FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT
TO SECTION 12(b) OR(g) OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 1-8538
ASCENT ASSURANCE, INC.
(formerly, Westbridge Capital Corp.)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 73-1165000
(STATE OF INCORPORATION (I.R.S. EMPLOYER
OR ORGANIZATION) IDENTIFICATION NO.)
110 West Seventh Street, Suite 300
Fort Worth, Texas 76102
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [ ]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [X]
Securities Act registration statement file number to which this form relates:
N/A
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to be so registered: None
Name of each exchange on which each class is to be registered: N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Title of class: Common Stock, par value $.01 per share
Title of class: Warrants to purchase Common Stock
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Item 1. Description of Registrant's Securities to be Registered.
On September 16, 1998 (the "Petition Date"), Westbridge Capital Corp.
(now Ascent Assurance, Inc., the "Registrant") commenced a reorganization case
(the "Chapter 11 Case") by filing a voluntary petition for relief under Chapter
11, Title 11 of the United States Code in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"), along with a disclosure
statement (as amended, the "Disclosure Statement") and a proposed plan of
reorganization (as amended, the "Plan"). The Disclosure Statement and the Plan
were amended on October 28, 1998, and the Disclosure Statement was approved by
entry of an order by the Bankruptcy Court on October 30, 1998. Following the
approval of the Plan by the holders of allowed claims and equity interests, the
Bankruptcy Court confirmed the Plan on December 17, 1998. The Plan became
effective March 24, 1999 (the "Effective Date").
On the Effective Date, pursuant to the Plan, all of the Registrant's
outstanding (i) 11% Senior Subordinated Notes due 2002, (ii) 7-1/2% Convertible
Subordinated Notes due 2004, (iii) Series A Convertible Redeemable Exchangeable
Preferred Stock, (iv) Common Stock, par value $.10 per share (the "Old Common
Stock"), (v) warrants to purchase Old Common Stock, (vi) unexercised stock
options to purchase Old Common Stock, and (vii) unvested grants of restricted
Old Common Stock were cancelled. In addition, the Registrant's Second Amended
and Restated Certificate of Incorporation (the "Certificate of Incorporation")
was filed with the Secretary of State of the State of Delaware and became
effective. In accordance with the Certificate of Incorporation and pursuant to
the Plan, the Registrant is authorized to issue new shares of Common Stock, par
value $.01 per share (the "Common Stock"), and warrants to purchase Common Stock
(the "Warrants").
The following information concerning the Common Stock and the Warrants
being registered hereunder became effective as of the Effective Date:
The total number of shares of stock the Registrant shall have the
authority to issue is 30,040,000, consisting of 30,000,000 shares of Common
Stock and 40,000 shares of preferred stock, par value $.01 per share (the
"Preferred Stock"), all of which have been designated as Series A Convertible
Preferred Stock (the "Series A Preferred Stock").
The Registrant has applied to have the Common Stock listed and the
Warrants listed for quotation on the Nasdaq Small Cap Market System. There can
be no assurance, however, that such application will be granted.
A. COMMON STOCK
Each holder of Common Stock is entitled to one vote per share in all
matters to be voted on by the stockholders, including elections of directors,
and, except as otherwise required by law or provided with respect to any series
of Preferred Stock, the holders of such shares exclusively possess all voting
power. Holders of Common Stock are not entitled to cumulate their votes.
Subject to certain preferential rights of the Series A Preferred Stock,
and any other outstanding series of Preferred Stock created by the Board of
Direcors of the Registrant (the "Board") from time to time, holders of Common
Stock are entitled to dividends and other distributions as and when declared by
the Board out of assets legally available therefor, and upon the liquidation,
dissolution or winding up of the Registrant, the holders of Common Stock would
be entitled to share equally in the distribution of all of the Registrant's
assets. The holders of Common Stock have no preemptive rights to purchase shares
of Common Stock of the Registrant.
Any authorized but unissued and unreserved shares of Common Stock, will
be available for issuance without further action by the Company's stockholders,
unless such action is required by applicable law or the rules of any stock
exchange or automated quotation system on which the Company's securities may be
listed or traded.
The transfer agent and registrar for the Registrant's Common Stock is
LaSalle National Bank, 135 South LaSalle Street, Suite 1960, Chicago, Illinois
60603.
B. PREFERRED STOCK.
The Certificate of Incorporation includes provisions which permit the
Board, without action by the stockholders, to issue shares of Preferred Stock in
one or more series and, within certain limitations, to determine the dividend
rights, dividend rate, rights and terms of redemption, liquidation preferences,
sinking fund terms, conversion and voting rights of any series of Preferred
Stock, the number of shares constituting any such series, the designation
thereof and the price therefor. The Registrant believes that the ability of its
Board to issue one or more series of Preferred Stock provides the Registrant
with flexibility in structuring possible future financings and acquisitions, and
in meeting other corporate needs which might arise. Currently, however, all of
the authorized shares of Preferred Stock have been designated as Series A
Convertible Preferred Stock with the terms described below.
Any authorized but unissued and unreserved shares of Preferred Stock, will
be available for issuance without further action by the Company's stockholders,
unless such action is required by applicable law or the rules of any stock
exchange or automated quotation system on which the Company's securities may be
listed or traded.
Set forth below is a summary of the principal terms of the Series A
Convertible Preferred Stock. Such summary is qualified in its entirety by
reference to the text of the Certificate of Incorporation, which has been filed
as an exhibit hereto.
VOTING RIGHTS. The shares of Series A Preferred Stock are not entitled to
any voting rights, except as required by law and as provided for in the
Certificate of Incorporation. The Certificate of Incorporation provides for
voting rights in the following events:
(A) Whenever any dividends payable on shares of Series A Preferred Stock
in shares or an amount equivalent to or exceeding the amount of
dividends payable thereon for one Annual Dividend Period (as defined
in the Certificate of Incorporation) shall be past due, thereafter and
until all accrued and unpaid dividends payable shall have been paid in
full or declared and set apart for payment, the holders of shares of
Series A Preferred Stock, together with the holders of any other
series of Preferred Stock as to which dividends are in arrears and as
a result are entitled to the rights described in this subparagraph
(A), shall have the right, notwithstanding anything to the contrary in
the Certificate of Incorporation or the By-Laws of the Registrant (the
"By-Laws"), voting together as a single class with such other series,
to elect one director of the Registrant, such director to be in
addition to the number of directors constituting the Board immediately
prior to the accrual of such right, with the remaining directors to be
elected by the other class or classes of stock entitled to vote
therefor at any meeting of the stockholders held for the purpose of
electing directors. Such right of the holders of Series A Preferred
Stock to vote for the election of a director may be exercised at any
annual meeting of stockholders of the Registrant or at any special
meeting of stockholders of the Registrant called for such purpose as
hereinafter provided or at any adjournment thereof, or by the written
consent, delivered to the Secretary, of the holders of a majority of
all outstanding shares of Series A Preferred Stock as of the record
date of such written consent, until all accrued and unpaid dividends
payable shall have been paid in full or declared and set apart for
payment, at which time the term of office of the director so elected
shall terminate automatically. So long as such right to elect a
director continues (and unless such right has been exercised by
written consent of the holders of a majority of the outstanding shares
of Series A Preferred Stock as hereinabove authorized), the Secretary
may call, and upon the written request of the holders of record of at
least twenty percent (20%) of the outstanding shares of Series A
Preferred Stock addressed to the Secretary at the principal executive
offices of the Registrant shall call, a special meeting of the holders
of such shares for the election of such director as provided herein.
Such meeting shall be held within thirty (30) days after delivery of
such request to the Secretary, at the place and upon the notice
required for meetings of stockholders provided in the By-Laws or by
law for the holding of meetings of stockholders. No such special
meeting or adjournment thereof shall be held on a date less than
thirty (30) days before an annual meeting of stockholders of the
Registrant or any special meeting in lieu thereof at which the holders
of the Series A Preferred Stock are given the opportunity to elect one
director in accordance with this subparagraph (A). If at any such
annual or special meeting or any adjournment thereof the holders of a
majority of the then outstanding shares of Series A Preferred Stock
entitled to vote in such election shall be present or represented by
proxy, or if the holders of a majority of the outstanding shares of
Series A Preferred Stock shall have acted by written consent in lieu
of a meeting with respect thereto, then the authorized number of
directors shall be increased by one and the holders of the Series A
Preferred Stock shall be entitled to elect such additional director.
The absence of a quorum of the holders of any other class or series of
capital stock of the Registrant at any such annual or special meeting
shall not affect the exercise by the holders of the Series A Preferred
Stock of their right to elect a director in accordance with this
subparagraph (A). The director so elected shall serve until the next
annual meeting of stockholders of the Registrant or until their
successors shall be elected and shall qualify, unless the term of
office of the persons so elected as a director shall have terminated
under the circumstances set forth in the second sentence of this
subparagraph (A). In case the director elected by the holders of the
Series A Preferred Stock pursuant to this subparagraph (A) shall cease
to serve as a director for any reason prior to the expiration of his
or her term, the holders of the Series A Preferred Stock then
outstanding and entitled to vote for such director may, by written
consent as hereinabove provided, or at a special meeting of such
holders called as provided above, elect a successor to hold office for
the unexpired term of the director whose place shall be vacant.
(B) So long as any shares of Series A Preferred Stock shall be outstanding
and unless the consent or approval of a greater number of shares shall
then be required by law, without first obtaining the consent or
approval of the holders of a majority of the shares of Series A
Preferred Stock then outstanding, voting as a single class, given in
person or by proxy at a meeting at which the holders of such shares
shall be entitled to vote separately as a class, or by written
consent, the Registrant shall not: (i) authorize or create any class
or series, or any shares of any class or series, of any stock of the
Registrant ranking prior to the Series A Preferred Stock either with
respect to the payment of dividends or the distribution of assets,
whether upon liquidation or otherwise ("Senior Stock"); (ii) authorize
or create any class or series, or any shares of any class or series,
of any stock of the Registrant ranking on a parity with the Series A
Preferred Stock either with respect to the payment of dividends or the
distribution of assets, whether upon liquidation or otherwise ("Parity
Stock"); (iii) reclassify any shares of capital stock of the
Registrant into shares of Senior Stock or Parity Stock; (iv) authorize
any security exchangeable for, convertible into, or evidencing the
right to purchase any shares of Senior Stock or Parity Stock; (v)
amend, alter or repeal the Certificate of Incorporation to alter or
change the preferences, rights or powers of the Series A Preferred
Stock so as to affect the Series A Preferred Stock adversely or to
increase the authorized number of shares of Series A Preferred Stock;
or (vi) effect the sale, lease, conveyance or exchange of all or
substantially all of the assets, property or business of the
Registrant, or the merger or consolidation of the Registrant with or
into any other entity ("reorganization"), provided, however, that no
separate vote of the holders of the Series A Preferred Stock as a
class shall be required in the case of a reorganization if (x) the
Registrant is the surviving corporation and the Series A Preferred
Stock remains outstanding without change to its preferences, rights
and powers, or (y) each holder of shares of Series A Preferred Stock
immediately preceding such reorganization will receive from the
resulting, surviving or acquiring corporation in exchange therefor
shares of stock, with substantially the same preferences, rights and
powers.
(C) Until the date which is three months from the Effective Date (the
"Nomination Expiration Date"), the holders of shares of Series A
Preferred Stock shall have the right, notwithstanding anything to the
contrary in the Certificate of Incorporation or the By-Laws, voting
together as a single class to elect a sufficient number of directors
to fill any vacancies on the Board which result solely from the
failure by Credit Suisse First Boston Corporation ("CSFB") to fully
exercise its right under the Plan to select four members to serve on
the Board at the Effective Date. The right of the holders of shares of
Series A Preferred Stock to elect directors pursuant to this
subparagraph (C) shall terminate on the earlier of the date on which
such right has been exercised in full and the Nomination Expiration
Date, and thereafter, all directors shall be elected, and the number
of directors fixed, as provided in the By-Laws.
DIVIDENDS AND LIQUIDATION PREFERENCE. The holders of shares of Series A
Preferred Stock, in preference to the holders of shares of Common Stock and any
other capital stock of the Registrant ranking junior to the Series A Preferred
Stock as to payment of dividends, shall be entitled to receive, when, as and if
declared by the Board out of funds of the Registrant legally available for the
payment of dividends, cumulative dividends in respect of each outstanding share
of Series A Preferred Stock at an annual rate of $102.50 per share, and no more,
payable in cash or by issuing a number of additional fully paid and
non-assessable shares of Series A Preferred Stock in respect of each outstanding
share of Series A Preferred Stock determined by dividing the amount of the
dividend not paid in cash by the stated value per share of $1,000 per share.
Each share of Series A Preferred Stock has a liquidation value equal to its
stated value of $1,000 per share, plus all accrued and unpaid dividends thereon.
CONVERSION. Subject to adjustments as provided in the Certificate of
Incorporation, each share of Series A Preferred Stock is initially convertible
into 204.8897 shares of Common Stock at a conversion price of $4.88 per share of
Common Stock. As of the Effective Date, the shares of Series A Preferred Stock
were convertible into shares of Common Stock which, on an as converted basis,
would represent approximately 42.3% of the Common Stock outstanding. The
conversion price is subject to customary anti-dilution adjustments.
REDEMPTION. The Registrant is required to redeem any and all shares of
Series A Preferred Stock outstanding on the fifth anniversary of the Effective
Date at the stated value of $1,000 per share plus all accrued and unpaid
dividends.
C. DELAWARE ANTI-TAKEOVER LAW AND CERTAIN CHARTER PROVISIONS
The Registrant is subject to Section 203 of the General Corporation Law
of Delaware (the "DGCL") which, subject to certain exceptions, prohibits a
Delaware corporation from engaging in any "business combination" with any
"interested stockholder" for a period of three years following the time that
such stockholder became an interested stockholder, unless: (1) prior to such
time, the board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder; (2) upon consummation of the transaction which resulted
in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for purposes of
determining the number of shares outstanding those shares owned (x) by persons
who are directors and also officers, and (y) by employees stock plans in which
employee participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange offer;
or (3) at or subsequent to such time, the business combination is approved by
the board of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at least 66
2/3% of the outstanding voting stock which is not owned by the interested
stockholder.
In general, Section 203 defines as interested stockholder as (x) any
entity or person beneficially owning 15% or more of the outstanding voting stock
of the corporation and (y) any affiliate or associate of the corporation that
beneficially owned 15% or more of the outstanding voting stock of the
corporation at any time within the three year period immediately prior to the
date on which it is sought to determine whether such person or entity is an
interested stockholder. Section 203 defines business combination generally to
include: (1) any merger or consolidation involving the corporation and the
interested stockholder; (2) any sale, transfer, pledge or other disposition
involving the interested stockholder of 10% or more of the assets of the
corporation; (3) subject to certain exceptions, any transaction which results in
the issuance or transfer by the corporation of any stock of the corporation to
the interested stockholder; (4) any transaction involving the corporation which
has the effect of increasing the proportionate share of the stock of any class
or series of the corporation beneficially owned by the interested stockholder,
or (5) the receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or through
the corporation.
Section 203 makes it more difficult for a person who would be an
interested stockholder to effect various business combinations with a
corporation for a three-year period, although the stockholders may elect to
exclude a corporation from the restrictions imposed thereunder. The provisions
of Section 203 may encourage companies interested in acquiring the Registrant to
negotiate in advance with the Board, since the stockholder approval requirement
would be avoided if a majority of the directors then in office approve either
the business combination or the transaction which results in the stockholder
becoming an interested stockholder. Such provisions also may have the effect of
preventing changes in the management of the Registrant. It is possible that such
provisions could make it more difficult to accomplish transactions which
stockholders may otherwise deem to be in their best interests.
The Certificate of Incorporation and By-Laws contain certain provisions
relating to corporate governance and to the rights of stockholders which may be
deemed to have potential anti-takeover effects in that such provisions may delay
or prevent a change of control of the Registrant, such as the Board being
classified into three classes, each of which serve for three years, with one
class being elected each year.
D. INSURANCE REGULATION CONCERNING CHANGE OF CONTROL
State insurance regulatory laws intended primarily for the protection
of policyholders contain provisions that require advance approval by state
agencies of any change in control of an insurance company that is domiciled (or,
in some cases, having such substantial business that it is deemed commercially
domiciled) in that state. "Control" is generally presumed to exist through the
ownership of 10% or more of the voting securities of a domestic insurance
company or of any company which controls a domestic insurance company. In
addition, many state insurance regulatory laws contain provisions that may
require pre-notification to state agencies of a change in control of a
nondomestic admitted insurance company in that state. While such
pre-notification statutes do not authorize the state agency to disapprove the
change of control, such statutes do authorize the issuance of a cease and desist
order with respect to the nondomestic admitted insurer if certain conditions
exist such as undue market concentration. Any future transactions that would
constitute a change in control of the Registrant would generally require prior
approval by the state insurance departments of Delaware, Mississippi and Texas
and may require the pre-acquisition notification in those states which have
adopted pre-acquisition notification provisions and wherein the insurers are
admitted to transact business. Such requirements may deter, delay or prevent
certain transactions affecting the control of or the ownership of Common Stock,
including transactions that could be advantageous to the stockholders of the
Registrant.
