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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 19, 1997
I.C.H. Corporation
(Exact name of registrant as specified in its charter)
Delaware 1-7697 43-6069928
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
9404 Genesee Avenue
La Jolla, California 92037
Registrant's telephone number, including area code: (619) 587-8533
Not Applicable
(Former name or former address, if changed since last report)
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500 North Akard Street
Dallas, Texas 75201 75201
(Address of principal executive offices) (Zip Code)
<PAGE>
Item 3. Bankruptcy or Receivership.
I.C.H. Corporation, a Delaware corporation (the "Corporation"), together
with Care Financial Corporation ("CFC") and SWL Holding Corporation ("SWL"),
each a Delaware corporation and a wholly owned subsidiary of the Corporation
(the Corporation, CFC and SWL herein referred to collectively, as the "Debtors")
filed voluntary petitions for relief with the United States Bankruptcy Court for
the Northern District of Texas, Dallas Division (the "Bankruptcy Court") under
Chapter 11 of the United States Bankruptcy Code, Case No. 395-36351-RCM-11, on
October 10, 1995. On February 7, 1997, the Bankruptcy Court entered an order
confirming the Debtors' First Amended Joint Plan of Reorganization under Chapter
11 (the "Joint Plan"). The effective date of the Joint Plan occurred on February
19, 1997 (the "Effective Date"). The transfer records for all of the
Corporation's publically traded securities were closed as of the close of
business on the Effective Date.
Pursuant to the Joint Plan, certain assets constituting substantially all
of the assets of the Corporation, along with all of the assets of CFC and SWL
were transferred to the Lone Star Liquidating Trust (the "Trust") for the
benefit of creditors of the Debtors. The Trust will liquidate the assets
transferred to it and distribute the proceeds thereof to claimants of the
Debtors pursuant to the terms of the Joint Plan. Holders of general unsecured
claims against the Corporation will receive a beneficial interest in the
proceeds of all assets of the Trust, which, following payment of or provision
for all other claims as provided in Article II and Section 4.1(a) of the Joint
Plan, will be distributed to the general unsecured claimants according to the
procedures set forth in Section 4.1(b) of the Joint Plan. March 3, 1997 has been
established as the initial distribution date for payment by the Trust to holders
of 11 1/4% Senior Subordinated Notes due 1996 and 11 1/4% Senior Subordinated
Notes due 2003. Subsequent distributions of available cash will be made by the
Trust on the last business day of each calendar quarter, commencing March 31,
1997, so long as available cash exceeds the reserve amount, currently set at $10
million. The record date for distributions will be 15 business days prior to the
respective distribution date.
The Corporation retained certain designated assets valued at approximately
$10.5 million including the following: $2,790,203.15, land and improvements
thereon in Perry Park, Kentucky, and all capital stock of Care Financial
Corporation, SWL Holding Corporation and Bankers Multiple Line Insurance Company
and also received a $500,000 contribution pursuant to a third party settlement.
On the Effective Date, all outstanding shares of preferred stock and common
stock of the Corporation (collectively, the "Stock") were cancelled. The
Corporation (hereinafter also referred to as "Reorganized ICH") will issue new
common stock ("Common Stock") to eligible holders of the cancelled Stock as
outlined in the Corporation's Form 8-K, filed with the Securities and Exchange
Commission on February 18, 1997 and incorporated by reference. As a result of
the Effective Date transactions, the Corporation is now owned by its previously
existing preferred and common stockholders.
Information regarding the number of shares of the Corporation currently
issued and outstanding, the number of shares of Reorganized ICH Stock reserved
for issuance pursuant to the Joint Plan, and the expected aggregate number of
Shares outstanding after implementation of the
<PAGE>
Joint Plan was included in the Corporation's Form 8-K filed with the Securities
and Exchange Commission on February 18, 1997, and is incorporated herein by
reference.
Information as to the assets and liabilities of the Corporation as of
December 31, 1996, as filed with the Bankruptcy Court is contained in the
Corporation's Monthly Operating Report for the Month Ending December 1996, was
filed as Exhibit 99 to the Corporation's Form 8-K which was filed with the
Securities and Exchange Commission on February 3, 1997, and is incorporated
herein by reference.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
2.1 First Amended Joint Plan of Reorganization Under Chapter 11
(incorporated by reference to Exhibit B to Exhibit 99.1 to the
Corporation's Form 8-K filed with the Securities and Exchange
Commission on November 22, 1996).
2.2 First Nonmaterial Modification to the First Amended Joint Plan of
Reorganization Under Chapter 11 (incorporated by reference to Exhibit
2.2 to the Corporation's Form 8-K filed with the Securities and
Exchange Commission on February 18, 1997).
2.3 Letter to Robert T. Shaw, Henry W. Simon, Jr. and Russell L. Munsch
agreeing to nonmaterial modification to the First Amended Joint Plan of
Reorganization Under Chapter 11, as filed with the Bankruptcy Court
(incorporated by reference to Exhibit 2.3 to the Corporation's Form 8-K
filed with the Securities and Exchange Commission on February 18,
1997).
99.1 Order Confirming the First Amended Joint Plan of Reorganization under
Chapter 11, as entered by the United States Bankruptcy Court for the
Northern District of Texas, Dallas Division, on February 7, 1997
(incorporated by reference to Exhibit 99.1 to the Corporation's Form
8-K filed with the Securities and Exchange Commission on February 18,
1997).
