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 10, 1998
I.C.H. CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
1-7697 43-6069928
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(Commission File No.) (I.R.S. Employer
Identification No.)
9404 Genesee Avenue, La Jolla, California 92037
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(Address of Principal Executive Offices) (Zip Code)
(619) 587-8533
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(Registrant's telephone number, including area code)
N/A
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(Former Name of Former Address, if Changed Since Last Report)
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Item 5. Other Events.
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On February 10, 1998, I.C.H. Corporation (the "Company") amended its
Rights Agreement, dated as of February 19, 1997, with Mid-America Bank of
Louisville and Trust Company, as Rights Agent, to, among other things (i) extend
the term of the Rights Agreement to February 19, 2007, (ii) increase the initial
purchase price of the Rights issued pursuant to the Rights Agreement to $20.00
per share and (iii) add certain "Continuing Director" provisions relating to the
redemption of such Rights.
On March 2, 1998, the Board of Directors of the Company approved an
amendment to the Amended and Restated By-laws of the Company to provide, among
other things, that stockholders intending to nominate persons for election to
the Board of Directors of the Company or to propose new business to be
considered by stockholders at an annual meeting of stockholders must provide the
Company with advance notice of such intentions.
The foregoing descriptions of Amendment No. 1 to Rights Agreement and
Amendment No. 1 to Amended and Restated By-laws of the Company do not purport to
be complete and are qualified in their entirety by the full text of such
Amendments which are filed as Exhibits 10.1 and 3.1 hereto, respectively, and
which are incorporated herein by reference.
Item 5. Financial Statements, Pro Forma Financial Information and Exhibits.
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3.1 Amendment No. 1 to Amended and Restated By-laws of I.C.H. Corporation.
10.1 Amendment No. 1 to Rights Agreement.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this Report on Form 8-K to be signed on
its behalf by the undersigned thereunto duly authorized.
Dated: March 3, 1998
I.C.H. CORPORATION
By: /s/ James R. Arabia
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Name: James R. Arabia
Title: Chairman of the Board,
Chief Executive Officer
and President
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Index to Exhibits
Sequentially
Exhibit Numbered
Number Description Pages
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3.1 Amendment No. 1 to Amended and Restated
By-laws of I.C.H.
10.1 Amendment No. 1 to Rights Agreement
EXHIBIT 3.1
AMENDMENT NO. 1 TO AMENDED
AND RESTATED BY-LAWS OF
I.C.H. CORPORATION
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March 2, 1998
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Pursuant to Section 109 of the General Corporation Law of the State of
Delaware and Article VII of the Amended and Restated By-Laws of I.C.H.
Corporation (the "Corporation"), the Amended and Restated By-Laws of the
Corporation are hereby amended as follows:
1. Article II of the Amended and Restated By-laws of the Corporation is
hereby amended by adding the following new Section 7 to the end thereof:
"Section 7. NOMINATIONS AND STOCKHOLDER BUSINESS.
(a) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the
stockholders may be made at an annual meeting of the stockholders (i)
pursuant to the Corporation's notice of meeting, (ii) by or at the
direction of the Board of Directors, or (iii) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of
notice provided for in this Section 7, who is entitled to vote at the
meeting and who complied with the notice procedures set forth in this
Section 7.
(b) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause
(iii) of paragraph (a) of this Section 7, the stockholder must have
given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to
the Secretary at the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days prior to the
first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is
advanced by more than thirty (30) days or delayed by more than sixty
(60) days from such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the 90th day prior to such
annual meeting and not later than the close of business on the later of
the 60th day prior to such annual meeting or the tenth day following the
day on which public announcement of the date of such meeting is first
made. Such stockholder's notice shall set forth (i) as to each person
whom the stockholder proposes to nominate for election or reelection as
a director, all information relating to such person that is required to
be disclosed in solicitations of proxies for election of directors, or
is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(including such persons' written consent to being named in the proxy
statement as a nominee
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and the serving as a director if elected); (ii) as to any other business
that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and of the beneficial
owners, if any, on whose behalf the proposal is made; and (iii) as to
the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made, (x) the name and
address of such stockholder, as they appear on the Corporation's books,
and of such beneficial owner and (y) the class and number of shares of
stock of the Corporation which are owned beneficially and of record by
such stockholder and such beneficial owner. With respect to the first
annual meeting of stockholders to be held in 1998, a stockholder's
notice required by this Section 7 shall be considered timely if it shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day
following the day on which public announcement of the annual meeting
date is first made by the Corporation.
(c) Notwithstanding anything in the second sentence of
paragraph (b) of this Section 7 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is increased
and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board of Directors made
by the Corporation at least seventy (70) days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Section 7 shall also be considered timely, but
only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public
announcement is first made by the Corporation."
2. Except as specifically set forth herein, the Amended and Restated
By-laws of the Corporation shall remain unchanged and in full force and effect.
EXHIBIT 10.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of February 10, 1998, to the Rights Agreement,
dated as of February 19, 1997 (the "Rights Agreement"), between I.C.H.
Corporation, a Delaware corporation (the "Company"), and Mid-America Bank of
Louisville and Trust Company, a Kentucky corporation, as Rights Agent (the
"Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement specifying the terms of the Rights (as defined therein);
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement in accordance with Section 27 of the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth in the Rights Agreement and this Amendment No. 1, the parties hereby
agree as follows:
1. Section 1 of the Rights Agreement is hereby amended by inserting the
following definition after the definition of "Common Stock Equivalents" and
before the definition of "Current Value":
""Continuing Director" shall mean (i) any member of the Board of
Directors of the Company, while such Person is a member of the Board,
who is not an Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring Person or of any
such Affiliate or Associate, and was a member of the Board prior to the
date of this Agreement, or (ii) any Person who subsequently becomes a
member of the Board, while such Person is a member of the Board, who is
not an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, or a representative of an Acquiring Person or of any such
Affiliate or Associate, if such Person's nomination for election or
election to the Board is recommended or approved by a majority of the
Continuing Directors."
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2. Section 1 of the Rights Agreement is also hereby amended to change
the date contained within the definition of "Final Expiration Date" from
"February 19, 1999" to "February 19, 2007".
3. Section 7(b) of the Rights Agreement is hereby amended to change the
initial Purchase Price in the third line from "$10.07" to "$20.00".
4. Section 23(a) of the Rights Agreement is hereby amended to add the
following language at the end of the first sentence:
", such Redemption Price to be payable in cash, Common Shares (based on
the "current per share market price," as defined in Section 11(d)
hereof, of the Common Shares at the time of redemption) or such other
form of consideration as may be deemed appropriate by the Board of
Directors of the Company; provided, however, if the Board of Directors
of the Company authorizes redemption of the Rights pursuant to this
Section 23(a), then there must be Continuing Directors then in office
and such authorization shall require the concurrence of a majority of
such Continuing Directors."
5. Section 27 of the Rights Agreement is hereby amended to add the
following language before the words "provided, however," in the first sentence:
"provided, however, that no proposed supplement or amendment to this
Agreement shall be effective unless (i) there are Continuing Directors
and (ii) a majority of such Continuing Directors, at a meeting of
Directors duly called and held, votes in favor of the adoption of such
proposed supplement or amendment;"
6. Section 27 of the Rights Agreement is also hereby amended to add the
word "further," after the word "provided," and before the work "however," in the
first sentence.
7. The term "Agreement" as used in the Rights Agreement shall be deemed
to refer to the Rights Agreement as amended hereby.
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8. The foregoing amendment shall be effective as of the date hereof and,
except as set forth herein, the Rights Agreement shall remain in full force and
effect and shall be otherwise unaffected hereby.
9. This Amendment No. 1 may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed and their respective corporate seals to be hereunto
affixed, all as of the day and year first above written.
I.C.H. CORPORATION
By: /s/ James R. Arabia
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Name: James R. Arabia
Title: Chief Executive Officer
MID-AMERICA BANK OF
LOUISVILLE AND TRUST COMPANY,
/s/ H. Steve Nieshe, Jr.
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Name: H. Steve Nieshe, Jr.
Title: Senior Vice President
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