E. LIMITATIONS OF LIABILITY OF DIRECTORS
The Certificate of Incorporation provides that director of the
Registrant will not be personally liable to the Registrant 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 Registrant
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 DGCL, which concerns unlawful payments of dividends, stock
purchases or redemptions, or (iv) for any transaction from which the director
derived an improper personal benefit.
While the Certificate of Incorporation provides directors with
protection from awards for monetary damages for breaches of their duty of care,
it does not eliminate such duty. Accordingly, the Certificate of Incorporation
will have no effect on the availability of equitable remedies such as an
injunction or rescission based on a director's breach of his or her duty of
care. The provisions of the Restated Charter described above apply to an officer
of the Registrant only if he or she is a director of the Registrant and is
acting in his or her capacity as director, and do not apply to officers of the
Registrant who are not directors.
F. WARRANTS
Pursuant to the Plan and in accordance with the Warrant Agreement dated
as of March 24, 1999 (the "Warrant Agreement") between the Registrant and
LaSalle National Bank, as warrant agent, the Registrant has issued 971,266
Warrants to purchase an aggregate of 971,266 shares of Common Stock. Each
Warrant entitles the holder thereof to purchase one share of Common Stock. The
Warrants may be exercised from the Effective Date of issuance until the fifth
anniversary of the Effective Date. No Warrants to purchase fractional shares
will be issued. The Warrants are transferable. The Warrant Agreement, attached
as an exhibit hereto and incorporated herein by reference, details the
procedures for issuance, distribution, exchange and transfer of the Warrants.
Prior to the exercise of the Warrants, the registered holders thereof are not
entitled to vote or be deemed the holders of Common Stock for any purpose.
The initial exercise price of the Warrants is $9.04 per share of Common
Stock. The number of shares purchasable or assets or property payable upon the
exercise of each Warrant and the exercise price of the Warrants are subject to
adjustment, on the terms and conditions contained in the Warrant Agreement, in
the event of: (i) certain stock dividends, subdivisions, combinations or
reclassifications of Common Stock; (ii) the issuance of rights or warrants to
subscribe for or purchase Common Stock below a specified price; (iii)
distributions of indebtedness or assets, securities, convertible into Common
Stock or rights to subscribe to Common Stock; (iv) certain consolidations,
mergers, sale of assets or other transactions affecting the Common Stock by the
Registrant.
Subject to the terms and conditions contained in the Warrant Agreement, the
Registrant shall have the right to accelerate the expiration of any or all of
the Warrants at any time by causing them to expire on a specified date not
earlier than March 24, 2000.
<PAGE>
ITEM 2. EXHIBITS.
2.1 First Amended Plan of Reorganization of Westbridge Capital Corp. under
Chapter 11 of the Bankruptcy Code, dated as of October 30, 1998, filed as
Exhibit 2 to the Registrant's Form 8-K dated September 21, 1998, and
incorporated herein by reference.
2.2 Amended Disclosure Schedule Accompanying the First Amended Plan of
Reorganization of Westbridge Capital Corp. under Chapter 11 of the
Bankruptcy Code, filed as Exhibit 2 to the Registrant's Form 8-K dated
September 21, 1998, and incorporated herein by reference.
2.3 Finding of Fact, Conclusions of Law and Order confirming the First Amended
Plan of Reorganization of Westbridge Capital Corp. dated October 30, 1998,
as modified, filed as Exhibit 2 to the Registrant's Form 8-K dated December
29, 1998, and incorporated herein by reference.
3.1 Second Amended and Restated Certificate of Incorporation of the Registrant,
filed herewith.
3.2 Amended and Restated Bylaws of the Registrant, effective as of March 24,
1999, filed herewith.
4.1 Form of Common Stock Certificate, filed herewith.
4.2 Form of Warrant Certificate, included in the Form of Warrant Agreement,
filed herewith.
4.3 Form of Warrant Agreement dated as of March 24, 1999, between the
Registrant and LaSalle National Bank, as warrant agent, filed herewith.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized, this the 25th
day of March, 1999.
ASCENT ASSURANCE, INC.
By: /S/ PATRICK J. MITCHELL
Name: Patrick J. Mitchell
Title: Chairman and Chief Executive Officer
<PAGE>
EXHIBIT INDEX
Exhibit
NUMBER DESCRIPTION
2.1 First Amended Plan of Reorganization of Westbridge Capital Corp. under
Chapter 11 of the Bankruptcy Code, dated as of October 30, 1998, filed as
Exhibit 2 to the Registrant's Form 8-K dated September 21, 1998, and
incorporated herein by reference.
2.2 Amended Disclosure Schedule Accompanying the First Amended Plan of
Reorganization of Westbridge Capital Corp. under Chapter 11 of the
Bankruptcy Code, filed as Exhibit 2 to the Registrant's Form 8-K dated
September 21, 1998, and incorporated herein by reference.
2.3 Finding of Fact, Conclusions of Law and Order confirming the First Amended
Plan of Reorganization of Westbridge Capital Corp. dated October 30, 1998,
as modified, filed as Exhibit 2 to the Registrant's Form 8-K dated December
29, 1998, and incorporated herein by reference.
3.1 Second Amended and Restated Certificate of Incorporation of the Registrant,
filed herewith.
3.2 Amended and Restated Bylaws of the Registrant, effective as of March 24,
1999, filed herewith.
4.1 Form of Common Stock Certificate, filed herewith.
4.2 Form of Warrant Certificate, included in the Form of Warrant Agreement
filed herewith.
4.3 Form of Warrant Agreement dated as of March 24, 1999, between the
Registrant and LaSalle National Bank, as warrant agent, filed herewith.
<PAGE>
EXHIBIT 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WESTBRIDGE CAPITAL CORP.
Westbridge Capital Corp., a corporation organized and existing under and by
virtue of the laws of the State of Delaware (the "Corporation"), HEREBY
CERTIFIES AS FOLLOWS:
1. The name of the Corporation is Westbridge Capital Corp. The date of
filing of its original Certificate of Incorporation by the Secretary of State
was the 22nd day of April, 1982.
2. On September 16, 1998 the Corporation filed a voluntary petition
pursuant to Chapter 11 of title 11 of the United States Code, 11 U.S.C. ss. ss.
101, et seq. (the "Bankruptcy Code") in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"), case number 98-2105 (MFW)
(the "Bankruptcy Case").
3. This Second Amended and Restated Certificate of Incorporation
restates, integrates and further amends the Restated Certificate of
Incorporation of the Corporation, as heretofore amended or supplemented pursuant
to a plan of reorganization (as it may be amended the "Plan") confirmed by the
Bankruptcy Court under section 1129 of the Bankruptcy Code, to read in its
entirety as follows:
FIRST: The name of the Corporation is Ascent Assurance, Inc.
SECOND: The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its registered agent at
such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "DGCL").
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 30,040,000, consisting of
30,000,000 shares of common stock, par value $.01 per share (hereinafter
referred to as "Common Stock"), and 40,000 shares of preferred stock, par value
$.01 per share (hereinafter referred to as "Preferred Stock").
The Board of Directors of the Corporation (the "Board of
Directors") is hereby authorized to create and provide for the issuance of one
or more series of the Preferred Stock from time to time and, by filing a
certificate pursuant to the DGCL (hereinafter referred to as a "Preferred Stock
Designation"), to establish the number of shares to be included in each such
series, and to fix the designations, preferences and relative, participating,
optional or other special rights of the shares of each such series and the
qualifications, limitations or restrictions thereof. The authority of the Board
of Directors with respect to each series shall include, but not be limited to,
determination of the following:
(i) The designation of the series, which may be by distinguishing number,
letter or title.
(ii) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
(iii) Whether dividends, if any, shall be cumulative or noncumulative, the
preference or relation which such dividend, if any, shall bear to the dividends
payable on any other class or classes or of any other series of capital stock,
and the dividend rate of the series.
(iv) Conditions and dates upon which dividends, if any, shall be payable.
(v) The redemption rights and price or prices, if any, for shares of the
series.
(vi) The terms and amount of any sinking fund provided for the purchase or
redemption of shares of the series.
(vii) The amounts payable on and the preferences, if any, of shares of the
series in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation.
(viii) Whether the shares of the series shall be convertible or
exchangeable into shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates at which
such shares shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made.
(ix) Restrictions on the issuance of shares of the same series or of any
other class or series.
(x) The voting rights, if any, of the holders of shares of the series,
whether as a class or series or otherwise, with respect to the election of
directors or otherwise.
(xi) Any other relative rights, preferences and limitations of that series.
The Corporation shall not issue any non-voting stock, PROVIDED,
HOWEVER, that this provision is included in this Certificate of Incorporation in
compliance with Section 1123(a)(6) of Title 11, United States Code (the
"BANKRUPTCY CODE") shall have no force and effect beyond that required by
Section 1123(a)(6) of the Bankruptcy Code and shall be effective only for so
long as Section 1123(a)(6) of the Bankruptcy Code is in effect and applicable to
the Corporation.
A. CONVERTIBLE PREFERRED STOCK
A statement of the voting powers, preferences and relative,
participating, optional and other special rights of 40,000 shares of Preferred
Stock to be designated as "Series A Convertible Preferred Stock", and the
qualifications, limitations or restrictions of such series, are as follows:
Section 1. DESIGNATION AND AMOUNT.
The shares of such series shall be designated as the "Series A
Convertible Preferred Stock" (the "SERIES A PREFERRED STOCK") and the number of
shares initially constituting such series shall be 40,000, which number may be
decreased (but not increased) by the Board of Directors without a vote of
stockholders; PROVIDED, HOWEVER, that such number may not be decreased below the
number of then currently outstanding shares of Series A Preferred Stock. The
stated value per share (the "STATED VALUE") of the Series A Preferred Stock
shall be $1,000.
Section 2. DEFINITIONS.
Capitalized terms used herein shall have the meanings set
forth in this SECTION 2:
"ANNUAL DIVIDEND PAYMENT DATE" has the meaning ascribed to
such term in PARAGRAPH (A) of SECTION 3.
"ANNUAL DIVIDEND PERIOD" has the meaning ascribed to such term
in PARAGRAPH (A) of SECTION 3.
"AVERAGE MARKET PRICE PER SHARE OF COMMON STOCK" on any date
shall be deemed to be the average of the Closing Prices per share of Common
Stock for the thirty (30) consecutive Trading Days commencing forty-five (45)
Trading Days immediately prior to such date.
"BOARD OF DIRECTORS" has the meaning ascribed to such term in
Article FOURTH.
"BUSINESS DAY" means any day other than Saturday, Sunday or a
day on which banking institutions in the States of New York or Texas are
authorized or obligated by law or executive order to close.
"CLOSING PRICE PER SHARE OF COMMON STOCK" on any date shall be
the last reported sale price or, in case no such sale takes place on such day,
the average of the closing bid and asked prices of the Common Stock, in either
case as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange, the last quoted sale price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotations System or such other system then in use, or, if on any such date the
Common Stock is not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Common Stock selected by the Board of Directors. If the Common Stock is
not publicly held or so listed or publicly traded, "CLOSING PRICE PER SHARE OF
COMMON STOCK" shall mean the Fair Market Value per share as determined in good
faith by the Board of Directors.
"COMMON STOCK" has the meaning ascribed to such term in
Article FOURTH.
"CONVERSION PRICE" shall be an amount equal to $4.88, as
adjusted from time to time pursuant to SECTION 8.
"DGCL" means the General Corporation Law of the State of
Delaware.
"DIVIDEND RATE" means an annual rate of $102.50 per share of
Series A Preferred Stock.
"EFFECTIVE DATE" means the effective date of the Plan.
"FAIR MARKET VALUE" means an amount determined in good faith
by the Board of Directors and certified in a resolution sent to all holders of
shares of Series A Preferred Stock.
"JUNIOR STOCK" means the Common Stock and any other stock of
the Corporation ranking junior to the Series A Preferred Stock with respect to
the payment of dividends and the distribution of assets, whether upon
liquidation or otherwise.
"PARITY STOCK" means any stock of the Corporation ranking on a
parity with the Series A Preferred Stock either with respect to the payment of
dividends or the distribution of assets, whether upon liquidation or otherwise.
"PERSON" means any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a corporation, a
partnership, a limited liability company, a trust or other entity.
"PLAN" means the First Amended Plan of Reorganization of the
Corporation under Chapter 11 of the Bankruptcy Code dated October 30, 1998 and
approved by the United States Bankruptcy Court for the District of Delaware.
"PREFERRED STOCK" has the meaning ascribed to such term in
Article FOURTH.
"SEC" means the Securities and Exchange Commission.
"SECRETARY" means the Secretary of the Corporation.
"SENIOR STOCK" means any stock of the Corporation ranking
prior to the Series A Preferred Stock either with respect to the payment of
dividends or the distribution of assets, whether upon liquidation or otherwise.
"SERIES A PREFERRED STOCK" has the meaning ascribed to such
term in SECTION 1.
"STATED VALUE" has the meaning ascribed to such term in
SECTION 1.
"SUBSIDIARY" of any Person means any corporation or other
entity of which a majority of the voting power of the voting equity securities
or equity interest is owned, directly or indirectly, by such Person.
"TRADING DAY" means a day on which any national securities
exchange on which the Common Stock is then listed is open for the transaction of
business or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, any Business Day.
"TRIGGER PRICE" means the Average Market Price per share of
Common Stock as of the date of any issuance of shares of Common Stock (or
rights, options or warrants to purchase or other securities convertible into or
exchangeable for shares of Common Stock).
Section 3. DIVIDENDS AND DISTRIBUTIONS.
(a) The holders of shares of Series A Preferred Stock, in
preference to the holders of shares of Common Stock and any other capital stock
of the Corporation ranking junior to the Series A Preferred Stock as to payment
of dividends, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds of the Corporation legally available for the
payment of dividends, cumulative dividends in respect of each outstanding share
of Series A Preferred Stock at the Dividend Rate, and no more, payable in cash
or by issuing a number of additional fully paid and non-assessable shares of
Series A Preferred Stock in respect of each outstanding share of Series A
Preferred Stock determined by dividing the amount of the dividend not paid in
cash by the Stated Value. Dividends shall be payable annually in arrears on the
last day of January (or if such day is not a Business Day, the Business Day next
preceding such day) in each year (each such date being referred to herein as an
"ANNUAL DIVIDEND PAYMENT DATE"), in respect of the annual period ending on the
last day of the immediately preceding calendar year (each such period being
referred to herein as an "ANNUAL DIVIDEND PERIOD"), so long as shares of Series
A Preferred Stock are outstanding; PROVIDED that the first Annual Dividend
Payment Date shall be January 31, 2000 in respect of the period from the
Effective Date through December 31, 1999.
(b) Dividends payable pursuant to PARAGRAPH (A) of this
SECTION 3 shall begin to accrue and be cumulative from the Effective Date. The
amount of dividends payable per share of Series A Preferred Stock on any Annual
Dividend Payment Date shall equal the Dividend Rate; PROVIDED that with respect
to the first Annual Dividend Payment Date, the amount of dividends payable per
share of Series A Preferred Stock shall be computed by dividing the Dividend
Rate by three hundred sixty (360) and multiplying the result by the number of
days from the Effective Date to the last day of the applicable Annual Dividend
Period. The amount of dividends payable for any period shorter or longer than a
full Annual Dividend Period, including the first Annual Dividend Period, shall
be determined on the basis of twelve 30-day months and a 360-day year. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated PRO RATA on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend declared thereon, which record date shall be no more than sixty (60)
days nor less than ten (10) days prior to the date fixed for the payment
thereof.
(c) The holders of shares of Series A Preferred Stock shall
not be entitled to receive any dividends or other distributions except as
provided in this SECTION 3.
Section 4. VOTING RIGHTS.
(a) Except as provided in paragraph (b), (c) and (d) of this
SECTION 4, and except for any voting rights provided by law, the holders of
shares of Series A Preferred Stock shall have no voting rights and their consent
shall not be required for the taking of any corporate action.
(b) (i) Whenever any dividends payable on shares of Series A
Preferred Stock pursuant to PARAGRAPH (A) of SECTION 3 in shares or an amount
equivalent to or exceeding the amount of dividends payable thereon for one
Annual Dividend Period shall be past due, thereafter and until all accrued and
unpaid dividends payable pursuant to PARAGRAPH (A) of SECTION 3 shall have been
paid in full or declared and set apart for payment, the holders of shares of
Series A Preferred Stock, together with the holders of any other series of
Preferred Stock as to which dividends are in arrears and as a result are
entitled to the rights described in this paragraph, shall have the right,
notwithstanding anything to the contrary in the Certificate of Incorporation or
the By-Laws, voting together as a single class with such other series, to elect
one director of the Corporation, such director to be in addition to the number
of directors constituting the Board of Directors immediately prior to the
accrual of such right, with the remaining directors to be elected by the other
class or classes of stock entitled to vote therefor at any meeting of the
stockholders held for the purpose of electing directors.
(ii) Such right of the holders of Series A Preferred Stock to
vote for the election of a director may be exercised at any annual meeting of
stockholders of the Corporation or at any special meeting of stockholders of the
Corporation called for such purpose as hereinafter provided or at any
adjournment thereof, or by the written consent, delivered to the Secretary, of
the holders of a majority of all outstanding shares of Series A Preferred Stock
as of the record date of such written consent, until all accrued and unpaid
dividends payable pursuant to PARAGRAPH (A) of SECTION 3 shall have been paid in
full or declared and set apart for payment, at which time the term of office of
the director so elected shall terminate automatically. So long as such right to
elect a director continues (and unless such right has been exercised by written
consent of the holders of a majority of the outstanding shares of Series A
Preferred Stock as hereinabove authorized), the Secretary may call, and upon the
written request of the holders of record of at least twenty percent (20%) of the
outstanding shares of Series A Preferred Stock addressed to the Secretary at the
principal executive offices of the Corporation shall call, a special meeting of
the holders of such shares for the election of such director as provided herein.
