignation shall be made in writing and shall take effect at the
time specified therein, or, if no time be specified, at the time of its receipt
by the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective unless so specified therein.
Section 4. Quorum: A majority of the members of a committee shall
constitute a quorum. The act of a majority of the members of a committee present
at any meeting at which a quorum is present shall be the act of such committee.
The members of a committee shall act only as a committee, and the individual
members thereof shall have no powers as such.
Section 5. Record of Proceedings, etc.: Each committee shall keep a
record of its acts and proceedings, and shall report the same to the Board of
Directors when and as required by the Board of Directors.
Section 6. Organization, Meetings, Notices, etc.: A committee may hold
its meetings at the principal office of the Corporation, or at any other place
which a majority of the committee may at any time agree upon. Each committee may
make such rules as it may deem expedient for the regulation and carrying on of
its meetings and proceedings. Unless otherwise ordered by the Executive
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Committee, any notice of a meeting of such committee may be given by the
Secretary of the Corporation or by the chairman of the committee and shall be
sufficiently given if mailed to each member at his residence or usual place of
business at least two days before the day on which the meeting is to be held, or
if sent to him at such place by telegraph or cable, or delivered personally or
by telephone not later than 24 hours prior to the time at which the meeting is
to be held.
Section 7. Compensation: The members of any committee shall be entitled
to such compensation as may be allowed them by resolution of the Board of
Directors.
ARTICLE V
OFFICERS.
Section 1. Number: The officers of the Corporation shall be a
President, a Chief Executive Officer, one or more Vice-Presidents, a Secretary,
one or more Assistant Secretaries, a Treasurer, and one or more Assistant
Treasurers, and such other officers as may be appointed in accordance with the
provisions of Section 3 of this Article V. The Board of Directors in its
discretion may also elect a Chairman of the Board of Directors.
Section 2. Election, Term of Office and Qualifications: The officers,
except as provided in Section 3 of this Article V, shall be chosen annually by
the Board of Directors. Each such officer shall, except as herein otherwise
provided, hold office until his successor shall have been chosen and shall
qualify. Except as otherwise provided by law, any number of offices may be held
by the same person.
Section 3. Other Officers: Other officers, including one or more
additional vice-presidents, assistant secretaries or assistant treasurers, may
from time to time be appointed by the Board of Directors, which other officers
shall have such powers and perform such duties as may be assigned to them by the
Board of Directors or the officer or committee appointing them.
Section 4. Removal of Officers: Any officer of the Corporation may be
removed from office, with or without cause, by a vote of a majority of the Board
of Directors.
Section 5. Resignation: Any officer of the Corporation may resign at
any time. Such resignation shall be in writing and shall take effect at the time
specified therein, and if no time be specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary in order to make it effective, unless so specified therein.
Section 6. Filling of Vacancies: A vacancy in any office shall be
filled by the Board of Directors or by the authority appointing the predecessor
in such office.
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Section 7. Compensation: The compensation of the officers shall be
fixed by the Board of Directors, or by any committee upon whom power in that
regard may be conferred by the Board of Directors.
Section 8. Chairman of the Board of Directors: The Chairman of the
Board of Directors, if there be one, shall be a director and shall preside at
all meetings of the Board of Directors at which he shall be present, and shall
have such power and perform such duties as may from time to time be assigned to
him by the Board of Directors.
Section 9. President and Chief Executive Officer: The President shall
be the chief operating officer of the Corporation. The Chief Executive Officer
shall be the chief executive officer of the Corporation. The President and the
Chief Executive Officer shall have responsibility for the general direction of
the business, affairs and property of the Corporation, and of its several
officers, and shall have and exercise all such powers and discharge such duties
as may be directed by the Board of Directors.
Section 10. Vice-Presidents: The Vice-Presidents, or any of them,
shall, subject to the direction of the Board of Directors, at the request of the
President or in his absence, or in case of his inability to perform his duties
from any cause, perform the duties of the President, and, when so acting, shall
have all the powers of, and be subject to all restrictions upon, the President.
The Vice-Presidents shall also perform such other duties as may be assigned to
them by the Board of Directors and the Board of Directors may determine the
order of priority among them.
Section 11. Secretary: The Secretary shall perform such duties as are
incident to the office of Secretary, or as may from time to time be assigned to
him by the Board of Directors, or as are prescribed by these By-laws.
Section 12. Treasurer: The Treasurer shall perform such duties and have
powers as are usually incident to the office of Treasurer or which may be
assigned to him by the Board of Directors.
ARTICLE VI
CAPITAL STOCK.
Section 1. Issue of Certificates of Stock: Certificates of capital
stock shall be in such form as shall be approved by the Board of Directors. They
shall be numbered in the order of their issue and shall be signed by the
Chairman of the Board of Directors, the President or one of the Vice-Presidents,
and the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, and the seal of the Corporation or a facsimile thereof shall be
impressed or affixed or reproduced thereon, provided, however, that where such
certificates are signed by a transfer agent or an assistant transfer agent or by
a transfer clerk acting on behalf of the Corporation and a registrar, the
signature of any such Chairman of the Board of Directors, President,
Vice-President, Secretary, Assistant Secretary, Treasurer or Assistant Treasurer
8
<PAGE>
may be facsimile. In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates, or whose facsimile signature or signatures shall
have been used thereon have not ceased to be such officer or officers of the
Corporation.
Section 2. Registration and Transfer of Shares: The name of each person
owning a share of the capital stock of the Corporation shall be entered on the
books of the Corporation together with the number of shares held by him, the
numbers of the certificates covering such shares and the dates of issue of such
certificates. The shares of stock of the Corporation shall be transferable on
the books of the Corporation by the holders thereof in person, or by their duly
authorized attorneys or legal representatives, on surrender and cancellation of
certificates for a like number of shares, accompanied by an assignment or power
of transfer endorsed thereon or attached thereto, duly executed, and with such
proof of the authenticity of the signature as the Corporation or its agents may
reasonably require. A record shall be made of each transfer.
The Board of Directors may make other and further rules and regulations
concerning the transfer and registration of certificates for stock and may
appoint a transfer agent or registrar or both and may require all certificates
of stock to bear the signature of either or both.
Section 3. Lost, Destroyed and Mutilated Certificates: The holder of
any stock of the Corporation shall immediately notify the Corporation of any
loss, theft, destruction or mutilation of the certificates therefor. The
Corporation may issue a new certificate of stock in the place of any certificate
theretofore issued by it alleged to have been lost, stolen or destroyed, and the
Board of Directors may, in its discretion, require the owner of the lost, stolen
or destroyed certificate, or his legal representatives, to give the Corporation
a bond, in such sum not exceeding double the value of the stock and with such
surety or sureties as they may require, to indemnify it against any claim that
may be made against it by reason of the issue of such new certificate and
against all other liability in the premises, or may remit such owner to such
remedy or remedies as he may have under the laws of the State of Delaware.
ARTICLE VII
DIVIDENDS, SURPLUS, ETC.
Section 1. General Discretion of Directors: The Board of Directors
shall have power to fix and vary the amount to be set aside or reserved as
working capital of the Corporation, or as reserves, or for other proper purposes
of the Corporation, and, subject to the requirements of applicable law and the
9
<PAGE>
Restated Certificate of Incorporation, to determine whether any, if any, part of
the surplus or net profits of the Corporation shall be declared as dividends and
paid to the stockholders, and to fix the date or dates for the payment of
dividends.
ARTICLE VIII
MISCELLANEOUS PROVISIONS.
Section 1. Fiscal Year: The fiscal year of the Corporation shall end on
the last Wednesday of December.
