UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12 (g) OF THE
THE SECURITIES EXCHANGE ACT OF 1934
AMASYS Corporation
(Successor Registrant to Infotechnology, Inc.)
(Exact Name of the registrant as specified in its charter)
Delaware 0-9499 54-1812385
(Commission File (I.R.S. Employer
(State of Number) Identification
Incorporation) Number)
4900 Seminary Road, Suite 800 Alexandria, VA 22311
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.01 per share <PAGE>
Item 1. Description of Registrant's Securities to be
Registered.
The following brief description of the capital stock of
AMASYS Corporation, a Delaware corporation (the "Company"), does
not purport to be complete and is subject in all respects to
applicable Delaware law and to the provisions of the Company's
Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") and its Bylaws, copies of which
have been filed with the U.S. Securities and Exchange Commission
(the Commission ).
General
The Company s Certificate of Incorporation authorizes the
issuance of 20,000,000 shares of Common Stock, par value $0.01
per share (the "Common Stock"). The transfer agent for the
Common Stock is American Stock Transfer Company.
The Company is the successor to Infotechnology, Inc.
("Infotech"), a Delaware corporation, which, along with Questech
Capital Corporation ("Questech"), a wholly owned subsidiary of
Infotech, filed a joint petition for relief under Chapter 11 of
the United States Bankruptcy Code on March 1, 1991. The Third
Joint Plan of Reorganization, dated March 30, 1994, as amended
(the "Plan"), was confirmed by an order of the United States
Bankruptcy Court for the Southern District of New York (the
"Court"), entered on June 23, 1994. Pursuant thereto, the
Company and Infotech entered into as of June 21, 1996 (the
"Effective Date"), an Assignment and Assumption Agreement (the
"Assignment Agreement") whereby the Company acquired the assets
and assumed the liabilities of Infotech (except those
specifically excluded by the Plan).
As soon as practicable the Effective Date, the Plan provides
for the reservation or issuance of 6,951,000 shares of Common
Stock as follows: (i) 1,960,000 shares of Common Stock to be
reserved for future issuance upon conversion of the 196,000
shares of AMASYS Series "A" Preferred Stock to be issued to the
Pension Benefit Guaranty Corporation ("PBGC"); (ii) up to 651,000
shares of Common Stock to be issued to holders of Infotech Class
6 Unsecured Claims; (iii) 1,600,000 shares of Common Stock to be
issued to the holders of Class 8 Infotech Interests (ie. Infotech
common stockholders), (iv) 645,000 shares of Common Stock to be
reserved for future issuance to the PBGC upon the exercise of
certain warrants to be issued to the PBGC; (v) 800,000 shares of
Common Stock to be reserved for future issuance to AMASYS
stockholders upon the exercise of certain warrants issued to the
holders of Class 8 Infotech Interests (ie. Infotech common
stockholders); (vi) 345,000 shares of Common Stock to be reserved
2<PAGE>
for future issuance to the holders of Class 7 Infotech
Indemnification Claims; and (vi) 950,000 shares to be reserved
for issuance under the AMASYS Stock Option Plan.
As provided by the Plan, each Infotech common stockholder is
entitled to receive as of the Effective Date such stockholder's
pro rata portion of the shares of Common Stock to be issued in
satisfaction of the Class 8 Infotech Interests in exchange for
and upon the surrender of certificates representing such
stockholder s shares of Infotech common stock. Pursuant to the
Plan, Infotech common stock certificates outstanding as of the
Effective Date now represent only the right to receive a
proportional number of shares of Common Stock rounded down to the
nearest whole number of shares, with no cash being paid in lieu
of fractional shares.
The common stock of Infotech, traded previously on The
NASDAQ Stock Market until January 25, 1991, is not currently
traded on any national securities exchange. The Company has no
current intention to apply for listing of the Common Stock on The
NASDAQ Stock Market or any other national securities exchange.
Common Stock
When issued, the Common Stock will be fully paid and non-
assessable. Holders of Common Stock are entitled to receive
dividends if, when and as declared by the Company's Board of
Directors, out of funds legally available therefor, subject to
any superior rights of holders of the Company's preferred stock.
Upon liquidation, dissolution or winding up of the Company,
holders of Common Stock are entitled to share ratably in assets
available for distribution, subject to any superior rights of
holders of the Company s preferred stock.
Except as noted under Preferred Stock below, holders of
Commons Stock are entitled to one vote per share with respect to
all matters submitted to a vote of the stockholders. The
Certificate of Incorporation and Bylaws contain no restrictions
on the repurchase or redemption of the Common Stock. Holders of
Common Stock have no preemptive rights.
Preferred Stock
Pursuant to the Plan, 196,000 shares of Series A Preferred
Stock are to be issued to the PBGC. Holders of Series A
Preferred Stock shall vote together with all other classes or
series of capital stock of the Corporation, as a single class, as
to any matter submitted to a vote of the stockholders. Holders
of Series A Preferred Stock are entitled to one vote per share
3<PAGE>
with respect to all matters submitted to a vote of the
stockholders. The affirmative vote of the holders of at least a
majority of the outstanding shares of Series A Preferred Stock,
voting as a separate class, shall be required for a change,
amendment or repeal of any provision of Part C of Article FOURTH
of the Certificate of Incorporation.
Shares of Series A Preferred Stock shall have a liquidation
preference of $10.00 per share, and an annual cumulative dividend
of 5% payable in quarterly installments. Each of these shares is
convertible by PBGC, at any time after one year following the
Effective Date upon ten days written notice by PBGC to the
Company, into 10 shares of Common Stock. The Company may call
these shares at any time beginning 12 months after the Effective
Date, or within 12 months after the Effective Date provided that
the Company pays all dividends that otherwise would be due within
the 12 month period following the Effective Date. The Company
may call these shares for the greater of (i) the face value
thereof, plus an additional amount equal to 5% of the face value,
plus accumulated dividends through the call date, or (ii) market
value, on an as if converted to common basis, plus an additional
amount equal to 5% of the market value, plus accumulated
dividends to the call date. The Company may call the shares only
as a block and only in the event certain amounts due PBGC under
the Plan are paid in full.
4<PAGE>
Item 2. Exhibits
Number Description
1.1 Specimen certificate for the Common
Stock, $.01 par value, of the Registrant.
2.1 Third Joint Chapter 11 Plan of
Reorganization for Infotechnology, Inc.
dated March 30, 1994, as confirmed by the
Bankruptcy Court.
2.2 Order Confirming Third Joint Plan of
Reorganization dated as of June 23, 1994
of Infotechnology, Inc. and Questech
Capital Corporation.
2.3 Assignment and Assumption
Agreement between the Company and
Infotechnology, Inc.
3.1 Restated Certificate of Incorporation
of AMASYS Corporation.
3.2 Bylaws of AMASYS Corporation.
5<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this report
to be signed on its behalf by the undersigned thereunto duly
authorized.
AMASYS CORPORATION
By: /S/ C.W. GILLULY
___________________________
C.W. Gilluly
Its:Chief Executive Officer
And President
Date: October 11, 1996
6<PAGE>
<PAGE> 1
COMMON STOCK COMMON STOCK
- ------Number------ ------Shares--------
AM - ----------------------
- ---------------------
SEE REVERSE FOR
CERTAIN DEFINITIONS
AMASYS CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP 023113 10 3
- -----------------------------------------------------------------
THIS CERTIFIES THAT
IS THE OWNER OF
- -----------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES, OF THE PAR VALUE OF $0.01
EACH, OF THE COMMON STOCK OF
===================AMASYS CORPORATION=====================
transferable on the books of the Corporation in person or by duly
authorized attorney upon surrender of this certificate properly
endorsed.
This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
Dated: [SEAL]
/s/S. AMBER GORDON /S/ C.W. GILLULY
SECRETARY PRESIDENT
<PAGE> 2
The following abbreviations, when used in inscription on the
face of this Certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:<PAGE>
TEN COM -- as tenents in common
TEN ENT -- as tenents by the entireties
JT TEN -- as joint tenents with rights of
survivorship and not as tenents
in common
COM PROP -- as community property
UNIF GIFT MIN ACT -- ...................................Custodian
(Cust)
..............................................
(Minor)
under Uniform Gifts to Minors Act
.................................................................
(State)
UNIF TRF MIN ACT -- ...................................Custodian
(until age......................)
(Cust)
....................................under Uniform Transfers
(Minor)
to Minors
Act..............................................................
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, ____________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
_____________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE)
_____________________________________________________________
_____________________________________________________________
____________________________________________________Shares
of the common stock represented by the within Certificates, and
do hereby irrevocably constitute and appoint
_____________________________________________________Attorney
to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated ______________________
X______________________________________
X______________________________________
NOTICE: THE SIGNATURE (S) TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME (S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITH ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.<PAGE>
ANGEL & FRANKEL, P.C.
Attorneys for Infotechnology, Inc.
and Questech Capital Corporation,
Debtors and Debtors-in-Possession
366 Madison Avenue
New York, New York 10017
(212) 286-0100
Joshua J. Angel, Esq. (JA-3288)
Hugh H. Shull III, Esq. (HS-0236)
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -x
In re: Chapter 11
INFOTECHNOLOGY, INC.,
a Delaware Corporation, Case No. 91 B 10970 (FGC)
Debtor.
- - - - - - - - - - - - - - - - - -x
In re: Chapter 11
QUESTECH CAPITAL CORPORATION,
a Delaware Corporation, Case No. 91 B 10971 (FGC)
Debtor.
- - - - - - - - - - - - - - - - - -x
THIRD JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11
OF THE BANKRUPTCY CODE FOR INFOTECHNOLOGY, INC. AND
ITS AFFILIATED DEBTOR, QUESTECH CAPITAL CORPORATION<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION . . . . . . . . . . . . 2
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS . . . . . . . . . . . 16
Infotech Claims and Interests . . . . . . . . . . . . 16
Questech Claims and Interests . . . . . . . . . . . . 17
ARTICLE III
IDENTIFICATION OF CLASSES OF CLAIMS AND
INTERESTS IMPAIRED OR UNIMPAIRED UNDER THE PLAN . . . . . . . 17
Infotech Unimpaired Classes . . . . . . . . . . . . . 17
Questech Unimpaired Classes . . . . . . . . . . . . . 17
Infotech Impaired Classes . . . . . . . . . . . . . . 18
Questech Impaired Classes . . . . . . . . . . . . . . 18
ARTICLE IV
TREATMENT OF UNIMPAIRED CLASSES . . . . . . . . . . . . . . . 18
INFOTECH . . . . . . . . . . . . . . . . . . . . . . 18
Infotech Administrative Claims (Class 1) . . . . 18
Infotech Priority Claims (Class 2) . . . . . . . 19
Infotech Tax Claims (Class 3) . . . . . . . . . . 19
Infotech Convenience Claims (Class 4) . . . . . . 20
QUESTECH . . . . . . . . . . . . . . . . . . . . . . 20
Questech Administrative Claims (Class 1) . . . . 20
Questech Priority Claims (Class 2) . . . . . . . 21
Questech Tax Claims (Class 3) . . . . . . . . . . 21
ARTICLE V
TREATMENT OF IMPAIRED CLASSES . . . . . . . . . . . . . . . . 23
Overview . . . . . . . . . . . . . . . . . . . . . . 23
i<PAGE>
TABLE OF CONTENTS
(continued)
PAGE
Infotech . . . . . . . . . . . . . . . . . . . . . . 23
Infotech PBGC Claim (Class 5) . . . . . . . . . . 23
Infotech Unsecured Claims (Class 6) . . . . . . . 23
Infotech Indemnification Claims (Class 7) . . . . 24
Infotech Interests (Class 8) . . . . . . . . . . 25
Infotech Securities Laws Claims (Class 9) . . . . 25
Questech . . . . . . . . . . . . . . . . . . . . . . 25
Questech SBA Claim (Class 4) . . . . . . . . . . 25
Questech Unsecured Claims (Class 5) . . . . . . . 28
ARTICLE VI
ACCEPTANCE OR REJECTION OF PLAN; EFFECT OF REJECTION
BY ONE OR MORE CLASSES OF CLAIMS OR INTERESTS . . . . . . . . 28
ARTICLE VII
PROVISIONS CONCERNING DISTRIBUTIONS . . . . . . . . . . . . . 29
ARTICLE VIII
PROVISIONS CONCERNING DISCHARGE AND PROPERTY . . . . . . . . 33
ARTICLE IX
RELEASES AND TERMINATION . . . . . . . . . . . . . . . . . . 37
ARTICLE X
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES . . . . 41
ARTICLE XI
PROCEDURES FOR RESOLVING DISPUTED CLAIMS . . . . . . . . . . 44
ii<PAGE>
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE XII
MEANS FOR EXECUTION OF THE PLAN; CONDITIONS PRECEDENT . . . . 45
ARTICLE XIII
RETENTION OF JURISDICTION . . . . . . . . . . . . . . . . . . 52
ARTICLE XIV
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . 55
EXHIBITS
1. AMASYS Corporate Charter
2. AMASYS Stock Option Plan
3. AMASYS Warrant
4. Assignment and Assumption Agreement
5. PBGC Notes and PBGC Security Agreement
6. SBA Security Agreement and Note
7. Avacus Stipulation and Order
8. PBGC Term Sheet
iii<PAGE>
ANGEL & FRANKEL, P.C.
Attorneys for Infotechnology, Inc.
and Questech Capital Corporation,
Debtors and Debtors-in-Possession
366 Madison Avenue
New York, New York 10017
(212) 286-0100
Joshua J. Angel, Esq. (JJA-3288)
Hugh H. Shull III, Esq. (HS-0236)
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -x
In re: Chapter 11
INFOTECHNOLOGY, INC.,
a Delaware Corporation, Case No. 91 B 10970 (FGC)
Debtor.
- - - - - - - - - - - - - - - - - -x
In re: Chapter 11
QUESTECH CAPITAL CORPORATION,
a Delaware Corporation, Case No. 91 B 10971 (FGC)
Debtor.
- - - - - - - - - - - - - - - - - -x
THIRD JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11
OF THE BANKRUPTCY CODE FOR INFOTECHNOLOGY, INC. AND
ITS AFFILIATED DEBTOR, QUESTECH CAPITAL CORPORATION
Infotechnology, Inc. ("Infotech") and Questech Capital
Corporation ("Questech"), debtors and debtors-in-possession
(collectively, the "Debtors"), propose the following second joint
plan of reorganization (the "Plan") pursuant to Chapter 11 of the
Bankruptcy Code.<PAGE>
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
The following capitalized terms shall have the
respective meanings as hereinafter set forth (such meanings to be
equally applicable to the singular and plural forms of the terms
defined, unless the context otherwise requires). Any capitalized
term used in the Plan that is not defined herein but is defined
in the Bankruptcy Code or Bankruptcy Rules shall have the meaning
assigned to such term in the Bankruptcy Code or Bankruptcy Rules,
unless the context clearly requires otherwise.
The words "herein", "hereof" and "hereunder", and other
words of similar import refer to this Plan as a whole, including
all exhibits and schedules, if any, annexed hereto, as the same
may from time to time be amended or supplemented, and not to any
particular article, section or subdivision contained in this
Plan.
1.01. "ACYT" means American Cytogenetics, Inc., a Delaware
corporation.
1.02. "Administrative Claim" means a claim against Infotech
or Questech, as the case may be, for any cost or
expense of administration allowed under SECTION 503(b) of
the Bankruptcy Code, including, without limitation, any (i)
actual and necessary costs and expenses of preserving
the Debtor's estate and of operating the Debtor's
business; (ii) all allowances of compensation for legal
or other professional services and reimbursement of
2<PAGE>
costs and expenses to the extent allowed by the Court
under SUB-SECTION 330, 331 and/or 503 of the Bankruptcy
Code, or
otherwise allowed by the Court; and (iii) all fees and
charges assessed against the Debtor's estate pursuant
to SECTION 1930 of Title 28, United States Code.
1.03. "Allowed" when used with respect to a Claim means a
Claim or portion of a Claim: (i) which is scheduled by
the Debtor pursuant to SUB-SECTION 521(1) and 1106(a)(2)
of the
Bankruptcy Code, other than a Claim which is scheduled
by the Debtor as disputed, contingent, unliquidated or
unknown; or (ii) proof of which has been filed,
pursuant to SECTION 501(a) of the Bankruptcy Code,
on or
before the date designated by the Court as the last
date for timely filing proofs of claim, and with
respect to which claim no objection to the allowance
thereof has been interposed prior to the final date for
filing such objections set forth in an order of the
Court; or (iii) which, after objection thereto, has
been allowed, in whole or in part, by a Final Order; or
(iv) a Claim which has been allowed pursuant to a Final
Order.
1.04. "AMASYS" means AMASYS Corporation, a newly-created
Delaware corporation to which Infotech will, pursuant
to the terms of the Assignment and Assumption
Agreement, transfer on the Effective Date certain of
its assets principally consisting of its interests in
3<PAGE>
TII, Comtex, PTSI and IRN.
1.05. "AMASYS Common Stock" means the common stock of AMASYS,
$.01 par value per share, to be issued on and after the
Effective Date.
1.06. "AMASYS Corporate Charter" means the Certificate of
Incorporation of AMASYS substantially in the form
annexed hereto as Exhibit "1".
1.07. "AMASYS SERIES "A" PREFERRED STOCK" means the
convertible preferred stock of AMASYS designated
"Series A" in the AMASYS Corporate Charter.
1.08. "AMASYS Stock Option Plan" means the stock option plan
substantially in the form annexed hereto as Exhibit
"2".
1.09. "AMASYS Warrant" means a warrant, substantially in the
form annexed hereto as Exhibit "3".
1.10. "Assignment and Assumption Agreement" means the
Assignment and Assumption Agreement substantially in
the form annexed hereto as Exhibit "4".
1.11. "Avacus Lawsuit" means the lawsuit captioned ( Avacus
Partners, L.P., et al. v. Brian, et al.), Civil Action
No. 1101, filed in the Court of Chancery of the State
of Delaware in and for New Castle County, and any
claims asserted in or arising out of the subject matter
thereof.
1.12. "Avacus Stipulation and Order" means the stipulation
between Avacus Partners, L.P. and the Debtor, as so
4<PAGE>
ordered by the Court on November 22, 1993 in the form
annexed hereto as Exhibit "7".
1.13. "Bankruptcy Code" means the Bankruptcy Reform Act of
1978, Title 11, United States Code, 11 U.S.C.
SUB-SECTION 101, et seq., as amended.
1.14. "Bankruptcy Court" or "Court" means the United States
District Court for the Southern District of New York,
having jurisdiction over this Bankruptcy Case and to
the extent of any reference made pursuant to 28 U.S.C.
SECTION 157, the United States Bankruptcy Court for the
Southern District of New York.
1.15. "Bankruptcy Rules" means the Federal Rules of
Bankruptcy Procedure as applicable to cases under title
11 of the United States Code, and the local rules of
the Bankruptcy Court applicable to the Chapter 11 Case.
1.16. "Business Day" means any day other than a Saturday,
Sunday or legal holiday as such term is defined in
Bankruptcy Rule 9006(a).
1.17. "Chapter 11" means Chapter 11 of the Bankruptcy Code.
1.18. "Chapter 11 Case" means the case commenced on March 5,
1991, under Chapter 11 of the Bankruptcy Code, by
Infotech and/or Questech, as the case may be, currently
pending in the Court.
1.19. "Claim" means a claim against the Debtors as defined in
SECTION 101(5) of the Bankruptcy Code; to wit, the right
to payment, whether or not such right is reduced to
5<PAGE>
judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured; or the right to an
equitable remedy for breach of performance if such
breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured.
1.20. "Claimant" means the holder of a Claim.
1.21. "Class" means a class of holders of Allowed Claims or
Allowed Interests described in Article II of the Plan.
1.22. "Class Action" means the consolidated actions entitled
In re Financial News Network, Inc. Securities
Litigation - Spett, et al. v. Brian, et al., in the
Class Action Court, case No. CV-90-5316-HCH.
1.23. "Class Action Court" means the United States District
Court for the Central District of California.
1.24. "Class Action Derivative Lawsuit" means the purported
derivative lawsuit captioned Cavaliere, et al. v. Earl
W. Brian, et al., Case No. BC012084, filed on February
1, 1991 in the Los Angeles Superior Court.
1.25. "Class Action Final Judgment" means the approval of the
Class Action Court of the settlement and compromise
between Infotech, FNN, UPI and the plaintiffs in the
Class Action as contained in the final judgment of
dismissal with prejudice of the Class Action Court
6<PAGE>
dated April 12, 1993.
1.26. "Comtex" means Comtex Scientific Corp., a New York
corporation.
1.27. "Confirmation" means entry of an order by the Court
approving the Plan in accordance with Chapter 11 of the
Bankruptcy Code.
1.28. "Confirmation Date" means the date upon which an order
confirming the Plan in accordance with Chapter 11 of
the Bankruptcy Code becomes a Final Order.
1.29. "Confirmation Order" means the order entered by the
Court confirming the Plan in accordance with Chapter
11.
1.30. "Convenience Claims" means an Allowed Unsecured Claim
against Infotech which, when aggregated with all other
such Claims of such claimant, either (i) totals $500.00
or less, or (ii) is reduced by written election of such
claimant to $500.00 in the aggregate.
1.31. "Debtors" means Infotech and Questech, each of which
filed a petition for reorganization under Chapter 11 of
the Bankruptcy Code on March 5, 1991, Case Nos. 91 B
10970 (FGC) and 91 B 10971 (FGC), respectively.
1.32. "Disallowed Claim" means any Claim or portion thereof
disallowed by a Final Order of the Court.
1.33. "Disclosure Statement" means the Debtors' Joint
Disclosure Statement.
1.34. "Disputed Claim" means (i) any Claim or portion thereof
7<PAGE>
(other than an Allowed Claim) which is scheduled by the
Debtors as disputed, contingent and/or unliquidated; or
(ii) a Claim which has been filed pursuant to SECTION 501(a)
of the Bankruptcy Code as unliquidated or contingent,
or (iii) a Claim which has been filed pursuant to
SECTION 501(a) of the Bankruptcy Code and as to which an
objection to the allowance thereof has been interposed
within the time limitation fixed by the Bankruptcy
Code, by an order of the Court or by this Plan, which
objection has not been determined, in whole or in part,
by a Final Order.
1.35. "Distribution" means cash, notes and/or securities, as
the case may be, to be issued under the Plan.
1.36. "Effective Date" means the first Business Day which is
sixty (60) days after the Confirmation Order becomes a
Final Order; provided, however that when used in
reference to the Avacus Stipulation and Order or the
Avacus Lawsuit, Effective Date means the First Business
Day after the Confirmation Order becomes a Final Order.
1.37. "Entity" shall have the meaning as defined in Section
SECTION 101(15) of the Bankruptcy Code.
1.38. "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, 29 U.S.C. SECTION 1001 et seq.
1.39. "Estate" means the estate of the Debtors created under
SECTION 541 of the Bankruptcy Code upon the commencement of
the Chapter 11 Case.
8<PAGE>
1.40. "Final Order" means an order or judgment (or any
revision, modification or amendment thereof) as to
which order or judgment (i) the time to appeal or seek
review, rehearing, reargument or certiorari has expired
and as to which no appeal or petition for review,
rehearing, reargument or certiorari proceeding is
pending, or (ii) an order or judgment which has been
appealed, has been affirmed on and as to which appeal
the time for further appeal has expired.
1.41. "FNN" means Financial News Network, Inc., a California
corporation.
1.42. "FNN Class 7 Cash Settlement Fund" means a segregated
fund of at least $750,000 as provided in SECTION 5.10
of the FNN Plan.
1.43. "FNN Class 7 Claim" means any Claim for damages or
recision arising out of the purchase or sale of Old FNN
Common Stock that has been or could be asserted in the
Class Action.
1.44. "FNN Class 7 Share Allocation" means New FNN Common
Stock to be issued to (i) the holders of FNN Class 7
Claims and (ii) Infotech Class 8, and distributed by
the Class Action Court in accordance with SECTION 5.10
of the FNN Plan.
1.45. "FNN Plan" means the FNN plan of reorganization dated
November 19, 1991, as amended, which was confirmed
pursuant to SECTION 1129 of the Bankruptcy Code
by order of
9<PAGE>
the Bankruptcy Court dated May 19, 1992, as amended.
1.46. "Global Settlement" means the settlement agreement, as
approved by the Court, by and among Infotech, Questech,
FNN and SPNB resolving certain disputes and
controversies as between them as therein set forth.
1.47. "Hadron" means Hadron, Inc., a New York corporation.
1.48. "Indemnification Claim" means a Claim for
indemnification for attorneys fees or other out of
pocket expenses incurred by any defendants in the
Avacus Lawsuit allowed in accordance with Section 9 of
the Avacus Stipulation and Order.
1.49. "Infotech" means Infotechnology, Inc, a Delaware
corporation.
1.50. "Infotech Group" means any and all trade or business
organizations -- other than UPI -- that are now, or may
become in the future, either (i) under common control
with Infotech or UPI within the meaning of
SECTION 4001(b)(1)
of ERISA, 29 U.S.C. SECTION 1301(b)(i) and the regulations
promulgated thereunder, or (ii) members of Infotech's
or UPI's "controlled group" within the meaning of
SECTION 4001(a)(14) of ERISA, 29 U.S.C.
SECTION 1301(a)(14), or
(iii) a successor to any trade or business organization
described in (i) or (ii) above within the meaning of
SECTION 4069(b) of ERISA, 29 U.S.C.
SECTION 4069(b), specifically including AMASYS.
1.51. "Infotech/Reorganized FNN Share" means all of the New
10<PAGE>
FNN Common Stock to be issued to Infotech pursuant to
the FNN Plan (i) based upon Infotech's 7,548,198 shares
of old FNN Common Stock, and (ii) in exchange for the
transfer to FNN of Infotech's 51% equity interest in
Shark Holdings.
1.52. "Infotech Securities Laws Claims" means any claim for
damages for recision arising out of the purchase or
sale of Old Infotech Common Stock that has been or
could be asserted in the Class Action.
1.53. "Interest" means the rights of a holder of issued and
outstanding shares of Old Infotech Common Stock and/or
Old Questech Common Stock.
1.54. "IRN" means Institutional Research Network, Inc., a
Delaware corporation.
1.55. "New FNN Common Stock" means the common stock, $.01 par
value per share, of Reorganized FNN issued on and after
the effective date of the FNN Plan.
1.56. "New Infotech Common Stock" means the common stock
$0.01 per value per share of Reorganized Infotech to be
issued on and after the Effective Date.
1.57. "New SBA Note" means a promissory note in the sum of
approximately $16,000,000, to be executed, as part of
the SBA Agreement, on the Effective Date by Reorganized
Questech and delivered to the SBA in full settlement of
the SBA/Questech Claim.
1.58. "Old FNN Common Stock" means the common stock, no par
11<PAGE>
value per share, of FNN outstanding on the date of
commencement of the FNN Chapter 11 Case.
1.59. "Old Infotech Common Stock" means the common stock,
$0.01 par value per share, including warrants and other
options to purchase such stock, of Infotech, issued and
outstanding on the Petition Date.
1.60. "Old Questech Common Stock" means the common stock,
$0.01 par value per share, including warrants and other
options to purchase such stock, of Questech, issued and
outstanding on the Petition Date.
1.61. "PBGC" means the Pension Benefit Guaranty Corporation.
1.62. "PBGC Claim" means the entire Claim of the PBGC against
Infotech.
1.63. "PBGC Notes" mean promissory notes substantially in the
form of Exhibit "5" annexed hereto.
1.64. "PBGC Security Agreement" means the PBGC Security
Agreement substantially in the form annexed hereto as
Exhibit "5".
1.65. "PBGC Term Sheet" means the agreement between the
Pension Benefit Guaranty Corporation and the Debtor in
the Form annexed hereto as Exhibit 8.
1.66. "Petition Date" means March 5, 1991.
1.67. "Plan" means this Chapter 11 Plan of Reorganization, as
amended, modified or supplemented from time to time as
and to the extent permitted herein or by the Bankruptcy
Code and Bankruptcy Rules.
12<PAGE>
1.68. "Plan Ballot" means the form distributed to holders of
Claims and Equity Interests impaired under the Plan as
defined in SECTION 1124 of the Bankruptcy Code.
1.69. "Priority Claim" means all or that portion of a Claim
against Infotech or Questech, as the case may be,
entitled to priority under SECTION 507(a)(3), (4)
or (6) of the Bankruptcy Code.
1.70. "Professional Person" shall have the same meaning as
defined in SECTION 327(a) of the Bankruptcy Code.
1.71. "Pro-Rata Share" means, with respect to an amount of
cash or securities to be paid or distributed on a
particular date to a holder of a Claim or Interest in a
particular Class, the ratio, as of such date, of the
then outstanding amount of such Allowed Claim or
Interest of such Claimant or Interest holder in the
particular Class to the aggregate of Allowed Claims or
Interests and Disputed Claims or Interests in the
particular Class.
1.72. "PTSI" means Pacific Telecommunications Systems, Inc.,
a Nevada corporation.
1.73. "Questech" means Questech Capital Corporation, a
Delaware corporation.
1.74. "Questech Portfolio" means the entire interests of
Questech, as of the Effective Date, in the following
entities: (i) Advanced Logic Systems, Inc., (ii)
American Bionetics, Inc., (iii) American Cytogenetics,
13<PAGE>
Inc., (iv) Cancer Screening Services, Inc., (v) Dalton
Communications, Inc., (vi) EPI Technology, Inc., (vii)
Griffin International, Inc., (viii) HSC Services/Bios,
Inc., (ix) I-Flow Corp., (x) Incstar Corp., (xi) Intex
Enterprises, Inc., (xii) Intex Holdings, Inc., (xiii)
Medical Magnetics, Inc., (xiv) Medicomp, Inc., (xv)
Odyssey Biomedical, (xvi) Pinetree Computer Systems,
Inc., (xvii) Saturn Chemicals; (xviii) Sampson
Erectors, Inc. and (xix) Reorganized FNN.
1.75. "Questech Excess Cash" means cash of Reorganized
Questech, as of the Effective Date, in excess of Three
Hundred Fifty Thousand ($350,000) Dollars, after
payment of all Questech Administrative Claims, Priority
Claims, Tax Claims and Unsecured Claims.
1.76. "Reorganized Debtors" means, to the extent applicable,
the Debtors as the same shall be constituted upon the
Effective Date pursuant to the Plan.
1.77. "Reorganized FNN" means FNN as it is legally
constituted after the entry of a Final Order approving
the FNN Plan.
1.78. "Reorganized Questech" means Questech as it is legally
constituted after the entry of the Confirmation Order.
1.79. "SBA" means the United States Small Business
Administration.
1.80. "SBA Agreement" means the SBA Loan Agreement, SBA
Security Agreement and SBA Secured Note substantially
14<PAGE>
in the form annexed hereto as Exhibit "6".
1.81. "SBA/Questech Claim" means the Claim of the SBA against
Questech in the approximate sum of $15,915,475
inclusive of interest and principal as of the Petition
Date, plus interest accrued subsequent to the Petition
Date through and including the Effective Date.
1.82. "Securities Laws Claim" means any Claim for damages or
rescission arising out of the purchase or sale of Old
Infotech Common Stock that has been or could be
asserted in the Class Action.
1.83. "Shark Holdings" means Shark Holdings, Inc., a
Massachusetts corporation, the parent company of Shark
Information Services.
1.84. "SPNB" means Security Pacific National Bank.
1.85. "Tax Claim" means all or that portion of a Claim
against Infotech or Questech, as the case may be,
entitled to priority under SECTION 507(a)(7) of the
Bankruptcy Code. Except as may be allowed by the
Court, any interest accrued after March 5, 1991 shall
not be part of any Allowed Tax Claim.
1.86. "TII" means Telecommunications Industries, Inc., a
Delaware corporation.
1.87. "Undertaking" means the undertaking by the defendants
in paragraph "8" of the Avacus Stipulation and Order.
1.88. "Unsecured Claim" means any Claim against Infotech or
Questech, as the case may be, other than an
15<PAGE>
Administrative Claim, Priority Claim, Tax Claim,
Convenience Claim, Securities Law Claim, SBA Claim or
PBGC Claim including without limitation (i) any Claim
arising from the rejection by Infotech or Questech, as
the case may be, of an executory contract or unexpired
lease in accordance with SECTION 10 of this Plan, or
(ii) any Claim for indemnification or contribution.
1.89. "UPI" means United Press International, Inc., a
Delaware corporation.
1.90. "UPI Claim" means the claim filed by Infotech on
September 8, 1992 in UPI's bankruptcy case, captioned
In re United Press International, Inc., Case No. 91 B
13955 (FGC), in the Bankruptcy Court for the Southern
District of New York.
1.91. "UPI Pension Plan" means the United Press International
Pension Plan.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
2.01. Infotech Claims and Interests
The Plan classifies the Claims against and Interests in
Infotech as follows:
(a) Class 1 - Infotech Administrative Claims
(b) Class 2 - Infotech Priority Claims
(c) Class 3 - Infotech Tax Claims
(d) Class 4 - Infotech Convenience Claims
(e) Class 5 - Infotech PBGC Claim.
16<PAGE>
(f) Class 6 - Infotech Unsecured Claims
(g) Class 7 - Indemnification Claims
(h) Class 8 - Infotech Interests
(i) Class 9 - Infotech Securities Laws Claims
2.02. Questech Claims and Interests
The Plan classifies the Claims against and Interests in
Questech as follows:
(a) Class 1 - Questech Administrative Claims
(b) Class 2 - Questech Priority Claims
(c) Class 3 - Questech Tax Claims
(d) Class 4 - Questech SBA Claim
(e) Class 5 - Questech Unsecured Claims
(f) Class 6 - Questech Interests
ARTICLE III
IDENTIFICATION OF CLASSES OF CLAIMS AND
INTERESTS IMPAIRED OR UNIMPAIRED UNDER THE PLAN
3.01. Infotech Unimpaired Classes
Infotech Administrative Claims (Class 1), Infotech
Priority Claims (Class 2), Infotech Tax Claims (Class
3) and Infotech Convenience Claims (Class 4) are not
impaired under the Plan.
3.02. Questech Unimpaired Classes
Questech Administrative Claims (Class 1), Questech
Priority Claims (Class 2), Questech Tax Claims
(Class 3) and Questech Interests (Class 6) are not
17<PAGE>
impaired under the Plan.
3.03. Infotech Impaired Classes
Infotech PBGC Claim (Class 5), Infotech Unsecured
Claims (Class 6), Indemnification Claims (Class 7),
Infotech Interests (Class 8) and Infotech Securities
Laws Claims (Class 9) are impaired under the Plan and
are entitled to vote to accept or reject the Plan.
3.04. Questech Impaired Classes
Questech SBA Claim (Class 4) and Questech Unsecured
Claims (Class 5) are impaired under the Plan and are
entitled to vote to accept or reject the Plan.
3.05. In the event of a controversy as to whether any
Claimant or Class of Claimants or holders of Interests
are impaired under the Plan, the Court shall, after
notice and a hearing, resolve such controversy.
3.06. The Debtors shall provide all Claimants and Interest
holders entitled to vote with a form of ballot approved
by the Court to be used in casting a vote on the Plan.
The ballot shall designate the Class in which the
Debtors believe a particular Claim or Interest belongs.
ARTICLE IV
TREATMENT OF UNIMPAIRED CLASSES
4.01. INFOTECH
(a) Infotech Administrative Claims (Class 1).
Each holder of an Allowed Infotech Administrative
18<PAGE>
Claim shall be paid in full, in cash, by AMASYS as soon
as practicable after the Effective Date, or on such
other terms as may be agreed upon by the Claimant and
Infotech, except that any such Allowed Administrative
Claim or portion thereof which, by its express terms,
is not due or payable by the Effective Date, shall be
paid by AMASYS when due.
(b) Infotech Priority Claims (Class 2).
Each holder of an Allowed Infotech Priority Claim
shall be paid in full, in cash, by AMASYS as soon as
practicable after the Effective Date, or on such other
terms as may be agreed upon by the Claimant and
Infotech.
(c) Infotech Tax Claims (Class 3).
Each holder of an Allowed Infotech Tax Claim shall
be paid in full, in cash, by AMASYS either (a) as soon
as practicable after the Effective Date or, (b) in the
sole discretion of AMASYS, in six (6) equal, annual,
deferred cash payments, totalling the amount of such
Allowed Claim, payable over six (6) years from the date
of assessment of such Claim if an assessment has been
made prior to the Confirmation Date (and within five
(5) years of the Confirmation Date if no assessment has
been made prior to such date) together with interest
accruing at the lesser of (a) the rate prescribed in
the Internal Revenue Code, or (b) such rate as may be
19<PAGE>
prescribed by the Confirmation Order; with the first of
such payments being made on the Confirmation Date and
coming due annually thereafter, or as such Claimant and
Infotech or AMASYS may otherwise agree.
Application of Payments. All payments to
holders of Infotech Tax Claims shall and must
be applied under any and all circumstances by
such Claimants (a) first, in full to and
against the "penalty" portion of such Claim
which may properly and legally be deemed and
construed to be or constitute a personal or
fiduciary liability of any and/or all of
Infotech's officers or principals, and (b)
second, only after such actual and/or
potential fiduciary liability has been paid
in full, as desired by such Tax Claimants,
and/or as is otherwise directed under any
applicable law.
(d) Infotech Convenience Claims (Class 4).
Each holder of an Allowed Claim in Class 4 will
receive, as soon as practicable after the Effective
Date, a cash payment from AMASYS equal to the lesser of
either (i) the amount of such Allowed Claim; or (ii)
five hundred ($500) dollars.
20<PAGE>
4.02. QUESTECH
(a) Questech Administrative Claims (Class 1).
Each holder of an Allowed Questech Administrative
Claim shall be paid in full, in cash, by Reorganized
Questech as soon as practicable after the Effective
Date, or on such other terms as may be agreed upon by
the Claimant and Questech, except that any such Allowed
Administrative Claim or portion thereof which, by its
express terms, is not due or payable by the
Confirmation Date, shall be paid by Reorganized
Questech when due.
(b) Questech Priority Claims (Class 2).
Each holder of an Allowed Questech Priority Claim
shall be paid in full, in cash, by Reorganized Questech
as soon as practicable after the Effective Date, or on
such other terms as may be agreed upon by the Claimant
and Questech.
(c) Questech Tax Claims (Class 3).
Each holder of an Allowed Questech Tax Claim shall
be paid in full, in cash, by Reorganized Questech
either (a) as soon as practicable after the Effective
Date or, (b) in the sole discretion of Questech, in six
(6) equal, annual, deferred cash payments, totalling
the amount of such Allowed Claim, payable over six (6)
years from the date of assessment of such Claim if an
assessment has been made prior to the Confirmation Date
21<PAGE>
(and within five (5) years of the Confirmation Date if
no assessment has been made prior to such date)
together with interest accruing at the lesser of (a)
the rate prescribed in the Internal Revenue Code, or
(b) such rate as may be prescribed by the Confirmation
Order, with the first of such payments being made on
the Confirmation Date and coming due annually
thereafter, or as such Claimant and Questech may
otherwise agree.
Application of Payments. All payments to
holders of Questech Tax Claims shall and must
be applied under any and all circumstances by
such Claimants (a) first, in full to and
against the "penalty" portion of such Claim
which may properly and legally be deemed and
construed to be or constitute a personal or
fiduciary liability of any and/or all of
Questech's officers or principals, and (b)
second, only after such actual and/or
potential fiduciary liability has been paid
in full, as desired by such Tax Claimants,
and/or as is otherwise directed under any
applicable law.
(d) Questech Interests.
On the Confirmation Date, Reorganized Infotech
shall retain its one hundred (100%) percent ownership
22<PAGE>
of all of the Old Questech Common Stock.
ARTICLE V
TREATMENT OF IMPAIRED CLASSES
5.01. Overview
All holders of Allowed Claims and Allowed
Interests in Classes that are impaired under the Plan
shall receive the Distributions set forth in this
Article V on account of, and in complete satisfaction
of, all such Allowed Claims and Allowed Interests.
5.02. Infotech
(a) Infotech PBGC Claim (Class 5).
The PBGC, as the sole holder of the PBGC Claims,
shall receive, in full settlement on account of such
Claim, as soon as practicable after the Effective Date:
(a) 196,000 shares of AMASYS Series "A" Preferred
Stock, (b) the PBGC Notes, (C) 645,000 AMASYS Warrants,
and (d) fifty (50%) percent of the net recovery to
Amasys from the UPI Claim.
(b) Infotech Unsecured Claims (Class 6).
Each holder of an Allowed Infotech Unsecured Claim
shall receive, on account of such Claim, as soon as
practicable after the Effective Date, either (A) the
lesser of: (i) its Pro Rata Share of 651,000 shares of
AMASYS Common Stock; or (ii) one share of AMASYS Common
23<PAGE>
Stock for each dollar ($1.00) of Allowed Infotech
Unsecured Claim; or
(B) its Pro-Rata Share (not to exceed the amount
of such holders Allowed Claim plus interest thereon at
the rate of six (6%) percent per annum from the
Effective Date to the date of such Distribution) of the
Debtor's share of the net proceeds, if any, from the
Avacus Lawsuit and undertakings.
Each holder of an Allowed Infotech Unsecured Claim
shall elect on the ballot for voting on the Plan
whether to receive option "A" or "B" above. An Allowed
Class 6 Claim which fails to vote shall be deemed to
have elected option "B" above.
(c) Infotech Indemnification Claims (Class 7).
In accordance with Section 12 of the Avacus
Stipulation, Indemnification Claims shall be estimated
at zero (0) for purposes of voting on the Plan.
Indemnification Claims may be Allowed pursuant to
Section 502(c) of the Bankruptcy Code only in
accordance with the provisions of Section 9 of the
Avacus Stipulation. On the Effective Date, Amasys
shall reserve 345,000 shares of Amasys Common Stock for
distribution to holders of Indemnification Claims in
accordance with Section 14 of the Avacus Stipulation
and Order. Upon allowance of such Indemnification
Claims, if any, in accordance with Section 9 of the
24<PAGE>
Avacus Stipulation, Amasys shall distribute to each
holder of an Allowed Infotech Indemnification Claim one
(1) share of Amasys Common Stock for each Ten ($10)
Dollars of Allowed Indemnification Claim.
(d) Infotech Interests (Class 8).
Each holder of an Allowed Infotech Interest shall
receive, on account of such Interest, as soon as
practicable after the Effective Date its Pro Rata Share
of (a) 1,600,000 shares of AMASYS Common Stock, and (b)
800,000 AMASYS Warrants.
On the Effective Date, all shares of Old Infotech
Common Stock shall be canceled.
(e) Infotech Securities Laws Claims (Class 9).
Each holder of an Allowed Infotech Class 8 Claim
shall receive its Pro Rata Share of (i) the FNN Class 7
Cash Settlement Fund and (ii) the FNN Class 7 Share
Allocation as provided for in SECTION 5.10 of the
FNN Plan as
amended. Holders of such Claims, who were permitted to
opt out of the Class Action Settlement shall not be
entitled to any Distribution under the Plan on account
of such Claims, and may not continue to assert such
Claims against the Reorganized Debtors following
confirmation of the Plan.
25<PAGE>
5.03. Questech
(a) Questech SBA Claim (Class 4).
The SBA/Questech Claim shall be paid in full
within three (3) years from the Effective Date,
pursuant to the terms of the New SBA Note which
provides for interest at 10.5%, as follows:
Reorganized Questech shall pay $1 million
annually (the "Minimum Annual Payment") to
the SBA in equal, quarterly installments,
with the first such payment to be due one
hundred twenty (120) days after the Effective
Date;
As soon as practicable after the Effective
Date, all Questech Excess Cash will be
remitted to the SBA, which funds will be in
addition to the first installment payment due
as set forth above and credited against the
amount of the Allowed SBA/Questech Claim;
Reorganized Questech shall also remit to the
SBA proceeds from the liquidation of any
Questech Assets in excess of the Minimum
Annual Payment; provided, however, that
Questech may retain a maximum of $350,000 to
be used towards necessary operating expenses
of Reorganized Questech for the first two (2)
years after the Effective Date and a maximum
26<PAGE>
of $175,000 for the third year after the
Effective Date. Payment of such necessary
operating expenses by Reorganized Questech
shall not exceed $175,000 per annum. The
proceeds of any payments over the maximum
amount allowed for necessary operating
expenses shall be (i) credited by the SBA
towards subsequent quarterly installments and
(ii) applied by the SBA to first reduce the
principal amount of the New SBA Note;
to secure repayment of the New SBA Note, the
SBA shall be granted a security interest in
the Questech Assets, which security interest
shall be perfected by the SBA's possession of
all securities, debentures, notes and other
instruments issued by portfolio companies for
the account of Reorganized Questech.
Reorganized Questech shall execute and
deliver to the SBA any UCC financing
statements necessary to perfect the SBA's
security interest in any assets of
Reorganized Questech; and
in the event that the New SBA Note is not
paid as set forth above, or in the further
event that the New SBA Note is not paid in
full within three (3) years from the
27<PAGE>
Effective Date, then the SBA shall be
entitled to execute on its security interests
in the Questech Assets without further order
of the Court.
(b) Questech Unsecured Claims (Class 5).
Each holder of an Allowed Unsecured Questech Claim
shall receive, on account of such Claim, as soon as
practical after the Effective Date, a payment, in cash,
equal to thirty (30%) percent of the amount of such
Allowed Claim.
ARTICLE VI
ACCEPTANCE OR REJECTION OF PLAN; EFFECT OF REJECTION
BY ONE OR MORE CLASSES OF CLAIMS OR INTERESTS
6.01. Classes Entitled To Vote.
Each impaired Class of Claims or Interests shall
be entitled to vote to accept or reject the Plan,
except that any Class which is to receive no
Distribution under the Plan shall be deemed, without
actually voting, to have rejected the Plan.
6.02. Class Acceptance Requirement.
A Class of Claims shall have accepted the Plan if
the Plan is accepted by the holders of at least
two-thirds in amount and more than one-half in number
of the Allowed Claims of such Class that have accepted
or rejected the Plan. A Class of Interests shall have
28<PAGE>
accepted the Plan if the Plan is accepted by the
holders of at least two-thirds in amount of the Allowed
Interests of such Class that have accepted or rejected
the Plan.
6.03. Confirmability and Severability of Plan.
The confirmation requirements of SECTION 1129 of the
Bankruptcy Code must be satisfied separately with
respect to each Debtor. Therefore, each of
Sections 6.01 and 6.02 hereof shall be deemed a
separate plan of reorganization for each Debtor for
purposes of confirmation.
6.04. Cramdown.
In the event that any impaired Class of Claims or
Interests shall fail to accept the Plan in accordance
with SECTION 1129(a) of the Bankruptcy Code, the Debtors
reserve the right to request that the Court confirm the
Plan in accordance with the "cramdown" provisions of
SECTION 1129(b) of the Bankruptcy Code.
ARTICLE VII
PROVISIONS CONCERNING DISTRIBUTIONS
7.01. Time of Distributions Under the Plan.
Distributions to be made by the Debtors on the
Effective Date, pursuant to the Plan, shall be made on
such date, except as otherwise provided for in the
29<PAGE>
Plan, or as may be ordered by the Court.
7.02. Payment Dates.
Whenever any Distribution to be made under the
Plan shall be due on a day other than a Business Day,
such Distribution shall instead be made, without
interest, on the next Business Day.
7.03. Manner of Payments Under the Plan.
Payments to be made by the Debtors "in cash"
pursuant to the Plan shall be made by check drawn on a
domestic bank or by wire transfer from a domestic bank;
except that payments by Reorganized Questech to the SBA
shall be made by cashiers check.
7.04. Fractional Cents.
Any other provision of the Plan to the contrary
notwithstanding, no payments of fractions of cents will
be made. Whenever any payment of a fraction of a cent
would otherwise be called for, the actual payment shall
reflect a rounding of such fraction to the nearest
whole cent (up or down).
7.05. Unclaimed Distributions.
Except as otherwise provided herein, in the event
any Entity fails to claim any Distribution within six
(6) months from the date such Distribution is made,
such Entity shall forfeit all rights thereto, and to
30<PAGE>
any and all future Distributions, and thereafter the
Claim for such Distribution shall be treated as a
Disallowed Claim. In this regard, Distributions to
Claimants entitled thereto shall be sent to their last
known address set forth on a proof of claim filed with
the Court, or if no proof of claim is filed, on the
schedules of liabilities filed by the Debtor, or to
such other address as may be designated by a Claimant
in accordance with Section 15.02 hereof.
7.06. Disputed Payments or Distributions.
In the event of any dispute between and among
Claimants (including the Entity or Entities asserting
the right to receive the disputed Distribution) as to
the right of any Entity to receive or retain any
Distribution to be made to such Entity under the Plan,
the Debtors may, in lieu of making such Distribution to
such Entity, make it instead into an escrow account or
to a disbursing agent, for payment or distribution as
ordered by a court of competent jurisdiction or as the
interested parties to such dispute may otherwise agree
among themselves.
7.07. Date of Distributions.
Any Distributions to be made under the Plan shall
be made on the Effective Date, or `as otherwise
provided for herein, or as may be ordered by the
31<PAGE>
Bankruptcy Court. Distributions to be made on the
Effective Date shall be deemed made on the Effective
Date if made as soon as practicable thereafter.
7.08. Disbursing Agent.
The Debtors may act as their own disbursing agent
or they may employ, in their sole discretion, one or
more disbursing agents (each a "Disbursing Agent") to
make all or any portion of the Distributions required
under this Plan.
7.09. Record Date for Holders of Interests.
For purposes of the Plan, the date an order
confirming the Plan is signed by the Court (or such
other date that the Court may determine) shall
constitute the record date for determining the holders
of Interests entitled to receive the Distributions
provided under the Plan. As of the close of business
on such date for purposes of Distribution, the transfer
ledgers in respect of Interests shall be closed.
7.10. Calculation of Distribution Amounts of Securities.
Any other provision of the Plan to the contrary
notwithstanding (i) no fractional shares of AMASYS
Common Stock shall be issued or distributed, (ii) no
shares of AMASYS Common Stock will be Distributed to
any Person entitled to fewer than three (3) shares, and
(iii) no cash will be paid nor other Distribution made
32<PAGE>
in lieu of whole or fractional shares not issued or
distributed because of the provisions of this Section.
Fractional shares shall be rounded to the next greater
or next lower whole number of shares as follows: (a)
fractions of 0.5 or greater shall be rounded to the
next greater whole number, and (b) fractions of less
than 0.5 shall be rounded to the next lesser whole
number. For purposes of the foregoing, all references
to holders of Allowed Interests herein shall refer to
the direct or indirect beneficial owners of such
Allowed Interests as determined by the Debtors in their
sole discretion, and all calculations relating to the
rounding provisions of this Section shall be made based
on such beneficial ownership.
ARTICLE VIII
PROVISIONS CONCERNING DISCHARGE AND PROPERTY
8.01. Discharge of All Claims and Equity Interests.
Except as otherwise provided in the Plan, the
rights afforded in the Plan shall be in exchange for
and in complete satisfaction, discharge and release of
all Claims or Interests of any nature whatsoever,
including any interest accrued thereon from and after
March 5, 1991, against the Debtors or the Debtors-in-
Possession or any of their assets or properties; and
except as otherwise provided herein, upon the
33<PAGE>
Confirmation Date, all such Claims against or Interests
in the Debtors or Debtors-in-Possession shall be
satisfied, discharged and released in full; and all
Claimants and holders of Interests shall be precluded
from asserting against the Debtors or their assets or
properties, any other or further claim based upon any
act or omission, transaction or other activity of any
kind or nature that occurred prior to the Confirmation
Date.
8.02. Vesting of Property in the Debtors and AMASYS.
Except as otherwise provided by the Plan, upon the
Confirmation Date, title to all assets dealt with by
the Plan shall pass to the Debtors or AMASYS, as the
case may be, free and clear of any and all Claims and
Interests, in accordance with SECTION 1141 of the
Bankruptcy Code.
8.03. Discharge of Debtors.
Any consideration distributed under the Plan shall
be in exchange for and in complete satisfaction,
discharge, and release of all Claims of any nature
whatsoever against the Debtors or any of their assets
or properties; and except as otherwise provided herein,
upon the Effective Date, the Debtors shall be deemed
discharged and released to the extent permitted by
SECTION 1141 of the Bankruptcy Code from any and all Claims,
34<PAGE>
including but not limited to demands and liabilities
that arose before the Effective Date, and all debts of
the kind specified in SECTION 502(g), 502(h), or 502(i) of
the Bankruptcy Code, whether or not (a) a proof of
Claim based upon such debt is filed or deemed filed
under SECTION 501 of the Bankruptcy Code; (b) a Claim based
upon such debt is Allowed under SECTION 502 of the Bankruptcy
Code; or (c) the holder of a Claim based upon such debt
has accepted the Plan. The Confirmation Order shall be
a judicial determination of discharge of all
liabilities of any and all of the Debtors. As provided
in SECTION 524 of the Bankruptcy Code, such discharge shall
void any judgment against the Debtors at any time
obtained to the extent it relates to a Claim
discharged, and operates as an injunction against the
prosecution of any action against the Debtors or
property of the Debtors to the extent it relates to a
Claim discharged.
8.04. Discharge of Claims.
Except as otherwise provided herein or in the
Confirmation Order, the rights afforded in this Plan
and the payments and Distributions to be made hereunder
shall be in complete and full satisfaction, discharge
and release of, all existing rights, debts and Claims
of any kind, nature or description whatsoever against
the Debtors and the Debtors-in-Possession or any of
35<PAGE>
their respective assets or properties; and upon the
Effective Date, all existing Claims against the Debtors
and the Debtors-in-Possession shall be, and be deemed
to be, satisfied, discharged and released in full; and
all holders of Claims shall be precluded from asserting
against the Reorganized Debtors and/or AMASYS or their
assets or properties any other or further Claim based
upon any act or omission, transaction or other activity
of any kind or nature that occurred prior to the
Effective Date, whether or not such holder filed a
proof of claim. On the Confirmation Date, all claims
and liabilities against Infotech and any and all
members of the Infotech Group relating to the UPI
Pension Plan shall be discharged and released, except
as provided for in the Plan. In particular, and
without limitation, all claims against the Infotech
Group for employer liability under section 4062 of
ERISA, 29 U.S.C. SECTION 1362, and any and all claims against
the Infotech Group for minimum funding contributions
respecting the UPI Pension Plan shall be discharged and
released. Further, PBGC shall be forever barred from
taking any action to enforce or perfect, against any
property of any member of the Infotech Group, any lien
that may arise under section 412(n) of the Internal
Revenue Code of 1986, as amended, or section 302(f) of
ERISA, 29 U.S.C. SECTION 1082(f), in connection with the UPI
36<PAGE>
Pension Plan. Upon confirmation of the Plan, Infotech
and all members of the Infotech Group shall release
PBGC from any and all claims with respect to the UPI
Pension Plan.
8.05. Effect of Confirmation Order.
Except as provided for in this Plan, the
Confirmation Order shall be a judicial determination of
discharge of the Debtors from all debts that arose
before the Effective Date and any liability on a Claim
that is determined under SECTION 502 of the Bankruptcy Code
as if such Claim had arisen before the Effective Date,
whether or not a proof of a claim based on any such
date or liability is filed under SECTION 501 of the
Bankruptcy Code and whether or not a Claim based on
such debt or liability is Allowed under SECTION 502 of the
Bankruptcy Code.
8.06. Surrender of Instruments and Release of Liens.
As a condition to receiving any Distributions
provided for by the Plan, the holders of any Interests
must surrender any shares or certificates of Old
Infotech Common Stock to AMASYS on the Effective Date.
All of such shares and certificates surrendered to
AMASYS shall be conspicuously marked "canceled".
37<PAGE>
ARTICLE IX
RELEASES AND TERMINATION
9.01. Releases.
Subject in all respects to, and except as provided
in, the PBGC Term Sheet and the Avacus Stipulation, on
the Confirmation Date, all Claims based upon guarantees
of collection, payment or performance, indemnity bonds
or obligations, performance bonds, contingent
liabilities arising out of the assignment of leases or
contract obligations, or other similar undertakings
made or given by the Debtors prior to March 5, 1991, as
to the obligations or performance of another or of any
other Person shall be discharged, released and of no
further force and effect.
9.02. Release of Directors and Officers
(a) Subject in all respects to Section 9.02(b)
below, and to the provisions of the Avacus Stipulation
and Order, on the Confirmation Date and without any
further act, Infotech hereby releases all directors and
officers of Infotech who are directors or officers of
AMASYS as specifically identified in paragraph 12.05 of
the Plan, and Questech hereby releases all directors of
Questech who are directors and officers of Reorganized
Questech as specifically identified in Paragraph 12.05
of the Plan from any and all liability to Infotech or
38<PAGE>
Questech, based upon any act or omission related to
past service with or for or on behalf of any of the
Debtors.
(b) Notwithstanding the foregoing Section 9.02(a)
of the Plan, claims arising out of the subject matter
of the Avacus Lawsuit are not affected by the release
provided for in Section 9.02(a) or any other provisions
of the Plan, by any Order(s) of the Bankruptcy Court in
the Chapter 11 cases or any case matter therein, or by
any release or discharge purported to be given by the
Debtor after the Petition Date in connection with the
settlement of any other action(s) involving the Debtor.
9.03. Disposition of Derivative Actions
(a) Subject in all respects to Sections 9.02(b),
and 9.03(b) of the Plan and the Avacus Stipulation and
Order, on the Confirmation Date and without any further
act, Infotech shall be deemed to have forever waived
and released any and all claims, obligations, rights,
causes of action and liabilities, whether known or
unknown, foreseen or unforseen, then existing or
hereafter arising, which are based in whole or in part
upon any act, omission, or other event or occurrence
(a) described in the amended complaint filed on
February 1, 1991 in the purported derivative lawsuit,
Cavaliere, et al. v. Earl W. Brian. et al., Case No.
BC012084, in the Los Angeles Superior Court, which may
39<PAGE>
be asserted by or on behalf of Infotech against any of
its present of former officers or directors other than
C. Steven Bolen, or against any of the other named
defendants in such lawsuit.
(b) Notwithstanding anything to the contrary in
Sections 9.02(a) and 9.03(a) of the Plan, on and after
the Confirmation Date, pursuant to the Avacus
Stipulation, which is incorporated in this Plan as an
integral part hereof by reference, Avacus is authorized
to pursue derivative claims on behalf of Infotech
asserted in or arising out of the subject matter of the
Avacus Lawsuit as the representative of the Debtor and
claims arising out of the subject matter of the Avacus
Lawsuit are not affected by any Order(s) of the
Bankruptcy Court in the Chapter 11 cases or any case
matter therein, the release provided for in Section
9.02(a) or any other provisions of the Plan, or by any
release or discharge purported to be given by the
Debtor after the Petition Date in connection with the
settlement of any other action(s) involving the Debtor.
(c) The Avacus Stipulation and Order which is
annexed to the Plan as Exhibit 7 is an integral part of
the Plan, and upon the Effective Date, shall be binding
on Infotech, its estate, and all the holders of claims
and Interests.
(d) Notwithstanding any other provision of this
40<PAGE>
paragraph "9", or any other provision of the Plan,
Deloitte and Touche shall not be joined as a defendant
in the Avacus Lawsuit.
9.04. Certain Terminations.
On the Confirmation Date, all instruments
evidencing indebtedness of the Debtors, as the case may
be, impaired by the Plan shall be deemed canceled as
against the Debtors only.
9.05. Rights if Plan not Confirmed.
If Confirmation of the Plan does not occur, the
Plan shall be deemed null and void, and in such event,
nothing contained herein shall be deemed to constitute
a waiver or release of any Claims by or against the
Debtors or any other Entity or to prejudice in any
manner the rights of the Debtors or any Entity in any
further proceedings involving the Debtors as the case
may be.
ARTICLE X
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
10.01. Any pre-petition executory contract or unexpired
lease of the Debtors not expressly rejected, or which
is not the subject of a pending application to reject
on the Confirmation Date, shall be deemed assumed as of
the Confirmation Date.
41<PAGE>
10.02. Any Entity whose Claim arises from rejection of an
executory contract or lease shall, to the extent such
Claim becomes an Allowed Claim, have the rights of an
Infotech Class 6 Claimant or a Questech Class 5
Claimant, as the case may be, with respect thereto.
10.03. Any Entity who has a claim against the Debtors by
virtue of the operation of Section 10.02 of this
Article may file a claim with the Clerk of the Court
and serve a copy of such claim upon the Debtors in
accordance with the notice provisions of Section 15.02
hereof, within thirty (30) days following service upon
such Entity of notice of entry of the Confirmation
Order or order authorizing such rejection, whichever is
later. If such Claim is not filed within the specified
time, it shall be forever barred from assertion against
the Debtors and/or AMASYS, and their respective
properties.
10.04. Any Claim filed in accordance with the provisions
of Section 10.03 hereof shall be treated as a Disputed
Infotech Class 6 Claim or a Disputed Questech Class 5
Claim, as the case may be, until the period of time has
elapsed within which the Debtors may file an objection
to such Claim with no such objection being filed.
10.05. Indemnification Obligations.
Subject and limited in all respect to the provisos
set forth below and the provisions of the Avacus
42<PAGE>
Stipulation and Order, and the PBGC Term Sheet, the
obligations of the Debtors to indemnify their present
and former directors and officers pursuant to charter,
by-laws, contract and/or applicable law shall be
treated as continuing obligations of the Reorganized
Debtors and, in the case of Infotech, shall be a joint
and several obligation of Infotech and AMASYS, with
respect to a claim by or in the right of the Debtors
related to past services with or for or on behalf of
the Debtors, and such obligation shall survive
confirmation of the Plan; provided further that neither
Infotech nor AMASYS shall indemnify any present or
former director or officer of the Debtors with respect
to any occurrence that occurred prior to the Petition
Date if a final judgment of a court of competent
jurisdiction determines that any such director or
officer is liable to the Debtors or AMASYS by reason of
conduct or actions determined to be acts of actual and
deliberate dishonesty with actual dishonest purpose and
intent, which acts were material to the cause so
adjudicated; and provided further that, neither
Infotech nor AMASYS shall indemnify and present or
former director or officer of the Debtors with respect
to any act or omission related to past service with or
for, or on behalf of any of the Debtors where such
liability was the result of a failure to act in good
43<PAGE>
faith, gross negligence, or willful misconduct of the
present or former individual director(s) and officer(s)
seeking such indemnification; and provided further,
that such indemnification or reimbursement as described
above shall not include (and shall specifically
exclude) any indemnification or reimbursement of the
legal fees of any such director and officer and extend
only to the amount of damages due from such directors
and officers to the Debtors. Any other indemnification
obligations of the Debtors to indemnify their present
and former directors and officers pursuant to charter,
by-laws, contract and/or applicable law shall be
discharged on the Confirmation Date.
ARTICLE XI
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
11.01. Time Limit for Objections to Claims.
Objections to Claims shall be filed by the Debtors
with the Court and served upon each holder of each of
the Claims to which objections are made, not later than
thirty (30) days subsequent to the Confirmation Date or
within such other time period as may be fixed by the
Court, except that unless otherwise extended by order
of the Court, the Debtors may file an objection to the
allowance of any Claim filed resulting from the
rejection of an executory contract on the later of
sixty (60) days following the Confirmation Date or
44<PAGE>
within sixty (60) days after the filing of such Claim
and service of a copy of such Claim upon the Debtor as
provided for in Section 10.03 hereof. The Debtors are
specifically empowered by the terms of this Plan with
the right to commence and prosecute objections to
Claims.
11.02. Resolution of Disputed Claims.
Unless otherwise ordered by the Court, the Debtors
shall, in their sole discretion, either litigate to
judgment, settle or withdraw objections to Disputed
Claims without notice to any party in interest, other
than Avacus who shall be entitled to notice of at least
three (3) Business Days.
11.03. Payments.
Payments and distributions to each holder of a
Disputed Claim that ultimately becomes an Allowed Claim
shall be made in accordance with the provisions of the
Plan with respect to the Class of Creditors to which
the respective holder of an Allowed Claim belongs.
Such payments and distributions shall be made as soon
as practicable after the date that the Court enters a
Final Order allowing such Claim but not later than
thirty (30) days thereafter. Payments made in
accordance with this Article shall not include the
interest on the amount of such payment from the date on
45<PAGE>
which the holder of the Allowed Claim would have been
entitled to receive payment if its Claim had it not
been a Disputed Claim. Payments shall be made as and
when a Disputed Claim has become, in whole or in part,
an Allowed Claim or a Disallowed Claim, pursuant to a
Final Order or agreement between the Debtor, as the
case may be, and such Claimant.
ARTICLE XII
MEANS FOR EXECUTION OF THE PLAN; CONDITIONS PRECEDENT
12.01. Overview.
The Plan is to be implemented in a manner
consistent with SECTION 1123 of the Bankruptcy Code.
12.02. Assignment of Assets to AMASYS.
The Plan provides for all of the Assets of
Infotech to be assigned on the Effective Date, in
accordance with the Assignment and Assumption
Agreement, to a new operating company called AMASYS.
Three (3) years after the Effective Date, all residual
assets of Reorganized Questech, subject to any security
interest in such assets granted to the SBA pursuant to
the SBA Agreement, will be transferred to AMASYS, and
Reorganized Questech will be dissolved. After the
46<PAGE>
Effective Date, Infotech shall cease to exist.
12.03. Deliberately Omitted.
12.04. Continued Corporate Existence.
Infotech shall not continue to exist after the
Effective Date of the Plan as a separate corporate
entities. Following the Effective Date, management of
AMASYS may determine in the exercise of its business
judgment that it is necessary or convenient to alter
the corporate structure or capitalization of AMASYS as
described in this Plan. Alteration shall be permitted,
provided only that AMASYS shall comply with applicable
non-bankruptcy laws and the requirements set forth in
its Certificates of Incorporation including provisions
mandated by the Avacus Stipulation and Order and the
PBGC Term Sheet. Until such time as the New SBA Note
is paid in full, or the SBA executes upon its security
interest in the Questech Assets, Questech shall remain
a SBIC and shall retain its license relating thereto.
12.05. Directors and Officers.
The directors of AMASYS will be: (a) Robert F.
Delaney, (b) C.W. Gilluly, Ed.D., (c) Robert J. Lynch,
Jr., (d) William E. Mayer, M.D., (e) Thomas E. McMahan,
(f) Robert A. Nigro, and (g) William J. White. The
directors of Reorganized Questech will be Dwight
Geduldig and Dr. C.W. Gilluly. Dr. Gilluly will be
47<PAGE>
Chief Executive Officer and President of AMASYS.
AMASYS shall execute an employment contract with Dr.
Gilluly which shall have a term of not less than two
(2) years and shall contain, among other things, a non-
compete agreement in the event Dr. Gilluly voluntarily
leaves the company during the term of the employment
contract. Constance F. Harrison will be employed as
Chief Executive Officer and President of Reorganized
Questech. The tenure and manner of selection of the
directors and officers of the Reorganized Debtors and
AMASYS shall be as provided in the charter and by-laws
of each of these companies.
12.06. By-Laws; Charter.
The by-laws and corporate charter of each of the
Reorganized Debtors shall be amended as necessary to
satisfy the provisions of the Plan subject to such
further amendment as may be permitted by applicable law
and further provided that the indemnification
provisions of such by laws and charter shall be
consistent with the Avacus Stipulation and Order and
the PBGC Term Sheet, and Section 10.05 of the Plan.
The AMASYS Corporate Charter shall be substantially in
the form of Exhibit "1" annexed hereto provided,
however, that such Charter shall be modified to be in
all respects consistent with the PBGC Term Sheet, the
Avacus Stipulation and Order, and Section 10.05 of the
48<PAGE>
Plan.
12.07. Cancellation and Issuance of Stock.
On, or as soon as practicable after, the
Confirmation Date to the extent applicable, AMASYS
Common Stock, AMASYS Series "A" Preferred Stock and
AMASYS Warrants shall be issued, distributed and/or
transferred in accordance with the terms of this Plan.
This Plan and the Disclosure Statement relating hereto
(after approval thereof by the Court under SECTION 1125 of
the Bankruptcy Code) shall be deemed to be a
solicitation to persons who are to receive AMASYS
Common Stock under this Plan for purposes of compliance
with Rules 16(b)-3 promulgated under the Securities
Exchange Act of 1934, as amended.
12.08. Revesting of Assets.
The property of the estates of the Debtors shall
revest in the Reorganized Debtors on the Effective
Date, except as otherwise provided in the Plan or the
Confirmation Order. On and after the Confirmation
Date, the Reorganized Debtors may operate their
businesses and may use, acquire, and dispose of
property free of any restrictions of the Bankruptcy
Code. As of the Confirmation Date, all property of the
Reorganized Debtors shall be free and clear of all
Claims and Equity Interests arising prior to the
49<PAGE>
Confirmation Date, except as specifically provided in
the Plan.
12.10. Distributions.
The Distributions to be made under the Plan shall
be made by each Reorganized Debtor obligated to make
such Distribution or, in the case of Infotech, by
AMASYS.
12.11. Effectuating Documents.
The Debtors shall file with the Bankruptcy Court
such agreements, indentures, and other documents as may
be necessary or appropriate to effectuate and further
evidence the terms and conditions of the Plan not less
than one (1) business day prior to the hearing to
consider confirmation of the Plan.
12.12. Avoidance Actions.
Causes of action assertable by each Debtor
pursuant to SUB-SECTION 542, 543, 544, 545, 547, 548, 549, 550,
or 553 of the Code shall be retained by such Debtor and
in the case of Infotech shall be assigned to Amasys on
the Effective Date.
12.13. Articles of Incorporation.
On or before the Effective Date, the Debtors and
AMASYS shall adopt and file Articles of Incorporation
that, among other things, comply with SECTION 1123(a)(6) of
50<PAGE>
the Bankruptcy Code.
12.14. Conditions to Distributions to Infotech Class 8.
The treatment of Infotech Class 8 is as set forth
in Section 5.02(d). Infotech shall not be responsible
for the distribution of cash from the FNN Class 7
Settlement Fund and the shares of New FNN Common Stock
comprising the FNN Class 7 Share Allocation, but shall
fulfill its obligations to Infotech Class 8 hereunder
by FNN depositing the Infotech Class 8 Settlement Fund
and the Infotech Class 8 Share Allocation with the
Class Action Court for distribution pursuant to SECTION
5.02(c) and the Class Action Stipulation. Any
Securities Laws Indemnification Claims held by any non-
settling defendant named in the Class Action that were
not timely filed with the Bankruptcy Court by August
16, 1991 shall be forever barred and discharged.
12.15. Issuance of AMASYS Common Stock.
The Certificate of Incorporation of AMASYS, as in
effect on the Confirmation Date, will authorize the
issuance of at least 20 million shares of AMASYS Common
Stock. Such shares will, among other things be used to
satisfy all of the requirements of SECTION 5.02 of the Plan.
A total of 950,000 shares will be reserved for issuance
under the AMASYS Stock Option Plan, and a total of
1,445,000 will be reserved for issuance to the holders
51<PAGE>
of the AMASYS Warrants and the AMASYS/PBGC Warrants.
12.16. Stock Option Plan.
On the Confirmation Date, the AMASYS Stock Option
Plan shall become effective.
12.17. Abandonment of UPI Stock.
On the Effective Date, Infotech will abandon any
and all of its shares of stock of (i) UPI, and (ii) New
UPI, Inc., pursuant to SECTION 554 of the Bankruptcy Code and
Bankruptcy Rule 6007. In addition, on the Effective
Date, each member of the Infotech Group will be deemed
to have abandoned any and all of their shares of stock
of UPI and New UPI, Inc. This abandonment by Infotech
and the Infotech Group, however, shall not relieve any
person from its obligations under the terms of this
Plan. Nor shall this abandonment affect PBGC's
allegations that, until the abandonment, the Infotech
Group was or could be liable with respect to the UPI
Pension Plan pursuant to SUB-SECTION 302, 4007, 4042, and 4062
of ERISA, 29 U.S.C. SUB-SECTION 1082, 1037, 1342, 1362, and
SECTION 412 of the Internal Revenue Code of 1986, as amended,
26 U.S.C. SECTION 412.
52<PAGE>
ARTICLE XIII
RETENTION OF JURISDICTION
13.01. Retention of Jurisdiction.
The Court shall retain jurisdiction of this
proceeding following the Confirmation Date for the
following purposes:
13.01.01. to hear and determine any objections to the
allowance of Claims or Interests;
13.01.02. to determine any and all applications for
compensation for Professional Persons and
similar fees;
13.01.03. to determine any and all pending applications
for the rejection or assumption or for the
assumption and assignment, as the case may
be, of executory contracts to which the
Debtor is a party or with respect to which it
may be liable, and to hear and determine, and
if need be to liquidate, any and all Claims
arising therefrom;
13.01.04. to determine any and all applications,
adversary proceedings, and contested or
litigated matters properly before the Court
and pending on the Confirmation Date;
13.01.05. to modify the Plan pursuant to SECTION 1127 of the
Bankruptcy Code or to remedy any defect or
omission or reconcile any inconsistency in
the Confirmation Order to the extent
53<PAGE>
authorized by the Bankruptcy Code;
13.01.06. to hear and determine all controversies,
suits and disputes, if any, as may arise in
connection with the interpretation or
enforcement of the Plan;
13.01.07. to hear and determine all controversies,
suits and disputes, if any, as may arise with
regard to orders of this Court in the Chapter
11 Case entered on or before the Confirmation
Date;
13.01.08. to hear and determine any and all
controversies and disputes arising under, or
in connection with, the Plan;
13.01.09. to adjudicate all controversies concerning
the classification of any Claim;
13.01.10. to liquidate damages in connection with any
disputed, contingent or unliquidated Claims;
13.01.11. to adjudicate all Claims to a security or
ownership interest in any property of the
Debtors or in any proceeds thereof;
13.01.12. to adjudicate all Claims or controversies
arising out of any purchases, sales or
contracts made or undertaken by the Debtors
during the pendency of the Chapter 11 Case;
13.01.13. to recover all assets and properties of the
Debtors wherever located, including the
prosecution and adjudication of all causes of
54<PAGE>
action available to the Debtors as at the
Confirmation Date;
13.01.14. to determine all questions and disputes
regarding recovery of and entitlement to the
Debtors' assets and determine all claims and
disputes between the Debtors, and any other
Entity, whether or not subject to an action
pending as of the Confirmation Date;
13.01.15. to enter any order, including injunctions,
necessary to enforce the title, rights and
powers of the Debtors and to impose such
limitations, restrictions, terms and
conditions on such title, rights and powers
as the Court may deem necessary or
appropriate;
13.01.16. to enter an order of Consummation concluding
and terminating the Chapter 11 Case; and
13.01.17. to make such orders as are necessary or
appropriate to carry out the provisions of
the Plan, including but not limited to orders
interpreting, clarifying or enforcing the
provisions thereof.
13.01.18. to adjudicate all Claims or controversies
arising out of or in connection with the
Avacus Stipulation and Order, and/or the PBGC
Term Sheet.
55<PAGE>
ARTICLE XIV
GENERAL PROVISIONS
14.01. Modification of the Plan.
The Debtors reserve the right, in accordance with
the Bankruptcy Code, to seek to amend or modify the
Plan before or after the Confirmation Date.
14.02. Notices.
All notices, requests, elections or demands in
connection with the Plan including any change of
address of any Claimant for the purposes of receiving
distributions under the Plan and forfeiting same
pursuant to Section 7.05 hereof shall be in writing and
shall be deemed to have been given when received or, if
mailed, five (5) days after the date of mailing
provided such writing shall have been sent by
registered or certified mail, postage prepaid, return
receipt requested, and if sent to the Debtors,
addressed to:
c/o Amasys Corporation
Telecommunications Industries, Inc.
4900 Seminary Road
Suite 800
Alexandria, VA 22311
Attn: C.W. Gilluly
Questech Capital Corp.
120 Wall Street, 9th Floor
New York, NY 10005
Attn: Constance F. Harrison
with a copy to:
56<PAGE>
Angel & Frankel, P.C.
366 Madison Avenue
New York, New York 10017-3191
Attn: Joshua J. Angel, Esq.
Robert A. Abrams, Esq.
All notices and requests to Claimants of any Class
shall be sent to them at their last known address. The
Debtors, and any Claimant of any Class, may designate
in writing any other address for purposes of this
Section 15.02, which designation shall be effective
upon receipt.
14.03. Headings.
The headings used in the Plan are inserted for
convenience only and neither constitute a portion of
the Plan nor in any manner affect the provisions of the
Plan.
14.04. Severability.
Should any provision in the Plan be determined to
be unenforceable, such determination shall in no way
limit or affect the enforceability and operative effect
of any and all other provisions of the Plan.
14.05. Governing Law.
Except to the extent that the Bankruptcy Code is
applicable, the rights and obligations arising under
the Plan shall be governed by, and construed and
enforced in accordance with, the laws of the State of
New York.
57<PAGE>
14.06. Successors and Assigns.
The rights and obligations of any Entity named or
referred to in the Plan shall be binding upon, and
shall inure to the benefit of, the successors and
assigns of such Entity.
14.07. Verbiage Inconsistencies.
The PBGC Term Sheet and the Avacus Stipulation and
Order shall be controlling to the extent there are any
inconsistencies between either of those documents and
with the language contained in the body of the Plan.
Dated: New York, New York
March 30, 1994
INFOTECHNOLOGY, INC.
By: /S/ C.W. Gilluly
C.W. Gilluly
Its: Chief Executive Officer
QUESTECH CAPITAL CORPORATION
By: /S/ C.W. Gilluly
C.W. Gilluly
Its: Chief Financial Officer
58<PAGE>
ANGEL & FRANKEL, P.C.
Attorneys for Infotechnology, Inc.,
and Questech Capital Corporation
Debtor and Debtor in Possession
460 Park Avenue
New York, New York 10022
(212) 752-8000
Joshua J. Angel, Esq. (JA-3288)
Robert A. Abrams, Esq. (RA-6051)
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -x
In re: Chapter 11
INFOTECHNOLOGY, INC.,
a Delaware Corporation, Case No. 91 B 10970 (FGC)
Debtor.
- - - - - - - - - - - - - - - - - -x
In re: Chapter 11
QUESTECH CAPITAL CORPORATION,
a Delaware Corporation, Case No. 91 B 10971 (FGC)
Debtor.
- - - - - - - - - - - - - - - - - -x
ORDER (1) APPROVING DISCLOSURE STATEMENT; (2) FIXING DATE FOR
(A) SERVICE OF PLAN AND DISCLOSURE STATEMENT, (B) FILING BALLOTS
FOR ACCEPTANCE OR REJECTION OF PLAN, (C) SCHEDULING A HEARING TO
CONSIDER CONFIRMATION OF PLAN, AND (D) FILING OBJECTIONS TO
CONFIRMATION OF PLAN; AND (3) GRANTING RELATED RELIEF
(A&F #40)
The Debtors' having filed their Joint Third Plan of
Reorganization dated January 26, 1994 (the "Third Plan"),
together with a related Disclosure Statement dated January 26,
1994 (the "Third Disclosure Statement"); and this Court having
entered an order (the "Scheduling Order") dated February 1, 1994
<PAGE>
which, inter alia, scheduled a hearing (the "Hearing") to
consider approval of the Third Disclosure Statement; and notice
of the Hearing having been given to all creditors and parties in
interest by first class mail in accordance with Rules 2002(b) and
3017 of the Federal Rules of Bankruptcy Procedure (the
"Bankruptcy Rules") and the terms of the Scheduling Order; and
the Hearing having been held before this Court on March 10, 1994
with respect to the approval of the Third Disclosure Statement as
containing adequate information; and in response to various
objections to the approval of the Third Disclosure Statement by
certain parties in interest, modifications to the Third Plan and
Third Disclosure Statement as identified at the Hearing having
been incorporated thereto; and the Third Plan and Third
Disclosure Statement with such modifications having been
included, which Third Plan and Third Disclosure Statement have
been filed on March 31, 1994; and upon all of the pleadings and
proceedings heretofore had herein; and after hearing Angel &
Frankel, P.C., on behalf of the Debtors in support of the
Application, and after hearing such other parties whose
identities are reflected on the transcript of the Hearing; and
the objection of Deloitte and Touche to the approval of the Third
Disclosure Statement having been resolved by certain
modifications to the Third Plan and Third Disclosure Statement,
and objections of Financial News Network Inc. ("FNN") and Data
Broadcasting Corporation, individually, and on behalf of the FNN
class 8 claimants been denied by the Court, and it having been
- 2 -<PAGE>
found that the Third Disclosure Statement contains adequate
information within the meaning of Section 1125 of the Bankruptcy
Code; and upon the record made before me; and due deliberation
having been had, and sufficient cause appearing to me therefor;
it is
NOW, on motion of Angel & Frankel, P.C., attorneys for
the Debtors,
ORDERED, and notice is hereby given that:
1. The Third Disclosure Statement in the form
annexed hereto as Exhibit "A" (the "Approved Disclosure
Statement") be, and the same hereby is, approved as containing
adequate information within the meaning of Section 1125 of the
Bankruptcy Code.
2. (a) On or before May 2, 1994 (the "Service
Date"), pursuant to Bankruptcy Rule 3017(d), the Debtor is hereby
authorized to transmit by first class mail, postage prepaid,
express mail or personal delivery:
(i) a copy of this Order (without exhibits);
(ii) a copy of the Third Amended Plan; and
(iii) a copy of the Approved Disclosure Statement
to all known holders of claims against or interests in the
Debtors at their last known addresses, and any party in interest
requesting copies of same, provided, however, that the Debtors
shall not be required to transmit said documents to any party
whose correct address which the Debtors have been unable to
determine.
- 3 -<PAGE>
(b) On or before the Service Date, pursuant to
Bankruptcy Rule 3017(d), the Debtors are authorized to transmit
by first class mail, postage prepaid, express mail or personal
delivery a ballot substantially in the form annexed hereto as
Exhibit "B" (the "Ballot"), the form of which Ballot be, and it
hereby is, approved, to creditors entitled to vote on the Third
Plan, provided, however, that the Debtors shall not be required
to transmit said Ballot to any party whose correct address the
Debtors have been unable to determine.
3. Service made as provided in the preceding decretal
paragraph shall be deemed good and sufficient notice and service,
and any further notice be, and the same hereby is dispensed with.
4. In order to be included in the tabulation of
acceptances or rejections of the Third Plan, all entities
entitled to vote on the Third Plan shall cast their vote in
writing on the Ballot and shall return the Ballot such that the
Ballot is received by Infotechnology, Inc./Questech Capital
Corporation, c/o Angel & Frankel, P.C., Attn: Robert A. Abrams,
Esq., 460 Park Avenue, New York, New York 10022 not later than
5:00 p.m. Eastern Standard Time on June 3, 1994. Any ballot
which is executed and returned, but which does not indicate
thereon either an acceptance or rejection of the Third Plan,
shall be deemed to be an acceptance of the Third Plan.
5. Any objection to confirmation of the Third Plan
must be in writing, must set forth explicitly in detail the
grounds and facts of such objection and the legal bases therefor,
- 4 -<PAGE>
and in accordance with Bankruptcy Rule 3020(b)(1), must be filed
with the Bankruptcy Court and served upon, among others, Joshua
J. Angel, Esq., Angel & Frankel, P.C., 460 Park Avenue, New York,
New York 10022-1906, counsel for the Debtors, so that objections,
if any, are received at least five (5) days prior to May 27,
1994.
6. A hearing on confirmation of the Third Plan and on
any objections to the confirmation of the Third Plan will be held
on June 21, 1994 at 11:00 a.m., or as soon thereafter as counsel
may be heard, at the United States Bankruptcy Court, Southern
District of New York, The Alexander Hamilton Custom House, One
Bowling Green, New York, New York 10004-1408 (the "Confirmation
Hearing"). At the Confirmation Hearing the Debtors will request
that an order be entered by the Court confirming the Debtors'
Third Plan and granting related relief. The Confirmation Hearing
may be adjourned from time to time without further notice, other
than by the announcement of the adjourned date or dates in open
Court or as may be reflected on the Court's daily calendar.
Dated: New York, New York
April 18, 1994
/s/ Francis G. Conrad
United States Bankruptcy Judge
- 5 -<PAGE>
ANGEL & FRANKEL, P.C.
Attorneys for Infotechnology, Inc.,
and Questech Capital Corporation
Debtor and Debtor in Possession
460 Park Avenue
New York, New York 10022
(212) 752-8000
Joshua J. Angel, Esq. (JA-3288)
Robert A. Abrams, Esq. (RA-6051)
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -x
In re: Chapter 11
QUESTECH CAPITAL CORPORATION,
a Delaware Corporation, Case No. 91 B 10971 (FGC)
Debtor.
- - - - - - - - - - - - - - - - - -x
QUESTECH CAPITAL CORPORATION
BALLOT FOR ACCEPTING OR REJECTING PLAN OF REORGANIZATION
The Debtors' Third Plan of Reorganization (the "Plan") dated
March 30, 1994, filed with the Bankruptcy Court and referred to
in this ballot, can be confirmed by the Bankruptcy Court and
thereby made binding on you if it is accepted by each class of
creditors and holders of equity interests which is impaired under
the Plan. Each impaired class of creditors may accept the Plan
if the holders of at least two-thirds (2/3) in amount and more
than one half (1/2) in number of the allowed claims which vote on
the Plan vote to accept the Plan. In the event that the
requisite acceptances are not obtained, the Bankruptcy Court may
nevertheless confirm the Plan if it finds that the Plan affords
fair and equitable treatment to the class or classes rejecting
the Plan.
To have your vote count, you must complete and return this
ballot to:
Questech Capital Corporation
c/o Angel & Frankel, P.C.
Attn: Robert A. Abrams, Esq.
460 Park Avenue
New York, New York 10022<PAGE>
All ballots must be received by 5:00 p.m. Eastern Standard
Time on June 3, 1994. Any ballots received after such time shall
not be counted.
The undersigned, a Class 5 creditor, holding an [ ]
unsecured claim in the amount of $_____________ (fill in dollar
amount of claim):
(Check One) [ ] Accepts the Plan [ ] Rejects the Plan
Any ballot received that does not indicate either a vote to
accept or a vote to reject the Plan shall be deemed a vote to
accept the Plan.
Corporation: If the claimant is a corporation, print the
name of corporation on line one; an officer of corporation signs
his name on line two; print the title of officer such as
"President", on line three.
Partnership: If claimant is a partnership, print the name
of the partnership on line one; a partner signs his name on line
two; print "Partner" on line three.
Individual: If the claimant is an individual doing business
under his or her own name, print such name on line one; sign such
name on line two; and disregard line three. If claimant does
business under a company or trade name, print that name on line
one; sign own name on line two; and print "Owner" on line three.
Dated:_____________, 1994 (1) __________________________
Name of Creditor
(PLEASE PRINT)
(2) __________________________
(Signature)
(3) __________________________
(Title)
__________________________
(Address)
__________________________
Angel & Frankel, P.C.
Attorneys for Questech Capital Corporation
Debtors and Debtors-in-Possession
- 2 -<PAGE>
460 Park Avenue
New York, NY 10022-1906
Joshua J. Angel, Esq. (JA-3288)
Robert A. Abrams, Esq. (RA-6051)
(212) 752-8000
- 3 -<PAGE>
ANGEL & FRANKEL, P.C.
Attorneys for Infotechnology, Inc.,
and Questech Capital Corporation
Debtor and Debtor in Possession
460 Park Avenue
New York, New York 10022
(212) 752-8000
Joshua J. Angel, Esq. (JA-3288)
Robert A. Abrams, Esq. (RA-6051)
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -x
In re: Chapter 11
INFOTECHNOLOGY CORPORATION,
a Delaware Corporation, Case No. 91 B 10970 (FGC)
Debtor.
- - - - - - - - - - - - - - - - - -x
INFOTECHNOLOGY, INC.
BALLOT FOR ACCEPTING OR REJECTING PLAN OF REORGANIZATION
The Debtors' Third Plan of Reorganization (the "Plan") dated
March 30, 1994, filed with the Bankruptcy Court and referred to
in this ballot, can be confirmed by the Bankruptcy Court and
thereby made binding on you if it is accepted by each class of
creditors and holders of equity interests which is impaired under
the Plan. Each impaired class of creditors may accept the Plan
if the holders of at least two-thirds (2/3) in amount and more
than one half (1/2) in number of the allowed claims which vote on
the Plan vote to accept the Plan. In the event that the
requisite acceptances are not obtained, the Bankruptcy Court may
nevertheless confirm the Plan if it finds that the Plan affords
fair and equitable treatment to the class or classes rejecting
the Plan.
To have your vote count, you must complete and return this
ballot to:
Infotechnology, Inc.
c/o Angel & Frankel, P.C.
Attn: Robert A. Abrams, Esq.
460 Park Avenue
New York, New York 10022<PAGE>
All ballots must be received by 5:00 p.m. Eastern Standard
Time on June 3, 1994. Any ballots received after such time shall
not be counted.
The undersigned, holding an [ ] unsecured claim in the
amount of $_____________ (fill in dollar amount of claim):
[CHECK ONE]
[ ] Accepts the Plan [ ] Rejects the Plan
Any ballot received that does not indicate either a vote to
accept or a vote to reject the Plan shall be deemed a vote to
accept the Plan.
[CHECK ONE]
[ ] Elects Treatment as a Class 4 Convenience claim (i.e., $500
or less)
- or -
[ ] Elects Treatment as a Class 6 Unsecured Claim to receive a
pro-rata distribution from:
[CHECK ONE]
(A) [ ] 651,000 Shares of Amasys Common Stock
- or -
(B) [ ] Infotech's Share of the Net Proceeds of the Avacus
Lawsuit and Undertakings
Corporation: If the claimant is a corporation, print the
name of corporation on line one; an officer of corporation signs
his name on line two; print the title of officer such as
"President", on line three.
Partnership: If claimant is a partnership, print the name
of the partnership on line one; a partner signs his name on line
two; print "Partner" on line three.
Individual: If the claimant is an individual doing business
under his or her own name, print such name on line one; sign such
name on line two; and disregard line three. If claimant does
- 2 -<PAGE>
business under a company or trade name, print that name on line
one; sign own name on line two; and print "Owner" on line three.
Dated:_____________, 1994 (1) __________________________
Name of Creditor
(PLEASE PRINT)
(2) __________________________
(Signature)
(3) __________________________
(Title)
__________________________
(Address)
__________________________
Angel & Frankel, P.C.
Attorneys for Infotechnology, Inc.
Debtors and Debtors-in-Possession
460 Park Avenue
New York, NY 10022-1906
Joshua J. Angel, Esq. (JA-3288)
Robert A. Abrams, Esq. (RA-6051)
(212) 752-8000
- 3 -<PAGE>
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the
"Agreement") is made this 11 day of October, 1996 between
Infotechnology, Inc. a Delaware corporation ("Infotech"), and
AMASYS Corporation, a Delaware corporation ("AMASYS").
R E C I T A L S
WHEREAS, in case number 91 B 10970 (FGC) in the United
States Bankruptcy Court for the Southern District of New York,
Infotech proposed a plan of reorganization (the "Plan") pursuant
to Chapter 11 of the United States Bankruptcy Code which was
confirmed on June 23, 1994; and
WHEREAS, pursuant to the Plan, Infotech desires to
transfer and assign, and AMASYS desires to receive, a substantial
portion of the assets of Infotech for the consideration described
herein; and
WHEREAS, pursuant to the Plan, AMASYS desires to assume
certain obligations and liabilities of Infotech;
NOW, THEREFORE, in consideration of the promises,
covenants and agreements contained herein, Infotech and AMASYS
hereby agree as follows:<PAGE>
SECTION 1. Transfer of Stock by AMASYS.
AMASYS shall, pursuant to the Plan, issue or reserve
for issuance, 6,951,000 shares of previously unissued $.01 par
value per share common stock (the "Common Stock);
SECTION 2. Transfer of Assets by Infotech.
Infotech hereby conveys, transfers, assigns, sells and
delivers to AMASYS all of its right, title and interest in and to
all of its assets real and personal, tangible and intangible,
including but not limited to the following:
(a) The capital stock of the following corporations
(as defined in the Plan):
i. TII;
ii. Comtex;
iii. IRN;
iv. PTSI;
v. ACYT;
vi. Hadron; and
vii. Reorganized Questech;
(b) All cash and cash equivalents;
(c) All accounts receivable, choses in action and any
other obligations due and owing to Infotech as of
the Effective Date; and
(d) All remaining assets of Reorganized Questech as of
the third anniversary of the Effective Date after
payment in full of the New SBA Note.
(e) The Avacus lawsuit proceeds as set forth in the
Avacus Stipulation and Order
SECTION 4. Assumption of Liabilities by AMASYS.
AMASYS hereby expressly assumes, agrees to pay, perform
and discharge, when due, only the following liabilities and
obligations of Infotech under the Plan:
- 2 -<PAGE>
(a) payments mandated under SECTION 4.01 of the Plan;
(b) payments or distribution mandated under
SECTION 5.02 of the Plan.
Notwithstanding the foregoing, nothing in this Section "4" shall
be construed to mandate any payment of distribution under
SECTION 5.02(d) of the Plan or shall otherwise be any continuing
obligation with regard to any residual liability that is
discharged upon confirmation of the Plan pursuant to SECTION 1141
of the Bankruptcy Code.
SECTION 5. Liabilities Not Assumed by AMASYS.
Infotech and Amasys hereby expressly agree that AMASYS
does not assume any liability or obligation of Infotech except as
set forth in Section "4" above.
SECTION 6. Miscellaneous.
(a) Definitions. All capitalized terms used herein
but not otherwise defined herein shall have the same
meanings ascribed to them in the Plan.
(b) Governing Law. This Agreement and the legal
relations between the parties shall be governed by and
construed in accordance with the laws of the State of
New York applicable to contracts made and to be
performed entirely within the State of New York.
(c) Amendments. This Agreement may be amended only by
agreement in writing of the parties hereto.
- 3 -<PAGE>
(d) Assignment. Neither this Agreement nor any rights
or obligations under it are assignable without the
written consent of each of the parties hereto.
(e) Entire Agreement. This Agreement constitutes the
entire agreement between the parties pertaining to the
subject matter hereof and supersedes all prior
agreements and understandings of the parties in
connection therewith.
IN WITNESS WHEREOF, the parties have duly executed and
delivered this ASSIGNMENT AND ASSUMPTION AGREEMENT on the day and
year first written above.
INFOTECHNOLOGY, INC.
By: /S/ C.W. GILLULY
Its: PRESIDENT
AMASYS CORPORATION
By: /S/ C.W. GILLULY
Its: PRESIDENT
- 4 -<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMASYS CORPORATION
Pursuant to Section 241 of the Delaware General
Corporation Law, AMASYS Corporation, a corporation organized and
existing under and by virtue of the laws of the State of
Delaware, does hereby certify:
1. The name of the Corporation is AMASYS Corporation
(the Corporation.).
2. The Certificate of Incorporation of the Corporation
was filed in the office of the Secretary of State on August 18,
1992.
3. The Corporation has not received any payment for any
of its stock.
4. This Amended and Restated Certificate of
Incorporation was duly adopted by the Sole Incorporator in
accordance with the provisions of Sections 241 and 245 of the
Delaware General Corporation Law and authorized by the Sole
Incorporator of the Corporation, by written consent executed
pursuant to Section 107 of the Delaware General Corporation Law,
dated October 11, 1996.
5. The capital of the Corporation will not be reduced
under or by reason of said Amendment.
6. The text of the Certificate of Incorporation is
hereby restated as amended and changed to read as herein set
forth in full:
1<PAGE>
FIRST:
Name. The name of the corporation is AMASYS
CORPORATION (the "Corporation").
SECOND:
Registered Office. The registered office of the
Corporation in the State of Delaware is 15 E. North Street,
Dover, Delaware 19901, and the name of its registered agent at
that address is United Corporate Services, Inc.
THIRD:
Purpose. The purpose of the Corporation is to engage
in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of
Delaware.
FOURTH:
Capital Stock.
A. Authorized. The total number of shares of all
classes of stock which the Corporation shall have authority to
issue is Twenty-One Million (21,000,000) shares, consisting of
Twenty Million (20,000,000) shares of Common Stock, par value of
one cent ($.01) per share (the "Common Stock".) and One Million
(1,000,000) shares of Preferred Stock, per value of one cent
($.01) per share (the "Preferred Stock"). The powers, preferences
and rights, and the qualifications, limitations or restrictions
thereof, in respect of the capital stock of the Corporation are
set forth below.
B. Provisions Relating to Preferred Stock. Shares of
Preferred Stock may be issued from time to time in series, and
the Board of Directors of the Corporation is hereby authorized,
subject to the limitations provided by law, to establish and
designate one or more series of the Preferred Stock, to fix the
number of shares constituting each series, and to fix the
designations, powers, preferences and relative, participating,
2
<PAGE>
optional or other special rights, and qualifications, limitations
or restrictions thereof, of each series and the variations and
the relative rights, preferences and limitations as between
series, and to increase and to decrease the number of shares
constituting each series. The authority of the Board of Directors
of the Corporation with respect to each series shall include, but
shall not be limited to, the authority to determine the
following:
(i) The designation of such series.
(ii) The number of shares initially constituting such series.
(iii) The increase, and the decrease to a number not less than
the number of the outstanding shares of such series, of the
number of shares constituting such series theretofore fixed.
(iv) The rate or rates, and the conditions upon and the times
at which dividends on the shares of such series shall be paid,
the preference or relation which such dividend shall bear to the
dividends payable on any other class or classes or on any other
series of stock of the Corporation, and whether or not such
dividends shall be cumulative, and, if such dividends shall be
cumulative, the date or dates from and after which they shall
accumulate.
(v) Whether or not the shares of such series shall be
redeemable, and, if such shares shall be redeemable, the terms
and conditions of such redemption, including, but not limited to,
the date or dates upon or after which such shares shall be
redeemable and the amount per share which shall be payable upon
such redemption, which amount may vary under different conditions
and at different redemption dates.
(vi) The rights to which the holders of the shares of such
series shall be entitled upon the voluntary or involuntary
liquidation, dissolution or winding up of, or upon any
distribution of the assets of, the Corporation, which rights may
be different in the case of a voluntary liquidation, dissolution
or winding up than in the case of such an involuntary event.
(vii) Whether or not the shares of such series shall have
3<PAGE>
voting rights, in addition to the voting rights provided by law,
and, if such shares shall have such voting rights, the terms and
conditions thereof, including, but not limited to, the right of
the holders of such shares to vote as a separate class either
alone or with the holders of shares of one or more other series
of Preferred Stock and the right to have more than one vote per
share.
(viii) Whether or not a sinking fund or a purchase fund shall be
provided for the redemption or purchase of the shares of such
series and, if such a sinking fund or purchase fund shall be
provided, the terms and conditions thereof.
(ix) Whether or not the shares of such series shall be
convertible unto, or exchangeable for, shares of any other class
or classes or any other series of the same or any other class or
classes of stock of the Corporation, and, if provision be made
for conversion or exchange, the terms and conditions of
conversion or exchange, including, but not limited to, any
provision for the adjustment of the conversion or exchange rate
or the conversion or exchange price.
(x) Any other relative rights, preferences and limitations.
C. Designation of Series A Preferred Stock. One Hundred
Ninety Six Thousand (196,000) authorized shares of the Preferred
Stock, none of which has been issued, shall be issued in and as a
series to be designated as Series A Preferred Stock and shall
have the powers, preferences, rights, qualifications and
limitations as set forth in this Part C.
1) Voting Rights. Unless otherwise required by the laws
of the State of Delaware or as otherwise provided in this
Certificate of Incorporation, the holders of the outstanding
shares of Series A Preferred Stock shall vote together with all
other classes or series of capital stock of the Corporation, as a
single class, as to any matter to which stockholders of the
Corporation are entitled to vote, with each share of Series A
Preferred Stock being entitled to one vote, except that in
4
<PAGE>
addition to any other vote which may be required by law or this
Certificate of Incorporation, the affirmative vote of the holders
of at least a majority of the outstanding shares of Series A
Preferred Stock, voting as a separate class, shall be required
for a change, amendment or repeal of any provisions of Part C of
this Article FOURTH.
2) Dividends. The holders of the Series A Preferred
Stock shall be entitled to receive, out of funds of the
Corporation legally available therefor, a preferential cumulative
cash dividend at the rate of Fifty ($.50) Cents per share per
annum, payable in quarterly installments on the last day of
March, June, September and December, in each year, commencing
1996, to stockholders of record on a date which is ten days prior
to the payment date of each particular dividend. So long as any
shares of Series A Preferred Stock are outstanding, no dividend
shall be declared or paid or other distribution made on the
Common Stock or any other class or series of the Corporation's
capital stock ranking as to dividends on a parity with or Junior
to the Series A Preferred Stock (other than dividends in shares
of Common Stock or each other Junior stock), unless the
preferential dividends on the Series A Preferred Stock through
the dividend declaration date shall have been paid in full or
declared and set aside for payment.
(3) Conversion Rights.
(a) Unless previously called for redemption as
provided in Paragraph (4) of this Part C, shares of Series A
Preferred Stock may be converted, at any time and from time to
time commencing twelve months after June 21, 1996, the effective
date of the confirmation of the Plan of Reorganization of
Infotechnology, Inc. under Chapter 11 of the Federal Bankruptcy
Law (the "Effective Date") and prior to the Corporation giving
notice of redemption as hereinafter provided, at the option of
the holder thereof, in the manner and upon the terms and
conditions hereinafter set forth in this Paragraph (3), into
5<PAGE>
fully paid and non-assessable full shares of Common Stock of the
Corporation at the rate (the "Conversion Rate") of ten (10)
shares of Common Stock for each one (1) share of Series A
Preferred Stock.
(b) In the event of a stock split, stock dividend,
reorganization, recapitalization or other event affecting the
Common Stock or the Series A Preferred Stock, the Board of
Directors of the Corporation shall make an equitable adjustment
in the Conversion Rate, if necessary, to reflect such event in
order to preserve the foregoing Conversion Rate. In case of any
capital reorganization of the Corporation, or any consolidation
or merger of the Corporation with or into another corporation, or
any sale or conveyance to another corporation of all or
substantially all of the property of the Corporation, the holder
of each share of Series A Preferred Stock then outstanding shall
have the right thereafter to convert such share into the kind and
amount of shares of stock and other securities and property
receivable upon such reorganization, consolidation, merger, sale
or conveyance by a holder of the number of shares of Common Stock
of the Corporation into which such share of Series A Preferred
Stock might have been converted immediately prior to such
reorganization, consolidation, merger, sale or conveyance, and
shall have no further conversion rights under these provisions;
and any such resulting or surviving corporation shall expressly
assume the obligation to deliver, upon the exercise of the
conversion privilege, such shares, securities or property as the
holders of the Series A Preferred Stock shall be entitled to
receive pursuant to the provisions hereof. In case securities or
property other than Common Stock shall be issuable or deliverable
upon conversion as aforesaid, then all references in this
Paragraph (3) to Common Stock shall be deemed to apply, so far as
appropriate and as nearly as may be, to such other securities or
property.
(c) In order to convert shares of Series A Preferred
Stock as provided for in this Paragraph (3), the holder thereof
6
<PAGE>
shall surrender at the principal office of the Corporation (or at
such other place as the Board of Directors shall have designated
for the purpose) the certificate or certificates for such shares
of Series A Preferred Stock properly endorsed in blank for
transfer or accompanied by a proper instrument of assignment or
transfer in blank and bearing any necessary transfer tax stamps
thereto affixed and cancelled, together with a written request
for conversion in which shall be stated the name or names in
which such holder wishes the certificate or certificates for
shares of Common Stock to be issued. Ten (10) days after
receiving the documents specified in the immediately preceding
sentence, the Corporation shall deliver at said office to such
holder of Series A Preferred Stock or to his nominee or nominees,
a certificate or certificates for the number of full shares of
Common Stock to which he shall be entitled as aforesaid, together
with a cash payment in lieu of any fraction of a share of such
Common Stock. No fraction of a share of Common Stock shall be
issued upon any conversion but, in lieu thereof, there shall be
paid upon such conversion an amount in cash equal to the same
fraction of the market price of the Common Stock at the time of
conversion. No payment or adjustment for accumulated dividends
on any shares of Common Stock that shall be issuable upon
conversion of Series A Preferred Stock shall be made. Shares of
Series A Preferred Stock shall be deemed to be converted and the
person or persons in whose name or names any certificate or
certificates representing shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become a
holder or holders of record of such shares of Common Stock at the
close of business on the date which is ten (10) days after the
certificate(s) representing shares of
Series A Preferred Stock has been duly surrendered to the
Corporation for conversion as provided in this Sub-Paragraph (c).
(d) All shares of Series A Preferred Stock which shall
have been converted as provided in this Paragraph (3) shall no
longer be deemed to be outstanding and all rights with respect to
7<PAGE>
such shares shall forthwith cease and terminate except for the
right of the holders thereof to receive full shares of Common
Stock, together with a cash payment in lieu of any fraction of a
share of such Common Stock.
(e) The Corporation shall at all times reserve and keep
available out of its authorized but unused Common Stock, solely
for the purpose of effecting the conversion of the shares of
Series A Preferred Stock, the full number of shares of Common
Stock from time to time issuable upon conversion of all shares of
Series A Preferred Stock then outstanding.
(4) Redemption.
(a) At any time (I) either (A) commencing twelve months
after the Effective Date or (B) within twelve months from the
Effective Date if all dividends that otherwise would be due and
payable on the Series A Preferred Stock pursuant to Paragraph (2)
of this Part C to the day on which the redemption is to be
effected (the "Redemption Date") have been paid in full, and (II)
assuming the Payment in full of notes in the initial principal
amounts of $300,000 and $1,200,000 issued by the Corporation to
the Pension Benefit Guaranty Corporation (the "PBGC"), the Board
of Directors may elect to redeem all, and not less than all, the
shares of Series A Preferred Stock then outstanding, at a per
share price (the "Redemption Price") equal to the greater of (X)
Ten Dollars and Fifty Cents ($10.50), together with all per share
accrued but unpaid dividends on the Series A Preferred Stock to
and including the Redemption Date, or (Y) the sum of (I) the
product of (a) the then Conversion Rate and (b) 105% of the
"market value" (as defined in the next succeeding sentences) of
the Common Stock, plus (II) all per share accrued but unpaid
dividends on the Series A Preferred Stock to and including the
Redemption Date. "Market Value" shall be the average of the high
bid prices for the Common Stock in the over-the-counter market as
reported in The Wall Street Journal (or if not so reported, as
reported by the National Quotation Bureau, Inc.) for the five
8
<PAGE>
trading days immediately preceding the day (the "Call Day") that
the redemption notice (as described below) is first sent by the
Corporation (provided that there are bids and trading on each of
such five trading days). In the event that there are no bids or
trading on any of the five trading days immediately preceding the
Call Day and the Corporation desires to call the Series A
Preferred Stock, then the Corporation shall select an independent
appraiser who is agreeable to the PBGC (which agreement shall not
be unreasonably withheld) to determine the market value of the
shares of Series A Preferred Stock subject to the redemption. The
aggregate market value of the shares of Series A Preferred Stock
being redeemed shall be reduced by an amount equal to 50% of the
cost of the appraiser.
(b) Notice of the intention of the Corporation to
redeem the Series A Preferred Stock, the Redemption Date and the
place for redemption shall be mailed by postage prepaid certified
or registered mail, return receipt requested, at least twenty
(20) and not more than thirty (30) days prior to the Redemption
Date to each holder of record of Series A Preferred Stock at his
last known address as shown by the records of the Corporation,
but no failure to mail such notice or any defect therein or in
the mailing thereof shall affect the validity of the proceedings
for such redemption except as to the holder to whom the
Corporation failed to mail such notice or whose notice was
defective.
(c) After the Call Day the holder shall not have the
right to convert his shares of Series A Preferred Stock subject
to such redemption in accordance with Paragraph (3) of this Part
(C), provided that the right of conversion shall be reinstituted
as to such shares should the Corporation rescind the redemption
or default in effecting the redemption.
(d) On and after the Redemption Date designated in the
notice of the redemption, each holder of Series A Preferred
Stock, upon surrender to the Corporation at the place designated
9<PAGE>
in such notice, of the certificate or certificates for such
shares shall be entitled to receive payment of the Redemption
Price in cash. If such notice of redemption shall have been duly
given, and if on or before the Redemption Date funds necessary
for the redemption of the shares of Series A Preferred Stock
shall have been set aside by the Corporation so as to be and
continue to be available therefor, then notwithstanding that any
certificate representing shares of Series A Preferred Stock shall
not have been surrendered, the dividends thereon shall cease to
accrue from and after the Redemption Date and all rights with
respect to such shares shall forthwith after such Redemption Date
cease, except only the right of the holder to receive the
Redemption Price without interest.
(5) Liquidation and Dissolution. In case of liquidation,
dissolution or other winding up of the Corporation, whether
voluntary or involuntary, the holders of Series A Preferred Stock
shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders the sum of Ten
Dollars ($10.00) per share, together with all accrued but unpaid
dividends thereon, with such payments to be made prior to payment
or distribution to the holders of any class of Common Stock or
any other class or series of the Corporation's capital stock
ranking junior to the Series A Preferred Stock on liquidation,
dissolution or other winding up. Such payment shall be made pari
passu to the holders of any other series of Preferred Stock
ranking on a parity (the "Parity Stock") with the Series A
Preferred Stock with respect to payment on liquidation,
dissolution or other winding up of the Corporation. The Series A
Preferred Stock shall not be entitled to any further share in the
assets of the Corporation. If the assets of the Corporation
available for distribution to its stockholders shall be
insufficient to permit payment in full to the holders of the
Series A Preferred Stock and the holders, if any, of Parity Stock
of the sums which all such holders are entitled to receive, then
all of the assets available for distribution to the stockholders
10
<PAGE>
shall be distributed among and paid to the holders of the Series
A Preferred Stock and such other holders of Parity Stock ratably
in proportion to the respective amounts that would be payable per
share if such assets were sufficient to permit payment in full.
The consolidation or merger of the Corporation with any other
corporation or corporation, shall not be deemed a liquidation,
dissolution or winding up of the affairs of the Corporation
within the meaning of this Paragraph (5).
(6) No Preemptive Rights. No holder of any shares of
Series A Preferred Stock shall have any preemptive right to
subscribe to any issue of the same or any other stock of the
Corporation.
D. Provisions Relating to Common Stock. Subject to the
preferential rights applicable to shares of the Preferred Stock,
as determined by the Board of Directors of the Corporation
pursuant to the provisions of Parts B and C of this Article
FOURTH, the Common Stock shall have the powers, preferences,
rights, qualifications and limitations as set forth in this Part
D.
(1) Voting Rights. Except as otherwise determined
by the Board of Directors of the Corporation pursuant to the
provisions of Parts B and C of this Article FOURTH the holders of
shares of the Common Stock shall be entitled to vote on all
matters at all meetings of the stockholders of the Corporation
and shall be entitled to one vote for each share of the Common
Stock entitled to vote at such meeting voting together with the
holders of the Preferred Stock who are entitled to vote and not
as a separate class.
(2) Liquidation and Dissolution. Subject to the
preferential liquidation rights and except as determined by the
Board of Directors of the Corporation pursuant to the provisions
of Parts B and C of this Article FOURTH in the event of any
voluntary or involuntary liquidation, dissolution or winding up
of or any distribution of the assets of the Corporation the
11<PAGE>
holders of shares of the Common Stock shall be entitled to
receive all of the assets of the Corporation available for
distribution to its stockholders ratably in proportion to the
number of shares of the Common Stock held by them.
FIFTH: Federal Bankruptcy Code. No nonvoting equity
securities of the Corporation shall be issued; this provision is
included in this Certificate of Incorporation in compliance with
Section 1123 of the Bankruptcy Code 11 U.S.C. 1123 and shall have
no further force and effect beyond that required by such Section
as in effect and applicable to the Corporation.
SIXTH: Directors. The total number of directors of the
Corporation shall be at least five but shall not be greater than
eleven. Subject to such limitations, the number of directors
shall be fixed in the manner provided in the By-laws of the
Corporation; provided that, until changed in the manner provided
in the By-Laws of the Corporation, the number of directors shall
be five. Nomination of candidates for election to the Board of
Directors shall be made as provided in the By-Laws of the
Corporation. Any director or the entire Board of Directors may
be removed only with cause by the holders of a majority of the
shares then entitled to vote at an election of directors.
SEVENTH: Waiver of Section 203. To the fullest extent
permitted by the Delaware General Corporation Law, the Corpora-
tion shall not be governed by the provisions of Section 203 of
the Delaware General Corporation Law, or by any successor or
similar statute.
EIGHTH: Incorporator. The name and mailing address of
the Incorporator of the Corporation is:
Karen A. Treber
AMASYS Corporation
4900 Seminary Road, Suite 800
Alexandria, Virginia 22311
12<PAGE>
NINTH: Compromise: Whenever a compromise or arrangement
is proposed between this Corporation and the creditors or any
class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application
in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or
receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section
279 of Title 8 of the Delaware Code, order a meeting of the
creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be, to
be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization
of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the
said application has been made, be binding on all the creditors
or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also
on this Corporation.
TENTH: Board of Directors and By-Laws. All corporate
powers shall be exercised by the Board of Directors, except as
otherwise provided by statute or by this Certificate of
Incorporation, or any amendment thereof, or by the By-Laws. The
By-Laws may be adopted, amended or repealed by the Board of
Directors of the Corporation, except as otherwise provided by
law, but any by-law made by the Board of Directors is subject to
amendment or repeal by the stockholders of the Corporation.
13<PAGE>
ELEVENTH: Initial Directors. The names and mailing
addresses of the individuals that shall constitute the initial
Board of Directors are as follows:
Robert F. Delaney 4900 Seminary Road
Suite 800
Alexandria, Virginia 22331
C.W. Gilluly, Ed.D. 4900 Seminary Road
Suite 800
Alexandria, Virginia 22331
Robert J. Lynch Jr. 4900 Seminary Road
Suite 800
Alexandria, Virginia 22331
Thomas E. McMahan 4900 Seminary Road
Suite 800
Alexandria, Virginia 22331
Robert A. Nigro 4900 Seminary Road
Suite 800
Alexandria, Virginia 22331
TWELFTH: Limited Liability. (a) A director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law (the
"DGCL"), or (iv) for any transaction from which the director derived any
improper personal benefit. If the DGCL is hereafter amended to authorize
corporate action further eliminating or limiting the personal liability
of directors, then the liability of a director of the Corporation shall
be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended.
(b) Any repeal or modification of the paragraph (a) of this
Article 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 modification.
14 <PAGE>
THIRTEENTH: Indemnification. The Corporation shall indemnity any
person who was or is a party or is threatened to be made a party to any
threatened, pending or complete action, suit or proceeding, whether
civil, criminal, administrative or investigative, or by or in the right
of the Corporation to procure judgment in its favor, by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), 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, in accordance with and to the full extent permitted by
statute. Expenses (including attorneys' fees) incurred in defending any
civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board
of Directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this section. However,
the Corporation shall not be required to indemnify any present or former
director or officer with respect to any occurrence that occurred prior to
March 5, 1991 if a final judgment of a court of competent jurisdiction
determines that any such director or officer is liable to the Corporation
by reason of conduct or actions determined to be acts of actual and
deliberate dishonesty with actual dishonest purpose and intent, which
acts were material to the cause so adjudicated; provided further that, in
the case of a claim by or in the right of Infotech or Questech, no
indemnification shall be made in respect to any claim, issue or matter as
to which such person shall have been adjudged to be liable for failure to
act in good faith, gross negligence, or willful misconduct in the
performance of his or her duty to Infotech or Questech unless and only to
the extent that the Court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
15 <PAGE>
but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court
shall deem proper. The indemnification provided by this Article shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under this Certificate of Incorporation
or any agreement or vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of
such a person.
IN WITNESS WHEREOF, the undersigned, being the sole
Incorporator hereinbefore named, hereby declares and certifies that the
facts herein stated are true, and accordingly has hereunto set her hand
this 11th day of October, 1996.
/S/ KAREN TREBER
_________________________
Karen A. Treber
16 <PAGE>
BYLAWS OF
AMASYS CORPORATION
(a Delaware Corporation)
ARTICLE I
Offices
Section 1.1 Principal Office. Amasys Corporation (the
"Corporation") shall have such office or offices at such place or
places of business, either within the outside the State of
Delaware, as the Board of Directors (the "Board") may designate
or as the business of the Corporation may require from time to
time.
Section 1.2 Registered Office. The registered office
of the Corporation in the State of Delaware shall be at 15 E.
North Street, Dover, Delaware 19901 and the name of the
registered agent at that address is United Corporate Services,
Inc.
ARTICLE II
Stockholders
Section 2.1 Annual Meetings. Annual meetings of the
stockholders of the Corporation for the purpose of electing
directors and for the transaction of such other proper business
as may come before such meetings may be held at such time, date
and place as the Board shall determine by resolution.
Section 2.2 Special Meetings. A special meeting of
the stockholders for the transaction of any proper business may
be called at any time by the Board or by the Chief Executive
Officer.
Section 2.3 Place of Meeting. The Board may designate
any place, either within or outside Delaware, as the place for
any annual meeting or special meeting called by the Board. A
waiver of notice signed by a majority of the stockholders
entitled to vote at a meeting may designate any place, either
within or outside Delaware, as the place for such meeting. If no
designation is made, or if a special meeting shall be called
otherwise than by the Board, the place of meeting shall be the
registered office of the Corporation in Delaware.
Section 2.4 Notice of Meeting. Written notice stating
the place, day and hour of the meeting and, in case of a special
meeting, the purpose for which the meeting is called, shall be
delivered not less than ten nor more than sixty days before the
date of the meeting, either personally or by mail, by or at the
direction of the Chief Executive Officer, the President, the
Secretary, or the officer or person calling the meeting to each
stockholder of record entitled to vote at such meeting to the
<PAGE>
stockholder's post office address last know to the Secretary;
except that, if the authorized shares are to be increased, at
least 30 days' notice shall be given. If mailed, such notice
shall be deemed to be delivered when deposited in the United
States mail, addressed to the stockholder at his or her address
as it appears on the stock transfer books of the Corporation,
with postage thereon prepaid. Except as otherwise required by
law, no publication of any notice of a meeting of the
stockholders shall be required. Notice of any meeting of
stockholders shall not be required to be given to any stockholder
who shall have waived such notice and such notice shall be deemed
waived by any stockholder who shall attend such meeting in person
or by proxy, except as a stockholder who shall attend such
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. Except as otherwise
expressly required by law, notice of any adjourned meeting of the
stockholders need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken.
Section 2.5 Adjournment. When a meeting is for any
reason adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At
the adjourned meeting, any business may be transacted which might
have been transacted at the original meeting.
Section 2.6 Nominations and Proposals
(a) The Board of Directors of the Corporation may
nominate candidates for election as directors of the Corporation
and may propose such other matters for approval of the
stockholders as the Board deems necessary or appropriate.
(b) Any stockholder entitled to vote for
directors may nominate candidates for election as directors of
the Corporation, provided, however, that so long as the
Corporation has more than one stockholder, no nominations for
director of the Corporation by any person other than the Board of
Directors shall be presented to any meeting of stockholders
unless the person making the nomination is a record stockholder
an shall have delivered a written notice to the Secretary of the
Corporation no later than the close of business sixty days in
advance of the stockholder meeting or ten days after the date on
which notice of the meeting is first given to the stockholders,
whichever is later. Such notice shall (i) set forth the name and
address of the person advancing such nomination and the nominee,
together with such information concerning the person making the
nomination and the nominee as would be required by the
appropriate Rules and Regulations of the Securities and Exchange
Commission to be included in a proxy statement soliciting proxies
for the election of such nominee, and (ii) shall include the duly
2<PAGE>
executed written consent of such nominee to serve as director if
elected.
(c) No proposal by any person other than the
Board of Directors shall be submitted for the approval of the
stockholders at any regular or special meeting of the
stockholders of the Corporation unless the person advancing such
proposal shall have delivered a written notice to the Secretary
of the Corporation no later than the close of business sixty days
in advance of the stockholder meeting or ten days after the date
on which notice of the meeting is first given tot he
stockholders, whichever is later. Such notice shall set forth
the name and address of the person advancing the proposal, any
material interest of such person in the proposal, and such other
information concerning the person making such proposal and the
proposal itself as would be required by the appropriate rules and
Regulations of the Securities and Exchange Commission to be
included in a proxy statement soliciting proxies for the
proposal.
Section 2.7 Organization. The Chief Executive Officer
or, in his absence, the President or any Vice President, shall
call meeting of stockholders to order and act as the chair of
such meetings. In the absence of said officers, any stockholder
entitled to vote at that meeting, or any proxy of any such
stockholder, may call the meeting to order and chair shall be
elected by a majority of the stockholders entitled to vote at the
meeting. In the absence of the Secretary or any assistant
Secretary of the Corporation, any person appointed by the chair
shall act of Secretary of the meeting.
Section 2.8 Agenda and Procedure. The Board of
Directors shall have the responsibility for establishing an
agenda for each meeting of stockholders, subject to the rights of
stockholders to raise matters for consideration which may
otherwise properly be brought before the meeting although not
included within the agenda. If there is any difference in
opinion with respect to the proper course of action regarding
conduct of any meeting which cannot be resolved by reference to
statute, or to the Certificate of Incorporation, or these Bylaws,
Robert's Rules of Order (as last revised) shall govern the
disposition of the matter.
Section 2.9 Voting Records. The officer or agent
having charge of the stock transfer books for shares of the
Corporation shall make, at least ten days before each meeting of
stockholders, a complete record of the stockholders entitled to
vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares
held by each. For a period of ten days prior to such meeting,
this record shall be kept on file at the principal office of the
Corporation, whether within or outside Delaware, and shall be
3<PAGE>
subject to inspection by any stockholder for any purpose germane
to the meeting at any time during usual business hours. Such
record shall also be produced and kept open at the time and place
of the meeting during the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to
who are the stockholders entitled to examine such record or
transfer books or to vote at any meeting of stockholders. Any
officer or agent having charge of the stock transfer books who
fails to prepare the record of stockholders, or to keep it on
file for a period of ten days before the meeting or to produce
and keep it open for inspection at the meeting as provided in
this section, is liable to any stockholder suffering damage due
to the failure to the extent of the damage.
Section 2.10 Quorum. Unless otherwise provided by the
Certificate of Incorporation, a majority of the outstanding
shares of the Corporation entitled to vote, represented in person
or by proxy, shall constitute a quorum at a meeting of
stockholders. If fewer than a majority of the outstanding shares
are represented at a meeting, a majority of the shares so
represented may adjourn the meeting without further notice for a
period not to exceed sixty days at any one adjournment. 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 notified. The
stockholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the
withdrawal of stockholders so that less than a quorum remains.
If a quorum is present, the affirmative vote of a
majority of the shares represented at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders,
notwithstanding that an applicable statute requires a vote of
two-thirds of the shares entitled to vote to take action.
Section 2.11 Proxies. At all meetings of
stockholders, a stockholder may vote by proxy executed in writing
by the stockholder or his or her duly authorized attorney-in-
fact. Such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. No proxy shall
be valid after eleven months from the date of its execution
unless otherwise provided in the proxy.
Section 2.12 Voting of Shares. Each outstanding
share, regardless of class, shall be entitled to one vote, and
each fractional share shall be entitled to a corresponding
fractional vote on each matter submitted to a vote at a meeting
of stockholders, except as may be otherwise provided in the
Certificate of Incorporation. If the Certificate of
Incorporation provides for more or less than one vote for any
share on any matter, every reference in the Delaware General
Corporation Law to a majority or other proportion or number of
4<PAGE>
shares shall refer to such a majority or other proportion or
number of votes entitled to be cast with respect to such matter.
At a stockholders' meeting involving the election of
directors, each stockholder shall be entitled to cast for any one
candidate no greater number of votes than the number of shares
held by such stockholder; stockholders shall not be entitled to
cumulate votes on behalf of any candidate.
Section 2.13 Voting of Shares by Certain Holders.
a. Neither treasury shares, nor shares held by another
corporation, if a majority of the shares entitled to vote for the
election of directors of such other corporation is held by this
Corporation, shall be voted at any meeting or counted in
determining the total number of outstanding shares at any given
time.
Shares standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent or proxy
as the By laws of such corporation may prescribe or, in the
absence of such provision, as the Board of Directors of such
corporation may determine.
Shares held by an administrator, executor, guardian or
conservator may be voted by him or her, either in person or by
proxy, without a transfer of such shares into his or her name.
Shares standing in the name of a trustee may be voted by him or
her, either in person or by proxy, but not trustee shall be
entitled to vote shares held by him or her without a transfer of
such shares into his or her name.
Shares standing in the name of a receiver may be voted
by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer
thereof into his or her name if authority to do so is contained
in an appropriate order of the court by which such receiver was
appointed.
A stockholder whose shares are pledged shall be
entitled to vote such shares until the shares have been
transferred into the name of the pledgee and thereafter the
pledgee shall be entitled to vote the shares so transferred.
b. If shares or other securities having voting power
stand of record in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in
common, tenants by the entirety, or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same
shares, voting with respect to the shares shall have the
following effect:
5<PAGE>
(i) If only one person votes, his or her act binds all
such shares;
(ii) If two or more persons vote, but the vote is
evenly split on any particular matter, each faction may vote the
securities in question proportionately, or any person voting the
shares of a beneficiary, if any, may apply to any court of
competent jurisdiction in the State of Delaware to appoint an
additional person to act with the persons so voting the shares.
The shares shall then be voted as determined by a majority of
such persons and the person appointed by the court. If a tenancy
is held in unequal interests, a majority or even split for the
purpose of this subsection (iii) shall be a majority or even
split in interest.
The effects of voting stated in this subsection 2.12 b.
shall not be applicable if the Secretary of the Corporation is
given written notice of alternate voting provisions and is
furnished with a copy of the instrument or order wherein the
alternate voting provisions are stated.
Section 2.14 Judges. If at any meeting of the
stockholders a vote by written ballot shall be taken on any
question, the chair of such meeting may appoint a judge or judges
to act with respect to such vote. Each judge so appointed shall
first subscribe an oath faithfully to execute the duties of a
judge at such meeting with strict impartiality and according to
the best of that person's ability. Such judges shall decide upon
the qualification of the voters and shall report the number of
shares represented at the meeting and entitled to vote on such
question, shall conduct and accept the votes, and, when the
voting is completed, shall ascertain and report the number of
shares voted respectively for and against the question. Reports
of judges shall be in writing and subscribed and delivered by
them to the Secretary of the Corporation. The judges need not be
stockholders of the Corporation, and any officer of the
Corporation may be a judge on any question other than a vote for
or against a proposal in which such officer shall have a material
interest.
Section 2.15 Informal Action by Stockholders. Any
action required or allowed to be taken at a meeting of the
stockholders may be taken without a meeting, without prior notice
and without a vote, provided that a consent or consents in
writing, setting forth the action so taken, shall be signed by
the holder or 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 on such action that is the
subject of the consent and shall be delivered to the corporation
by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the
6<PAGE>
corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Such consent shall have
the same force and effect as a vote of the stockholders, and may
be stated as such in any certificate or document filed with the
Secretary of State of Delaware under the Delaware General
Corporation Law.
Section 2.16 Meetings by Telephone. Stockholders may
participate in a meeting of stockholders by means of conference
telephone or similar communications equipment by which all
persons participating in the meeting can hear each other at the
same time. Such participation shall constitute presence in
person at such meeting.
ARTICLE III
Board of Directors
Section 3.1 General Powers. The business and affairs
of the Corporation shall be managed by its Board of Directors,
except as otherwise provided in the Delaware General Corporation
Law or the Certificate of Incorporation.
Section 3.2 Performance of Duties. A director of the
Corporation shall perform his or her duties as a director,
including his or her duties as a member of any committee of the
Board upon which he or she may serve, in good faith, in a manner
he or she reasonably believes to be in the best interests of the
Corporation, and with such care as an ordinarily prudent person
in a like position would use under similar circumstances. In
performing his or her duties, a director shall be entitled to
rely on information, opinions, reports, or statements, including
financial statements and other financial data, in each case
prepared or presented by persons and groups listed in subsections
a., b. and c. of this Section 3.2; but he or she shall not be
considered to be acting in good faith if he or she has knowledge
concerning the matter in question that would cause such reliance
to be unwarranted. A person who so performs his or her duties
shall not have any liability by reason of being or having been a
director of the Corporation. Those persons and groups upon whose
information, opinions, reports, and statements a director is
entitled to rely are:
a. One or more officers or employees of the
Corporation whom the director reasonable believes to be reliable
and competent in the matters presented;
b. Counsel, public accountants, or other persons as to
matters which the director reasonable believes to be reliable and
competent in the matters presented;
c. A committee of the Board upon which he or she does
7<PAGE>
not serve, duly designated in accordance with the provisions of
the Certificate of Incorporation or the Bylaws, as to matters
within its designated authority, which committee the director
reasonably believes to merit confidence.
Section 3.3 Number, Tenure and Qualifications.
Subject to the applicable provisions of the Certificate of
Incorporation, the number of directors of the Corporation shall
be such number as the Board may determine from time to time. The
directors may be elected by written ballot if the Board so
determines, and shall be elected at each annual meeting of
stockholders. Directors need not be stockholders. The persons
receiving the greatest number of votes, up to the number of
directors to be elected, shall be the directors. Each director
shall hold office until then next annual meeting of stockholders
and thereafter until his or her successor shall have been elected
and qualified.
Section 3.4 Resignation. Any director of the
Corporation may resign at any time by giving written notice of
his or her resignation to the Board of Directors, the Chief
Executive Officer, the President, any Vice President or the
Secretary of the Corporation. Such resignation shall take effect
at the date of receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
Section 3.5 Removal. Except as otherwise provided in
the Certificate of Incorporation or in these Bylaws, any director
may be removed, either with or without cause, at any time, by the
affirmative vote of the holders of a majority of the issued and
outstanding shares of stock entitled to vote for the election of
directors of the Corporation given at a special meeting of the
stockholders called and held for such purpose.
Section 3.6 Vacancies. Except as otherwise provided
in the Certificate of Incorporation, any vacancy in the Board,
whether because of death, resignation, disqualification, an
increase in the number of directors, or any other cause, may be
filled by vote of the majority of the remaining directors,
although less than a quorum. Each director so chosen to fill a
vacancy shall hold office until his successor shall have been
elected and shall qualify or until he shall resign or shall have
been removed in the manner hereinafter provided.
Section 3.7 First and Subsequent Regular Meetings. A
first meeting of the Board shall be held immediately after and at
the same place as the annual meeting of stockholders. The Board
may provide by resolution the time and place, either within or
outside the State of Delaware, for the holding of additional
regular meetings without notice other than such resolution. The
8<PAGE>
Board may hold any of its meetings at such place or places within
or without the State of Delaware as the Board may from time to
time by resolution designate, or as shall be designated by the
person or persons calling the meeting or in the notice or a
waiver of notice of any such meeting. If any day fixed for a
regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting shall be held at the same
hour and place on the next succeeding business day not a legal
holiday. Except as provided by law, notice of regular meetings
need not be given.
Section 3.8 Special Meeting. Special meetings of the
Board may be called by or at the request of the Chief Executive
Officer or a majority of the directors. The person or persons
authorized to call Special Meetings of the Board may fix any
place, either within or outside the State of Delaware, as the
place for holding any special meeting of the Board called by
them.
Section 3.9 Notice. If there is more than one
director of the Corporation, written notice of any Special
Meeting shall be given at least five days in advance thereof
delivered personally, by telecopy or mailed to each director at
his or her business address. Such notice shall be deemed to be
delivered when deposited in the United States mail so addressed,
with postage thereon prepaid. Any director may waive notice of
any meeting. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting
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 meeting of the
Board need be specified in the notice or waiver of notice of such
meeting.
Section 3.10 Quorum. A majority of the number of
directors elected and qualified at the time f the meeting shall
constitute a quorum for the transaction of business at any such
meeting of the Board of Directors, but if less than such majority
is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
Section 3.11 Manner of Acting. If a quorum is
present, the affirmative vote of a majority of the directors
present at the meeting and entitled to vote on that particular
matter shall be the act of the Board, unless the vote of a
greater number is required by law or the Certificate of
Incorporation.
9<PAGE>
Section 3.12 Compensation. By resolution of the Board
of Directors, any director may be paid any one or more of the
following: (i) any expenses incurred because of attendance at
meetings of the Board or committees thereof; (ii) a fixed sum for
attendance at such meetings; and (iii) a fixed compensation as
director. Neither the payment of such compensation nor the
reimbursement of such expenses shall be construed to preclude any
director from serving the Corporation or its subsidiaries in any
other capacity and receiving compensation therefor.
Section 3.13 Presumption of Assent. A director of the
Corporation who is present at a meeting of the Board of Directors
at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his or her
dissent is entered in the minutes of the meeting or unless he or
she files his or her written dissent to such action with the
person acting as the Secretary of the Meeting before the
adjournment thereof or delivers such dissent to the Secretary of
the Corporation in person, by mail or by telecopy immediately
after the adjournment of the meeting or within a reasonable time
after receipt of the minutes of such meeting at which the action
was taken. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 3.14 Executive and other Committees. The
Board, by resolution adopted by a majority of the number of
directors elected and qualified at the time of the resolution,
may designate two or more directors to constitute an executive
committee, which shall have and may exercise all of the authority
of the Board of Directors or such lesser authority as may be set
forth in said resolution. No such delegation of authority shall
operate to relieve the Board of Directors or any member of the
Board from any responsibility imposed by law. The Board may
also, by resolution adopted by a majority of the number of
directors elected and qualified at the time of the resolution,
designate such other committees as it deems appropriate, having
such powers as are specified in the resolution and as are
consistent with the Delaware General Corporation Law.
Section 3.15 Informal Action by Directors. Any action
required or permitted to be taken at a meeting of the directors,
executive committee or other committee of the directors may be
taken without a meeting if a consent in writing, setting forth
the action so taken, shall be signed by all of the directors
entitled to vote with respect to the subject matter thereof.
Such consent shall have the same force and effect as a unanimous
vote of the directors, and may be stated as such in any
certificate or document, filed with the Secretary of State of
Delaware under the Delaware General Corporation Law.
10<PAGE>
Section 3.16 Meetings by Telephone. Members of the
Board or any committee of the directors may participate in a
meeting of the Board or committee by means of conference
telephone or similar communications equipment by which all
persons participating in the meeting can hear each other at the
same time. Such participation shall constitute presence in
person at the meeting.
ARTICLE IV
Officers and Agents
Section 4.1 General. The officers of the Corporation
shall be the Chief Executive Officer, the President, one or more
Vice Presidents, a Secretary and a Treasurer. The Board may
appoint such other officers, assistant officers, committees and
agents, including a Chairman of the Board and Assistant
Secretaries, as it may consider necessary or advisable, who shall
be chosen in such manner and hold their officers for such terms
and have such authority and duties as from time to time may be
determined by the Board. The salaries of all the officers of the
Corporation shall be fixed by the Board. One person may hold any
two offices, except that no person may simultaneously hold the
offices of Chief Executive Officer and Secretary. In all cases
where the duties of any officer, agent or employee are not
prescribed by the Bylaws or by the Board, such officer, agent or
employee shall follow the orders and instructions of either (a)
the Chief Executive Officer, or if a Chairman of the Board has
been elected, then (b) the Chairman of the Board.
Section 4.2 Election and Term of Office. The officers
of the Corporation shall be elected by the Board of Directors
annually at the first meeting of the Board held after each annual
meeting of the stockholders. If the election of officers shall
not be held at such meeting, election of officers shall occur by
unanimous written consent of the Board which shall be effected as
soon thereafter as may be convenient. Each officer shall hold
office until the first of the following occurs: (1) until his or
her successor shall have been duly elected and shall have
qualified; (2) until his or her death; (3) until he or she shall
resign; or (4) until he or she shall have been removed in the
manner hereinafter provided.
Section 4.3 Removal. Any officer or agent may be
removed by the Board or by the executive committee, if any,
whenever in its judgment the best interests of the Corporation
will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall
not of itself create contract rights.
11<PAGE>
Section 4.4 Resignation. Any officer or assistant may
resign at any time by giving written notice of such resignation
to the Board or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or,
if the time be not specified, upon receipt thereof by the Board
or the Secretary, as the case may be; and, unless otherwise
specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 4.5 Vacancies. A vacancy in any office,
however occurring, may be filed by the Board for the unexpired
portion of the term.
Section 4.6 Chief Executive Officer. The Chief
Executive Officer shall, subject to the direction and supervision
of the Board, be the chief executive officer of the Corporation
and shall have general and active control of its affairs and
business and general supervision of its officers, agents and
employees. The Chief Executive Officer shall, unless otherwise
directed by the Board, attend in person or by substitute
appointed by him or her, or shall execute, on behalf of the
Corporation, written instruments appointing a proxy or proxies to
represent the Corporation, all meetings of the stockholders of
any other Corporation in which the Corporation shall hold any
stock. The Chief Executive Officer may, on behalf of the
Corporation, in person or by substitute or by proxy, execute
written waivers of notice and consents with respect to any such
meetings. At all such meetings and otherwise, the Chief
Executive Officer, in person or by substitute or proxy as
aforesaid, may vote the stock so held by the Corporation and may
execute written consents and other instruments with respect to
such stock and may exercise any and all rights and powers
incident to the ownership of said stock, subject however to the
instructions, if any, of the Board.
Section 4.7 President and Vice Presidents. The
President and Vice Presidents shall assist the Chief Executive
Officer and shall perform such duties as may be assigned to them
by the Chief Executive Officer or by the Board. In the absence of
the Chief Executive Officer, the President, or in his absence,
the Vice President designated by the Board or (if there be no
such designation the Vice President designated in writing by the
Chief Executive Officer) shall have the powers and perform the
duties of the Chief Executive Officer. If no such designation
shall be made, all Vice Presidents may exercise such powers and
perform such duties. The Board of Directors may also appoint as
vice presidents persons who shall not be officers of the
Corporation.
12<PAGE>
Section 4.8 Secretary. The Secretary shall
perform the following:
a. Keep the minutes of the proceedings of the
stockholders, executive committee and the Board of Directors;
b. See that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law;
c. Be custodian of the corporate records and of the
seal of the Corporation and affix the seal to all documents when
authorized by the Board of Directors;
d. Keep, at the Corporation's registered office or
principal place of business within or outside Delaware, a record
containing the names and addresses of all stockholders and the
number and class of shares held by each, unless such a record
shall be kept at the office of the Corporation's transfer agent
or registrar;
e. Sign with the Chief Executive Officer, the
President, or a Vice President, certificates for shares of the
Corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors;
f. Have general charge of the stock transfer books of
the Corporation, unless the Corporation has a transfer agent; and
g. In general, perform all duties incident to the
office of Secretary and such other duties as from time to time
may be assigned to him or her by the Chief Executive Officer or
by the Board. Assistant Secretaries, if any, shall have the same
duties and powers, subject to supervision by the Secretary.
Section 4.9 Treasurer. The Treasurer shall be the
principal financial officer of the Corporation and shall have the
care and custody of all funds, securities, evidences of
indebtedness and other personal property of the corporation and
shall deposit the same in accordance with the instructions of the
Board of Directors. The Treasurer shall receive and give
receipts for monies paid in on account of the Corporation, and
shall pay out of the funds on hand all bills, payrolls and other
just debts of the Corporation of whatever nature upon maturity.
The Treasurer shall perform all other duties incident to the
office of the Treasurer and, upon request of the Board, shall
make such reports to it as may be required at any time. The
Treasurer shall have such other powers and perform such other
duties as may be from time to time prescribed by the Board of
Directors or the Chief Executive Officer. The Assistant
Treasurers, if any, shall have the same powers and duties,
subject to the supervision of the Treasurer.
13<PAGE>
The Treasurer shall also be the principal accounting
officer of the Corporation. The Treasurer shall prescribe and
maintain the methods and systems of accounting to be followed,
keep complete books and records of account, prepare and file all
local, state and federal tax returns, prescribe and maintain an
adequate system of internal audits, and prepare and furnish to
the Chief Executive Officer and the Board of Directors statements
of account showing the financial position of the Corporation and
the results of its operations.
Section 4.10 Salaries. Officers of the Corporation
shall be entitled to such salaries, compensation or reimbursement
as shall be fixed or allowed from time to time by the Board of
Directors.
ARTICLE V
Stock
Section 5.1 Certificates. The shares of stock shall
be represented by consecutively numbered certificates signed in
the name of the Corporation by its Chairman or Vice Chairman of
the Board which for the purpose of this Section 5.1 only shall be
considered officers, or by its Chief Executive Officers, the
President or a Vice President and by the Secretary or an
Assistant Secretary, and shall be sealed with the seal of the
Corporation, or with a facsimile thereof. The signatures of the
Corporation's officers on such certificate may also be facsimiles
if the certificate is countersigned by a transfer agent or
registered by a registrar other than the Corporation itself or an
employee of the Corporation. In case any officer who has signed
or whose facsimile signature has been placed upon such
certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with
the same effect as if he or she were such officer at the date of
its issue.
Each certificate representing shares shall state the
following upon the face thereof: the name of the state of the
Corporation's organization; the name of the person to whom
issued; the number and class of shares and the designation of the
series, if any, which such certificate represents; the par values
of each share represented by such certificate or a statement that
the shares are without par value. Certificates of stock shall be
in such a form as consistent with law, as shall be prescribed by
the Board. No certificate shall be issued until the shares
represented thereby are fully paid.
Section 5.2 Record. A record shall be kept of the
name of each person or other entity holding the stock represented
by each certificate for shares of the Corporation issued, the
number of shares represented by each such certificate, the date
thereof and, in the case of cancellation, the date of
14<PAGE>
cancellation. The person or other entity in whose name shares of
stock stand on the books of the Corporation shall be deemed the
owner thereof, and thus a holder of record of such shares of
stock, for all purposes as regards the Corporation.
Section 5.3 Fixing Date for Determination of
Stockholders of Record. 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 other change, conversion or
exchange of stock or for the purpose of any other lawful action,
the Board may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. If,
in any case involving the determination of stockholders for any
purpose other than notice of or voting at a meeting of
stockholders or expressing consent to corporate action without a
meeting, the Board shall not fix such a record date, the record
date for determining stockholders for such purpose shall be the
close of business on the day on which the Board shall adopt the
resolution relating thereto. A determination of stockholders
entitled to notice of or to vote at a meeting of stockholders
shall apply to any adjournment of such meeting; provided,
however, that the Board may fix a new record date for the
adjourned meeting.
Section 5.4 Consideration for Shares. Shares shall be
issued for such consideration, expressed in dollars (but not less
than the par value thereof) as shall be fixed from time to time
by the Board. That part of the surplus of the Corporation which
is transferred to stated capital upon the issuance of shares as a
share dividend shall be deemed the consideration for the issuance
of such dividend shares. Such consideration may consist, in
whole or in part, of money, other property, tangible or
intangible, or of labor or services actually performed for the
Corporation, but neither promissory notes nor future services
shall constitute payment or part payment for shares.
Section 5.5 Cancellation of Certificates. All
certificates surrendered to the Corporation for transfer shall be
cancelled and no new certificates shall be issued in lieu thereof
until the former certificate for a like number of shares shall
have been surrendered and cancelled, except as herein provided
with respect to lost, stolen or destroyed certificates.
Section 5.6 Lost Certificates. In case of the alleged
loss, destruction or mutilation of a certificate of stock, the
Board of Directors may direct the issuance of a new certificate
in lieu thereof upon such terms and conditions in conformity with
15<PAGE>
law as it may prescribe. The Board may in its discretion require
a bond in such form and amount and with such surety as it may
determine, before issuing a new certificate.
Section 5.7 Transfer of Shares. Transfers of shares
of stock of the Corporation shall be made only on the books of
the Corporation by the registered holder thereof, or by such
holder's attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary, or with a transfer agent
if one has been appointed, and upon surrender of the certificate
or certificates for such shares properly endorsed and the payment
of all taxes thereon. Upon surrender to the Corporation or to a
transfer agent of the Corporation of a certificate of stock duly
endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, and such documentary stamps
as may be required by law, it shall be the duty of the
Corporation to issue a new certificate to the person entitled
thereto, and cancel the old certificate. Every such transfer of
stock shall be entered on the stock book of the Corporation which
shall be kept at its principal office or by its registrar duly
appointed.
The Corporation shall be entitled to treat the holder
of record of any share of stock as the holder in fact thereof,
and accordingly shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any
other person whether or not it shall have express or other notice
thereof, except as may be required by the laws of Delaware.
Section 5.8 Regulations. The Board may make such
rules and regulations as it may deem expedient, not inconsistent
with these Bylaws, concerning the issue, transfer and
registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any officer or
officers to appoint, one or more transfer agents and one or more
registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
ARTICLE VI
Executive of Instruments; Loans; Checks and Endorsements;
Deposits; Proxies
Section 6.1 Execution of Instruments. The Chief
Executive Officer shall have the power to execute and deliver on
behalf of and in the name of the Corporation any instrument
requiring the signature of an officer of the Corporation, except
as otherwise provided in these Bylaws or where the execution and
delivery thereof shall be expressly delegated by the Board to
some other officer or agent of the Corporation. Unless
authorized to do so by the Bylaws or by the Board, no officer,
agent or employee shall have any power or authority to bind the
16<PAGE>
Corporation in any way, to pledge its credit or to render it
liable pecuniarily for any purpose or in any amount.
Section 6.2 Loans. The Corporation may lend money to,
guarantee the obligation of and otherwise assist directors,
officers and employees of the Corporation, or director of another
Corporation of which the Corporation owns a majority of the
voting stock, only upon compliance with the requirements of the
Delaware General Corporation Law.
No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in
its name unless authorized by a resolution of the Board and in
accord with the Certificate of Incorporation. Such authority may
be general or confined to specific instances.
Section 6.3 Checks and Endorsements. All checks,
drafts or other orders for the payment of money, obligations,
notes or other evidences of indebtedness, bills of lading,
warehouse receipts, trade acceptances and other such instruments
shall be signed or endorsed by such officers or agents of the
Corporation as shall from time to time be determined by
resolution of the Board, which resolution may provide for the use
of facsimile signatures.
Section 6.4 Deposits. All funds of the Corporation
not otherwise employed shall be deposited from time to time to
the Corporation's credit in such banks or other depositories as
shall from time to time be determined by resolution of the Board,
which resolution may specify the officers or agents of the
Corporation who shall have the power, and the manner in which
such power shall be exercised, to make such deposits and to
endorse, assign and deliver for collection and deposit checks,
drafts and other orders for the payment of money payable to the
Corporation or its order.
Section 6.5 Proxies. Unless otherwise provided by
resolution adopted by the Board, the Chief Executive Officer, the
President, or any Vice Presidents may from time to time appoint
one or more agents or attorneys-in-fact of the Corporation, in
the name and on behalf of the Corporation, to cast the votes that
the Corporation may be entitled to cast as the holder of stock or
other securities in any other Corporation, association or other
entity any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other
securities of such other Corporation, association or other entity
or to consent in writing, in the name of the Corporation as such
holder, to any action by such other Corporation, association or
other entity, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent,
and may execute or cause to be executed in the name and on behalf
of the Corporation and under its corporate seal, or otherwise,
17<PAGE>
all such written proxies or other instruments as he or she may
deem necessary or proper.
Section 6.6 General and Special Bank Accounts. The
Board may from time to time authorize the opening and keeping of
general and special bank accounts with such banks, trust
companies or other depositories as the Board may select or as may
be selected by any officer or officers, assistant or assistants,
agent or agents, or attorney or attorneys of the Corporation to
whom such power shall have been delegated by the Board. The
Board may make such special rules and regulations with respect to
such bank accounts, not inconsistent with the provision of these
Bylaws, as it may deem expedient.
ARTICLE VII
Indemnification
Section 7.1 Action, Etc. Other Than by or in the Right
of the Corporation. 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 or
investigation, whether civil, criminal or administrative, and
whether external or internal to the Corporation (other than a
judicial action or suit brought by or in the right of the
Corporation), by reason of the fact that he or she is or was a
director, officer, employee or trustee of the Corporation, or
that, being or having been such a director, officer, employee or
trustee, he or she is or was serving at the request of the
Corporation as a director, officer, employee, trustee or agent of
another corporation, partnership, joint venture, trust or other
enterprise (all such persons being referred to hereafter as
"Agent"), against expenses (including attorneys' fees) judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or
proceeding, or any appeal therein, if such person acted in good
faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation, and with
respect to any criminal action or proceeding, had no reasonable
cause to believe such conduct was unlawful. The termination of
any action, suit or proceeding -- whether 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 in which he or
she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal
action or proceeding, that such person had reasonable cause to
believe that his or her conduct was unlawful.
Section 7.2 Action, Etc., by or in the Right of the
Corporation. 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 judicial action or suit brought
18<PAGE>
by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he or she is or was an Agent
(as defined above) against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the
defense, settlement or appeal of such action or suit if he acted
in good faith and in a manner he reasonable 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 for gross negligence or willful misconduct in the
performance of his or her duty 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
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses that the Court of
Chancery or other such court shall deem proper.
Section 7.3 Determination of Right of Indemnification.
Any indemnification under Section 7.1 or 7.2 (unless ordered by a
court), shall be made by the Corporation unless a determination
is reasonably and promptly made (i) by the Board by a majority
vote of a quorum consisting of directors who were not parties to
such action, suit, or proceeding, or (ii) if such a quorum is not
obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders, that such person acted in
bad faith and in a manner that such person did not believe to be
in or not opposed to the best interests of the Corporation, or,
with respect to any criminal proceeding, that such person
believed or had reasonable cause to believe that his conduct was
unlawful.
Section 7.4 Indemnification Against Expenses of
Successful Party. Notwithstanding the other provisions of this
Article, to the extent that an Agent has been successful on the
merits or otherwise, including, without limitation, the dismissal
of an action without prejudice or the settlement of an action
without admission of liability, in defense of any proceeding or
in defense of any claim, issue or matter therein, or on appeal
from any such proceeding, action, claim or matter, such Agent
shall be indemnified against all expenses incurred in connection
therewith.
Section 7.5 Advances of Expenses. Except as limited
by Section 7.6 of this Article, costs, charges and expenses
(including attorneys' fees) incurred in any action, suit,
proceeding or investigation or any appeal therefrom shall be paid
by the Corporation in advance of the final disposition of such
matter, if the Agent shall undertake to repay such amount in the
event that it is ultimately determined, as provided herein, that
such person is not entitled to indemnification. Notwithstanding
19<PAGE>
the foregoing, no advance shall be made by the Corporation if a
determination is reasonably and promptly made by the Board of
Directors by a majority vote of a quorum of disinterested
directors, or (if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs) by
independent legal counsel in a written opinion, that, based upon
the facts known to the Board or counsel at the time such
determination is made, such person acted in bad faith and in a
manner that such person did not believe to be in or not opposed
to the best interest of the Corporation, or, with respect to any
criminal proceeding, that such person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Board or independent legal
counsel reasonably determines that such person deliberately
breached his or her duty to the Corporation or its stockholders.
Section 7.6 Right of Agent to Indemnification Upon
Application; Procedure Upon Application. Any indemnification
under Section 7.1, 7.2 and 7.4, or advance under Section 7.5 of
this Article, shall be made promptly, and in any event within
ninety days, upon the written request of the Agent, unless with
respect to applications under Section 7.1, 7.2, or 7.5, a
determination is reasonable and promptly made by the Board of
Directors by a majority vote of a quorum of disinterested
directors that such Agent acted in a manner set forth in such
Sections as to justify the Corporation's not indemnifying or
making an advance to the Agent. In the event no quorum of
disinterested directors is obtainable, the Board of Directors
shall promptly direct that independent legal counsel shall decide
whether the Agent acted in the manner set forth in such Sections
as to justify the Corporation's not indemnifying or making an
advance to the Agent. The right to indemnification or advances
as granted by this Article shall be enforceable by the Agent in
any court of competent jurisdiction, if the Board or independent
legal counsel denies the claim, in whole or in part, or if no
disposition of such claim is made within ninety days. The
Agent's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in
whole or in part, in any proceeding shall be indemnified by the
Corporation.
Section 7.7 Other Rights and Remedies. The
indemnification provided by this Article shall not be deemed
exclusive of, and shall not affect, any other rights to which an
Agent seeking indemnification may be entitled under any law,
bylaw, or charter provision, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or
her official capacity and as to action in another capacity while
holder such office, and shall continue as to a person who has
ceased to be an Agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. All rights
to indemnification under this Article shall be deemed to be
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provided by a contract between the Corporation and the Agent who
serves in such capacity at any time while these Bylaws and other
relevant provisions of the Delaware General Corporation Law and
other applicable law, if any, are in effect. Any repeal or
modification thereof shall not affect any rights or obligations
then existing.
Section 7.8 Insurance. Upon resolution passed by the
Board, the Corporation may purchase and maintain insurance on
behalf of any person who is or was an Agent against any liability
asserted against such person and incurred by him or her in any
such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this
Article. The Corporation may create a trust fund, grant a
security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such
sums as may become necessary to effect indemnification as
provided herein.
Section 7.9 Constituent Corporations. For the
purposes of this Article, references to "the Corporation" include
all constituent corporations absorbed in a consolidation or
merger as well as the resulting or surviving corporation, so that
any person who is or was a director, officer, employee or trustee
of such a constituent corporation or who, being or having been
such a director, officer, employee, trustee, is or was serving at
the request of such constituent corporation as a director,
officer, employee, or trustee of another corporation,
partnership, joint venture, trust or other enterprise shall stand
in the same position under the provisions of this Article with
respect to the resulting or surviving corporation as such person
would if he or she had served the resulting or surviving
corporation in the same capacity.
Section 7.10 Other Enterprises, Fines and Serving at
Corporation's Request. For purposes of this Article, references
to "other enterprise" in Sections 7.1 and 7.9 shall include
employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the
Corporation: shall include any service by Agent as director,
officer, employee, trustee or agent of the Corporation which
imposes duties on, or involves services by, such Agent with
respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a
manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best
interest of the Corporation" as referred to in this Article.
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Section 7.11 Savings Clause. If this Article or any
portion thereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Agent as to expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit, appeal, proceeding or
investigation, whether civil, criminal or administrative, or
whether internal or external, including a grand jury proceeding
and an action or suit brought by or in the right of the
Corporation, to the full extent permitted by any applicable
portion of this Article that shall not have been invalidated, or
by any other applicable law.
ARTICLE VIII
Miscellaneous
Section 8.1 Waivers of Notice. Whenever notice is
required by the Delaware General Corporation Law, by the
Certificate of Incorporation or by these Bylaws, a waiver thereof
in writing signed by the director, stockholder or other person
entitled to said notice, whether before, at or after the time
stated therein, or his or her appearance at such meeting in
person or (in the case of a stockholders' meeting) by proxy,
shall be equivalent to such notice.
Section 8.2 Seal. The corporate seal of the
Corporation shall be circular in form and shall contain the name
of the Corporation, the year of its organization and the words
"Seal, Delaware."
Section 8.3 Fiscal Year. The fiscal year of the
Corporation shall be a established by the Board of Directors.
Section 8.4 Amendments. These Bylaws, or any of them,
may be altered, amended or repealed, and new Bylaws may be made,
(i) by the Board, by vote of a majority of the number of
directors then in office as directors, acting at any meeting of
the Board, or (ii) by the stockholders, at any annual meeting of
stockholders, without previous notice, or at any special meeting
f stockholders, provided that notice of such proposed amendment,
modification, repeal or adoption is given in the notice of
special meeting. Any Bylaws made or altered by the stockholders
may be altered or repealed by either the Board or the
stockholders.
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