SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
Filed by the Registrant /x/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/ / Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
/x/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Section 240.14a-11(c) or
Section 240.14a-12
WHX CORPORATION
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(Name of Registrant as Specified In Its Charter)
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(Name of Persons(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.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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/ / Fee paid previously with preliminary materials:
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/ / 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.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) 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 November 8, 1999
To Our Stockholders:
We invite you to attend a special meeting of stockholders of
WHX Corporation (the "Company") at the DuPont Hotel, 11th & Market Streets,
Wilmington, Delaware 19801 beginning at 11:00 a.m. on Monday, November 8, 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,
until June 30, 2001 (the "Termination Date"), to eliminate the
right of stockholders to call a special meeting of
stockholders and 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,
until the Termination Date, to eliminate stockholder action by
written consent;
3. To amend the Certificate of Incorporation to require, until
the Termination Date, 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 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.
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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 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 28, 1999
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WHX CORPORATION
110 East 59th Street
New York, New York 10022
PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
November 8, 1999
GENERAL INFORMATION
This proxy statement contains information related to a special meeting
of stockholders of WHX Corporation (the "Company") to be held on Monday,
November 8, 1999, beginning at 11:00 a.m., at the DuPont Hotel, 11th & Market
Streets, Wilmington, Delaware 19801, 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,
until June 30, 2001 (the "Termination Date"), to eliminate the
right of stockholders to call a special meeting of
stockholders and 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,
until the Termination Date, to eliminate stockholder action by
written consent;
3. To amend the Certificate of Incorporation to require, until
the Termination Date, 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 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 the Company, as recorded in our stock register on
September 20, 1999, may vote at the Meeting. As of this date, we had 15,031,416
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. The Meeting may be
adjourned by the Board of Directors in its discretion.
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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" and each
individually as an "Amendment." 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) until the Termination Date,
eliminate the right of stockholders to call a special meeting of stockholders
and permit only the Chairman of the Board or the Board of Directors to call
special meetings of stockholders; (ii) until the Termination Date, eliminate
stockholder action by written consent; and (iii) until the Termination Date,
require an affirmative vote of 66-2/3% of the Voting Stock in order
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(a) to amend, repeal or adopt any provision inconsistent with any of the adopted
Amendments to the Certificate of Incorporation proposed herein and (b) for the
stockholders to amend or repeal any provision of the By-Laws. Reference is made
to each of Proposals 1-3 for a complete discussion of
the Amendments and the exact text thereof.
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. These tactics 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 prior to the Termination Date 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, prior
to the Termination Date, of deterring 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 may also,
until the Termination Date, 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 also have the effect, until the Termination
Date, 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, until the Termination Date, 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
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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 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, until the Termination Date, special
meetings of stockholders may be called only by a majority of the Board or the
Chairman of the Board and that, until the Termination Date, stockholders of the
Company will not be 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 this proposed Amendment.
ANALYSIS OF PROPOSAL 1
The proposed Amendment will provide for the orderly conduct of
all Company affairs at special meetings of stockholders. Accordingly, until the
Termination Date, 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, this proposed Amendment 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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"EIGHTH: Subject to the rights of the holders of any
class of Preferred Stock, 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. 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 take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
Notwithstanding the foregoing provisions of this paragraph,
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. Subject to the rights of
the holders of any class of Preferred Stock, until June 30,
2001, a special meeting of the stockholders may be called only
by the Chairman of the Board or by the Board of Directors
pursuant to a resolution adopted by a majority of the Whole
Board, and the Stockholders shall have no power to cause the
Chairman of the Board or the Board of Directors to call a
special meeting of stockholders. After June 30, 2001, a
special meeting of stockholders may be called by the Chairman
of the Board, by the Board of Directors pursuant to a
resolution adopted by 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."
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 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, until the
Termination Date, 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; after the Termination Date, such action will be governed by
the Delaware GCL. The Delaware GCL currently provides that, unless otherwise
provided in the certificate of incorporation, any action to be taken at an
annual or special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
Voting 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. At the Meeting, stockholders
will be asked to consider and vote on this proposed Amendment.
ANALYSIS OF PROPOSAL 2
The adoption of this proposal would eliminate, until the
Termination Date, 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. This 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.
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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. This Amendment, while in effect, would
also encourage a potential acquirer to negotiate directly with the Board of
Directors. The Board of Directors believes that this change to eliminate, until
the Termination Date, 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. This proposed Amendment is 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 prior to the Termination
Date 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 Directors' 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:
"EIGHTH: Subject to the rights of the holders of any
class of Preferred Stock, until June 30, 2001, 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. After June 30, 2001, the power of the stockholders to
act by written consent without a meeting, without prior notice
and without a vote shall be as provided by the Delaware GCL.
Notwithstanding
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the foregoing provisions of this paragraph, 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. Subject to the rights of the holders of any series of
Preferred Stock, 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."
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 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.
The Board of Directors Recommends
That You Vote "FOR" the
Approval of Proposal 2
APPROVAL OF PROPOSAL 1 AND PROPOSAL 2
In the event Proposal 1 and Proposal 2 are both approved,
Article EIGHTH of the Certificate of Incorporation shall be amended to read in
its entirety as follows:
"EIGHTH: Subject to the rights of the holders of any
class of Preferred Stock, until June 30, 2001, 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. After June 30, 2001, the power of the stockholders to
act by written consent without a meeting, without prior notice
and without a vote shall be as provided by the Delaware GCL.
Notwithstanding the foregoing provisions of this paragraph,
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. Subject to the rights of
the holders of any class of Preferred Stock, until June 30,
2001, a special
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meeting of the stockholders may be called only by the Chairman
of the Board or by the Board of Directors pursuant to a
resolution adopted by a majority of the Whole Board and the
Stockholders shall have no power to cause the Chairman of the
Board or the Board of Directors to call a special meeting of
stockholders. After June 30, 2001, a special meeting of
stockholders may be called by the Chairman of the Board, by
the Board of Directors pursuant to a resolution adopted by 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."
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------------------------------------
PROPOSAL 3
AMENDING THE CERTIFICATE OF
INCORPORATION AND BY-LAWS TO
REQUIRE SUPERMAJORITY VOTE TO AMEND
ADOPTED PROPOSALS
OR ANY PROVISION OF THE BY-LAWS
------------------------------------
SUPERMAJORITY VOTE TO AMEND ADOPTED PROPOSALS 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 and director removal 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 by-laws 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, until the
Termination Date, 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 and (b) for the stockholders to amend or repeal any
provision of the ByLaws, 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 this proposed Amendment.
ANALYSIS OF PROPOSAL 3
Proposal 3, by limiting, until the Termination Date, 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
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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, until the Termination Date, 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: Until June 30, 2001 and subject to the
provisions of Article THIRTEENTH, Article SEVENTH, Article
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: In furtherance and not in limitation of the powers
conferred by law, the Board of Directors is expressly
authorized to make, alter, amend and repeal the By-Laws of the
Corporation, subject to the power of the holders of the
capital stock of the Corporation to alter, amend or repeal the
By-Laws. Until June 30, 2001, 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.
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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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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 September 20, 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.
Shares Percentage
Name and Address of Beneficial Owner (1) Beneficially Owned of Class (2)
- ---------------------------------------- ------------------- ------------
Merrill Lynch & Co., Inc. (3)
World Financial Center, North Tower
250 Vesey Street
New York, New York 10281 990,116 6.6%
Lazard Freres & Co. LLC (4)
30 Rockefeller Plaza
New York, New York 10020 1,521,000 10.1%
Founders Financial Group, L.P. (5)
53 Forest Avenue
Old Greenwich, Connecticut 06870 1,459,549 9.7%
WPN Corp.
110 East 59th Street
New York, New York 10022 1,362,816(6) 8.4%
Donald Smith & Co., Inc. (7)
East 80, Route 4
Paramus, New Jersey 07652 1,350,000 9.0%
Dimensional Fund Advisors, Inc. (8)
1299 Ocean Avenue, 11th Floor
Santa Monica, California 90401 1,275,325 8.5%
Gabelli Funds, Inc. (9)
One Corporate Center,
Rye, New York 10580 1,477,983 9.8%
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Shares Percentage
Name and Address of Beneficial Owner (1) Beneficially Owned of Class (2)
- ---------------------------------------- ------------------- ------------
Alliance Capital Management L.P. (10)
1290 Avenue of the Americas
New York, New York 10580 1,162,100 7.7%
Canyon Capital Advisors LLC (11)
9665 Wilshire Boulevard
Suite 200
Beverly Hills, California 90212 1,134,100 7.5%
Dewey Square Investors Corporation (12)
One Financial Center
Boston, Massachusetts 02111 866,419 5.8%
Ronald LaBow 1,362,816(6) 8.4%
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
Group (13 Persons) 1,962,298(17) 11.7%
* 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 September 20, 1999 of
15,031,416 shares.
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(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 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
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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.
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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 28, 1999
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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, 15,031,416 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 GCL, unless the
certificate of incorporation provides otherwise, the directors of a corporation
with 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
<PAGE>
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 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
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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.
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
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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.
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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 November 8,
1999 (the "Meeting") 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
20, 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, until
June 30, 2001, to eliminate the right of stockholders to call a special meeting
of stockholders and 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, until
June 30, 2001, to eliminate stockholder action by written consent.
--- FOR --- AGAINST --- ABSTAIN
(3) To amend the Certificate of Incorporation to require, until June
30, 2001, 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 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
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(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
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