Section 2. Corporate Seal: The corporate seal shall be in such form as
approved by the Board of Directors and may be altered at their pleasure. The
corporate seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 3. Notices: Except as otherwise expressly provided, any notice
required by these By-laws to be given shall be sufficient if given by depositing
the same in a post office or letter box in a sealed postpaid wrapper addressed
to the person entitled thereto at his address, as the same appears upon the
books of the Corporation, or by telecopying, telegraphing or cabling the same to
such person at such addresses; and such notice shall be deemed to be given at
the time it is telecopied, mailed, telegraphed or cabled.
Section 4. Waiver of Notice: Any stockholder or director may at any
time, by writing or by telecopy, telegraph or by cable, waive any notice
required to be given under these By-laws, and if any stockholder or director
shall be present at any meeting his presence shall constitute a waiver of such
notice.
Section 5. Checks, Drafts, etc.: All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers, agent or
agents of the Corporation, and in such manner, as shall from time to time be
designated by resolution of the Board of Directors.
Section 6. Deposits: All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such bank or banks, trust
companies or other depositories as the Board of Directors may select, and, for
the purpose of such deposit, checks, drafts, warrants and other orders for the
payment of money which are payable to the order of the Corporation, may be
endorsed for deposit, assigned and delivered by any officer of the Corporation,
or by such agents of the Corporation as the Board of Directors or the President
may authorize for that purpose.
10
<PAGE>
Section 7. Voting Stock of Other Corporations: Except as otherwise
ordered by the Board of Directors or the Executive Committee, if there be one,
the President or the Treasurer shall have full power and authority on behalf of
the Corporation to attend and to act and to vote at any meeting of the
stockholders of any corporation of which the Corporation is a stockholder and to
execute a proxy to any other person to represent the Corporation at any such
meeting, and at any such meeting the President or the Treasurer or the holder of
any such proxy, as the case may be, shall possess and may exercise any and all
rights and powers incident to ownership of such stock and which, as owner
thereof, the Corporation might have possessed and exercised if present. The
Board of Directors or the Executive Committee may from time to time confer like
powers upon any other person or persons.
ARTICLE IX
AMENDMENTS.
The Board of Directors shall have the power to make, rescind, alter, amend and
repeal these By-laws, provided, however, that the stockholders shall have power
to rescind, alter, amend or repeal any by-laws made by the Board of Directors.
No change of the time or place for the annual meeting of the stockholders for
the election of directors shall be made except in accordance with the laws of
the State of Delaware.
11
Exhibit 3
NUMBER SHARES
FHC __________ __________
COMMON STOCK COMMON STOCK
PAR VALUE $.05 SEE REVERSE FOR
CERTAIN DEFINITIONS
FINE HOST CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP 317833 10 1
THIS CERTIFIES that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, PAR VALUE $.05 PER
SHARE, OF
FINE HOST CORPORATION
(hereinafter called the "Corporation") transferable on the books of the
Corporation only by the registered holder hereof, in person or by duly
authorized attorney, upon surrender of this Certificate properly endorsed. This
Certificate and the shares represented hereby are issued and shall be held
subject to the laws of the State of Delaware, the certificate of incorporation
of the Corporation, as amended, and the By-laws of the Corporation, and all
amendments thereto. This Certificate is not valid unless countersigned by the
Transfer Agent and registered by the Registrant.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by the facsimile signatures of its duly authorized offices and sealed
with the facsimile seal of the Corporation.
Dated:
FINE HOST CORPORATION
/s/ Ellen Keats CORPORATE SEAL /s/ Lawrence A. Hatch
Secretary 1995 President
DELAWARE
COUNTERSIGNED AND REGISTERED:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
(JERSEY CITY, NEW JERSEY)
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED OFFICER
NY2:\571529\01\C8ZT01!.DOC\45377.0003
<PAGE>
FINE HOST CORPORATION
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entireties __________ Custodian __________
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as
tenants in common under Uniform Gifts to Minors Act
---------
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- ------------------------------------
- ------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- ------------------------------------------------------------------------------
____________________________________________________________________ shares of
the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ________________________________________
Attorney to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
Dated ______________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERA-
TION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER
Signature(s) Guaranteed:
- -----------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY, AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