Such meeting shall be held within thirty (30) days after delivery of such
request to the Secretary, at the place and upon the notice required for meetings
of stockholders provided in the By-Laws or by law for the holding of meetings of
stockholders. No such special meeting or adjournment thereof shall be held on a
date less than thirty (30) days before an annual meeting of stockholders of the
Corporation or any special meeting in lieu thereof at which the holders of the
Series A Preferred Stock are given the opportunity to elect one director in
accordance with this PARAGRAPH (B). If at any such annual or special meeting or
any adjournment thereof the holders of a majority of the then outstanding shares
of Series A Preferred Stock entitled to vote in such election shall be present
or represented by proxy, or if the holders of a majority of the outstanding
shares of Series A Preferred Stock shall have acted by written consent in lieu
of a meeting with respect thereto, then the authorized number of directors shall
be increased by one and the holders of the Series A Preferred Stock shall be
entitled to elect such additional director. The absence of a quorum of the
holders of any other class or series of capital stock of the Corporation at any
such annual or special meeting shall not affect the exercise by the holders of
the Series A Preferred Stock of their right to elect a director in accordance
with this PARAGRAPH (B). The director so elected shall serve until the next
annual meeting of stockholders of the Corporation or until their successors
shall be elected and shall qualify, unless the term of office of the persons so
elected as a director shall have terminated under the circumstances set forth in
the second sentence of this PARAGRAPH (B). In case the director elected by the
holders of the Series A Preferred Stock pursuant to this PARAGRAPH (B) shall
cease to serve as a director for any reason prior to the expiration of his or
her term, the holders of the Series A Preferred Stock then outstanding and
entitled to vote for such director may, by written consent as hereinabove
provided, or at a special meeting of such holders called as provided above,
elect a successor to hold office for the unexpired term of the director whose
place shall be vacant.
(iii) The rights of the holders of Series A Preferred Stock to
elect one director pursuant to the terms of this PARAGRAPH (B) shall not be
adversely affected by the voting or other rights applicable to any other
security of the Corporation.
(c) So long as any shares of Series A Preferred Stock shall be
outstanding and unless the consent or approval of a greater number of shares
shall then be required by law, without first obtaining the consent or approval
of the holders of a majority of the shares of Series A Preferred Stock then
outstanding, voting as a single class, given in person or by proxy at a meeting
at which the holders of such shares shall be entitled to vote separately as a
class, or by written consent, the Corporation shall not: (i) authorize or create
any class or series, or any shares of any class or series, of Senior Stock; (ii)
authorize or create any class or series, or any shares of any class or series,
of Parity Stock; (iii) reclassify any shares of capital stock of the Corporation
into shares of Senior Stock or Parity Stock; (iv) authorize any security
exchangeable for, convertible into, or evidencing the right to purchase any
shares of Senior Stock or Parity Stock; (v) amend, alter or repeal the
Certificate of Incorporation to alter or change the preferences, rights or
powers of the Series A Preferred Stock so as to affect the Series A Preferred
Stock adversely or to increase the authorized number of shares of Series A
Preferred Stock; or (vi) effect the sale, lease, conveyance or exchange of all
or substantially all of the assets, property or business of the Corporation, or
the merger or consolidation of the Corporation with or into any other entity
(such transactions being hereinafter in this proviso referred to as
"REORGANIZATION"), PROVIDED, HOWEVER, that no separate vote of the holders of
the Series A Preferred Stock as a class shall be required in the case of a
reorganization if (A) the Corporation is the surviving corporation and the
Series A Preferred Stock remains outstanding without change to its preferences,
rights and powers, or (B) each holder of shares of Series A Preferred Stock
immediately preceding such reorganization will receive from the resulting,
surviving or acquiring corporation in exchange therefor shares of stock, with
substantially the same preferences, rights and powers.
(d) Until the date which is three months from the Effective
Date (the "NOMINATION EXPIRATION DATE"), the holders of shares of Series A
Preferred Stock shall have the right, notwithstanding anything to the contrary
in the Certificate of Incorporation or the By-Laws of the Corporation, voting
together as a single class to elect a sufficient number of directors to fill any
vacancies on the Board of Directors which result solely from the failure by
Credit Suisse First Boston Corporation to fully exercise its right under the
Plan to select four members to serve on the Board of Directors at the Effective
Date. The right of the holders of shares of Series A Preferred Stock to elect
directors pursuant to this paragraph (d) shall terminate on the earlier of the
date on which such right has been exercised in full and the Nomination
Expiration Date, and thereafter, all directors shall be elected, and the number
of directors fixed, as provided in the By-Laws of the Corporation.
Section 5. REDEMPTION.
(a) On the fifth anniversary of the Effective Date, the
Corporation shall redeem all outstanding shares of Series A Preferred Stock out
of funds of the Corporation legally available therefor, by paying therefor in
cash an amount equal to the Stated Value per share plus all accrued and unpaid
dividends thereon to the date of redemption.
(b) (i) Notice of any redemption of shares of Series A
Preferred Stock pursuant to PARAGRAPH (A) of this SECTION 5 shall be mailed not
less than thirty (30) nor more than sixty (60) days prior to the redemption date
to each holder of shares of Series A Preferred Stock to be redeemed, at such
holder's address as it appears on the transfer books of the Corporation. Each
such notice shall state: (w) the date fixed for redemption, (x) the place or
places where the redemption price will be paid (if other than the principal
executive offices of the Corporation), (y) the current Conversion Price and (z)
that dividends on the shares of Series A Preferred Stock will cease to accrue on
the date fixed for redemption. In order to facilitate the redemption of shares
of Series A Preferred Stock, the Board of Directors may fix a record date for
the determination of shares of Series A Preferred Stock to be redeemed, not more
than sixty (60) days nor less than thirty (30) days prior to the date fixed for
such redemption.
(ii) Notice having been given pursuant to subparagraph (i) of
PARAGRAPH (C) of this SECTION 5, from and after the date specified therein as
the date of redemption, unless default shall be made by the Corporation in
providing for the payment of the applicable redemption price, all dividends on
the Series A Preferred Stock thereby called for redemption shall cease to
accrue, and from and after the date of redemption so specified, unless default
shall be made by the Corporation as aforesaid, or from and after the date (prior
to the date of redemption so specified) on which the Corporation shall provide
for the payment of the redemption price by depositing the requisite amount of
moneys (and other property, if applicable) with a bank or trust company having a
capital and surplus of at least $50,000,000, PROVIDED that the notice of
redemption shall state the intention of the Corporation to deposit such moneys
(and other property, if applicable) on a date in such notice specified, all
rights of the holders thereof as stockholders of the Corporation, except the
right to receive the applicable redemption price (but without interest) and
except the right to exercise any privileges of conversion, shall cease and
terminate. Any interest allowed on moneys so deposited shall be paid to the
Corporation. Any moneys (and other property, if applicable) so deposited which
shall remain unclaimed by the holders of Series A Preferred Stock at the end of
six (6) years after the redemption date shall become the property of, and be
paid by such bank or trust company to, the Corporation. Except for any amounts
deposited in payment of accrued and unpaid dividends, in the event that moneys
are deposited pursuant to this paragraph in respect of shares of Series A
Preferred Stock that are converted in accordance with the provisions of SECTION
8, such moneys shall, upon such conversion, revert to the general funds of the
Corporation, and upon demand, such bank or trust company shall pay over to the
Corporation such moneys and shall be relieved of all responsibility to the
holders of such converted shares in respect thereof.
Section 6. REACQUIRED SHARES.
Any shares of Series A Preferred Stock converted, redeemed,
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof, and, if
necessary to provide for the lawful redemption or purchase of such shares, the
capital represented by such shares shall be reduced in accordance with the DGCL.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of another series of
Preferred Stock.
Section 7. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the holders of shares of
Series A Preferred Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to its stockholders, an amount equal to
the Stated Value per share plus all accrued and unpaid dividends thereon to the
date of such payment, and no distribution shall be made (i) to the holders of
shares of Common Stock or any other capital stock of the Corporation ranking
junior to the Series A Preferred Stock upon liquidation, dissolution or winding
up, unless, prior thereto, the holders of shares of Series A Preferred Stock
shall have received an amount equal to the Stated Value per share plus all
accrued and unpaid dividends thereon to the date of such payment, or (ii) to the
holders of shares of any capital stock of the Corporation ranking on a parity
with the Series A Preferred Stock upon liquidation, dissolution or winding up,
except distributions made ratably on the Series A Preferred Stock and all such
other capital stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or winding up of
the Corporation.
