As filed with the Securities and Exchange Commission on November 7, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________________________________________
CONSOLIDATED CIGAR HOLDINGS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3694743
(State of incorporation)
(I.R.S. employer identification no.)
5900 NORTH ANDREWS AVENUE SUITE 700
FORT LAUDERDALE, FLORIDA 33309-2369
(Address of principal executive offices) (Zip code)
CONSOLIDATED CIGAR HOLDINGS INC. 1996 STOCK PLAN
(Full title of the plan)
________________________________________________________
BARRY F. SCHWARTZ, ESQ.
CONSOLIDATED CIGAR HOLDINGS INC.
35 EAST 62ND STREET
NEW YORK, NEW YORK 10021
(212) 572-8600
(Name, address and telephone number, including area code,
of agent for service)
________________________________________________________
Copy of all communications to:
STACY J. KANTER, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount to be Maximum Maximum Amount of
Securities Registered Offering Price Aggregate Registration
to be (1) Per Share Offering Fee
Registered (2)(3) Price(2)
__________________________________________________________________________
Class A
Common Stock, 1,150,000 $23.00 $26,450,000 $8,015
par value 1,850,000 25.625 47,406,250 14,366
$0.01 per __________ ________
share 3,000,000 $22,381
__________________________________________________________________________
(1) Pursuant to Rule 416, this Registration Statement
also covers such indeterminable number of
additional shares of Class A Common Stock as may be
issuable pursuant to the antidilution provisions of
the Consolidated Cigar Holdings Inc. 1996 Stock
Plan.
(2) Calculated in accordance with Rules 457 (c) and (h)
under the Securities Act of 1933, as amended (the
"Securities Act"), solely for the purpose of
calculating the registration fee.
(3) Estimated solely for the purpose of calculating
the registration fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION.*
* The information called for in Part I of Form S-8 is
currently included in a prospectus, dated as of November 7, 1996,
which is to be distributed to participants in the Consolidated
Cigar Holdings Inc. 1996 Stock Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and
Exchange Commission (the "Commission") by the registrant,
Consolidated Cigar Holdings Inc., a Delaware corporation (the
"Company"), pursuant to the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this registration statement.
(1) Prospectus dated August 15, 1996, which was filed
pursuant to Rule 424(b) under the Securities Act and constitutes
a part of the Company's Registration Statement on Form S-1 (No.
333-6891) (the "S-1 Prospectus"); and
(2) The description of the Class A Common Stock, par
value $0.01 per share (the "Class A Common Stock"), of the
Company contained under the caption "Description of Capital
Stock" in the S-1 Prospectus, which is also incorporated by
reference in the Company's Registration Statement on Form 8-A/A
dated August 13, 1996, filed pursuant to Section 12(b) of the
Exchange Act.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the
date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document
which also is incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Class A Common Stock to be
issued in connection with this Registration Statement will be
passed upon for the Company by Skadden, Arps, Slate, Meagher &
Flom LLP, New York, New York.
The consolidated financial statements of Consolidated Cigar
Holdings Inc. included in the Company's Registration Statement on
Form S-1 (No. 333-6891), filed on August 15, 1996, for the year
ended December 31, 1995, have been audited by Ernest & Young LLP,
independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such
consolidated statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm
as experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Set forth below is a description of certain provisions of
the Delaware General Corporation Law (the "DGCL"), the Amended
and Restated Certificate of Incorporation of the Company filed as
Exhibit 4.1 hereto (the "Certificate of Incorporation") and the
Amended and Restated By-Laws of the Company filed as Exhibit 4.2
hereto (the "By-Laws"), as such provisions relate to the
indemnification of the directors and officers of the Company.
This description is intended only as a summary and is qualified
in its entirety by reference to the DGCL, the Certificate of
Incorporation and the By-Laws which are incorporated herein by
reference.
Article Seventh of the Certificate of Incorporation and
Article IX of the By-Laws provide that the Company shall
indemnify its officers and directors to the fullest extent
permitted by applicable law. Section 145 of the DGCL provides,
in general, that each director and officer may be indemnified
against expenses (including attorneys' fees, judgments, fines and
amounts paid in settlement) actually and reasonably incurred in
connection with the defense or settlement of any threatened,
pending or completed legal proceedings in which he is involved by
reason of the fact that he is or was a director or officer if he
acted in good faith and in a manner that he reasonably believed
to be in or not opposed to the best interests of the Company,
and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe that his conduct was unlawful. If
the legal proceeding, however, is by or in the right of the
Company, the director or officer may not be indemnified in
respect of any claim, issue or matter as to which he shall have
been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Company unless a court determines
otherwise.
Furthermore, Article Fifth of the Certificate of
Incorporation eliminates the personal liability of directors to
the Company or any of 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 Company
or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal
benefit. Section 102 of the DGCL permits a Company's
certificate of incorporation to contain these provisions. In
addition, Article IX, Section 8 of the By-Laws provides that the
Company may purchase insurance on behalf of any person who is or
was a director or officer of the Company, or who is or was a
director or officer of the Company serving at the request of the
Company as a director, officer employee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other entity or 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 Company would have
the power or the obligation to indemnify him against such
liability under the provisions of Article IX of the By-Laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of
the Company.
4.2 Amended and Restated By-Laws of the Company.
4.3 Specimen Certificate of Class A Common Stock
(incorporated by reference to Exhibit 4.1 of Amendment
No. 2 to the Registration Statement on Form S-1 filed
by the Company with the Commission under the Securities
Act (No. 333-6891)).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
regarding the legality of the Class A Common Stock
being registered.
23.1 Consent of Ernst & Young LLP, independent certified
public accountants.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(contained in the opinion filed as Exhibit 5.1 hereto).
24.1 Powers of Attorney.
99.1 Consolidated Cigar Holdings Inc. 1996 Stock Plan
(incorporated by reference to Exhibit 10.12 of
Amendment No. 2 to the Registration Statement on Form
S-1 filed by the Company with the Commission under the
Securities Act (No. 333-6891)).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
A. To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
1. (a) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(b) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement; and
(c) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
Registration Statement.
2. That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act, (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of New York, State of New York, on this 6th day of
November, 1996.
Consolidated Cigar Holdings Inc.
(Registrant)
By: /s/ Theo W. Folz
Theo W. Folz
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
* Chairman of the November 7, 1996
Board of
Ronald O. Perelman Directors and
Director
* Vice Chairman of November 7, 1996
the Board of
Howard Gittis Directors and
Director
* Director November 7, 1996
Donald G. Drapkin
* Director November 7, 1996
Lee A. Iacocca
* President, Chief November 7, 1996
Executive Officer
Theo W. Folz and Director
* Senior Vice November 7, 1996
President, Chief
Gary R. Ellis Financial Officer
and Treasurer
* Vice President and November 7, 1996
James M. Controller
Parnofiello
*Joram C. Salig, by signing his name hereto, does hereby execute
this Registration Statement on behalf of the directors and
officers of the Registrant indicated above by asterisks, pursuant
to powers of Attorney duly executed by such directors and
officers as exhibits to the Registration Statement.
By: /s/ Joram C. Salig
Joram C. Salig
Attorney-in-fact
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page No.
4.1 Amended and Restated Certificate of
Incorporation of the Company.
4.2 Amended and Restated By-Laws of the Company.
5.1 Opinion of Skadden, Arps, Slate, Meagher &
Flom LLP, regarding the legality of the
Class A Common Stock being registered.
23.1 Consent of Ernst & Young LLP, independent
certified public accountants.
24.1 Powers of Attorney.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CONSOLIDATED CIGAR HOLDINGS INC.
Consolidated Cigar Holdings Inc. (the "Corporation"), a
corporation organized and existing under the General Corporation Law of
the State of Delaware (the "DGCL"), does hereby certify as follows:
1. The present name of the Corporation is Consolidated Cigar
Holdings Inc. The Corporation was originally incorporated under the name
"Consolidated Cigar (Parent) Holdings Inc." and its original certificate
of incorporation was filed with the office of the Secretary of State of
the State of Delaware on January 6, 1993 and was amended on June 25,
1996.
2. This Amended and Restated Certificate of Incorporation was
duly adopted by the Board of Directors of the Corporation (the "Board")
and by the sole stockholder of the Corporation in accordance with
Sections 228, 242, and 245 of the DGCL.
3. This Amended and Restated Certificate of Incorporation
restates and integrates and further amends the certificate of
incorporation of the Corporation, as heretofore amended, supplemented
and/or restated (the "Certificate of Incorporation").
4. Upon the filing (the "Effective Time") of this Certificate
of Incorporation pursuant to the DGCL, each share of the Corporation's
common stock, $1.00 par value per share, issued and outstanding
immediately prior to the Effective Time (the "Old Common Stock") shall be
reclassified as and changed into 24,600 validly issued, fully paid, and
non-assessable shares of Class B Common Stock authorized by subparagraph
(a) of Article FOURTH of the Certificate of Incorporation (totaling
24,600,000 shares of Class B Common Stock), without any action by the
holder thereof (the "Reclassification"). Each certificate that
theretofore represented a share or shares of Old Common Stock shall
thereafter represent that number of shares of Class B Common Stock into
which the share or shares of Old Common Stock represented by such
certificate shall have been reclassified.
5. The text of the Certificate of Incorporation is amended
and restated in its entirety as follows:
FIRST: The name of the Corporation is
Consolidated Cigar Holdings Inc.
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 1013 Centre Road, in the City of Wilmington,
County of New Castle. The name of its registered agent at that address is
The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
DGCL.
FOURTH: (a) Authorized Capital Stock. The Corporation is
authorized to issue 570,000,000 shares of capital stock, of which
300,000,000 shares shall be shares of Class A Common Stock, $0.01 par
value ("Class A Common Stock"), 250,000,000 shares shall be shares of
Class B Common Stock, $0.01 par value ("Class B Common Stock" and,
together with the Class A Common Stock, the "Common Stock"), and
20,000,000 shares shall be shares of Preferred Stock, $0.01 par value
("Preferred Stock").
(b) Common Stock. The powers, preferences and rights, and the
qualifications, limitations and restrictions of each class of the Common
Stock are as follows:
(1) Voting. (i) At each annual or special meeting of stockholders,
in the case of any written consent of stockholders in lieu of a meeting
and for all other purposes, each holder of record of shares of Class A
Common Stock on the relevant record date shall be entitled to one (1)
vote for each share of Class A Common Stock standing in such person's
name on the stock transfer records of the Corporation, and each holder of
record of Class B Common Stock on the relevant record date shall be
entitled to ten (10) votes for each share of Class B Common Stock
standing in such person's name on the stock transfer records of the
Corporation. Except as otherwise required by law and subject to the
rights of holders of any series of Preferred Stock of the Corporation
that may be issued from time to time, the holders of shares of Class A
Common Stock and of shares of Class B Common Stock shall vote as a single
class on all matters with respect to which a vote of the stockholders of
the Corporation is required under applicable law, the Certificate of
Incorporation of the Corporation, or the By-Laws of the Corporation, or
on which a vote of stockholders is otherwise duly called for by the
Corporation, including, but not limited to, the election of directors,
matters concerning the sale, lease or exchange of all or substantially
all of the property and assets of the Corporation, mergers or
consolidations with another entity or entities, dissolution of the
Corporation and amendments to the Certificate of Incorporation of the
Corporation. Except as provided in this Article FOURTH or by applicable
law, whenever applicable law, the Certificate of Incorporation of the
Corporation or the By-Laws of the Corporation provide for the necessity
of an affirmative vote of the stockholders entitled to cast at least a
majority (or any other greater percentage) of the votes which all
stockholders are entitled to cast thereon, or a "majority (or any other
greater percentage) of the voting stock," or language of similar effect,
any and all such language shall mean that the holders of shares of Class
A Common Stock and the holders of shares of Class B Common Stock shall
vote as one class and that a majority (or any other greater percentage)
consists of a majority (or such other greater percentage) of the total
number of votes entitled to be cast in accordance with the provisions of
this Article FOURTH.
(ii) Neither the holders of shares of Class A Common Stock nor
the holders of shares of Class B Common Stock shall have cumulative
voting rights.
(iii) The Corporation may, as a condition to counting the votes
cast by any holder of shares of Class B Common Stock at any annual or
special meeting of stockholders, in the case of any written consent of
stockholders in lieu of a meeting, or for any other purpose, require the
furnishing of such affidavits or other proof as it may reasonably request
to establish that the shares of Class B Common Stock held by such holder
have not, by virtue of the provisions of subparagraphs (b)(6) or (7) of
this Article FOURTH, been converted into shares of Class A Common Stock.
(2) Dividends; Stock Splits. Subject to the rights of the holders of
shares of any series of Preferred Stock, and subject to any other
provisions of the Certificate of Incorporation of the Corporation,
holders of shares of Class A Common Stock and shares of Class B Common
Stock shall be entitled to receive such dividends and other distributions
in cash, stock or property of the Corporation as may be declared thereon
by the Board from time to time out of assets or funds of the Corporation
legally available therefor. If at any time a dividend or other
distribution in cash or other property (other than dividends or other
distributions payable in shares of Common Stock or other voting
securities or options or warrants to purchase shares of Common Stock or
other voting securities or securities convertible into or exchangeable
for shares of Common Stock or other voting securities) is paid on the
shares of Class A Common Stock or shares of Class B Common Stock, a like
dividend or other distribution in cash or other property shall also be
paid on shares of Class B Common Stock or shares of Class A Common Stock,
as the case may be, in an equal amount per share. If at any time a
dividend or other distribution payable in shares of Common Stock or
options or warrants to purchase shares of Common Stock or securities
convertible into or exchangeable for shares of Common Stock is paid on
shares of Class A Common Stock or Class B Common Stock, a like dividend
or other distribution shall also be paid on shares of Class B Common
Stock or Class A Common Stock, as the case may be, in an equal amount per
share; provided that, for this purpose, if shares of Class A Common Stock
or other voting securities, or options or warrants to purchase shares
of Class A Common Stock or other voting securities or securities
convertible into or exchangeable for shares of Class A Common Stock or
other voting securities, are paid on shares of Class A Common Stock and
shares of Class B Common Stock or voting securities identical to the
other securities paid on the shares of Class A Common Stock (except that
the voting securities paid on the Class B Common Stock may have ten (10)
times the number of votes per share as the other voting securities to be
received by the holders of the Class A Common Stock) or options or
warrants to purchase shares of Class B Common Stock or such other voting
securities or securities convertible into or exchangeable for shares of
Class B Common Stock or such other voting securities, are paid on shares
of Class B Common Stock, in an equal amount per share of Class A Common
Stock and Class B Common Stock, such dividend or other distribution
shall be deemed to be a like dividend or other distribution. In the case
of any split, subdivision, combination or reclassification of shares of
Class A Common Stock or Class B Common Stock, the shares of Class B
Common Stock or Class A Common Stock, as the case may be, shall also be
split, subdivided, combined or reclassified so that the number of
shares of Class A Common Stock and Class B Common Stock outstanding
immediately following such split, subdivision, combination or
reclassification shall bear the same relationship to each other as did
the number of shares of Class A Common Stock and Class B Common Stock
outstanding immediately prior to such split, subdivision, combination or
reclassification.
(3) Liquidation, Dissolution, etc. In the event of any liquidation,
dissolution or winding up (either voluntary or involuntary) of the
Corporation, the holders of shares of Class A Common Stock and the
holders of shares of Class B Common Stock shall be entitled to receive
the assets and funds of the Corporation available for distribution, after
payments to creditors and to the holders of any Preferred Stock of the
Corporation that may at the time be outstanding, in proportion to the
number of shares held by them, respectively, without regard to class.
(4) Mergers, etc. In the event of any corporate merger,
consolidation, purchase or acquisition of property or stock, or other
reorganization in which any consideration is to be received by the
holders of shares of Class A Common Stock or the holders of shares of
Class B Common Stock, the holders of shares of Class A Common Stock and
the holders of shares of Class B Common Stock shall receive the same
consideration on a per share basis; provided that, if such consideration
shall consist in any part of voting securities (or of options or war-
rants to purchase, or of securities convertible into or exchangeable for,
voting securities), the holders of shares of Class B Common Stock may
receive, on a per share basis, voting securities with ten (10) times the
number of votes per share as those voting securities to be received by
the holders of shares of Class A Common Stock (or options or warrants to
purchase, or securities convertible into or exchangeable for, voting
securities with ten (10) times the number of votes per share as those
voting securities issuable upon exercise of the options or warrants to be
received by the holders of the shares of Class A Common Stock, or into
which the convertible or exchangeable securities to be received by the
holders of the shares of Class A Common Stock may be converted or
exchanged).
(5) No Preemptive or Subscription Rights. No holder of shares of
Class A Common Stock or Class B Common Stock shall be entitled to
preemptive or subscription rights.
(6) Transfer Restriction; Change of Control of Holders. (i) Except
as provided in subparagraph (b)(6)(iv) of this Article FOURTH, no person
holding record ownership of shares of Class B Common Stock (hereinafter
called a "Class B Holder") may transfer, and the Corporation shall not
register the transfer of, such shares of Class B Common Stock, except to
a Permitted Transferee of such Class B Holder. For the purposes hereof, a
"Permitted Transferee" shall mean:
(A) In the case of a Class B Holder who is a natural person,
such Class B Holder's "Permitted Transferee" means (x) the present
or former spouse of such Class B Holder, a lineal descendant of such
Class B Holder or any ancestor of any such lineal descendent, or a
lineal descendant of the present or former spouse of such Class B
Holder, or (y) the trustee of a trust (including a voting trust)
principally for the benefit of such Class B Holder and/or persons
who are Permitted Transferees of such Class B Holder; provided that
such trust may grant a general or special power of appointment to
such Class B Holder and/or any persons who are Permitted Transferees
of such Class B Holder, and may permit trust assets to be used to
pay taxes, legacies and other obligations of the trust or the estate
of such Class B Holder and/or any persons who are Permitted
Transferees of such Class B Holder, payable by reason of the death
of such Class B Holder and/or any persons who are Permitted
Transferees of such Class B Holder, and (z) the executor,
administrator, guardian or personal representative of the estate of
such Class B Holder.
(B) In the case of any Class B Holder, such Class B Holder's
"Permitted Transferee" means, in addition to any other Permitted
Transferee hereunder, (x) a corporation, limited liability company
or partnership controlled by such Class B Holder and/or persons who
are Permitted Transferees of such Class B Holder; provided that if
control of such a corporation, limited liability company or partner-
ship (or of any survivor of a merger or consolidation of such a
corporation, limited liability company or partnership) is acquired
by any person who is not within such class of persons, each share of
Class B Common Stock then held by such corporation, limited
liability company or partnership, as the case may be, shall be
deemed, without further act on the part of the holder thereof or the
Corporation, to be converted into one share of Class A Common Stock,
and stock certificates formerly representing each share of Class B
Common Stock shall thereupon and thereafter be deemed to represent
such number of shares of Class A Common Stock as equals the number
of shares of Class A Common Stock into which such shares of Class B
Common Stock could be converted pursuant to the terms hereof, and
(y) the estate of a bankrupt or insolvent Class B Holder.
(C) In the case of a Class B Holder which is a trustee pursuant
to a trust, such Class B Holder's "Permitted Transferee" means (x)
the person who contributed the shares of Class B Common Stock in
question to such trust (provided that there has been no change in
control of such person other than to a Permitted Transferee of such
person), and (y) a Permitted Transferee of the person (provided
that there has been no change in control of such person other than
to a Permitted Transferee of such person) who contributed the shares
of Class B Common Stock in question to such trust.
(D) In the case of a Class B Holder which is a corporation or
limited liability company, such Class B Holder's "Permitted
Transferee" means any (x) direct or indirect controlling stockholder
of such corporation or member of such limited liability company (but
not any other stockholder of such corporation or member of such
limited liability company), and (y) any Permitted Transferee of
such controlling stockholder or member (as if such controlling
stockholder or member were a Class B Holder), and the survivor of
any merger or consolidation of such corporation or limited liability
company; provided that, if control of such a corporation or limited
liability company (or of any survivor of a merger or consolidation
of such a corporation or limited liability company) is acquired by
any person who is not within such class of persons, whether as a
result of a merger or consolidation or otherwise, each share of
Class B Common Stock then held by such corporation or limited
liability company shall be deemed, without further act on the part
of the holder thereof or the Corporation, to be converted into one
share of Class A Common Stock, and stock certificates formerly
representing such shares of Class B Common Stock shall thereupon and
thereafter be deemed to represent such number of shares of Class A
Common Stock as equals the number of shares of Class A Common Stock
into which such shares of Class B Common Stock could be converted
pursuant to the terms hereof.
(E) In the case of a Class B Holder which is a partnership,
such Class B Holder's "Permitted Transferee" means (x) any direct or
indirect controlling partner of such partnership (but not any other
partner of such partnership), and any Permitted Transferee of such
controlling partner (as if such controlling partner were a Class B
Holder), and (y) the survivor of a merger or consolidation of such
partnership; provided that if control of such a partnership (or of
any survivor of a merger or consolidation of such a partnership) is
acquired by any person who is not within such class of persons,
whether as a result of a merger or consolidation or otherwise, each
share of Class B Common Stock then held by such partnership shall be
deemed, without further act on the part of the holder thereof or the
Corporation, to be converted into one share of Class A Common Stock,
and stock certificates formerly representing each share of Class B
Common Stock shall thereupon and thereafter be deemed to represent
such number of shares of Class A Common Stock as equals the number
of shares of Class A Common Stock into which such shares of Class B
Common Stock could be converted pursuant to the terms hereof.
(F) In the case of a Class B Holder which is the estate of a
deceased Class B Holder, or which is the estate of a bankrupt or
insolvent Class B Holder, such Class B Holder's "Permitted
Transferee" means a Permitted Transferee of such deceased, bankrupt
or insolvent Class B Holder.
(G) In the case of any Class B Holder, such Class B Holder's
"Permitted Transferee" means, without limitation of the foregoing,
any direct or indirect Permitted Transferee of a Permitted Trans-
feree of such Class B Holder.
(ii) Notwithstanding anything to the contrary set forth herein,
but subject to the provisions of subparagraph (b)(6)(iv) of this Article
FOURTH, in the event of any direct or indirect transfer of beneficial
ownership of any shares of Class B Common Stock which, had such
transfer also been a transfer of record ownership of such shares of Class
B Common Stock, would not have been to a Permitted Transferee, each share
of Class B Common Stock transferred shall be deemed, without further act
on the part of the holder thereof or the Corporation, to be converted
into one share of Class A Common Stock, and stock certificates formerly
representing each share of Class B Common Stock shall thereupon and
thereafter be deemed to represent such number of shares of Class A Common
Stock as equals the number of shares of Class A Common Stock into which
such shares of Class B Common Stock could be converted pursuant to the
terms hereof.
(iii) Notwithstanding anything to the contrary set forth
herein, any event which would result in the automatic conversion of
shares of Class B Common Stock into shares of Class A Common Stock shall
not result in such conversion if, after such event, the record holder of
such shares of Class B Common Stock is a corporation, limited liability
company or partnership as to which, with respect to the shares of Class B
Common Stock held by such corporation, limited liability company or part-
nership, any Permitted Transferee of the Class B Holder prior to such
event has, directly or indirectly, both investment power (which
includes the power to dispose, or direct the disposition of, such shares
of Class B Common Stock) and voting power (which includes the power to
vote, or direct the voting of, such shares of Class B Common Stock);
provided that no transaction or event intended to avoid the automatic
conversion provision of this subparagraph (b)(6) of Article FOURTH shall
in any event be entitled to the benefit of this subparagraph (b)(6)(iii)
of Article FOURTH.
(iv) Notwithstanding anything to the contrary set forth herein,
any Class B Holder may pledge such Class B Holder's shares of Class B
Common Stock to a pledgee pursuant to a bona fide pledge of such shares
as collateral security for any indebtedness or other obligation of any
person; provided that, even if such shares are registered in the name of
the pledgee or its nominee (which registration is hereby expressly
permitted and shall not be considered a transfer hereunder), such shares
shall remain subject to the provisions of this subparagraph (b)(6) of
Article FOURTH. In the event that such pledged shares of Class B Common
Stock (the "Pledged Stock") are foreclosed upon, each share of such
Pledged Stock shall be deemed, without further act on the part of the
holder thereof or the Corporation, to be converted into one share of
Class A Common Stock, and stock certificates formerly representing one
share of Class B Common Stock shall thereupon and thereafter be deemed to
represent such number of shares of Class A Common Stock as equals the
number of shares of Class A Common Stock into which such shares of Class
B Common Stock could be converted pursuant to the terms hereof upon the
earlier of (i) if the pledgor is contesting the foreclosure on such
shares of Pledged Stock, 30 days after the date on which the foreclosure
on such Pledged Stock becomes final and non-appealable or (ii) if the
pledgor is not contesting the foreclosure on such shares of Pledged
Stock, 30 days after the date on which such Pledged Stock is foreclosed
upon; provided that the Pledged Stock shall not be automatically
converted as provided in this subparagraph (b)(6)(iv) of Article FOURTH
hereof as a result of such foreclosure if, prior to expiration of either
such 30-day period, the Pledged Stock shall be transferred by the pledgee
or the purchaser in such foreclosure to a Class B Holder or one or more
Permitted Transferees of a Class B Holder.
(v) Notwithstanding anything to the contrary herein, the
Corporation shall not register the transfer of any shares of Class B
Common Stock, unless the transferee and the transferor of such Class B
Common Stock have furnished such affidavits and other proof as the
Corporation may reasonably request to establish that such proposed
transferee is a Permitted Transferee. In addition, upon any purported
transfer of shares of Class B Common Stock not permitted hereunder, each
share of Class B Common Stock purported to be so transferred shall be
deemed, without further act on the part of the holder thereof or the
Corporation, to be converted into one share of Class A Common Stock, and
stock certificates formerly representing one share of Class B Common
Stock shall thereupon and thereafter be deemed to represent such number
of shares of Class A Common Stock as equals the number of shares of Class
A Common Stock into which such shares of Class B Common Stock could be
converted pursuant to the terms hereof, and the Corporation shall
register such shares of Class A Common Stock in the name of the person to
whom such shares of Class B Common Stock were purported to be
transferred.
(vi) The Corporation shall include on the certificates for
shares of Class B Common Stock a legend referring to the restrictions on
transfer and registration of transfer imposed by this subparagraph
(b)(6) of Article FOURTH.
(7) Automatic Conversion. (i) In the event the aggregate number of
shares of Class B Common Stock and Class A Common Stock held by the Class
B Holder and its Permitted Transferees at any time shall constitute less
than ten percent (10%) of the total number of shares of Common Stock
issued and outstanding at such time, then, without any further act on the
part of the holder thereof or the Corporation, each share of Class B
Common Stock then issued and outstanding shall be deemed to be con-
verted into one share of Class A Common Stock, and stock certificates
formerly representing each share of Class B Common Stock shall thereupon
and thereafter be deemed to represent such number of shares of Class A
Common Stock as equals the number of shares of Class A Common Stock into
which such shares of Class B Common Stock could be converted pursuant to
the terms hereof. For purposes of the immediately preceding sentence, any
shares of Class A Common Stock and Class B Common Stock repurchased or
otherwise acquired by the Corporation and not subsequently sold or
otherwise transferred by the Corporation shall no longer be deemed
"outstanding" from and after the date of repurchase. Any event set forth
in subparagraph (b)(6) or (7) of this Article FOURTH pursuant to which
shares of Class B Common Stock have been automatically converted into
shares of Class A Common Stock are hereafter referred to as an "Event
of Automatic Conversion."
(ii) Conversion pursuant to an Event of Automatic Conversion
shall be deemed to have been effected at the time the Event of Automatic
Conversion occurred (such time being the "Conversion Time"). The person
entitled to receive the shares of Class A Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such
shares of Class A Common Stock at and as of the Conversion Time, and the
rights of such person as a holder of shares of Class B Common Stock with
respect to the shares of Class B Common Stock that have been converted,
shall cease and terminate at and as of the Conversion Time.
(8) Voluntary Conversion. Each share of Class B Common Stock shall
be convertible, at the option of its record holder, into one validly
issued, fully paid and non-assessable share of Class A Common Stock at
any time. At the time of a voluntary conversion, the record holder of
shares of Class B Common Stock shall deliver to the principal office of
the Corporation or any transfer agent for shares of the Class A Common
Stock (i) the certificate or certificates representing the shares of
Class B Common Stock to be converted, duly endorsed in blank or
accompanied by proper instruments of transfer, and (ii) written notice to
the Corporation specifying the number of shares of Class B Common Stock
to be converted into shares of Class A Common Stock and stating the name
or names (with addresses) and denominations in which the certificate or
certificates representing the shares of Class A Common Stock issuable
upon such conversion are to be issued and including instructions for the
delivery thereof. Conversion shall be deemed to have been effected at
the time when delivery is made to the Corporation of both such written
notice and the certificate or certificates representing the shares of
Class B Common Stock to be converted or such later time as may be
specified in such written notice, and as of such time each person named
in such written notice as the person to whom a certificate representing
shares of Class A Common Stock is to be issued shall be deemed to be the
holder of record of the number of shares of Class A Common Stock to be
evidenced by that certificate. Delivery of such certificates and such
written notice shall obligate the Corporation to issue such shares of
Class A Common Stock, and thereupon the Corporation or its transfer agent
shall promptly issue and deliver at such stated address to such record
holder of shares of Class A Common Stock a certificate or certificates
representing the number of shares of Class A Common Stock to which such
record holder is entitled by reason of such conversion, and shall cause
such shares of Class A Common Stock to be registered in the name of such
record holder.
(9) Unconverted Shares; Notice Required. In the event of the
conversion of less than all of the shares of Class B Common Stock
evidenced by a certificate surrendered to the Corporation in accordance
with the procedures of subparagraphs (b)(6), (7) or (8) of this Article
FOURTH hereof, the Corporation shall execute and deliver to or upon the
written order of the holder of such unconverted shares, without charge
to such holder, a new certificate evidencing the number of shares of
Class B Common Stock not converted.
(10) Reservation. The Corporation hereby reserves and shall at all
times reserve and keep available, out of its authorized and unissued
shares of Class A Common Stock, for the purposes of effecting
conversions, such number of duly authorized shares of Class A Common
Stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of Class B Common Stock. The Corporation
covenants that all of the shares of Class A Common Stock so issuable
shall, when so issued, be duly and validly issued, fully paid and non-
assessable, and free from liens and charges. The Corporation shall take
all action as may be necessary to ensure that all such shares of Class A
Common Stock may be so issued without violation of any applicable law or
regulation, or of any requirements of any national securities exchange
upon which the shares of Class A Common Stock are or may be listed, or of
any inter-dealer quotation system of a registered national securities
association upon which the shares of Class A Common Stock are or may be
listed.
(11) Power to Sell and Purchase Shares. Subject to applicable law,
the Corporation shall have the power to issue and sell all or any part of
any shares of any class of stock herein or hereafter authorized to such
persons, and for such consideration, as the Board shall from time to
time, in its discretion, determine, whether or not greater consideration
could be received upon the issue or sale of the same number of shares of
another class, and as otherwise permitted by law. Subject to the require-
ments of applicable law, the Corporation shall have the power to purchase
any shares of any class of stock herein or hereafter authorized from such
persons, and for such consideration, as the Board shall from time to
time, in its discretion, determine, whether or not less consideration
could be paid upon the purchase of the same number of shares of another
class, and as otherwise permitted by law.
(12) Rights Otherwise Identical. Except as expressly set forth
herein, the rights of the holders of Class A Common Stock and the rights
of the holders of Class B Common Stock shall be in all respects
identical.
(13) Certain Relationships and Definitions. For purposes of this
Article FOURTH:
(i) The relationship of any person that is derived by or
through legal adoption shall be considered a natural one.
(ii) Each joint owner of shares of Class B Common Stock shall
be considered a "Class B Holder" of such shares.
(iii) A minor for whom shares of Class B Common Stock are held
pursuant to a Uniform Gifts to Minors Act or similar law shall be
considered a "Class B Holder" of such shares.
(iv) The term "beneficial ownership" (including, with a
correlative meaning, the term "beneficially own"), shall have the meaning
assigned such term in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, as amended, except that a person shall be deemed to have
"beneficial ownership" of all shares that such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time.
(v) Unless otherwise specified, the term "person" means both
natural persons and legal entities.
(vi) The term "transfer" means any direct or indirect transfer
(including by sale, assignment, gift, bequest, appointment or otherwise),
and shall also include, with respect to any Class B Holder, any direct or
indirect change in control of such person.
(vii) The term "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control
with"), as applied to any person, means the possession, directly or indi-
rectly, of the power to direct or cause the direction of the management
and policies of that person or entity, whether through the ownership of
voting securities, by contract or otherwise.
(c) Preferred Stock. The Board is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock in one or more
classes or series, and to fix for each such class or series such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights
and such qualifications, limitations or restrictions thereof, as shall
be stated and expressed in the resolution or resolutions adopted by the
Board providing for the issuance of such class or series, including,
without limitation, the authority to provide that any such class or
series may be (i) subject to redemption at such time or times and at such
price or prices; (ii) entitled to receive dividends (which may be
cumulative or non-cumulative) at such rates, on such conditions, and at
such times, and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or any other series;
(iii) enti- tled to such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation; or (iv) convertible into,
or exchangeable for, shares of any other class or classes of stock, or of
any other series of the same or any other class or classes of stock, of
the Corporation at such price or prices or at such rates of exchange and
with such adjustments; all as may be stated in such resolution or
resolutions.
FIFTH: The following provisions are inserted for the management
of the business and the conduct of the affairs of the Corporation, and
for further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(b) The directors shall have concurrent power with the stockholders to
adopt, amend, or repeal the By-Laws of the Corporation.
(c) 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. Election of directors need not be by written ballot unless
the By-Laws so provide.
(d) No director shall be personally liable to the Corporation or any of
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) pursuant to Section 174 of the DGCL or
(iv) for any transaction from which the director derived an improper
personal benefit. If the DGCL is amended hereafter to authorize the
further elimination or limitation of liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited
to the fullest extent authorized by the DGCL, as so amended. Any repeal
or modification of this Article FIFTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modi-
fication with respect to acts or omissions occurring prior to such repeal
or modification.
(e) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the DGCL, this Certificate of Incorporation and any
By-Laws adopted by the stockholders; provided, however, that no By-Laws
hereafter adopted by the stockholders shall invalidate any prior act of
the directors which would have been valid if such By-Laws had not been
adopted.
(f) The Corporation expressly elects not to be governed by Section 203 of
the DGCL.
SIXTH: Meetings of stockholders may be held within or without
the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the DGCL)
outside the State of Delaware at such place or places as may be
designated from time to time by the Board or in the By-Laws.
SEVENTH: The Corporation shall indemnify its directors and
officers to the fullest extent authorized or permitted by law, as now or
hereafter in effect, and such right to indemnification shall continue as
to a person who has ceased to be a director or officer of the Corporation
and shall inure to the benefit of his or her heirs, executors and
personal and legal representatives; provided, however, that, except for
proceedings to enforce rights to indemnification, the Corporation shall
not be obligated to indemnify any director or officer (or his or her
heirs, executors or personal or legal representatives) in connection
with a proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by the Board
of Directors. The right to indemnification conferred by this Article
SEVENTH shall include the right to be paid by the Corporation the
expenses incurred in defending or otherwise participating in any
proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time
by the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article SEVENTH to directors and
officers of the Corporation.
The rights to indemnification and to the advance of expenses
conferred in this Article SEVENTH shall not be exclusive of any other
right which any person may have or hereafter acquire under this
Certificate of Incorporation, the By-Laws, any statute, agreement, vote
of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SEVENTH by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or
officer of the Corporation existing at the time of such repeal or
modification with respect to any acts or omissions occurring prior to
such repeal or modification.
EIGHTH: 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 in this
Certificate of Incorporation, the By-Laws or the laws of the State of
Delaware, and all rights herein conferred upon stockholders are granted
subject to such reservation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be duly executed this 20th day
of August, 1996.
CONSOLIDATED CIGAR HOLDINGS INC.
By:_____________________________
Name: Joram C. Salig
Title: Vice President
and Secretary
AMENDED AND RESTATED
BY-LAWS
OF
CONSOLIDATED CIGAR HOLDINGS INC.
AUGUST 20, 1996
TABLE OF CONTENTS
ARTICLE I OFFICES
Section 1. Registered Office......................................... 1
Section 2. Other Offices............................................. 1
ARTICLE II MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings......................................... 1
Section 2. Annual Meetings........................................... 1
Section 3. Special Meetings.......................................... 2
Section 4. Quorum ................................................... 2
Section 5. Voting ................................................... 3
Section 6. Consent of Stockholders in Lieu
of Meeting......................................... 3
Section 7. List of Stockholders Entitled to
Vote ............................................. 4
Section 8. Stock Ledger ............................................. 4
Section 9. Inspectors of Election............................. 4
ARTICLE III DIRECTORS
Section 1. Number and Election of
Directors.......................................... 5
Section 2. Vacancies................................................. 5
Section 3. Duties and Powers......................................... 6
Section 4. Meetings ................................................. 6
Section 5. Quorum.................................................... 6
Section 6. Action by Written Consent................................. 7
Section 7. Meetings by Means of Conference
Telephone.......................................... 7
Section 8. Compensation.............................................. 7
Section 9. Interested Directors ..................................... 7
ARTICLE IV COMMITTEES
Section 1. Constitutition and Powers.................................. 8
Section 2. Executive Committee........................................ 9
Section 3. Organization .............................................. 9
Section 4. Meetings ...................................................9
Section 5. Quorum and Manner of Acting ............................... 9
Section 6. General.................................................... 9
ARTICLE V OFFICERS
Section 1. General.................................................. 10
Section 2. Election.................................................. 10
Section 3. Voting Securities Owned by the Corporation ............... 10
Section 4. Chairman of the Board of
Directors.......................................... 11
Section 5. President................................................. 11
Section 6. Vice Presidents........................................... 12
Section 7. Secretary................................................. 13
Section 8. Treasurer................................................. 13
Section 9. Controller ............................................... 14
Section 10. Assistant Secretaries ............................. 14
Section 11. Assistant Treasurers............................... 15
Section 12. Other Officers .................................... 15
ARTICLE VI STOCK
Section 1. Form of Certificates ..................................... 15
Section 2. Signatures ............................................... 16
Section 3. Lost, Destroyed, Stolen or
Mutilated Certificates ............................ 16
Section 4. Transfers................................................. 17
Section 5. Limitations on Transfer................................... 17
Section 6. Record Date .............................................. 18
Section 7. Beneficial Owners......................................... 18
ARTICLE VII NOTICES
Section 1. Notices................................................... 18
Section 2. Waivers of Notice......................................... 19
ARTICLE VIII GENERAL PROVISIONS
Section 1. Dividends ................................................ 19
Section 2. Disbursements ............................................ 19
Section 3. Fiscal Year .............................................. 20
Section 4. Corporate Seal ........................................... 20
ARTICLE IX INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings
other Than Those by or in the Right of the Corporation.... 20
Section 2. Power to Indemnify in Actions, Suits or Proceedings by
or in the Right of the Corporation ....................... 21
Section 3. Authorization of
Indemnification ................................... 21
Section 4. Good Faith Defined ....................................... 22
Section 5. Indemnification by a Court ............................... 23
Section 6. Expenses Payable in Advance............................... 23
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses........................................... 23
Section 8. Insurance................................................. 24
Section 9. Certain Definitions....................................... 24
Section 10. Survival of Indemnification and Advancement of
Expenses........................................... 25
Section 11. Limitation on Indemnification...................... 25
Section 12. Indemnification of Employees and
Agents ...................................................... 25
ARTICLE X AMENDMENT OF BY-LAWS
Section 1. Amendment of By-Laws ..................................... 26
Section 2. Entire Board of Directors................................. 26
BY-LAWS
(as restated and amended)
OF
CONSOLIDATED CIGAR HOLDINGS INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 2. Other Offices. The Corporation may also have offices
at such other places both within and without the State of Delaware as the
Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders
shall be held on such date and at such time as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting, at
which meetings the stockholders shall elect by a plurality vote a Board of
Directors, and transact such other business as may properly be brought before
the meeting. Written notice of the Annual Meeting of Stockholders stating
the place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by
law or by the Certificate of Incorporation, Special Meetings of
Stockholders, for any purpose or purposes, may be called by either (i) the
Board of Directors, (ii) the Chairman of the Board of Directors, (iii) the
President or (iv) the Chairman of the Executive Committee of the Board of
Directors. Such request shall state the purpose or purposes of the proposed
meeting. At a special meeting of the stockholders, only such business shall be
conducted as shall be specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors. Written
notice of a Special Meeting of Stockholders stating the place, date and hour
of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten nor more than sixty days before the date of
the meeting to each stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided by law or by
the Certificate of Incorporation, the holders of a majority in total number of
votes of the capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction of business. A
quorum, once established, shall not be broken by the withdrawal of enough
votes to leave less than a quorum. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the officer of the
Corporation presiding at the meeting of stockholders or the holders of a
majority in number of votes of the capital stock entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting of the time and place of the adjourned meeting, until a quorum shall
be present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. If the adjournment is
for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a written notice of the adjourned meeting
shall be given to each stockholder entitled to vote at the meeting not less
than ten nor more than sixty days before the date of the meeting.
Section 5. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these By-Laws, any question brought before any
meeting of stockholders shall be decided by the affirmative vote of the
holders of a majority of the total number of votes of the capital stock
present, in person or represented by proxy, and entitled to vote thereat. Such
votes may be cast in person or by proxy but no proxy shall be voted on or
after three years from its date, unless such proxy provides for a longer
period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
Section 6. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required or
permitted to be taken at any Annual or Special Meeting of Stockholders of the
Corporation, 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. 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 and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by
a sufficient number of stockholders to take the action were delivered to the
Corporation as provided in this Section 6. In the event that the action which
is consented to is such as would have required the filing of a certificate
under the General Corporation Law of the State of Delaware if such action had
been voted on by stockholders at a meeting thereof, the certificate filed
shall state, in lieu of any statement concerning any vote of stockholders,
that written consent has been given in accordance with this Section 6.
Section 7. List of Stockholders Entitled to Vote. The officer of
the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten 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. Such list 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 ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder of the Corporation who
is present.
Section 8. Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Section 7 of this Article II or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 9. Inspectors of Election. In advance of any meeting
of stockholders, the Board of Directors by resolution or the Chairman of the
Board of Directors, the President or the Chairman of the Executive Com-
mittee of the Board of Directors shall appoint one or more inspectors of
election to act at the meeting and make a written report thereof. One or more
other persons may be designated as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is present, ready and
willing to act at a meeting of stockholders, the officer of the Corporation
presiding at the meeting of stockholders shall appoint one or more inspectors
to act at the meeting. Unless otherwise required by law, inspectors may be
officers, employees or agents of the Corporation. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his or her ability. The inspector shall have the
duties prescribed by law and shall take charge of the polls and, when the vote
is completed, shall make a certificate of the result of the vote taken and of
such other facts as may be required by law.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of
Directors shall consist of not less than one nor more than fifteen members,
the exact number of which shall be fixed from time to time by resolution
adopted by the Board of Directors. Except as provided in Section 2 of this
Article III, directors shall be elected by a plurality of the votes cast at
Annual Meetings of Stockholders, and each director so elected shall hold
office until the next Annual Meeting and until his successor is duly elected
and qualified, or until his death, or until his earlier resignation or
removal. Any director may resign at any time upon notice to the Corporation.
Directors need not be stockholders.
Section 2. Vacancies. Subject to the terms of any one or more
classes or series of preferred stock, vacancies and newly created
directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, except that any vacancy
resulting from the death, resignation, removal or disqualification of a
director elected by the holders of any class or classes of the stock of the
Corporation voting as a class, or from an increase in the number of directors
which such holders are entitled to elect, may be filled by the affirmative
vote of a majority of the directors elected by such class or classes, or by a
sole remaining director so elected, and each director so chosen shall hold
office until his successor is duly elected and qualified or until his death,
or until his earlier resignation or removal, or disqualification.
Section 3. Duties and Powers. The business of the Corporation
shall be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by
these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the
State of Delaware. Regular meetings of the Board of Directors may be held at
such time and at such place as may from time to time be determined by the
Board of Directors and, unless required by resolution of the Board of
Directors, without notice. Special meetings of the Board of Directors may be
called by the Chairman of the Board of Directors, the Chairman of the
Executive Committee of the Board of Directors, or a majority of directors then
in office. Notice thereof stating the place, date and hour of the meeting
shall be given to each director either by mail not less than forty-eight hours
before the date of the meeting; by telephone, telecopy, or telegram on
twenty-four (24) hours notice; or on such shorter notice as the person or
persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these By-Laws, at all
meetings of the Board of Directors, a majority of the entire Board of
Directors shall constitute a quorum for the transaction of business and the
act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting of the time and place of the adjourned meeting,
until a quorum shall be present.
Section 6. Action by Written Consent. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, 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 the members of
the Board of Directors or 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 committee.
Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Certificate of Incorporation or these By-Laws,
members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the
Board of Directors or such 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 participation in a meeting pursuant to
this Section 7 shall constitute presence in person at such meeting.
Section 8. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Direc-
tors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
Section 9. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association,
or other organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present
at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose if (i) the material facts as to his
or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the
Board of Directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
COMMITTEES
Section 1. Constitutition and Powers. The Board of Directors may
designate one or more committees, each committee to consist of one or more of
the directors of the Corporation, except as otherwise provided in these
By-Laws. The Board of Directors may designate one or more directors as
alternate members of any committee who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or dis-
qualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act in the
place of any absent or disqualified member. Each committee, to the extent
permitted by law, 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 as provided in the resolution establishing such committee.
Section 2. Executive Committee. The Board of Directors may
designate an Executive Committee, to consist of not less than two members of
the Board of Directors, which shall have and may exercise, to the extent
permitted by law, all of the powers of the Board of Directors in the
management of the business and affairs of the Corporation.
Section 3. Organization. The Board of Directors or each such
committee may choose its Chairman and Secretary, and shall keep and record all
its acts and proceedings and report the same from time to time to the Board of
Directors.
Section 4. Meetings. Regular meetings of any such committee, of
which no notice shall be necessary, shall be held at such times and in such
places as shall be fixed by the committee or by the Board of Directors.
Special meetings of any such committee shall be held at the request of any
member of the committee.
Section 5. Quorum and Manner of Acting. A majority of the
members of any such committee shall constitute a quorum for the transaction of
business, and the act of a majority of those present at any meeting at which a
quorum is present shall be the act of the committee.
Section 6. General. The Board of Directors shall have the power
at any time to change the members of, fill vacancies in, and discharge or
disband any such committee, either with or without cause.
ARTICLE V
OFFICERS
Section 1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary and a
Treasurer. The Board of Directors, in its discretion, may also choose a
Chairman of the Board of Directors (who must be a director) and one or more
Vice Presidents, Assistant Secretaries, Assistant Treasurers and other
officers. Any number of offices may be held by the same person, unless other-
wise prohibited by law, the Certificate of Incorporation or these By-Laws. The
officers of the Corporation need not be stockholders of the Corporation nor,
except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its first meeting
held after each Annual Meeting of Stockholders may elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time
by the Board of Directors; and all officers of the Corporation shall hold
office until their successors are chosen and qualified, or until their earlier
resignation or removal. Any officer elected by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed
in the name of and on behalf of the Corporation by any officer of the
Corporation and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such person may deem advisable to
vote in person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and power incident
to the ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of
the Board of Directors, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors. The Chairman of the Board of
Directors may enter into and execute in the name of the Corporation deeds,
mortgages, bonds, guarantees, contracts and other instruments (collectively,
"Contracts"), including all Contracts requiring a seal, under the seal of the
Corporation, except in cases where the making and execution thereof shall be
expressly restricted or delegated by the Board of Directors or by a duly
authorized committee of directors, or by these By-Laws to some other officer
or agent of the Corporation, or shall be required by law otherwise to be made
or executed by some other officer or agent of the Corporation. During the
absence or disability of the President, the Chairman of the Board of Directors
shall exercise all the powers and discharge all the duties of the President.
The Chairman of the Board of Directors shall also perform such other duties
and may exercise such other powers as from time to time may be assigned to him
by these By-Laws or by the Board of Directors.
Section 5. President. The President shall, subject to the
control of the Board of Directors and, if there be one, the Chairman of the
Board of Directors, have general supervision of the business of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall be the Chief
Executive Officer of the Corporation. The President may enter into and
execute in the name of the Corporation Contracts, including all Contracts
requiring a seal, under the seal of the Corporation, except in cases where
the making and execution thereof shall be expressly restricted or delegated by
the Board of Directors or by a duly authorized committee of directors, by the
Chairman of the Board of Directors or by these By-Laws to some other officer
or agent of the Corporation, or shall be required by law otherwise to be made
or executed by some other officer or agent of the Corporation. In the absence
or disability of the Chairman of the Board of Directors, or if there be
none, the President shall preside at all meetings of the stockholders and the
Board of Directors. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by
these By-Laws or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or
in his absence or in the event of his inability or refusal to act (and if
there be no Chairman of the Board of Directors), the Vice President or the
Vice Presidents if there is more than one (in the order designated by the
Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions
upon the President. Each Vice President may enter into and execute in the name
of the Corporation Contracts, including all Contracts requiring a seal, under
the seal of the Corporation, except in cases where the making and execution
thereof shall be expressly restricted or otherwise delegated by these
By-Laws or by the Board of Directors, a duly authorized committee of
directors, the Chairman of the Board of Directors, the President or any other
officer to whom they report, or shall be required by law otherwise to be made
or executed by some other officer or agent of the Corporation. Each Vice
President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. If there be no Chairman of
the Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of
Directors or President, under whose supervision he shall be. If the Secretary
shall be unable or shall refuse to cause to be given notice of all meetings of
the stockholders and special meetings of the Board of Directors, and if there
be no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary
or any Assistant Secretary, if there be one, shall have authority to affix
the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing
by his signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or
filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors,
at its regular meetings, or when the Board of Directors so requires, an
account of all his transactions as Treasurer and of the financial condition of
the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Controller. The Controller shall be responsible for
preparing and maintaining reasonable and adequate books of account and other
accounting records of the assets, liabilities and transactions of the
Corporation in accordance with generally accepted accounting principles and
procedures, shall see that reasonable and adequate audits thereof are
regularly made and that reasonable and adequate systems of financial control
are maintained, shall examine and certify the financial accounts of the
Corporation, shall prepare and render such budgets and other financial reports
as the Board of Directors, the Chairman of the Board of Directors, the
President or any other officer to whom the Controller reports may require, and
shall, in general, have all authority incident to the office of Controller and
such other authority and perform such other duties as from time to time may be
assigned by the Board of Directors, any duly authorized committee of
directors, the Chairman of the Board of Directors, the President or any other
officer to whom the Controller reports.
Section 9. Assistant Secretaries. Except as may be otherwise
provided in these By-Laws, Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any Vice President, if there
be one, or the Secretary, and in the absence of the Secretary or in the event
of his disability or refusal to act, shall perform the duties of the
Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there
be any, shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of his disability or refusal to act, shall perform
the duties of the Treasurer, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Treasurer. If required by the
Board of Directors, an Assistant Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office
and for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and
powers.
ARTICLE VI
STOCK
Section 1. Form of Certificates. (a) Every holder of stock in
the Corporation shall be entitled to have a certificate signed, in the name of
the Corporation (i) by the Chairman of the Board of Directors, the President
or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation.
(b) If the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise required by Section 202 of
the Delaware General Corporation Law, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case 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 3. Lost, Destroyed, Stolen or Mutilated Certificates.
The Board of Directors may direct a new certificate to be issued in place of
any certificate theretofore issued by the Corporation alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed.
When authorizing such issue of a new certificate, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors
shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the
Corporation and its transfer agents with respect to the certificate alleged to
have been lost, stolen or destroyed or the issuance of such new certificate.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these By-Laws. Transfers
of stock shall be made on the books of the Corporation only by the person
named in the certificate or by his attorney lawfully constituted in writing
and upon the surrender of the certificate therefor, which shall be cancelled
before a new certificate shall be issued.
Section 5. Limitations on Transfer. A written restriction on
the transfer or registration of transfer of a security of the Corporation,
if permitted by Section 202 of the Delaware General Corporation Law and noted
conspicuously on the certificate representing the security or, in the case of
uncertificated shares, contained in the notice sent pursuant to Section
151(f) of the Delaware General Corporation Law, may be enforced against the
holder of the restricted security or any successor or transferee of the holder
including an executor, administrator, trustee, guardian or other fiduciary
entrusted with like responsibility for the person or estate of the holder.
Unless noted conspicuously on the certificate representing the security or, in
the case of uncertificated shares, contained in the notice sent pursuant to
Section 151(f) of the Delaware General Corporation Law, a restriction, even
though permitted by Section 202 of the Delaware General Corporation Law, is
ineffective except against a person with actual knowledge of the restriction.
A restriction on the transfer or registration of transfer of securities of the
Corporation may be imposed either by the Certificate of Incorporation or by
these By-Laws or by an agreement among any number of security holders or among
such holders and the Corporation. No restriction so imposed shall be binding
with respect to securities issued prior to the adoption of the restriction
unless the holders of the securities are parties to an agreement or voted in
favor of the restriction.
Section 6. 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 entitled 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 sixty days
nor less than ten days before the date of such meeting, nor more than sixty
days prior to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
Section 7. Beneficial Owners. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
ARTICLE VII
NOTICES
Section 1. Notices. Whenever written notice is required by law,
the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or stockholder, at his
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given
personally or by courier service, facsimile transmission, telegram, telex or
cable.
Section 2. Waivers of Notice. Whenever any notice is required by
law, the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing,
signed, by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto. Attendance
of a person at a meeting, present by person or represented by proxy, shall
constitute a waiver of notice of such meeting, except where the person attends
the 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.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, in property, or in shares of the capital
stock. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 3. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization
and the words "Corporate Seal, Delaware". The seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE IX
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings
other Than Those by or in the Right of the Corporation. Subject to Section 3
of this Article IX, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation) by reason of the fact that he is or was a director or officer
of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director or officer, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other entity or enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed 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.
Section 2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation. Subject to Section 3 of this Article
IX, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
or other entity or 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; 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 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 or such
other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification
under this Article IX (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 or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section 1
or Section 2, and in each case Section 11, of this Article IX, as the case may
be. Such determination shall be made (i) by a majority vote of the directors
who are not parties to such action, suit or proceeding, even though less than
a quorum, or (ii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director or officer of the Corpo-
ration has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination
under Section 3 of this Article IX, a person shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, or, with respect to any criminal action
or proceeding, to have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the
officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the Corporation or another enterprise. The term "another enterprise" as used
in this Section 4 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other entity or enterprise of which
such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 4 shall not be
deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set forth
in Sections 1 or 2, and in each case Section 11, of this Article IX, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
IX, and notwithstanding the absence of any determination thereunder, any
director or officer may apply to any court of competent jurisdiction in the
State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2, and in each case Section 11, of this Article IX. The
basis of such indemnification by a court shall be a determination by such
court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set
forth in Sections 1 or 2, and in each case Section 11, of this Article IX, as
the case may be. Neither a contrary determination in the specific case under
Section 3 of this Article IX nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the
director or officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for indemnification pursuant to
this Section 5 shall be given to the Corporation promptly upon the filing of
such application. If successful, in whole or in part, the director or officer
seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses (including
attorneys' fees) incurred by a director or officer in defending or
investigating a threatened or pending action, suit or proceeding shall be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director
or officer 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
Article IX.
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article IX shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may
be entitled under the Certificate of Incorporation or any By-Law, agreement,
contract, vote of stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2
of this Article IX shall be made to the fullest extent permitted by law. The
provisions of this Article IX shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article IX but whom the Corporation has the power or obligation to indemnify
under the provisions of the Delaware General Corporation Law or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit
plan or other entity or 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 or the obligation to
indemnify him against such liability under the provisions of this Article IX.
Section 9. Certain Definitions. For purposes of this Article
IX, 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 or officers, so that any person who is or was a director or officer
of such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other entity or
enterprise, shall stand in the same position under the provisions of this
Article IX with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence
had continued. For purposes of this Article IX, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director or
officer with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to
in this Article IX.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article IX shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding
anything contained in this Article IX to the contrary, except for proceedings
to enforce rights to indemnification (which shall be governed by Section 5
hereof), the Corporation shall not be obligated to indemnify any director or
officer in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred
in this Article IX to directors and officers of the Corporation.
ARTICLE X
AMENDMENTS OF BY-LAWS
Section 1. Amendments of By-Laws. These By-Laws may be altered,
amended or repealed, in whole or in part, or new By-Laws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of
such alteration, amendment, repeal or adoption of new By-Laws be contained in
the notice of such meeting of stockholders or Board of Directors as the case
may be. All such amendments must be approved by either the affirmative vote
of the holders of a majority in total number of votes of the outstanding
capital stock entitled to vote thereon or by a majority of the entire Board of
Directors then in office.
Section 2. Entire Board of Directors. As used in this Article X
and in these By-Laws generally, the term "entire Board of Directors" means the
total number of directors which the Corporation would have if there were no
vacancies.
EXHIBIT 5.1
November 7, 1996
Board of Directors of
Consolidated Cigar Holdings Inc.
5900 North Andrews Avenue
Suite 700
Fort Lauderdale, Florida 33309-2369
Re: Consolidated Cigar Holdings Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Consolidated
Cigar Holdings Inc., a Delaware corporation (the
"Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities
Act"), of 3,000,000 shares (the "Shares") of the
Company's Class A Common Stock, par value $0.01 per share
(the "Class A Common Stock"), to be issued pursuant to or
reserved for issuance under the Consolidated Cigar
Holdings Inc. 1996 Stock Plan (the "Stock Plan").
This opinion is being furnished in accordance
with the requirements of Item 601(b)(5) of Regulation S-K
under the Securities Act.
In connection with this opinion, we have
examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Registration
Statement on Form S-8 (the "Registration Statement") to
bed with the Securities and Exchange Commission (the
"Commission") on November 7 1996 under the Securities
Act; (ii) the Stock Plan; (iii) the Amended and Restated
Certificate of Incorporation (the "Certificate of
Incorporation") and the Amended and Restated By-Laws (the
"By-Laws") of the Company, in each case as amended to the
date hereof; (iv) certain resolutions of the Board of
Directors of the Company dated August 14, 1996 relating
to the adoption of the Stock Plan and the issuance of the
Shares; (v) certain resolutions of the sole stockholder
of the Company dated August 14, 1996 approving the Stock
Plan; and (vi) a specimen certificate evidencing the
Class A Common Stock. We have also examined originals or
copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such
agreements, certificates of public officials,
certificates of officers or other representatives of the
Company and others, and such other documents,
certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal
capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents
of all documents submitted to us as certified, conformed
or photostatic copies and the authenticity of the
originals of such latter documents. In making our
examination of documents executed or to be executed by
parties other than the Company, we have assumed that such
parties had or will have the power, corporate or other,
to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite
action, corporate or other, and execution and delivery by
such parties of such documents and the validity and
binding effect thereof. As to any facts material to the
opinions expressed herein which we have not independently
established or verified, we have relied upon statements
and representations of officers and other representatives
of the Company and others.
In rendering the opinions set forth below, we
have assumed that prior to the issuance of any Shares,
the Company and the relevant optionee will have duly
entered into stock option agreements in accordance with
the board resolutions examined by us.
Members of our firm are admitted to the bar in
the State of New York, and we do not express any opinion
as to the laws of any other jurisdiction other than the
General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are
of the opinion that the issuance and sale of
the Shares have been duly authorized and when (i) the
Registration Statement becomes effective and (ii)
certificates representing the Shares in the form of
the specimen certificates examined by us have been
manually signed by an authorized officer of the
transfer agent and registrar for the Class A Common
Stock and registered by such transfer agent and
registrar, and delivered to and paid for by the plan
participants at a price per share not less than the per
share par value of the Class A Common Stock as
contemplated by the Stock Plan, the Shares will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5.1 to the Registration
Statement. We also consent to the reference to our firm
under Item 5, Interests of Named Experts and Counsel, of
the Registration Statement. In giving these consents, we
do not hereby admit that we are included in the category
of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the
Commission.
Very truly yours,
Skadden, Arps, Slate,
Meagher & Flom LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-8, No.
333- ) pertaining to the Consolidated Cigar Holdings
Inc. 1995 Stock Option Plan of Consolidated Cigar
Holdings Inc. and to the incorporation by reference
therein of our report dated January 24, 1996, with
respect to the consolidated financial statements and
schedules of Consolidated Cigar Holdings Inc. included in
the Company's Registration Statement on Form S-1 (No.
333-6891), filed on August 15, 1996, filed with the
Securities Exchange Commission.
ERNST & YOUNG LLP
November 7, 1996
New York, New York
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints each of Barry F.
Schwartz, Glenn P. Dickes, Gary R. Ellis and Joram C.
Salig or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead,
in any and all capacities, in connection with the
Consolidated Cigar Holdings Inc. (the "Corporation")
registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended
(the "Act"), including, without limiting the generality
of the foregoing, to sign the Registration Statement in
the name and on behalf of the undersigned as a director
or officer of the Corporation, and any amendments or
supplements to the Registration Statement, including any
and all stickers and post-effective amendments to the
Registration Statement, with the Securities and Exchange
Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full
power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about
the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents,
each acting alone, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has signed
these presents this 31st day of October 1996.
/s/Ronald O. Perelman
RONALD O. PERELMAN
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints each of Barry F.
Schwartz, Glenn P. Dickes, Gary R. Ellis and Joram C.
Salig or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead,
in any and all capacities, in connection with the
Consolidated Cigar Holdings Inc. (the "Corporation")
registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended
(the "Act"), including, without limiting the generality
of the foregoing, to sign the Registration Statement in
the name and on behalf of the undersigned as a director
or officer of the Corporation, and any amendments or
supplements to the Registration Statement, including any
and all stickers and post-effective amendments to the
Registration Statement, with the Securities and Exchange
Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full
power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about
the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents,
each acting alone, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has signed
these presents this 31st day of October 1996.
/s/Howard Gittes
HOWARD GITTIS
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints each of Barry F.
Schwartz, Glenn P. Dickes, Gary R. Ellis and Joram C.
Salig or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead,
in any and all capacities, in connection with the
Consolidated Cigar Holdings Inc. (the "Corporation")
registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended
(the "Act"), including, without limiting the generality
of the foregoing, to sign the Registration Statement in
the name and on behalf of the undersigned as a director
or officer of the Corporation, and any amendments or
supplements to the Registration Statement, including any
and all stickers and post-effective amendments to the
Registration Statement, with the Securities and Exchange
Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full
power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about
the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents,
each acting alone, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has signed
these presents this 31st day of October 1996.
/s/Theo W. Folz
THEO W. FOLZ
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints each of Barry F.
Schwartz, Glenn P. Dickes and Joram C. Salig or any of
them, each acting alone, his true and lawful attorney-in-
fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all
capacities, in connection with the Consolidated Cigar
Holdings Inc. (the "Corporation") registration statement
on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"),
including, without limiting the generality of the
foregoing, to sign the Registration Statement in the name
and on behalf of the undersigned as a director or officer
of the Corporation, and any amendments or supplements to
the Registration Statement, including any and all
stickers and post-effective amendments to the
Registration Statement, with the Securities and Exchange
Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full
power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about
the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents,
each acting alone, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has signed
these presents this 31st day of October 1996.
/s/Gary R. Ellis
GARY R. ELLIS
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints each of Barry F.
Schwartz, Glenn P. Dickes, Gary R. Ellis and Joram C.
Salig or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead,
in any and all capacities, in connection with the
Consolidated Cigar Holdings Inc. (the "Corporation")
registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended
(the "Act"), including, without limiting the generality
of the foregoing, to sign the Registration Statement in
the name and on behalf of the undersigned as a director
or officer of the Corporation, and any amendments or
supplements to the Registration Statement, including any
and all stickers and post-effective amendments to the
Registration Statement, with the Securities and Exchange
Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full
power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about
the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents,
each acting alone, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has signed
these presents this 31st day of October 1996.
/s/James M. Parnofiello
JAMES M. PARNOFIELLO
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints each of Barry F.
Schwartz, Glenn P. Dickes, Gary R. Ellis and Joram C.
Salig or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead,
in any and all capacities, in connection with the
Consolidated Cigar Holdings Inc. (the "Corporation")
registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended
(the "Act"), including, without limiting the generality
of the foregoing, to sign the Registration Statement in
the name and on behalf of the undersigned as a director
or officer of the Corporation, and any amendments or
supplements to the Registration Statement, including any
and all stickers and post-effective amendments to the
Registration Statement, with the Securities and Exchange
Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said
attorneys-in-fact and agents, each acting alone, full
power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about
the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents,
each acting alone, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has signed
these presents this 31st day of October 1996.
/s/Lee A. Iacocca
LEE A. IACOCCA