99.2 Findings of Fact and Conclusions of Law in Support of Order Confirming
First Amended Joint Plan of Reorganization Under Chapter 11
(incorporated by reference to Exhibit 99.2 to the Corporation's Form
8-K filed with the Securities and Exchange Commission on February 18,
1997).
<PAGE>
99.3 Monthly Operating Report for the Month Ending December 1996, filed with
the United States Bankruptcy Court for the Northern District of Texas,
Dallas Division, Case No. 395-36351-RCM-11 (incorporated by reference
to Exhibit 99 to the Corporation's Form 8-K filed with the Securities
and Exchange Commission on February 3, 1997).
99.4 Press Release issued February 20, 1997.
99.5 Amended and Restated Certificate of Incorporation of ICH Corporation.
99.6 Amended and Restated By-Laws of ICH Corporation.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
I.C.H. CORPORATION
Date: March 6, 1997 By: /s/ James R. Arabia
--------------------------------
Name: James R. Arabia
Title: President
<PAGE>
Index to Exhibits
Sequentially
Exhibit Numbered
Number Description Pages
- ------ ----------- ------------
2.1 First Amended Joint Plan of Reorganization Under Chapter
11 (incorporated by reference to Exhibit B to Exhibit
99.1 to the Corporation's Form 8-K filed with the
Securities and Exchange Commission on November 22, 1996).
2.2 First Nonmaterial Modification to the First Amended Joint
Plan of Reorganization Under Chapter 11 (incorporated by
reference to Exhibit 2.2 to the Corporation's Form 8-K
filed with the Securities and Exchange Commission on
February 18, 1997).
2.3 Letter to Robert T. Shaw, Henry W. Simon, Jr. and Russell
L. Munsch agreeing to nonmaterial modification to the
First Amended Joint Plan of Reorganization Under Chapter
11, as filed with the Bankruptcy Court (incorporated by
reference to Exhibit 2.3 to the Corporation's Form 8-K
filed with the Securities and Exchange Commission on
February 18, 1997).
99.1 Order confirming the First Amended Joint Plan of
Reorganization under Chapter 11, as entered by the United
States Bankruptcy Court for the Northern District of
Texas, Dallas Division, on February 7, 1997 (incorporated
by reference to Exhibit 99.1 to the Corporation's Form
8-K filed with the Securities and Exchange Commission on
February 18, 1997).
99.2 Findings of Fact and Conclusions of Law in Support of
Order Confirming First Amended Joint Plan of
Reorganization Under Chapter 11 (incorporated by
reference to Exhibit 99.2 to the Corporation's Form 8-K
filed with the Securities and Exchange Commission on
February 18, 1997).
99.3 Monthly Operating Report for the Month Ending December
1996, filed with the United States Bankruptcy Court for
the Northern District of Texas, Dallas Division, Case No.
395-36351-RCM-11 (incorporated by reference to Exhibit 99
to the Corporation's Form 8-K filed with the Securities
and Exchange Commission on February 3, 1997).
99.4 Press Release issued February 20, 1 1997.
99.5 Amended and Restated Certificate of Incorporation of
ICH Corporation.
99.6 Amended and Restated By-Laws of ICH Corporation.
ICH CORPORATION
500 North Akard
Dallas, Texas 75201
214. 954. 7111
NEWS RELEASE
================================================================================
FOR IMMEDIATE RELEASE
DALLAS, TX--February 20, 1997--The ICH Corporation ("ICH") First Amended
Joint Plan of Reorganization under Chapter 11 approved by the United States
Bankruptcy Court for the Northern District of Texas became effective yesterday.
The transfer records of all ICH public securities, including its 11 1/4% Senior
Subordinated Notes due 1996 and 11 1/4% Senior Subordinated Notes due 2003 and
its common stock and preferred stock, have been closed as of the close of
business on February 19, 1997. Susan Brown, the former Chairman and CEO of ICH
and the newly named Managing Trustee of the Lone Star Liquidating Trust, said
she was pleased that the Chapter 11 cases of ICH and its subsidiaries have been
concluded successfully and expeditiously with unsecured claims to be paid from
the Trust an estimated 96(cents symbol) on the dollar (translating into
approximately 99.9% on the face amount of the ICH Notes) and preferred and
common shareholders allowed to retain a stake in the form of common stock in
Reorganized ICH.
According to the terms of the Plan, all assets of ICH, and its
subsidiaries, other than assets valued in the aggregate at approximately $10.5
million which will be retained by Reorganized ICH, will be transferred to the
newly established Trust. The Trust will be responsible for paying all
administrative and priority claims. Unsecured creditors of ICH, including
holders of ICH Notes, will receive an initial cash distribution and beneficial
interests in the Trust entitling them to subsequent distributions of cash. March
3, 1997, has been established as the initial distribution date under the Plan
for payment to holders of ICH Notes as of February 19, 1997. Subsequent
distributions of available cash will be made on the last business day of each
calendar quarter, commencing on March 31, 1997, so long as cash available for
distribution exceeds a minimum amount. The Trustees
--MORE--
<PAGE>
have presently set that minimum at $10 million. The record date for such
subsequent distributions will be 15 business days prior to the distribution
date, and only holders of record of Trust Interests on the record date will be
entitled to distributions. John Tobin, Jeff Schultz and Gregory Lathrop, former
members of the ICH Unsecured Creditors Committee, have been named Supervisory
Trustees of the Trust.
Generally, preferred and common stockholders will be entitled to exchange
their securities for stock in Reorganized ICH or may elect a cash payment in
lieu of new stock. James R. Arabia has been named President and Chief Executive
Officer of Reorganized ICH, and will also serve as a member of the board of
directors of the reorganized company, together with Michael Dunn, Kenneth
Giddens and Carl Robinson. All of the directors of Reorganized ICH are former
members of the ICH Equity Committee. Reorganized ICH has entered into an
agreement to purchase 100% of the outstanding stock of Sybra, Inc., an operating
company which owns 150 Arby's restaurants in four states, for $16 million plus
the repayment of certain indebtedness of Sybra, Inc., which indebtedness shall
not exceed $23.7 million. The proposed sale will be accomplished in simultaneous
transactions that will include the sale of certain of the Arby's restaurant
properties to U.S. Restaurant Properties Master L.P. for $45 million, and the
leasing of those properties by Sybra, Inc. These transactions are subject to,
among other things, completion of due diligence, the purchasers obtaining
financing for the transaction, and certain consents from third parties. Subject
to the foregoing, the transactions are expected to close by April 18, 1997.
FOR FURTHER INFORMATION CONTACT:
Susan A. Brown (214) 954-7660
James R. Arabia (619) 587-8533
###
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
I.C.H. CORPORATION
Pursuant to Sections 245 and 303
of the
Delaware General Corporation Law
I.C.H. Corporation, a corporation existing under the laws of the State of
Delaware (hereinafter called the "Corporation"), does hereby certify:
FIRST: The name of the Corporation is I.C.H. Corporation.
SECOND: The Corporation was originally incorporated under the name I.C.H.
Corporation.
THIRD: The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on April 22, 1977.
FOURTH: This Amended and Restated Certificate of Incorporation is being
effected pursuant to Sections 245 and 303 of the Delaware General Corporation
Law.
Provision for the making of this Amended and Restated Certificate of
Incorporation of the Corporation is contained in the First Amended Joint Plan of
Reorganization of I.C.H. Corporation, f/k/a Southwestern Life Corporation, f/k/a
I.C.H. Corporation, SWL Holding Corporation, f/k/a Life Interests Corporation
and Care Financial Corporation, f/k/a Health Interests Corporation, Case Nos.
395-36351 (Chapter 11), 395-36352 (Chapter 11) and 395-36354 (Chapter 11),
respectively, under Chapter 11 of the United States Bankruptcy Code, as
confirmed by an order of the United States Bankruptcy Court for the Northern
District of Texas. The bankruptcy petition was filed on October 10, 1995; the
confirmation date was January 31, 1997 with an effective date of February 19,
1997.
FIFTH: The Certificate of Incorporation is amended and restated in its
entirety to read as herein set forth in full:
<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
I.C.H. CORPORATION
FIRST: The name of the corporation is:
I.C.H. Corporation
SECOND: The address of its registered office in the State of Delaware is
c/o United Corporate Services, Inc., 15 East North Street, in the City of Dover,
County of Kent, State of Delaware 19901. The name of its registered agent at
such address is United Corporate Services, Inc.
THIRD: The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The corporation shall be authorized to issue the following shares:
Class Number of Shares Par Value
----- ---------------- ---------
Common 9,000,000 $0.01
Preferred 1,000,000 $0.01
The designations and the powers, preferences and rights, and the
qualifications or restrictions thereof are as follows:
The Preferred shares shall be issued from time to time in one or more
series, with such distinctive serial designations as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
shares as adopted by the Board of Directors; the Board of Directors is
expressly authorized to fix the annual rate or rates of dividends for the
particular series, the dividend payment dates for the particular series and
the date from which dividends on all shares of such series issued prior to
the record date for the first dividend payment date shall be cumulative,
the redemption price or prices for the particular series, the voting powers
for the particular series, the rights, if any, of holders of the shares of
the
2
<PAGE>
particular series to convert the same into shares of any other series or
class or other securities of the corporation, with any provisions for the
subsequent adjustment of such conversion rights, the rights, if any, of the
particular series to participate in distributions or payments upon
liquidation, dissolution or winding up of the corporation, and to classify
or reclassify any unissued preferred shares by fixing or altering from time
to time any of the foregoing rights, privileges and qualifications.
All the Preferred shares of any one series shall be identical with
each other in all respects, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon
shall be cumulative; and all preferred shares shall be of equal rank,
regardless of series, and shall be identical in all respects except as to
the particulars fixed by the Board as hereinabove provided or as fixed
herein.
Notwithstanding anything contained in this Amended and Restated Certificate
of Incorporation to the contrary, the Corporation shall not issue nonvoting
equity securities to the extent prohibited by Section 1123 of the United States
Bankruptcy Code, 11 U.S.C. Section 1123; provided, however, that this provision
(i) will have no further force and effect beyond that required by such Section,
(ii) will have such force and effect, if any, only for so long as such Section
is in effect and applicable to the Corporation and (iii) in all events may be
amended or eliminated in accordance with the applicable law as from time to time
in effect.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the board of directors. In addition to the powers and
authority expressly conferred upon them by statute or by this Certificate of
Incorporation or the by-laws of the Corporation, the directors are hereby
empowered to the fullest extent permitted by law to exercise all such powers and
do all such acts and things as may be exercised or done by the Corporation.
B. The directors of the Corporation are to be elected by written
ballot unless the by-laws provide otherwise.
C. Except as otherwise provided in any Preferred Stock Designation,
any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
D. Special meetings of stockholders of the Corporation may be called
only by the Chairman of the Board or the Chief Executive Officer or by the board
of directors acting
3
<PAGE>
pursuant to a resolution adopted by a majority of the Whole Board for purposes
of this Certificate of Incorporation. The term "Whole Board" shall mean the
total number of authorized directors whether or not there exist any vacancies in
previously authorized directorships.
SIXTH: A. The board of directors shall be comprised of no less than four
(4) members and no more than five (5) members. The directors shall be divided
into two classes, with the term of office of the first class to expire at the
first annual meeting of stockholders following such classification ("Class 1
Directors") and the term of office of the second class to expire at the second
annual meeting of stockholders following such classification ("Class 2
Directors"). Class 1 Directors shall be comprised of one (1) member, in the
event that the Board consist of four (4) total members, and two (2) members in
the event that the Board consists of five (5) total members. Class 2 Directors
shall be comprised of three (3) members. At each annual meeting of stockholders
following such initial classification, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at
the second succeeding annual meeting of stockholders after their election.
B. Newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the board of directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall, unless otherwise provided by law or by resolution
of the board of directors, be filled only by a majority vote of the directors
then in office, though less than a quorum and not by the stockholders, and
directors so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of office of the class to which they have been
chosen expires. No decrease in the authorized number of directors shall shorten
the term of any incumbent director.
C. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
by-laws of the Corporation.
D. Any directors, or the entire board of directors, may be removed
from office at any time, but only for cause and only by the affirmative vote of
the holders of at least two-thirds (2/3) of the voting power of all of the
then-outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors voting together as a single class.
SEVENTH: The board of directors is expressly empowered to adopt, amend or
repeal by-laws of the Corporation. Any adoption, amendment or repeal of the
by-laws of the Corporation by the board of directors shall require the approval
of a majority of the Whole Board. The stockholders shall also have power to
adopt, amend or repeal the by-laws of the Corporation; provided, however, that,
in addition to any vote of the holders of any class or series of stock of the
Corporation required by law or by this certificate of Incorporation, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
voting power of all of the then-outstanding shares of the capital stock of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the by-laws of the Corporation.
4
<PAGE>
EIGHTH: 1. The affirmative vote of the holders of shares (other than shares
held by an Interested Shareholder (as hereinafter defined)) constituting
two-thirds of the voting power of the Corporation, given in person or by proxy
at a meeting called for such purpose, shall be necessary to approve:
(1) any merger, consolidation or reorganization (as defined in the
General Delaware Corporation law) of the Corporation or any Subsidiary (as
hereinafter defined) (a) with any Interested Stockholder, (b) with any other
corporation (whether or not itself an Interested Stockholder) which is, or after
such merger, consolidation or reorganization would be, an affiliate (as
hereinafter defined) of an Interested Stockholder or (c) in which an Interested
Stockholder, has an interest (except proportionately as a stockholder of the
Corporation);
(2) any sale, lease, exchange, mortgage, pledge, transfer or any other
disposition (in one transaction or in a series of transactions) to or with any
Interested Stockholder or any Affiliate of any Interested Stockholder, or in
which an Interested Stockholder has an interest (except proportionately as a
stockholder of the Corporation) of all or substantially all of the assets of the
Corporation or any Subsidiary;
(3) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or in a series of transactions) of all or
substantially all of the assets of an Interested Stockholder, an Affiliate
thereof, or an entity in which the Interested Stockholder has an interest, to
the Corporation or any Subsidiary;
(4) the issuance, sale, exchange, disposition or other transfer by the
Corporation or any Subsidiary (in one transaction or in a series of
transactions) of any securities of the Corporation or any Subsidiary to any
Interested Stockholder or any Affiliate of any Interested Stockholder (except
proportionately to the stockholders of the Corporation or such Subsidiary) in
exchange for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value (as hereinafter defined) of five million
dollars or more;
(5) any reclassification of securities (including any reverse stock
split) or recapitalization of the Corporation or any other transaction (whether
or not with or into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of, or
otherwise increasing the voting power over, the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder;
(6) any spin-off, split-off or split-up of the Corporation in which
the Interested Stockholder has an interest (other than proportionately as a
stockholder); or
(7) any agreement. contract, or other arrangement with an Interested
Stockholder (or in which the interested Stockholder has an interest other than
proportionately as a stockholder) providing for any of the transactions
described in clauses (1) through (6) of this
5
<PAGE>
Article Eighth,
The approval required in this Article Eighth, Section 1, shall be required
unless all of the conditions of Section 2 of this Article Eighth have been
fulfilled. Such affirmative vote shall be required notwithstanding the fact that
no vote may be required by law or that a lesser percentage may be specified by
law or in any arrangement with any national securities exchange or otherwise.
For purposes of this Section 1 "substantially all the assets" shall mean assets
having a book value of more than (i) 10% of the book value of the assets of the
entity in question, in the case of the Corporation or a Subsidiary and (ii) 90%
of the book value of the assets of the entity in question in the case of any
other entity.
2. Exceptions. The provisions of Section 1 of this Article Eighth requiring
a two-thirds vote of holders of the Company's outstanding voting stock shall not
be applicable to any particular Business Transaction (as hereinafter defined)
and such Business Transaction shall require only the affirmative vote of the
stockholders, if any, as is otherwise required by law, if the Business
Transaction shall have been approved expressly by a majority of Continuing
Directors (as hereinafter defined) of the Corporation.
3. Definitions. For the purposes of this Article Eighth:
(1) A "Person" shall mean any individual, group, partnership,
association; firm, corporation or other entity.
(2) "Interested Stockholder" shall mean any Person (other than
the Corporation, any Subsidiary (as defined below), any employee stock ownership
or other employee benefit plan of the Corporation or any Subsidiary or any
trustee of, or fiduciary with respect to, any such plan when acting in such
capacity) who or which (a) is the Beneficial Owner, directly or indirectly, of
more than ten percent (10%) of the voting power of the outstanding voting stock
of the Corporation; (b) is an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the date in question was the
Beneficial Owner, directly or indirectly, of more than ten percent (10%) of the
voting power of the outstanding voting stock of the Corporation; or (c) is an
Affiliate of the Corporation and at any time within the two-year period
immediately prior to the date in question was the Beneficial Owner, directly or
indirectly, of ten percent (10%) or more of the voting power of the then
outstanding voting stock of the Corporation which was at any time within the two
year period immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have occurred in
the course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933, as amended. The
calculation of the percentage of beneficial ownership shall be made at the
following three times, any of which will suffice for purposes of determining
that a Beneficial Owner is an Interested Stockholder: (i) at the time the
definitive agreement providing for the Business Transaction (including any
amendment thereof) was entered into, (ii) at the time a resolution approving the
Business Transaction was adopted by the Board of Directors of the Corporation,
or (iii) as of the record date of the Corporation for the determination of
stockholders entitled to notice of and to vote on,
6
<PAGE>
or to consent to, the Business Transaction.
(3) A Person shall be a "Beneficial Owner" of any voting stock of
the Corporation (a) which such Person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; (b) which such
Person or any of its Affiliates or Associates has (1) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or other options, or
otherwise, or (2) the right to vote pursuant to any agreement, arrangement or
understanding; or (c) which are beneficially owned, directly or indirectly, by
any Person with which such Person or any of its Affiliates has any agreement,
arrangement or understanding for the purpose of holding, voting or disposing of
any shares of such stock.
(4) For the purpose of determining whether a Person is an
Interested Stockholder pursuant to Section 3(2), the number of shares of voting
stock of the Corporation deemed to be outstanding shall include shares deemed
owned through application of Section 3(2) but shall not include any other shares
of voting stock of the Corporation which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(5) "Affiliates" or "Associates" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect from time to
time. The term "Associate," used to indicate a relationship with a specified
person, shall also mean any person who is a director or officer of such
specified person or any of its parents or subsidiaries (other than the
Corporation or any Subsidiary).
(6) "Subsidiary" shall mean any corporation of which at least a
majority of any class or equity security is owned, directly or indirectly, by
the Corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in Section 3(2), the term "Subsidiary" shall
mean only a corporation of which at least a majority of each class of equity
securities is owned, directly or indirectly, by the Corporation.
(7) "Fair Market Value" shall mean: (a) in the case of stock, the
highest closing sale price during the thirty (30) day period immediately
preceding the date in question of a share of such stock on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") or the
NASDAQ National Market System, or, if such stock is not quoted on NASDAQ, on the
New York Stock Exchange, or, if such stock is not listed on such Exchange, on
the principal United States securities exchange registered under the Securities
Exchange Act or 1934, as amended, on which such stock is listed, or if such
stock is not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the thirty (30) day period immediately
preceding the date in question on the NASDAQ, or any system then in use, or if
no such quotations are available, the Fair Market Value of such property on the
date in question as determined by a majority of Continuing Directors of in good
faith.
(8) In the event of any Business Transaction in which the
Corporation
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<PAGE>
survives, the phrase "consideration other than cash to be received"
as used in subsections (b)(i) and (ii) of Section 2 shall include the Common
Shares and/or the shares of any other class of outstanding voting stock retained
by the holder of such shares.
(9) "Business Transaction" shall mean any transaction which is
referred to in Section 1.
(10) "Voting Power" shall be calculated by multiplying the number
of voting shares or other voting securities of the Corporation or the
Subsidiary, as the case may be, times the number of votes (or fractional votes)
per such share or security to which the holders of such shares or securities are
entitled.
(11) "Continuing Director" shall mean any member of the board of
directors of the Corporation who (i) is not an Interested Stockholder or an
officer of the Corporation and who is not a nominee, an Affiliate or Associate
of any such Interested Stockholder or officer or (ii) was prior to his election,
recommended for election by a majority of Continuing Directors then on the
Board.
4. Determinations by Directors. A majority of Continuing Directors of the
Corporation shall have the power and duty to determine for the purpose of this
Article, on the basis of information known to them after reasonable inquiry, (a)
whether a person is an Interested Stockholder; (b) the number of shares of
voting stock of the Corporation of which any Person is the Beneficial Owner; (c)
whether a Person is an Affiliate or an Associate of another; (d) whether a
Person has an agreement, arrangement or understanding with another as to matters
referred to herein; (e) whether the assets in a Business Transaction are
"substantially all the assets" of an entity; (f) whether any Business
Transaction is one in which an Interested Stockholder has an Interest; (g)
whether the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Transaction has
an aggregate Fair Market Value of five million dollars or more; and (h) such
other matters with respect to which determination is required under this
Article.
5. Fiduciary Duties. Nothing contained in this Article shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
6. Amendments. To amend or repeal or adopt any provisions inconsistent with
Sections 1 through 6 of this Article Eighth, there shall be required the
affirmative vote or (i) the holders of not less than two-thirds of the voting
power of the Corporation and of the holders of two-thirds of the Common Shares
at the time outstanding voting together as a separate class or (ii) the
stockholders of the Corporation as required by law, if the amendment is approved
more than two-thirds of the directors of the Corporation.
7. Section 203. This Article Eighth does not constitute an election not to
be governed by Section 203 of the Delaware General Corporation Law.
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NINTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
TENTH: Section 1. Right to Indemnification. (a) Each person who was or
is made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators and (b) the Corporation shall indemnify in such
manner any person who was or is made a party or is threatened to be made a party
to a proceeding by reason of the fact that he, she or a person of whom he or she
is the legal representative, is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or a
partnership, joint venture, trust or other enterprise; provided, however, that
except as provided in Section 2 of this Article, the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. In the event a director
or officer of the Corporation shall serve as a director, officer, employee or
agent of any corporation, partnership, joint venture, trust or other enterprise
in which the Corporation maintains an investment it shall be conclusively
presumed for purposes of the indemnification provided for in subsection (b)
above that such service has been undertaken at the request of the Corporation.
The foregoing presumption shall apply regardless of whether such director or
officer is serving such entity at the request of a third party or that his or
her service with such entity was commenced prior to the effectiveness of this
Article of the Certificate of Incorporation or prior to his or her becoming an
officer or director of the Corporation. The right to indemnification conferred
in Subsection (a) above shall be a contract right based upon an offer from the
Corporation which shall be deemed to be accepted by such
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person's service or continued service with the Corporation for any period after
the adoption of this Article of the Certificate of Incorporation and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this section or otherwise. The
corporation may, by action of its Board of Directors, provide indemnification to
employees or agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
Section 2. Right of Claimant to Bring Suit. If a claim under section
1(a) of this Article is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful, in whole or in part, the claimant shall
be entitled to be paid also the expense (including attorneys' fees) of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnity the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard or conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
Section 3. Non-exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statue, provision
of the certificate of incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loans, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
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Any repeal or modification of Articles NINTH or TENTH by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ELEVENTH: The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation; provided, however, that,
notwithstanding any other provision of this Certificate of Incorporation or any
provision of law that might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the stock of this
Corporation required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least seventy-five percent (75%) or the
voting power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of Directors, voting
together as a single class, shall be required to amend or repeal this Article
ELEVENTH, Sections C or D of Article FIFTH, Article SIXTH, Article SEVENTH,
Article EIGHTH, Article NINTH or Article TENTH.
IN WITNESS WHEREOF, the undersigned Corporation hereby executes this
document and affirms that the facts set forth herein are true under the
penalties of perjury this 24th day of February, 1997.
I.C.H. CORPORATION
By: /s/ James R. Arabia
----------------------
Name: James R. Arabia
Title: President
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AMENDED AND RESTATED
BY-LAWS
OF
I.C.H. CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. - The registered office of the corporation
shall be located in the City of Dover, County of Kent, State of Delaware 19901.
SECTION 2. OTHER OFFICES. - The corporation may have other offices, either
in or outside of the State of Delaware, as shall be designated from time to time
by the Board of Directors.
ARTICLE II
SHAREHOLDERS
SECTION 1. ANNUAL MEETINGS. - Annual meetings of stockholders for the
election of directors and for such other businesses as may be stated in the
notice of the meeting, shall be held at such place, either within or without the
State of Delaware, and at such time and date as the Board of Directors, by
resolution, shall determine and as set forth in the notice of meeting. In the
event the Board of Directors fails to so determine the time, date and place of
meeting, the annual meeting of stockholders shall determine the time, date and
place of meeting.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a Board of Directors and
they may transact such other corporate business as shall be stated in the notice
of the meeting.
SECTION 2. OTHER MEETINGS. - Meetings of stockholders for any purpose other
than the election of directors may be held at such time and place, in accordance
with the Certificate of Incorporation, within or without the State of Delaware,
as shall be stated in the notice of the meeting.
SECTION 3. VOTING. - Each stockholder entitled to vote in accordance with
the terms of the Certificate of Incorporation and in accordance with the
provisions of these By-Laws shall be entitled to one vote, in person or by
proxy, for each share of stock entitled to vote held by such stockholder, but no
proxy shall be voted after three years from its date unless such proxy provides
for a longer period. Upon the demand of any stockholder, the vote upon any
question
<PAGE>
before the meeting, shall be by ballot. All questions shall be decided by
majority vote except as otherwise provided by the Certificate of Incorporation
or the laws of the State of Delaware.
A complete list of the stockholders entitled to vote at the ensuing
election, arranged in alphabetical order, with the address of each, and the
number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole thereof, and may be inspected by any
stockholder who is present.
SECTION 4. QUORUM. - Except as otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting, until the requisite amount of stock entitled
to vote shall be present. At any such adjourned meeting at which the requisite
amount of stock entitled to vote shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed; but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote in the meeting.
SECTION 5. SPECIAL MEETING. - Special meetings of the stockholders for any
purpose or purposes may be called in accordance with the Certificate of
Incorporation.
SECTION 6. NOTICE OF MEETINGS. - Written notice, stating the place, date
and time of the meeting, and the general nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat at his
address as it appears on the records of the corporation, not less than ten nor
more than sixty days before the date of the meeting. No business other than that
stated in the notice shall be transacted at any meeting without the unanimous
written consent of all of the stockholders entitled to vote thereat.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM. - The number of directors shall be as stated in
the Certificate of Incorporation. The directors shall be elected at the annual
meeting of the stockholders and each director shall be elected to serve until
his successor shall be elected and shall qualify. A director need not be a
stockholder.
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SECTION 2. RESIGNATIONS. - Any director, member of a committee or other
officer may resign at any time. Such resignation shall be made in writing, and
shall take effect at the time specified therein, and if no time is specified, at
the time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. - If the office of any director, member of a
committee or other officer becomes vacant, such vacancy shall be filled in
accordance with the Certificate of Incorporation.
SECTION 4. REMOVAL. - Any director or directors may be removed for cause in
accordance with the Certificate of Incorporation.
SECTION 5. INCREASE OF NUMBER. - The number of directors may be increased
only by amendment of the Certificate of Incorporation.
SECTION 6. POWERS. - The Board of Directors shall exercise all of the
powers of the corporation except such as are by law, or by the Certificate of
Incorporation of the corporation of by these By-Laws conferred upon or reserved
to the stockholders.
SECTION 7. COMMITTEES. - The Board of Directors may, by resolution or
resolutions passed by a majority of the entire Board, designate one ore more
committees, each committee to consist of such number of directors as the Board
may designate.
Any such committee, to the extent provided in the resolution of the Board
of Directors, or in these By-Laws, shall have and may exercise all the powers
and authority of the Board in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power of
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the By-Laws of the corporation; and
unless the resolution, these By-Laws, or the Certificate of Incorporation
expressly provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
SECTION 8. MEETINGS. - Meetings shall be held at such time as the Board
shall fix, except that the first meeting of a newly elected Board shall be held
as soon after its election as the directors may conveniently assemble. Meetings
may be held at any place, within or without the State of Delaware, which has
been designated in any notice of the meeting, or, if not stated in said notice
or, if there is no notice given, at the place designated by resolution of the
Board of Directors. Meetings may be called by the Chairman of the Board, if any,
by the President, if any, or by a majority of directors.
No notice shall be required for regular meetings for which the time and
place have been
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fixed by the Board of Directors. Special meetings shall be held upon at least
four days' notice by mail or upon at least forty-eight hours' notice delivered
personally or by telephone or telegraph. Notice of a meeting need not be given
to any director who signs a waiver of notice or a consent to holding the meeting
or an approval of the minutes thereof, whether before or after the meeting, or
who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director. A notice or waiver of notice
need not specify the purpose of any regular or special meeting of the Board of
Directors. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Unless otherwise restricted by the Certificate of Incorporation or these
By-Laws, members of the Board of Directors, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
SECTION 9. QUORUM. - A majority of the directors shall constitute quorum
for the transaction of business. If at any meeting of the Board there shall be
less than a quorum present, a majority of those present may adjourn the meeting
from time to time until a quorum is obtained, and no further notice thereof need
be given other than by announcement at the meeting which shall be so adjourned.
SECTION 10. COMPENSATION. - The Board of Directors, by the affirmative vote
of a majority of the directors then in office, and irrespective of any personal
interest of any its members, shall have authority to establish reasonable
compensation of all directors for services to the Corporation as directors or
otherwise. Nothing herein contained shall be construed to preclude any director
from serving the corporation in any other capacity as an officer, agent or
otherwise, and receiving compensation therefor.
SECTION 11. ACTION WITHOUT MEETING. - Any action required or permitted to
be taken by the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or the committee, as the case
may be, consent in writing to the adoption of a resolution authorizing the
action, and the resolution and written consents thereto are filed with the
minutes of the proceedings of the Board of Directors or committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. - The officers of the corporation shall be a
President, a Treasurer, and a Secretary, all of whom shall be elected annually
by the Board of Directors and who shall hold office until their successors are
elected and qualified. In addition, the Board of Directors may elect a Chairman,
one or more Vice-Presidents and such Assistant Secretaries and Assistant
Treasurers as they may deem proper. None of the officers of the corporation need
be directors. The officers shall be elected at the first meeting of the Board of
Directors after each
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annual meeting. More than two offices may be held by the same person.
The salaries of all officers and agents of the corporation shall be fixed
by the Board of Directors. Any officer elected or appointed by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancies occurring in any office of the corporation
shall be filled by the Board of Directors.
SECTION 2. OTHER OFFICERS AND AGENTS. - The Board of Directors may appoint
such other officers and agents as it may deem advisable, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
SECTION 3. THE CHAIRMAN OF THE BOARD. - The Chairman of the Board of
Directors, if one be elected, shall preside at all meetings of the Board of
Directors and shall perform such other duties as may be assigned by the Board of
Directors.
SECTION 4. PRESIDENT. - The President shall be the chief executive officer
of the corporation and shall have the general powers and duties of supervision
and management usually vested in the office of President of a corporation. He
shall preside at all meetings of the stockholders if present thereat, and shall
have general supervision, direction and control of the business of the
corporation.
SECTION 5. VICE-PRESIDENT. - The Vice-President, if there are more than
one, the senior Vice President, as determined by the Board of Directors, in the
absence or disability of the President, shall exercise the powers and perform
the duties of the President and each Vice-President shall exercise such other
powers and perform such other duties as shall be prescribed by the directors.
SECTION 6. TREASURER. - The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the corporation. He/she shall
deposit all moneys and other valuables in the name and to the credit of the
corporation in such depositaries as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may be ordered
by the Board of Directors, or the President and Board of Directors at the
regular meetings of the Board of Directors, or whenever they may request it, an
account of all his/her transactions as Treasurer and of the financial condition
of the corporation. If required by the Board of Directors, he/she shall give the
corporation a bond for the faithful discharge of his/her duties in such amount
and with such surety as the Board shall prescribe.
SECTION 7. SECRETARY. - The Secretary shall give, or cause to be given,
notice of all meetings of shareholders and directors, and all other notices
required by the law or by these By-laws, and in case of his/her absence or
refusal or neglect so to do, any such notice may be
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given by any person thereunto directed by the President, or by the directors, or
shareholders, upon whose requisition the meeting is called as provided in these
By-laws. He/she shall record all the proceedings of the meetings of the
corporation and of the directors in a book to be kept for that purpose, and
shall perform such other duties as may be assigned to him by the directors or
the President. He/she shall have the custody of the seal of the corporation and
shall affix the same to all instruments requiring it, when authorized by the
directors or the President, and attest the same.
SECTION 8. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. - Assistant
Secretaries and Assistant Treasurers, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
ARTICLE V
CAPITAL STOCK
SECTION 1. CERTIFICATES OF STOCK. - A certificate of stock, signed by the
Chairman or Vice-Chairman of the Board of Directors, if they be elected,
President or Vice-President, and the Treasurer or an Assistant Treasurer, or
Secretary or Assistant Secretary, shall be issued to each stockholder certifying
the number of shares owned by him in the corporation. When such certificate are
countersigned (1) by a transfer agent other than the corporation or its
employee, or, (2) by a registrar other than the corporation or its employee, the
signatures of such officers may be facsimiles.
SECTION 2. TRANSFER OF SHARES. - The shares of stock of the corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificate shall be surrendered to the corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers, or
to such other person as the directors may designate, by whom they shall be
canceled, and new certificates shall thereupon be issued. A record shall be made
of each transfer and whenever a transfer shall be made for collateral security,
and not absolutely, it shall be so expressed in the entry of the transfer.
SECTION 3. LOST OR DESTROYED CERTIFICATES. - A new certificate of stock may
be issued in the place of any certificate theretofore issued by the corporation,
alleged to have been lost or destroyed, and the directors may, in their
discretion, require the owner of the lost or destroyed certificate, or his legal
representatives, to give the corporation a bond, in such sum as they may direct,
not exceeding double the value of the stock, to indemnify the corporation
against any claim that may be made against it on account of the alleged loss of
any such certificate, or the issuance of any such new certificate.
SECTION 4. STOCKHOLDERS RECORD DATE. - In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or
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entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty days
prior to any other action. A determination of stockholders or record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjournment meeting.
ARTICLE VI
MISCELLANEOUS
SECTION 1. DIVIDENDS. - Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
directors shall deem conducive to the interests of the corporation.
SECTION 2. SEAL. - The directors shall provide a suitable corporate seal
which shall be in the charge of the Secretary and shall be used as authorized by
the By-Laws.
SECTION 3. FISCAL YEAR. - The fiscal year of the corporation shall be
determined by resolution duly adopted by the Board of Directors.
SECTION 4. CHECKS, NOTES, ETC. - Checks, notes, drafts, bills of exchange
and orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation shall be signed or endorsed in such manner
as shall be determined from time to time by resolution of the Board of
Directors.
The funds of the corporation shall be deposited in such bank or trust
company, and checks drawn against such funds shall be signed or endorsed in such
manner as determined by the Board of Directors.
SECTION 5. NOTICE AND WAIVER OF NOTICE. - Whenever any notice is required
by these By-laws to be given, personal notice is not meant unless expressly so
stated, and any notice so required shall be deemed to be sufficient if given by
depositing the same in the United States mail, postage, prepaid, addressed to
the person entitled thereto at his/her address as it appears on the records of
the corporation, and such notice shall be deemed to have been given on the day
of such mailing. Shareholders not entitled to vote shall not be entitled to
receive notice of any meetings except as otherwise provided by Statute.
Whenever any notice whatsoever is required to be given under the provisions
of any law, or under the provisions of the incorporation document of the
corporation or these By-laws, a
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waiver thereof in writing signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE VII
AMENDMENTS
These By-Laws may be altered or repealed and By-Laws may be made at any
annual meeting of the stockholders or at any special meeting thereof, in
accordance with the Certificate of Incorporation, if notice of the proposed
alteration or repeal of By-Law or By-Laws to be made be contained in the notice
of such special meeting, or at any regular meeting of the Board of Directors, or
at any special meeting of the Board of Directors, if notice of the proposed
alteration or repeal of By-Law or By-Laws to be made, be contained in the notice
of such special meeting.