(b) Neither the consolidation, merger or other business
combination of the Corporation with or into any other Person or Persons nor the
sale, lease, exchange or conveyance of all or any part of the property, assets
or business of the Corporation shall be deemed to be a liquidation, dissolution
or winding up of the Corporation for purposes of this SECTION 7.
Section 8. CONVERSION.
Each share of Series A Preferred Stock may, subject to
PARAGRAPH (E) of this SECTION 8, at any time, at the option of the holder
thereof, be converted into shares of Common Stock, on the terms and conditions
set forth in this SECTION 8.
(a) Each share of Series A Preferred Stock shall be
convertible in the manner hereinafter set forth into a number of fully-paid and
nonassessable shares of Common Stock equal to the result obtained (calculated to
the nearest 1/1,000th of a share) by dividing the Stated Value by the Conversion
Price.
(b) The Conversion Price shall be adjusted from time to time
as follows:
(i) In case the Corporation shall at any time after
the Effective Date (i) declare a dividend on the Common Stock payable
in shares of Common Stock, (ii) subdivide or reclassify the outstanding
Common Stock or (iii) combine or reclassify the outstanding Common
Stock into a smaller number of shares, the Conversion Price in effect
on the record date for such dividend or on the effective date of such
subdivision, combination or reclassification shall be adjusted by
multiplying such Conversion Price by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately prior
to such event and the denominator of which is the number of shares of
Common Stock outstanding immediately after such event. Such adjustment
shall be made successively whenever any event listed above shall occur.
(ii) If at any time after the Effective Date the
Corporation shall fix a record date for the issuance of rights or
warrants to all holders of its Common Stock entitling them (for a
period expiring within forty-five (45) days after such record date) to
subscribe for or to purchase shares of Common Stock (or securities
convertible into shares of Common Stock) at a price per share, or
having a conversion price per share of Common Stock (if a security is
convertible into Common Stock), less than the Average Market Price per
share of Common Stock on such record date, the Conversion Price shall
be decreased to an amount determined by multiplying such Conversion
Price in effect immediately prior to such record date by a fraction,
the numerator of which is the sum of (x) the total number of shares of
Common Stock outstanding on such record date and (y) the number of
shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock to be so offered (or the aggregate
initial conversion price of the convertible securities to be so offered
plus any subscription or purchase price of such securities) would
purchase at such Average Market Price per share of Common Stock and the
denominator of which shall be the sum of (a) the number of shares of
Common Stock outstanding on such record date and (b) the number of
additional shares of Common Stock to be offered for subscription or
purchase (or into which the convertible securities to be so offered are
initially convertible). In the event such subscription or purchase
price is paid, in whole or in part, with consideration other than cash,
the value of such consideration shall be as determined by the Board of
Directors, whose determination shall be conclusive. Such adjustment
shall be made successively whenever such a record date is fixed and, in
the event that such rights or warrants are not issued, the Conversion
Price shall be adjusted to the Conversion Price which was in effect
prior to such record date.
(iii) If at any time after the Effective Date the
Corporation shall fix a record date for the making of a distribution to
all holders of its Common Stock of evidences of its indebtedness or
assets (excluding cash distributions made as a dividend payable out of
earnings or out of surplus legally available for dividends under the
laws of the jurisdiction of the Corporation), securities convertible
into Common Stock or rights to subscribe (excluding those referred to
in SUBPARAGRAPH (II) of this PARAGRAPH (B)), then in each case the
Conversion Price in effect immediately prior to such record date shall
be decreased to an amount determined by multiplying such Conversion
Price by a fraction, the numerator of which is the Average Market Price
per share of Common Stock on such record date less the then fair market
value per share of Common Stock (as determined by the Board of
Directors, whose determination shall be conclusive) of the assets or
evidences of indebtedness so distributed or of such subscription rights
and the denominator of which is the Average Market Price per share of
Common Stock on such date. Such adjustment shall be made successively
whenever such a record date is fixed and, in the event that such
distribution is not so made, the Conversion Price shall be adjusted to
the price which was in effect prior to such record date.
(iv) In case the Corporation shall be a party to any
transaction (including, without limitation, a merger, consolidation,
sale of all or substantially all of the Corporation's assets or
recapitalization of the Common Stock and excluding any transaction to
which SUBPARAGRAPH (I) of this PARAGRAPH (B) applies) in which the
previously outstanding Common Stock shall be changed into or, pursuant
to the operation of law or the terms of the transaction to which the
Corporation is a party, exchanged for different securities of the
Corporation or common stock or other securities of another corporation
or interests in a noncorporate entity or other property (including
cash) or any combination of any of the foregoing, then, as a condition
of the consummation of such transaction, lawful and adequate provision
shall be made so that each holder of shares of Series A Preferred Stock
shall be entitled, upon conversion, to an amount per share equal to (A)
the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged times (B) the number
of shares of Common Stock into which a share of Series A Preferred
Stock is convertible immediately prior to the consummation of such
transaction.
(c) In case the Corporation shall be a party to a transaction
described in SUBPARAGRAPH (IV) of PARAGRAPH (B) above, effective provision shall
be made, in the articles or certificate of incorporation of the resulting or
surviving corporation or other corporation issuing or delivering such shares,
other securities or property or otherwise, so that the provisions set forth
herein for the protection of the conversion rights of the Series A Preferred
Stock shall thereafter be applicable, as nearly as reasonably may be, to any
such other shares of stock and other securities and property deliverable upon
conversion of the Series A Preferred Stock remaining outstanding or other
convertible stock or securities received by the holders in place thereof; and
any such resulting or surviving corporation or other corporation issuing or
delivering such shares, other securities or property shall expressly assume the
obligation to deliver, upon the exercise of the conversion privilege, such
shares, securities or property as the holders of the Series A Preferred Stock
remaining outstanding, or other convertible stock or securities received by the
holders in place thereof, shall be entitled to receive, pursuant to the
provisions hereof, and to make provision for the protection of the conversion
right as above provided. In case shares, securities or property other than
Common Stock shall be issuable or deliverable upon conversion as aforesaid, then
all references to Common Stock in PARAGRAPH (B) of this SECTION 8 shall be
deemed to apply, so far as provided and as nearly as is reasonable, to any such
shares, other securities or property.
(d) The holder of any shares of Series A Preferred Stock may
exercise such holder's right to convert such shares into shares of Common Stock
by surrendering for such purpose to the Corporation, at its principal office or
at such other office or agency maintained by the Corporation for that purpose, a
certificate or certificates representing the shares of Series A Preferred Stock
to be converted accompanied by a written notice stating that such holder elects
to convert all or a specified whole number of such shares in accordance with the
provisions of this SECTION 8 and specifying the name or names in which such
holder wishes the certificate or certificates for shares of Common Stock to be
issued. In case such notice shall specify a name or names other than that of
such holder, such notice shall be accompanied by payment of all transfer taxes
payable upon the issuance of shares of Common Stock in such name or names. Other
than such taxes, the Corporation will pay any and all issue and other taxes
(other than taxes based on income) that may be payable in respect of any issue
or delivery of shares of Common Stock on conversion of Series A Preferred Stock
pursuant hereto. As promptly as practicable after the surrender of such
certificate or certificates and the receipt of such notice relating thereto and,
if applicable, payment of all transfer taxes (or the demonstration to the
satisfaction of the Corporation that such taxes have been paid), the Corporation
shall deliver or cause to be delivered (i) certificates representing the number
of validly issued, fully paid and nonassessable full shares of Common Stock to
which the holder of shares of Series A Preferred Stock so converted shall be
entitled and (ii) if less than the full number of shares of Series A Preferred
Stock evidenced by the surrendered certificate or certificates are being
converted, a new certificate or certificates, of like tenor, for the number of
shares evidenced by such surrendered certificate or certificates less the number
of shares converted. Such conversion shall be deemed to have been made at the
close of business on the date of giving of such notice and of such surrender of
the certificate or certificates representing the shares of Series A Preferred
Stock to be converted so that the rights of the holder thereof as to the shares
being converted shall cease except for the right to receive shares of Common
Stock, and the person entitled to receive the shares of Common Stock shall be
treated for all purposes as having become the record holder of such shares of
Common Stock at such time. The Corporation shall not be required to convert, and
no surrender of shares of Series A Preferred Stock shall be effective for that
purpose, while the transfer books of the Corporation for the Common Stock are
closed for any purpose (but not for any period in excess of ten (10) Business
Days); but the surrender of shares of Series A Preferred Stock for conversion
during any period while such books are so closed shall become effective for
conversion immediately upon the reopening of such books, as if the conversion
had been made on the date such shares of Series A Preferred Stock were
surrendered, and at the conversion rate in effect at the date of such surrender.
(e) Shares of Series A Preferred Stock may be converted at any
time up to the close of business on the Business Day next preceding the date
fixed for redemption of such shares pursuant to SECTION 5, unless the
Corporation shall have defaulted in its obligations under such Section to make
the redemption payment.
(f) In any case in which PARAGRAPH (B) of this SECTION 8 shall
require that an adjustment as a result of any event becomes effective after a
record date for such event, the Corporation may elect to defer until after the
occurrence of such event (i) issuing to the holder of any shares of Series A
Preferred Stock converted after such record date and before the occurrence of
such event the additional shares of Common Stock issuable upon such conversion
over and above the shares of Common Stock issuable upon such conversion on the
basis of the conversion rate prior to adjustment and (ii) paying to such holder
any amount in cash in lieu of a fractional share of Common Stock pursuant to
PARAGRAPH (G) below; and, in lieu of the shares the issuance of which is so
deferred, the Corporation shall issue due bills or other appropriate evidence of
the right to receive such shares.
(g) In connection with the conversion of any shares of Series
A Preferred Stock, no fractions of shares of Common Stock shall be issued, but
in lieu thereof the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to such fractional interest multiplied by
the Average Market Price per share of Common Stock on the day on which such
shares of Series A Preferred Stock are deemed to have been converted.
(h) The Corporation shall at all times reserve and keep
available out of its authorized and unissued Common Stock, solely for the
purpose of effecting the conversion of the Series A Preferred Stock, such number
of shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all shares of Series A Preferred Stock then outstanding. The
Corporation shall from time to time, subject to and in accordance with the DGCL,
increase the authorized amount of Common Stock if at any time the number of
authorized shares of Common Stock remaining unissued shall not be sufficient to
permit the conversion at such time of all shares of Series A Preferred Stock
then outstanding. The Corporation shall cause any shares of Common Stock issued
upon conversion of Series A Preferred Stock to be listed for trading on any
securities exchange on which the Common Stock is at the time listed, and shall
deliver such notices as may be required by such exchange in connection with any
such issuance. The Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares of Series A Preferred
Stock or for dividends on the shares of Common Stock issued upon such
conversion.
(i) Notwithstanding anything to the contrary contained herein,
if adjustments of the Conversion Price have caused the Conversion Price to be
lower than the par value, if any, of the Common Stock, upon any conversion of
shares of Series A Preferred Stock the Corporation shall, to the maximum extent
it is legally able to do so, issue to the converting holder the shares of Common
Stock into which the shares of Series A Preferred Stock being converted are
convertible, and, in addition, the Corporation shall pay the converting holder
an amount in cash equal to the Average Market Price per share of Common Stock
multiplied by the number of shares and fractions thereof of Common Stock which
the converting holder would have been entitled to receive except for the
limitation on lawful issuance described in this paragraph.
(j) Notwithstanding anything to the contrary contained herein,
no adjustment in the Conversion Price pursuant to this SECTION 8 shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such Conversion Price, PROVIDED, HOWEVER, that any adjustments
which, by reason of this PARAGRAPH (J), are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this SECTION 8 shall be made to the nearest cent and to the
nearest one-hundredth of a share, as the case may be.
(k) Upon the expiration of any rights, options or warrants to
purchase or other securities convertible into or exchangeable for shares of
Common Stock, if any thereof shall not have been exercised, converted or
exchanged, the Conversion Price shall, upon such expiration, be readjusted and
shall thereafter be such as it would have been had it been originally adjusted
(or had the original adjustment not been required, as the case may be) on the
basis of (i) the only shares of Common Stock so issued were the shares of Common
Stock, if any, actually issued or sold upon the exercise of such rights, options
or warrants to purchase or securities convertible into or exchangeable for
shares of Common Stock and (ii) such shares of Common Stock, if any, were issued
or sold for the consideration actually received by the Company upon such
exercise plus the consideration, if any, actually received by the Company for
the issuance, sale or grant of all such rights, options or warrants to purchase
or securities convertible into or exchangeable for shares of Common Stock,
whether or not exercised; PROVIDED, HOWEVER, that no such readjustment shall
have the effect of increasing the Conversion Price by an amount in excess of the
amount of the adjustment initially made in respect of the issuance, sale or
grant of such rights, options or warrants to purchase, or securities convertible
into or exchangeable for, shares of Common Stock.
Section 9. REPORTS AS TO ADJUSTMENTS.
Whenever the Conversion Price is adjusted as provided in
SECTION 8, the Corporation shall promptly mail to the holders of record of the
outstanding shares of Series A Preferred Stock at their respective addresses as
the same shall appear in the Corporation's stock records a notice stating that
the Conversion Price has been adjusted and setting forth the new Conversion
Price and the new number of shares of Common Stock (or describing the new stock,
securities, cash or other property) into which each share of Series A Preferred
Stock is convertible as a result of such adjustment, a brief statement of the
facts requiring such adjustment and the computation thereof, and when such
adjustment became effective.
Section 10. RANK.
The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets upon dissolution,
liquidation or winding up of the Corporation, (i) prior to all shares of Junior
Stock (including, without limitation, the Common Stock) and (ii) prior to all
shares of any other series of Preferred Stock, unless and to the extent such
other series, the authorization and creation of which was approved or consented
to by the requisite holders of Series A Preferred Stock in accordance with the
provisions of PARAGRAPH (B) of SECTION 4, by its terms ranks on a parity with or
senior to the Series A Preferred Stock in any respect.
B. COMMON STOCK.
The Common Stock shall be subject to the express terms of any
series of Preferred Stock set forth herein or in the Preferred Stock Designation
relating thereto. Each holder of Common Stock shall have one vote in respect of
each share of Common Stock held by such holder of record on the books of the
Corporation for the election of directors and on all other matters on which
stockholders of the Corporation are entitled to vote. The holders of shares of
Common Stock shall be entitled to receive, when and if declared by the Board of
Directors, out of the assets of the Corporation which are by law available
therefor, dividends payable either in cash, in stock or otherwise.
FIFTH: The Board of Directors shall have the power to make,
alter, amend and repeal By-laws of the Corporation. Any By-law made by the Board
of Directors under the powers hereby conferred may be altered, amended or
repealed by the Board of Directors or by the stockholders having voting power
with respect thereto.
SIXTH: (A) The number of directors of the Corporation shall be
fixed by the Amended and Restated By-laws of the Corporation and may be
increased or decreased from time to time in such manner as may be prescribed in
the Amended and Restated By-laws.
(B) Unless and except to the extent that the Amended and
Restated By-laws of the Corporation shall so require, the election of directors
of the Corporation need not be by written ballot.
(C) The directors, other than those who may be elected by the
holders of shares of any series of Preferred Stock or any other series or class
of stock as set forth in this Second Amended and Restated Certificate of
Incorporation, shall be divided into three classes, and designated as Class I,
Class II and Class III. Class I directors shall initially serve for a term
commencing on the Effective Date and expiring at the 1999 annual meeting of
stockholders, Class II directors shall initially serve for a term commencing on
the Effective Date and expiring at the 2000 annual meeting of stockholders, and
Class III directors shall initially serve for a term commencing on the Effective
Date and at the 2001 annual meeting of stockholders. At each annual meeting of
stockholders of the Corporation commencing with the 1999 annual meeting of
stockholders, the successors of the class of directors whose term expires at
that meeting shall be elected for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election, and
until their successors are elected and qualified.
SEVENTH: 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 which would otherwise exist
under applicable law (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 DGCL or (iv) for any transaction from which the director
derived an improper personal benefit. Any repeal or modification of, or adoption
of any provision of this Second Amended and Restated Certificate of
Incorporation inconsistent with, this Article SEVENTH by the stockholders of the
Corporation or in any other manner as may be permitted by law shall be
prospective only and shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time of such repeal,
modification or adoption.
4. This Second Amended and Restated Certificate of Incorporation was
duly executed and acknowledged by an officer of the Corporation appointed by the
United States Bankruptcy Court for the District of Delaware and is authorized
under the First Amended Plan of Reorganization approved by such Bankruptcy Court
having jurisdiction under the United States Bankruptcy Code for the
reorganization of the Corporation and in accordance with Sections 242, 245 and
303 of the DGCL.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed by its Chairman of the Board and Chief Executive
Officer and attested by its Secretary, this 24th day of March, 1999.
WESTBRIDGE CAPITAL CORP.
By: /S/ PATRICK J. MITCHELL
Name: Patrick J. Mitchell
Title: Chairman of the Board and Chief
Executive Officer
Attest:
/S/ PATRICK H. O'NEILL
Name: Patrick H. O'Neill
Title: Secretary
(..continued)
EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
ASCENT ASSURANCE, INC.
(Effective as of March 24,1999)
ARTICLE I
OFFICES; RECORDS; STOCKHOLDERS
SECTION 1.1 DELAWARE OFFICE. The principal office of the
Corporation in the State of Delaware shall be located in the City of Wilmington,
County of New Castle, and the name and address of its registered agent is The
Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.
SECTION 1.2 OTHER OFFICES. The Corporation may have such other
offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
SECTION 1.3 BOOKS AND RECORDS. The books and records of the
Corporation may be kept at the Corporation's principal executive offices in Fort
Worth, Texas or at such other locations inside or outside the State of Delaware
as may from time to time be designated by the Board of Directors.
SECTION 1.4 ANNUAL MEETING. The annual meeting of the
stockholders of the Corporation shall be held on the date and at the time fixed,
from time to time, by the Board of Directors. The annual meeting shall be held
at such place within or without the State of Delaware as may be fixed by the
Board of Directors, or, if not so fixed, at the principal executive offices of
the Corporation.
SECTION 1.5 SPECIAL MEETINGS. Subject to the rights of the
holders of any series of preferred stock, par value $.01 per share, of the
Corporation (the "Preferred Stock"), or any other series or class of stock as
set forth in the Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") to elect additional directors under specified
circumstances, a special meeting of the stockholders of the Corporation entitled
to vote on any business to be considered at any such meeting may be called by
the Chairman of the Board or the President, and shall be called by the Chairman
of the Board, the Vice Chairman of the Board, if any, or the President, or any
Vice President or the Secretary, when directed to do so by resolution of the
Board of Directors or the affirmative vote of at least 20% of the then
outstanding Voting Stock (as defined in Section 2.6 below) either present or
represented by proxy, voting together as a single class.
SECTION 1.6 NOTICE OF MEETINGS. Whenever stockholders are
required or permitted to take any action at a meeting, unless notice is waived
in writing prior to or after such meeting by all stockholders entitled to vote
at the meeting who do not attend such meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of such meeting, to the transaction of
any business because the meeting is not lawfully called or convened.
Unless otherwise provided by law, and except as to any
stockholder duly waiving notice, the written notice of any meeting shall be
given personally or by mail, not less than ten nor more than sixty days before
the date of the meeting to each stockholder entitled to vote at such meeting. If
mailed, notice shall be deemed given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation. Any previously scheduled meeting of the stockholders
may be postponed by resolution of the Board of Directors upon public notice
given prior to the time previously scheduled for such meeting of stockholders.
When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If, however, the adjournment is for more
than thirty 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 at the meeting.
SECTION 1.7 QUORUM. Except as otherwise provided by law or by
the Certificate of Incorporation or by these Amended and Restated By-Laws (the
"By-Laws") in respect of the vote required for a specified action, at any
meeting of stockholders the holders of a majority of the outstanding stock
entitled to vote thereat, either present or represented by proxy, shall
constitute a quorum for the transaction of any business at such meeting, except
that when specified business is to be voted on by a class or series voting as a
class, the holders of a majority of the shares of such class or series shall
constitute a quorum for the transaction of such business. The stockholders
present, although less than a quorum, may adjourn the meeting to another time or
place (or in the case of specified business to be voted on as a class or series,
the chairman or a majority of the shares of such class or series so represented
may adjourn the meeting with respect to such specified business) and, except as
provided in the last paragraph of Section 1.3 of these By-Laws, notice need not
be given of the adjourned meeting.
SECTION 1.8 VOTING. Whenever directors are to be elected at a
meeting, they shall be elected by a plurality of the votes cast at the meeting
by the holders of stock entitled to vote. Whenever any corporate action, other
than the election of directors, is to be taken by vote of stockholders at a
meeting, it shall, except as otherwise required by law or by the Certificate of
Incorporation or by these By-Laws, be authorized by a majority of the votes
actually cast at the meeting by the holders of stock entitled to vote thereon.
Except as otherwise provided by law, or by the Certificate of
Incorporation, each holder of record of stock of the Corporation entitled to
vote on any matter at any meeting of stockholders shall be entitled to one vote
for each share of such stock standing in the name of such holder on the stock
ledger of the Corporation on the record date for the determination of the
stockholders entitled to vote at the meeting.
SECTION 1.9 PRESIDING OFFICER AND SECRETARY. At every meeting
of stockholders the Chairman of the Board, or in his absence the Vice Chairman
of the Board, or in his absence (or if there be none) the President, or in his
absence a Vice President, or, if none be present, the appointee of the meeting,
shall act as chairman of the meeting. The Secretary, or in his absence an
Assistant Secretary, or if none be present, the appointee of the chairman of the
meeting, shall act as secretary of the meeting. The chairman of the meeting
shall call the meeting to order, and shall make such rulings and determinations
as shall be necessary or convenient for the conduct of the meeting, including
but not limited to determining when the polls shall open and close, the method
of voting and the manner in which votes are counted, the propriety of any matter
submitted for stockholder action, and the time of adjournment.
SECTION 1.10 PROXIES. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for him
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. Every proxy shall be
signed by the stockholder or by his duly authorized attorney. Such proxy must be
filed with the Secretary of the Corporation or his representative at or before
the time of the meeting.
SECTION 1.11 LIST OF STOCKHOLDERS. The officer who has charge
of the stock ledger of the Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list 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 is to be held, which place shall be specified in the
notice of 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 time thereof, and may be inspected by any
stockholder who is present.
The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
Section or the books of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
<PAGE>
ARTICLE II
DIRECTORS
SECTION 2.1 GENERAL POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors. In addition to the powers and authorities by these By-Laws expressly
conferred upon it, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation or by these By-Laws required to be exercised or
done by the stockholders.
SECTION 2.2 NUMBER OF DIRECTORS. Subject to the rights of the
holders of shares of any series of Preferred Stock or any other series or class
of stock as set forth in the Certificate of Incorporation to elect directors
under specified circumstances, the number of directors shall be fixed from time
to time exclusively pursuant to a resolution adopted by a majority of the
directors in office, but shall consist of not more than fifteen (15) nor less
than the minimum number required by law.
SECTION 2.3 ELECTION, TENURE AND QUALIFICATIONS. The
directors, other than those who may be elected by the holders of shares of any
series of Preferred Stock or any other series or class of stock as set forth in
the Certificate of Incorporation, shall be divided into three classes, and
designated as Class I, Class II and Class III. Class I Directors shall initially
serve for a term commencing on the Effective Date of the First Amended Plan of
Reorganization of the predecessor of the Corporation, Westbridge Capital Corp.,
under Chapter 11 of the Bankruptcy Code dated October 30, 1998 and approved by
the United States Bankruptcy Court for the District of Delaware (the "Effective
Date") and expiring at the 1999 annual meeting of stockholders, Class II
Directors shall initially serve for a term commencing on the Effective Date and
expiring at the 2000 annual meeting of stockholders, and Class III Directors
shall initially serve for a term commencing on the Effective Date and expiring
at the 2001 annual meeting of stockholders. At each annual meeting of
stockholders of the Corporation commencing with the 1999 annual meeting of
stockholders, the successors of the class of directors whose term expires at
that meeting shall be elected for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election, and
until their successors are elected and qualified. Members of each class shall
hold office until their successors shall have been duly elected and qualified.
SECTION 2.4 VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Subject
to the rights of the holders of shares of any series of Preferred Stock or any
other series or class of stock as set forth in the Certificate of Incorporation
to elect additional directors under specified circumstances, vacancies resulting
from death, resignation, retirement, disqualification, removal from office or
other cause, and newly created directorships resulting from any increase in the
authorized number of directors in accordance with these By-Laws, may be filled
only by the affirmative vote of a majority of the remaining directors, though
less than a quorum of the Board of Directors, or 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
elected expires and until such director's successor shall have been duly elected
and qualified. No decrease in the number of authorized directors constituting
the Board of Directors shall shorten the term of any incumbent director.
SECTION 2.5 RESIGNATION. Any director may resign at any time
upon written notice to the Corporation. Any such resignation shall take effect
at the time specified therein or, if the time be not specified, upon receipt
thereof, and the acceptance of such resignation, unless required by the terms
thereof, shall not be necessary to make such resignation effective.
SECTION 2.6 REMOVAL. Subject to the rights of the holders of
shares of any series of Preferred Stock or any other series or class of stock as
set forth in the Certificate of Incorporation to elect additional directors
under specified circumstances, any director may be removed from office at any
time, with or without cause, by the affirmative vote of the holders of the
voting power of the then outstanding Voting Stock (as defined below), voting
together as a single class. For purposes of these By-Laws, "Voting Stock" shall
mean the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors.
SECTION 2.7 MEETINGS. Meetings of the Board of Directors,
regular or special, may be held at any place within or without the State of
Delaware. