SCHEDULE 14A
Information Required in Proxy Statement
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant [ X ]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ X ] Preliminary Proxy Statement [ ] Confidential, for Use of the
[ ] Definitive Proxy Statement Commission Only (as permitted
[ ] Definitive Additional Materials By Rule 14A-6(e)(2))
[ ] Soliciting Material Pursuant
[ ] to Rule 14a-11(c) or Rule 14a-12
WHX Corporation
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(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[ X ] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(I)(4) AND 0-11.
A. Title of each class of securities to which transaction applied:
B. Aggregate number of securities to which transaction applies:
C. Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
D. Proposed maximum aggregate value of transaction:
E. Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
A. Amount Previously Paid:
B. Form, Schedule or Registration Statement No.:
C. Filing Party:
D. Date Filed:
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WHX Corporation
110 East 59th Street
New York, New York 10022
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To be held on [__________], 1999
To Our Stockholders:
We invite you to attend a special meeting of stockholders at beginning
at 11:00 a.m. on [_________, __________], 1999. At the special meeting you will
consider and act on the following matters:
1. To amend the Certificate of Incorporation and the By-Laws to
permit only the Chairman of the Board or the Board of Directors to
call special meetings of stockholders;
2. To amend the Certificate of Incorporation and the By-Laws to
eliminate stockholder action by written consent;
3. To amend the Certificate of Incorporation to require an
affirmative vote of 66- 2/3% of the voting power of the then
outstanding shares of any class or series of capital stock of the
Company entitled to vote generally in the election of directors in
order (a) to amend, repeal or adopt provisions inconsistent with
any of the adopted amendments to the Certificate of Incorporation
proposed herein or the classified board or director removal
provisions of the Certificate of Incorporation and (b) for the
stockholders to amend or repeal any provision of the By-Laws, and
to make a corresponding amendment to the By-Laws with respect to
By-Law amendments; and
4. To consider and transact such other business as may properly come
before the special meeting or any adjournment thereof.
This booklet contains a proxy statement with respect to the special
meeting. The proxy statement tells you more about the agenda and procedures for
the special meeting. It also describes the proposals to be considered at the
special meeting.
Only stockholders of record at the close of business on September 20,
1999 are entitled to attend and vote at the special meeting and any adjournments
thereof. Even if you only
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own a few shares, we want your stock to be represented at the special meeting. I
urge you to promptly complete, date, sign and return your proxy card, in the
enclosed envelope.
We have also provided you with the exact place and time of the meeting
if you wish to attend in person.
Sincerely yours,
MARVIN L. OLSHAN
Secretary
Dated: New York, New York
[September ____], 1999
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WHX CORPORATION
110 East 59th Street
New York, New York 10022
PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
[__________], 1999
GENERAL INFORMATION
This proxy statement contains information related to a special meeting
of stockholders of WHX Corporation (the "Company") to be held on [_________,
__________], 1999, beginning at 11:00 a.m., at [_______________________], and at
any postponements or adjournments thereof (the "Meeting").
ABOUT THE MEETING
What is the Purpose of the Meeting?
The Meeting is being called for the stockholders to consider and act on
the following matters:
1. To amend the Certificate of Incorporation and the By-Laws to
permit only the Chairman of the Board or the Board of Directors to
call special meetings of stockholders;
2. To amend the Certificate of Incorporation and the By-Laws to
eliminate stockholder action by written consent;
3. To amend the Certificate of Incorporation to require an
affirmative vote of 66-2/3% of the voting power of the then
outstanding shares of any class or series of capital stock of the
Company entitled to vote generally in the election of directors
("Voting Stock") in order (a) to amend, repeal or adopt provisions
inconsistent with any of the adopted amendments to the Certificate
of Incorporation proposed herein or the classified board or
director removal provisions of the Certificate of Incorporation
and (b) for the stockholders to amend or repeal any provision of
the By-Laws, and to make a corresponding amendment to the By-Laws
with respect to By-Law amendments; and
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4. To consider and transact such other business as may properly come
before the Meeting or any adjournment thereof.
Who May Vote
Stockholders of WHX Corporation, as recorded in our stock register on
September 20, 1999, may vote at the Meeting. As of this date, we had
[__________] shares of common stock eligible to vote. We have only one class of
voting shares. All shares in this class have equal voting rights of one vote per
share.
How to Vote
You may vote in person at the Meeting or by proxy. We recommend that
you vote by proxy even if you plan to attend the Meeting. You can always change
your vote at the Meeting.
How Proxies Work
Our Board of Directors is asking for your proxy. Giving us your proxy
means you authorize us to vote your shares at the Meeting in the manner you
direct. You may vote for or against or abstain from voting on any of the
proposals.
If you sign and return the enclosed proxy card but do not specify how
to vote, we will vote your shares in favor of all of the proposals.
You may receive more than one proxy or voting card depending on how you
hold your shares. If you hold shares through someone else, such as a
stockbroker, you may get materials from them asking how you want to vote. The
latest proxy card we receive from you will determine how we will vote your
shares.
Revoking a Proxy
There are three ways to revoke your proxy. First, you may submit a new
proxy with a later date up until the existing proxy is voted. Secondly, you may
vote in person at the Meeting. Lastly, you may notify our corporate secretary in
writing at our principal executive offices, 110 East 59th Street, New York, New
York 10022.
Quorum
In order to carry on the business of the Meeting, we must have a
quorum. This means at least a majority of the outstanding shares eligible to
vote must be represented at the Meeting, either by proxy or in person. Shares
that we own are not voted and do not count for this purpose.
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Votes Needed
For each of the proposals to be approved, we require the favorable vote
of a majority of the outstanding shares of common stock. Abstentions and broker
non-votes count for quorum purposes and have the same effect as negative votes
for voting purposes. Broker non-votes occur when a broker returns a proxy but
does not have the authority to vote on a particular proposal. Brokers that do
not receive instructions are not entitled to vote on the proposals to be
considered at the Meeting.
Attending in Person
Only stockholders, their proxy holders, and our invited guests may
attend the Meeting. If you wish to attend the Meeting in person but you hold
your shares through someone else, such as a stockbroker, you must bring proof of
your ownership and an identification with a photo to the Meeting. For example,
you could bring an account statement showing that you owned WHX Corporation
shares as of September 20, 1999 as acceptable proof of ownership.
THE PROPOSALS
Proposals 1 through 3 in this Proxy Statement are proposals to amend
the Company's Certificate of Incorporation, as amended to date (the "Certificate
of Incorporation"), and By-Laws, as amended to date (the "By-Laws"), which
amendments, as discussed below, may have certain anti-takeover effects. The
following discussion describes the general consequences to stockholders of the
Company of these proposals and should be read in conjunction with the individual
discussions with respect to each proposal.
The Board of Directors has evaluated the potential vulnerability of the
Company's stockholders to the threat of unfair or coercive takeover tactics and,
although the Board of Directors is not currently aware of any such threat, has
considered the range of possible responses to any such threat. The Board has
unanimously approved, and recommends to the Company's stockholders for their
approval, the amendments to the Certificate of Incorporation and By-Laws
described in Proposals 1 through 3 set forth below. Proposals 1 through 3 are
referred to collectively as the "Amendments." Under Delaware law, each of the
proposed Amendments described in Proposals 1 through 3 requires the affirmative
vote of the holders of a majority of the Company's outstanding shares of Common
Stock.
The Amendments involve related amendments to the Certificate of
Incorporation and By-Laws designed to assist the Company's stockholders in
obtaining fair and equitable treatment in the event of a threatened takeover of
the Company. The Amendments, if approved, will: (i) permit only the Chairman of
the Board or the Board of Directors to call special meetings of stockholders;
(ii) eliminate stockholder action by written consent; and (iii) require an
affirmative vote of 66-2/3% of the Voting Stock in order (a) to amend, repeal or
adopt any provision inconsistent with any of the adopted amendments to the
Certificate of Incorporation proposed herein or the
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classified board or director removal provisions of the Certificate of
Incorporation and (b) for the stockholders to amend or repeal any provision of
the By-Laws.
The Amendments are not in response to any effort, of which the Company
is aware, to accumulate Common Stock or to obtain control of the Company. The
Board has observed the relatively common use of certain coercive takeover
tactics in recent years, including the accumulation of substantial common stock
positions as a prelude to a threatened takeover or corporate restructuring,
proxy fights and partial tender offers and the related use of "two-tiered"
pricing. The Board believes that the use of these tactics can place undue
pressure on a corporation's board of directors and stockholders to act hastily
and on incomplete information and, therefore, can be highly disruptive to a
corporation as well as divert valuable corporate resources and result in unfair
differences in treatment of stockholders who act immediately in response to
announcements of takeover activity and those who choose to act later, if at all.
The Amendments are intended to encourage persons seeking to acquire control of
the Company to initiate such an acquisition through arm's-length negotiations
with the Board.
While the Amendments, individually and collectively, give added
protection to the Company's stockholders and may help the Company obtain the
best price in a potential transaction, they may also have the effect of making
more difficult and discouraging a merger, tender offer or proxy contest, even if
such transaction or event may be favorable to the interests of some or all of
the Company's stockholders. The Amendments also may delay the assumption of
control by a holder of a large block of Common Stock and the removal of
incumbent management, even if such removal might be beneficial to some or all of
the stockholders. Furthermore, the Amendments may have the effect of deterring
or frustrating certain types of future takeover attempts that may not be
approved by the incumbent Board, but that the holders of a majority of the
shares of Common Stock may deem to be in their best interests or in which some
or all of the stockholders may receive a substantial premium over prevailing
market prices for their stock. By discouraging takeover attempts, the Amendments
also could have the incidental effect of inhibiting (i) certain changes in
management (some or all of the members of which might be replaced in the course
of a change of control) and (ii) the temporary fluctuations in the market price
of Common Stock that often result from actual or rumored takeover attempts.
In addition to the proposed Amendments, certain existing provisions of
the Certificate of Incorporation and By-Laws and of Delaware law may be deemed
to have anti-takeover effects which could discourage, delay or prevent a change
in control of the Company or dilute the public ownership of the Company, even if
such transaction or occurrence may be favorable to the interest of some or all
of the Company's stockholders. These consist of (i) the authority of the Board
to issue authorized but unissued common and preferred stock, (ii) the Company's
classified board of directors, (iii) a provision that directors may be removed
only for cause, (iv) an advance notice provision with respect to stockholder
nominations and proposals, (v) the authority of the Board to fix the number of
directors and fill vacancies on the Board and (vi) the provisions of Section 203
of the Delaware Corporation Law (the "Delaware GCL") which prescribe certain
voting requirements for a business combination with an interested stockholder.
Please see Appendix A attached hereto
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and incorporated herein by reference for a discussion of such provisions. No
other anti-takeover amendments to the Certificate of Incorporation or By-Laws
are currently contemplated by the Board other than the proposals contained in
this Proxy Statement.
The Board recognizes that a takeover might in some circumstances be
beneficial to some or all of the Company's stockholders but, nevertheless,
believes that the stockholders as a whole will benefit from the adoption of the
Amendments. The Board further believes that it is preferable to act on the
proposed Amendments when they can be considered carefully rather than hastily
during an unsolicited bid for control.
If the Company's stockholders approve any or all of the Amendments, the
Company will file with the Secretary of State of the State of Delaware an
amendment to the Certificate of Incorporation that reflects the Amendments which
have been approved containing the provisions as set forth under each proposal.
The approved amendments to the Certificate of Incorporation will become
effective upon the filing with the Secretary of State of the State of Delaware
of a certificate with respect to such amendment. The approved amendments to the
By-Laws will become effective immediately upon approval by the Company's
stockholders. Each of the Amendments adopted by the Company's stockholders at
the Meeting will become effective regardless of whether any of the other
Amendments to be acted upon at the Meeting are adopted.
Stockholders are urged to read carefully the following descriptions and
discussions of each of the proposed Amendments before voting on the Amendments.
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PROPOSAL 1
LIMITATIONS ON STOCKHOLDERS
WITH RESPECT TO SPECIAL MEETINGS
Ability to Call Special Meetings of the Stockholders
Article II, Section 2.2 of the By-Laws currently provides that special
meetings of stockholders may be called by a majority of the Board of Directors
or by the Secretary at the request of the holders of a majority of the Company's
Voting Stock. The Board has adopted, subject to stockholder approval, an
amendment to the Certificate of Incorporation and a corresponding amendment to
the By-Laws to include a provision that special meetings of stockholders may be
called only by a majority of the Board or the Chairman of the Board and that
stockholders of the Company are not permitted to call a special meeting or to
require that the Board call a special meeting of stockholders. At the Meeting,
stockholders will be asked to consider and vote on these proposed amendments.
Analysis of Proposal 1
The proposed amendments will provide for the orderly conduct of all
Company affairs at special meetings of stockholders. Accordingly, a stockholder
could not force stockholder consideration of a proposal over the opposition of
the Board by calling a special meeting of stockholders prior to the next annual
meeting or prior to such time that the Board believed such consideration to be
appropriate. As a result, the Board would have the opportunity to inform other
stockholders adequately of the matters to be considered at any special meeting
of stockholders.
Persons attempting a takeover bid could be delayed or deterred by not
being able to propose a transaction at a time advantageous for them. For these
reasons, these proposed amendments may have an anti-takeover effect. The Board,
however, is not aware of any efforts to obtain control of the Company, and the
proposal of this measure is not in response to any such efforts. For a general
discussion of certain anti-takeover effects of Proposal 1, see the section
entitled "The Proposals" above.
Proposed Resolutions
RESOLVED, that Article EIGHTH of the Certificate of Incorporation be
amended to read in its entirety as follows:
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In the event Proposal 2 is also approved:
"EIGHTH: (A) Subject to the rights of the holders
of any class of Preferred Stock, (i) any action
required or permitted to be taken by the
stockholders of the Corporation may be effected at
an annual or special meeting of stockholders of
the Corporation and (ii) special meetings of the
stockholders may be called by, and only by, the
Chairman of the Board or the Board of Directors
pursuant to a resolution adopted by a majority of
the Whole Board. Stockholders of the Corporation
are not permitted to call a special meeting or to
require that the Board call a special meeting of
stockholders."
"(B) No action of stockholders of the Corporation
required or permitted to be taken at any annual or
special meeting of stockholders of the Corporation
may be taken without a meeting of stockholders,
without prior written notice and without a vote,
and the power of stockholders of the Corporation
to consent in writing to the taking of any action
without a meeting is specifically denied.
Notwithstanding the foregoing provisions of this
paragraph (B), the holders of any series of
Preferred Stock of the Corporation shall be
entitled to take action as a separate class by
written consent to such extent, if any, as may be
provided in the terms of such series."
In the event Proposal 2 is not approved:
"EIGHTH: (A) Subject to the rights of the holders
of any class of Preferred Stock, (i) any action
required or permitted to be taken by the
stockholders of the Corporation may be effected at
an annual or special meeting of stockholders of
the Corporation and may also be effected by any
consent in writing by such stockholders in
accordance with the provisions of this Article
EIGHTH and (ii) special meetings of the
stockholders may be called by, and only by, the
Chairman of the Board or the Board of Directors
pursuant to a resolution adopted by a majority of
the Whole Board. Stockholders of the Corporation
are not permitted to call a special meeting or to
require that the Board call a special meeting of
stockholders."
"(B) Unless otherwise provided in this Certificate
of Incorporation, any action required to be taken
at any annual or special meeting of stockholders
of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a
consent or consents in writing, setting forth the
action so taken, shall be signed by the holders of
outstanding Voting Stock having not less than the
minimum number of votes that would be necessary to
authorize or
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take such action at a meeting at which all shares
entitled to vote thereon were present and voted."
RESOLVED, that Section 2.2 of Article II of the By-Laws be amended by
deleting the existing Section 2.2 and adding a new Section 2.2 which
incorporates substantially the provisions set forth in paragraph (B) of the
preceding resolution and other provisions, if any, as may be necessary to make
the By-Laws consistent with this amendment.
Required Vote
The affirmative vote of a majority of the Common Stock outstanding and
entitled to vote at the Meeting is required to approve Proposal 1.
The Board of Directors Recommends
That You Vote "FOR" the
Approval of Proposal 1
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PROPOSAL 2
AMENDING THE CERTIFICATE OF
INCORPORATION AND BY-LAWS TO
ELIMINATE STOCKHOLDER ACTION
BY WRITTEN CONSENT
Ability of Stockholders to Act by Written Consent
Under Delaware law, unless otherwise provided in the Certificate of
Incorporation, any action required or permitted to be taken by stockholders of a
corporation may be taken without a meeting, without prior notice and without a
stockholder vote, if a written consent setting forth the action to be taken is
signed by the holders of shares of outstanding stock having the requisite number
of votes that would be necessary to authorize such an action at a meeting of
stockholders at which all shares entitled to vote thereon were present and
voted. Currently, the Certificate of Incorporation does not prohibit such action
by written consent. The Board of Directors has adopted, subject to stockholder
approval, an amendment to the Certificate of Incorporation and a corresponding
amendment to the By-Laws to provide that actions required or permitted to be
taken at any annual or special meeting of the stockholders may be taken only
upon the vote of the stockholders at a meeting duly called and may not be taken
by written consent of the stockholders. At the Meeting, stockholders will be
asked to consider and vote on these proposed amendments.
Analysis of Proposal 2
The adoption of this proposal would eliminate the ability of the
Company's stockholders to act by written consent in lieu of a meeting. It is
intended to prevent solicitation of consents by stockholders seeking to effect
changes without giving all of the Company's stockholders entitled to vote on a
proposed action an adequate opportunity to participate at a meeting where such
proposed action is considered. The proposed amendment would prevent a takeover
bidder holding or controlling a large block of the Company's voting stock from
using the written consent procedure to take stockholder action unilaterally.
This amendment, if adopted, would insure that all stockholders would
have advance notice of any attempted major corporate action by stockholders, and
that all stockholders would have an equal opportunity to participate at the
meeting of stockholders where such action was being considered. It would enable
the Company to set a record date for any stockholder voting and would reduce the
possibility of disputes or confusion regarding the validity of purported
stockholder action. The amendment would also encourage a potential acquirer to
negotiate directly with the Board of
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Directors. The Board of Directors believes that this change to eliminate
stockholder action by written consent is desirable to avoid untimely action in a
context that might not permit stockholders to have the full benefit of the
knowledge, advice and participation of the Company's management and Board of
Directors. In the event of a proposed acquisition of the Company, the Board of
Directors believes that the interests of stockholders would best be served by a
transaction that resulted from negotiations based on careful consideration of
the proposed terms. Although there can be no certainty as to the result of any
particular negotiations, the Board of Directors believes that the intended
effect of Proposal 2 of promoting negotiations concerning any proposed
acquisition of the Company, with the bargaining power in the Board of Directors,
would be in the long-term interests of the Company and its stockholders. These
proposed amendments are in accordance with the Delaware GCL, which provides that
stockholders of a corporation may act by written consent unless otherwise
provided by the corporation's certificate of incorporation.
Persons attempting a takeover bid could be delayed or deterred by not
being able to propose a transaction at a time advantageous for them. This
provision may also increase management's and the Board of Director's ability to
retain their positions with the Company and to resist a transaction that may be
deemed advantageous by even a majority of the stockholders. For these reasons,
this Proposal may have an anti-takeover effect. The Board of Directors, however,
is not aware of any efforts to obtain control of the Company, and the proposal
of this measure is not in response to any such efforts. For a general discussion
of certain anti-takeover effects of Proposal 2, see the section entitled "The
Proposals" above.
Proposed Resolutions
RESOLVED, that Article EIGHTH of the Certificate of Incorporation be
amended to read in its entirety as follows:
In the event Proposal 1 is also approved:
"EIGHTH: (A) Subject to the rights of the holders
of any class of Preferred Stock, (i) any action
required or permitted to be taken by the
stockholders of the Corporation may be effected at
an annual or special meeting of stockholders of
the Corporation and (ii) special meetings of the
stockholders may be called by, and only by, the
Chairman of the Board or the Board of Directors
pursuant to a resolution adopted by a majority of
the Whole Board. Stockholders of the Corporation
are not permitted to call a special meeting or to
require that the Board call a special meeting of
stockholders."
"(B) No action of stockholders of the Corporation
required or permitted to be taken at any annual or
special meeting of stockholders of the Corporation
may be taken without a meeting of stockholders,
without prior written notice and without a vote,
and the power of
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stockholders of the Corporation to consent in
writing to the taking of any action without a
meeting is specifically denied. Notwithstanding
the foregoing provisions of this paragraph (B),
the holders of any series of Preferred Stock of
the Corporation shall be entitled to take action
as a separate class by written consent to such
extent, if any, as may be provided in the terms of
such series.
In the event Proposal 1 is not approved:
"EIGHTH: (A) Subject to the rights of the holders
of any series of Preferred Stock, (i) any action
required or permitted to be taken by the
stockholders of the Corporation may be effected at
an annual or special meeting of stockholders of
the Corporation and (ii) special meetings of
stockholders of the Corporation may be called by
the Chairman of the Board, by the Board of
Directors pursuant to a resolution adopted by a
majority of the Whole Board or by the Secretary at
the direction of a majority of the voting power of
all of the then outstanding shares of Voting
Stock, voting together as a single class."
"(B) No action of stockholders of the Corporation
required or permitted to be taken at any annual or
special meeting of stockholders of the Corporation
may be taken without a meeting of stockholders,
without prior written notice and without a vote,
and the power of stockholders of the Corporation
to consent in writing to the taking of any action
without a meeting is specifically denied.
Notwithstanding the foregoing provisions of this
paragraph (B), the holders of any series of
Preferred Stock of the Corporation shall be
entitled to take action as a separate class by
written consent to such extent, if any, as may be
provided in the terms of such series.
RESOLVED, that the By-Laws be amended by deleting the existing Section
2.9 of Article II and adding a new Section 2.9 which incorporates substantially
the provisions set forth in paragraph (A) of the preceding resolution and other
provisions, if any, as may be necessary to make the By-Laws consistent with this
amendment.
Required Vote
The affirmative vote of holders of a majority of the Shares outstanding
and entitled to vote at the Meeting is required to approve Proposal 2.
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The Board of Directors Recommends
That You Vote "FOR" the
Approval of Proposal 2
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PROPOSAL 3
AMENDING THE CERTIFICATE OF
INCORPORATION AND BY-LAWS TO
REQUIRE SUPERMAJORITY VOTE TO AMEND
ADOPTED AMENDMENTS OR CLASSIFIED
BOARD OR DIRECTOR REMOVAL PROVISIONS
OR ANY PROVISION OF THE BY-LAWS
Supermajority Vote to Amend Adopted Proposals, Classified Board and Director
Removal Provisions and By-Laws
The Delaware GCL provides that a corporation's certificate of
incorporation may be amended by the vote of a majority of the shares of common
stock outstanding and entitled to vote, unless the relevant provision of the
certificate of incorporation requires the vote of a greater number or proportion
than a majority, in which case such provisions may not be amended, altered or
repealed except by such greater vote. Article THIRTEENTH of the Certificate of
Incorporation currently provides for amendment of the Certificate of
Incorporation by a majority of the outstanding Voting Stock, except for the
classified board provisions which may only be amended by a vote of 66-2/3% of
the voting stock.
The Delaware GCL further confers sole authority to adopt, amend or
repeal a corporation's bylaws on the stockholders unless the certificate of
incorporation also confers such a power upon the board of directors. Article
SEVENTH of the Certificate of Incorporation expressly confers the power to amend
the By-Laws upon the Board of Directors, provided, however, that the
stockholders may change or repeal any By-Law adopted by the Board of Directors.
The Board of Directors has adopted, subject to stockholder approval,
amendments to the Certificate of Incorporation to require the affirmative vote
of holders of 66-2/3% of the Voting Stock (a) to amend or repeal, or to adopt
any provisions inconsistent with, any of the provisions added to the Certificate
of Incorporation by Proposals 1 and 2 above and this Proposal 3 or the
classified board or director removal provisions of the Certificate of
Incorporation and (b) for the stockholders to amend or repeal any provision of
the By-Laws, and has adopted, subject to stockholder approval, corresponding
amendments to the By-Laws as required. At the Meeting, stockholders will be
asked to consider and vote on the proposed amendments.
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Analysis of Proposal 3
Proposal 3, by limiting the manner in which the Amendments and the
By-Laws may be amended or repealed, is intended not only to promote continuity
of operations and thereby enhance the Company's ability to attain its long term
goals, but also to allow the Board of Directors to more effectively manage the
affairs of and internal operating procedures of the Company. Proposal 3 will
have the effect of making it more difficult for stockholders to change the
Amendments which have been adopted and other By-Law provisions. This may further
discourage potentially unfriendly bids for shares of the Company. For these
reasons, Proposal 3 may have an anti-takeover effect. The Board of Directors,
however, is not aware of any efforts to obtain control of the Company, and the
proposal of this measure is not in response to any such efforts. For a general
discussion of certain anti-takeover effects of Proposal 3, see the section
entitled "The Proposals" above.
Proposed Resolutions
RESOLVED, that a new Article FOURTEENTH of the Certificate of
Incorporation be added as follows:
"FOURTEENTH: Subject to the provisions of
Article THIRTEENTH, Article SEVENTH, EIGHTH and
this Article FOURTEENTH shall not be amended,
modified or repealed, and no provision
inconsistent with any such provision shall become
part of this Certificate of Incorporation, unless
such matter is approved by the affirmative vote of
the holders of not less than 66-2/3% of the voting
power of all outstanding shares of Common Stock of
the Corporation and all other outstanding shares
of stock of the Corporation entitled to vote on
such matter, with such outstanding shares of
Common Stock and other stock considered for this
purpose as a single class. Any vote of
stockholders required by this Article FOURTEENTH
shall be in addition to any other vote of the
stockholders that may be required by law, this
Certificate of Incorporation, the By-Laws of the
Corporation, any agreement with a national
securities exchange or otherwise."
RESOLVED, that Article SEVENTH of the Certificate of Incorporation be
amended to read in its entirety as follows:
"SEVENTH: All corporate powers shall be
exercised by the Board of Directors of the
Corporation, except as otherwise specifically
required by law or as otherwise provided in this
Certificate of Incorporation. Any meeting of
stockholders may be postponed by action of the
Board of Directors at any time in advance
-17-
<PAGE>
of such meeting. The Board of Directors of the
corporation shall have the power to adopt such
rules and regulations for the conduct of the
meetings and management of the affairs of the
Corporation as they may deem proper and the power
to adjourn any meeting of stockholders without a
vote of the stockholders, which powers may be
delegated by the Board of Directors to the
Chairman of such meeting either in such rules and
regulations or pursuant to the ByLaws of the
Corporation.
"In furtherance of and not in limitation of
the powers conferred by law, the Board of
Directors is expressly authorized to adopt, alter,
amend and repeal the By-Laws of the Corporation.
No adoption, alteration, amendment or repeal of a
By-Law by action of stockholders shall be
effective unless approved by the affirmative vote
of the holders of not less than 66-2/3% of the
voting power of all outstanding shares of Common
Stock of the Corporation and all other outstanding
shares of stock of the Corporation entitled to
vote on such matter, with such outstanding shares
of Common Stock and other stock considered for
this purpose as a single class. Any vote of
stockholders required by this Article SEVENTH
shall be in addition to any other vote of
stockholders that may be required by law, this
Certificate of Incorporation, the By-Laws of the
Corporation, any agreement with a national
securities exchange or otherwise."
RESOLVED, that the By-Laws be amended by deleting the existing Article
VII and adding a new Article VII containing a provision substantially the same
as the provision set forth in the immediately preceding resolution and other
provisions, if any, as may be necessary to make the By-Laws consistent with this
amendment.
Required Vote
The affirmative vote of a majority of the Common Stock outstanding and
entitled to vote at the Meeting is required to approve Proposal 3.
The Board of Directors Recommends
That You Vote "FOR" the
Approval of Proposal 3
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<PAGE>
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information concerning ownership of the
common Stock of the Company outstanding at [_______], 1999, by (i) each person
known by the Company to be the beneficial owner of more than five (5%) percent
of its Common Stock, (ii) each director, (iii) each of the named executive
officers and (iv) by all directors and executive officers of the Company as a
group. Unless otherwise indicated, each stockholder has sole voting power and
sole dispositive power with respect to the indicated shares.
<TABLE>
<CAPTION>
Percentage
Name and Address of Beneficial Owner (1) Shares Beneficially Owned of Class (2)
- ---------------------------------------- ------------------------- ------------
<S> <C> <C>
Merrill Lynch & Co., Inc. (3)
World Financial Center, North Tower
250 Vesey Street
New York, New York 10281 990,116 6.3%
Lazard Freres & Co. LLC (4)
30 Rockefeller Plaza
New York, New York 10020 1,521,000 9.7%
Founders Financial Group, L.P. (5)
53 Forest Avenue
Old Greenwich, Connecticut 06870 1,459,549 9.3%
WPN Corp.
110 East 59th Street
New York, New York 10022 1,362,816 (6) 8.1%
Donald Smith & Co., Inc. (7)
East 80, Route 4
Paramus, New Jersey 07652 1,350,000 8.6%
Dimensional Fund Advisors, Inc. (8)
1299 Ocean Avenue, 11th Floor
Santa Monica, California 90401 1,275,325 8.2%
Gabelli Funds, Inc. (9)
One Corporate Center,
Rye, New York 10580 1,477,983 9.5%
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Alliance Capital Management L.P. (10)
1290 Avenue of the Americas
New York, New York 10580 1,162,100 7.4%
Canyon Capital Advisors LLC (11)
9665 Wilshire Boulevard
Suite 200
Beverly Hills, California 90212 1,134,100 7.3%
Dewey Square Investors Corporation (12)
One Financial Center
Boston, Massachusetts 02111 866,419 5.5%
Ronald LaBow 1,362,816 (6) 8.1%
Neil D. Arnold 44,666 (13) *
Paul W. Bucha 59,666 (13) *
Robert A. Davidow 92,034 (14) *
William Goldsmith 49,999 (13) *
Robert D. LeBlanc 105,569 (15) *
Marvin L. Olshan 50,999 (14) *
Raymond S. Troubh 49,999 (13) *
James G. Bradley 86,667 (13) *
Howard A. Mileaf 25,000 (13) *
Arnold Nance 34,883 (16) *
John R. Scheessele 0 0
All Directors and Executive Officers as a 1,962,298 (17) 11.3%
Group (13 Persons)
</TABLE>
* less than one percent.
(1) Each director and executive officer has sole voting power and sole
dispositive power with respect to all shares beneficially owned by him
unless otherwise indicated.
(2) Based upon shares of Common Stock outstanding at [_______], 1999 of
[________] shares.]
-20-
<PAGE>
(3) Based on a Schedule 13G/A filed in July 1999, Merrill Lynch & Co., Inc.
("ML&Co.") on behalf of Merrill Lynch Asset Management Group ("AMG"),
Merrill Lynch Asset Management, L.P. ("MLAM") and Fund Asset
Management, L.P. ("FAM") collectively beneficially hold 990,116 shares
of Common Stock. This amount includes Common Stock issuable upon their
conversion of Preferred Stock. The address of MLAM and FAM is 800
Scudders Mill Road, Plainsboro, New Jersey 08536.
(4) Based on a Schedule 13G/A filed in February 1999, Lazard Freres & Co.
LLC beneficially holds 1,521,000 shares of Common Stock.
(5) Based on a Schedule 13G/A filed in February 1999, Founders Financial
Group, L.P., Forest Investment Management LLC/ADV, Michael A. Boyd,
Inc. and Michael A. Boyd collectively beneficially hold 1,459,549
shares of Common Stock.
(6) Based on a Schedule 13D/A filed jointly in December 1997 by WPN Corp.,
Ronald LaBow, Stewart E. Tabin and Neale X. Trangucci. Includes
1,251,166 shares of Common Stock issuable upon exercise of options
within 60 days hereof. Ronald LaBow, the Company's Chairman, is the
sole stockholder of WPN Corp. Consequently, Mr. LaBow may be deemed to
be the beneficial owner of all shares of Common Stock owned by WPN
Corp. Mr. LaBow disclaims beneficial ownership of the options to
purchase 400,000 shares of Common Stock held by WPN Corp. as nominee
for Messsrs. Tabin and Trangucci, 266,666 of which are exercisable
within 60 days hereof. Messrs. Tabin and Trangucci are officers and
directors of WPN Corp. and disclaim beneficial ownership of all shares
of Common Stock owned by WPN Corp., except for options to purchase the
400,000 shares of Common Stock held by WPN Corp. as nominee for Messrs,
Tabin and Trangucci,266,666 of which are exercisable within 60 days
hereof. Each of Messrs. Tabin and Trangucci holds options, exercisable
within 60 days hereof, to purchase 368,333 shares of Common Stock.
(7) Based on a Schedule 13G filed in February 1999, Donald Smith & Co.,
Inc. beneficially holds 1,350,000 shares of Common Stock.
(8) Based on a Schedule 13G filed in February 1999, Dimensional Fund
Advisors Inc. beneficially holds 1,275,325 shares of Common Stock.
(9) Based on a Schedule 13D filed in July 1999, Gabelli Funds, Inc., GAMCO
Investors, Inc.,Gabelli International Limited, Gabelli Advisers, Inc.,
Mario J. Gabelli and Marc J. Gabelli collectively beneficially hold
1,477,983 shares of Common Stock. This amount includes Common Stock
issuable upon their conversion of Preferred Stock.
(10) Based on a Schedule 13G filed jointly in February 1999, Alliance
Capital Management, L.P., AXA, AXA Assurances I.A.R.D. Mutuelle
("AXAAIM"), AXA Assurances Vie Mutuelle ("AXAAVM"), AXA Conselil Vie
Assurance Mutuelle ("AXACVAM"), AXA Courtage Assurance Mutuelle
("AXACAM") and The Equitable Companies, Inc. collectively
-21-
<PAGE>
beneficially hold 1,162,100 shares of Common Stock. The address of AXA
is 9 Place Vendome 75001 Paris, France. The address of AXAAIM and
AXAAVM is 21, rue de Chateaudun 75009 Paris, France. The address of
AXACVAM is 100-101 Terrasse Boieldieu 92042 Paris La Defense, France.
The address of AXACAM is 26, rue Louis le Grand 75002 Paris, France.
(11) Based on a Schedule 13G filed jointly in July 1999, Canyon Capital
Advisors LLC, Mitchell R. Julis, Joshua S. Friedman and R. Christian B.
Evensen collectively beneficially hold 1,134,100 shares of Common
Stock.
(12) Based on a Schedule 13G/A filed in January 1998, Dewey Square Investors
Corp. beneficially holds 866,419 shares of Common Stock. This amount
includes Common Stock issuable upon their conversion of Preferred
Stock.
(13) Consists of shares of Common Stock issuable upon their exercise of
options within 60 days hereof.
(14) Includes 49,999 shares of Common Stock issuable upon their exercise of
options within 60 days hereof.
(15) Includes 86,667 shares of Common Stock issuable upon their exercise of
options within 60 days hereof, 11,000 shares of Common Stock, and
approximately 4,902 shares of Common Stock issuable upon conversion of
2,000 shares of Series B Preferred Stock owned directly by Mr. LeBlanc,
and 3,000 shares of Common Stock held by Mr. LeBlanc's spouse and
children.
(16) Includes 33,333 shares of Common Stock issuable upon their exercise of
options within 60 days hereof, and approximately 570 shares of Common
Stock issuable upon conversion of 180 shares of Series A Preferred
Stock and approximately 980 shares of Common Stock issuable upon
conversion of 400 shares of Series B Preferred Stock held by Mr.
Nance's children.
(17) Includes 1,787,161 shares of Common Stock issuable upon their exercise
of options within 60 days hereof.
-22-
<PAGE>
SOLICITATION STATEMENT
The Company will bear all expenses in connection with the solicitation
of proxies. In addition to the use of the mails, solicitations may be made by
the Company's regular employees, by telephone, telegraph or personal contact,
without additional compensation. The Company has retained Innisfree M & A, Inc.
to assist the Company in the solicitation of proxies for a fee not to exceed
$15,000 plus expenses. The Company will, upon their request, reimburse brokerage
houses and persons holding shares of Common Stock in the names of the Company's
nominees for their reasonable expenses in sending solicited material to their
principals.
STOCKHOLDER PROPOSALS
In order to be considered for inclusion in the proxy materials to be
distributed in connection with the next annual meeting of stockholders of the
Company, stockholder proposals for such meeting must be submitted to the Company
no later than November 23, 1999.
OTHER MATTERS
Management does not intend to bring before the Meeting any matters
other than those specifically described above and knows of no matters other than
the foregoing to come before the Meeting. If any other matters or motions
properly come before the Meeting, it is the intention of the persons named in
the accompanying Proxy to vote such Proxy in accordance with their judgment on
such matters or motions, including any matters dealing with the conduct of the
Meeting.
By Order of the Board of Directors
MARVIN L. OLSHAN
Secretary
[September ____], 1999
-23-
<PAGE>
APPENDIX A
OTHER ANTI-TAKEOVER DEVICES
Preferred Stock and Common Stock
The Certificate of Incorporation currently authorizes the Board to
issue 70,000,000 shares of capital stock of which 10,000,000 shares shall be
shares of preferred stock having such rights, preferences and privileges as
designated from time to time by the Board (the "Preferred Stock") without
stockholder approval. Accordingly, the Board is empowered to issue preferred
stock with dividend, liquidation, conversion, voting or other rights which could
adversely affect the voting power or other rights of the holders of Common
Stock. As of the current date, [__________] shares of Common Stock, [2,907,825]
shares of Series A Preferred Stock and [2,975,100] shares of Series B Preferred
Stock are outstanding. Under certain circumstances, the Company could use the
currently authorized but unissued shares of Common Stock or Preferred Stock to
create voting impediments or to frustrate persons seeking to effect a takeover
or otherwise gain control of the Company or to dilute the public ownership of
the Company and thereby to protect the continuity of the Company's management.
The Company could also privately place any such shares with purchasers who might
favor the Board or management in opposing a hostile takeover bid or adopt a
stockholder rights plan, commonly referred to as a "poison pill". The Company
has no present knowledge of any such takeover efforts.
Classified Board
The Certificate of Incorporation currently provides for the division of
the Board of Directors into three classes of directors serving staggered
three-year terms with each class being as nearly equal in number as possible. As
a result, approximately one-third of the Board of Directors is elected each
year. The Board of Directors believes that the Board classification helps lend
continuity and stability to the management of the Company and helps assure
continuity and stability in the Board's leadership and policies, since at any
given time approximately two-thirds of the members of the Board of Directors
have had prior experience as directors of the Company. With a classified Board
of Directors, it generally takes two Annual Meetings of Stockholders (rather
than one) to elect a majority of the Board of Directors. As a result, the
classified Board could discourage proxy contests for the election of directors
or purchases of a substantial block of stock by a potential acquirer because the
classified board provisions could operate to prevent a potential acquirer from
gaining control of the Board in a relatively short period of time.
Director Removal Only for Cause
Under Section 141(k) of the Delaware General Corporation Law (the
"Delaware GCL"), unless the certificate of incorporation provides otherwise, the
directors of a corporation with
-24-
<PAGE>
a classified board of directors may only be removed for cause and only by the
holders of a majority of the shares then entitled to vote at an election of
directors. The Certificate of Incorporation currently mirrors the foregoing
provision of the Delaware GCL. Generally, this provision makes it impossible for
stockholders of the Company, including someone who acquires voting control, to
remove immediately incumbent directors and to replace them with alternative
directors, and instead requires such a person to replace incumbent directors as
their terms expire over a period of up to three years, unless cause exists for
such removal. This provision protects the continuity of the Board of Directors
and thereby enhances the ability of the Company to carry out long-range plans
and goals for its benefit and the benefit of its stockholders. This provision
could have the effect of delaying an ultimate change in existing management
which might be desired by a majority of the stockholders. This provision could
render more difficult an attempt to acquire control of the Company without the
approval of the Company's management.
Advance Notice of Stockholder Nominations and Proposals
In connection with its approval of Proposals 1 through 3 herein, the
Board of Directors adopted an amendment to the By-Laws setting requirements for
director nominations and other proposals by stockholders. Under these provisions
stockholders must comply with a detailed notice procedure with regard to the
nomination by stockholders, other than by or at the direction of the Board, of
candidates for election as directors (the "Nomination Procedure") and with
regard to stockholder proposals to be brought before an annual meeting of
stockholders (the "Business Procedure"). The Nomination Procedure provides that
only persons who are nominated by or at the direction of the Board, or by a
stockholder who has given timely prior written notice to the Corporate Secretary
of the Company prior to the meeting at which directors are to be elected, will
be eligible for election as directors. The Business Procedure provides that
stockholder proposals must be submitted in writing in a timely manner in order
to be considered at any annual meeting. To be timely, notice for nominations or
stockholder proposals must be received by the Company not less than 90 days nor
more than 120 days prior to the first anniversary of the previous year's annual
meeting (or, for annual meetings not held within 30 days before or after such
anniversary, by the later of the close of business on the 90th day prior to the
scheduled meeting date or the close of business on the 10th day after the date
of such meeting is publicly announced or disclosed) or, for nomination for
election of directors at a special meeting called for such purpose, not later
than the close of business on the 10th day after the date on which the special
meeting date and either the names of all nominees proposed by the Board or the
number of directors to be elected shall have been publicly announced or
disclosed.
Under the Nomination Procedure, notice to the Company from a
stockholder who proposes to nominate a person at a meeting for election as a
director must contain certain information about that person, including name and
addresses, age, principal occupation, the class and number of shares of Common
Stock or other capital stock beneficially owned, the consent of such person to
be nominated and such other information as would be required to be included in a
proxy statement soliciting proxies for the election of the proposed nominee, and
certain information about the stockholder proposing to nominate that person.
Under the Business Procedure, notice
-25-
<PAGE>
relating to a stockholder proposal must contain certain information about such
proposal and about the stockholder who proposes to bring the proposal before the
meeting.
The purpose of the Nomination Procedure is, by requiring a specified
amount of advance notice of nominations by stockholders, to afford the Board a
meaningful opportunity to consider the qualifications of the proposed nominees
during the appropriate period when the Board is focused on nominations and, to
the extent deemed necessary or desirable by the Board, to inform stockholders
about the qualifications of the proposed nominee. The purpose of the Business
Procedure is, by requiring a specified amount of advance notice of stockholder
proposals, to provide a more orderly procedure for conducting annual meetings of
stockholders and, to the extent deemed necessary or desirable by the Board, to
provide the Board with a meaningful opportunity to analyze such proposals and to
decide whether it is appropriate to either (i) omit such proposal or (ii) inform
stockholders, prior to such meetings, of any proposal to be introduced at such
meetings, together with any recommendation of the Board's position or belief as
to action to be taken with respect to such proposal, so as to enable
stockholders better to determine whether they desire to attend such meeting or
grant a proxy to the Board as to the disposition of any such proposal.
Although the advance notice procedures do not give the Board the power
to approve or disapprove stockholder nominations for the election of directors
or any other proposal submitted by stockholders, they could have the effect of
making more difficult a stockholder nomination for the election of directors or
the submission by stockholders of proposals at a particular stockholders meeting
because of the specificity of the procedures to be followed.
Board Power to Fix Number of Directors and Fill Vacancies
The Certificate of Incorporation and By-Laws of the Company currently
provide that the number of directors shall be fixed exclusively by a majority of
the entire Board (up to a maximum of ten directors) and that vacancies (other
than vacancies resulting from removal by the stockholders), including a vacancy
created by an increase in the authorized number of directors, may be filled only
by the affirmative vote of a majority of the remaining directors, even if less
than a quorum. Directorships resulting from an increase in the number of
directors are to be apportioned among the classes of directors as equally as
possible. A director appointed to fill any other vacancy is to hold office until
the annual meeting of stockholders at which his predecessor's term expires and
until his successor is duly elected and qualified. These provisions could
prevent a third party seeking majority representation on the Board of Directors
from obtaining such representation simply by enlarging the Board of Directors
and then filling the new directorships with its own nominees. Persons attempting
a takeover bid could be delayed or deterred by not being able to procedurally
obtain control of the Board of Directors as quickly as they could in the absence
of these provisions. For these reasons, this provision may have an anti-takeover
effect.
-26-
<PAGE>
Delaware Law Provisions
While Section 214 of the Delaware GCL provides that a corporation's
certificate of incorporation may provide for cumulative voting, such voting is
not provided for under the Company's Certificate of Incorporation. Therefore,
the holders of a majority of the shares of Common Stock can elect all of the
directors being elected at any annual meeting of stockholders.
Section 203 of the Delaware GCL, which is applicable to the Company,
may be deemed to have certain anti-takeover effects by prescribing certain
voting requirements in instances in which there is a transaction between a
publicly-held Delaware corporation and an "interested stockholder." Generally,
Section 203 of the Delaware GCL prohibits a publicly-held Delaware corporation
from engaging in a broad range of business combinations with an "interested
stockholder" (defined generally as a person owning 35% or more of a
corporation's outstanding voting stock) for three years following the time such
person became an interested stockholder unless: (i) before the person becomes an
interested stockholder, the transaction resulting in such person becoming an
interested stockholder or the business combination is approved by the board of
directors of the corporation; (ii) upon consummation of the transaction which
resulted in the stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of the outstanding voting stock of the corporation
(excluding shares owned by directors who are also officers of the corporation or
shares held by employee stock plans that do not provide employees with the right
to determine confidentiality whether shares held subject to the plan will be
tendered in a tender offer or exchange offer); or (iii) at or subsequent to the
time such person became an interested stockholder, the business combination is
approved by the Board and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at least
two-thirds of the outstanding voting stock excluding shares owned by the
interested stockholder.
The overall effect of Section 203 of the Delaware GCL may be to render
more difficult the accomplishment of certain mergers or other acquisition of
control of the Company by a principal stockholder (other than a stockholder who
currently holds over eighty-five percent of the Company's Common Stock). At the
same time, Section 203 may discourage persons from making a tender offer for, or
acquisition of, substantial amounts of the Common Stock, which could have the
effect of inhibiting changes in management and may also prevent temporary
fluctuations in the Common Stock that often results from takeover attempts. In
addition, by requiring a supermajority vote of stockholders to approve a
business combination, Section 203 may enable a minority of the stockholders to
prevent consummation of a business combination, notwithstanding the fact that a
majority of the stockholders voted in favor of it, and in which stockholders
might receive, for at least some of their shares, a substantial premium above
the market price at the time a tender offer or other acquisition transaction is
made. Thus, stockholders who might desire to participate in a tender offer may
not be afforded the opportunity to do so.
-27-
<PAGE>
PROXY
WHX CORPORATION
(Solicited on Behalf of the Board of Directors)
The undersigned hereby (a) acknowledges receipt of the Notice of Special Meeting
of Stockholders of WHX Corporation (the "Company") to be held on [__________,
1999] and the related Proxy Statement; (b) appoints Ronald LaBow and Marvin L.
Olshan or either of them as Proxies, each with the power to appoint a
substitute; (c) authorizes the proxies to represent and vote, as designated
below, all the shares of the Company's Common Stock, par value $0.01 per share
(the "Common Stock"), held of record by the undersigned on [September 10, 1999]
at the Meeting and at any adjournments or postponements thereof; and (d) revokes
any proxies previously given.
This proxy, when properly executed, will be voted in the manner directed herein
by the undersigned stockholder. If no direction is made, this Proxy will be
voted FOR proposals 1 through 3. The proxies will use their discretion with
regard to any matter referred to in item 4.
The Board of Directors Recommends a Vote FOR Proposals 1 through 3.
(1) To amend the Certificate of Incorporation and the By-Laws to permit
only the Chairman of the Board or the Board of Directors to call special
meetings of stockholders.
__________ FOR ______ AGAINST _______ ABSTAIN
(2) To amend the Certificate of Incorporation and the By-Laws to
eliminate stockholder action by written consent.
__________ FOR ______ AGAINST _______ ABSTAIN
(3) To amend the Certificate of Incorporation to require an affirmative
vote of 66-2/3% of the Voting Stock in order (a) to amend, repeal or adopt any
provision inconsistent with any adopted amendments to the Certificate of
Incorporation proposed herein or the classified board or director removal
provisions of the Certificate of Incorporation and (b) for the stockholders to
amend any provision of the By-Laws, and to adopt a corresponding amendment to
the By-Laws with respect to By-Law amendments.
__________ FOR ______ AGAINST _______ ABSTAIN
<PAGE>
(4) To consider and transact such other business as may properly come
before the Meeting or any adjournment.
Name _______________________________ Dated ______________________, 1999
Address:____________________________ __________________________________
____________________________ __________________________________
Signature(s)
Number of Shares Held:_____________ (Signatures should conform to names as
registered. For jointly owned shares,
each owner should sign. When signing
as attorney, executor, administrator,
trustee, guardian or officer of a
corporation, please give full title.)
PLEASE MARK AND SIGN ABOVE AND RETURN PROMPTLY
-2-
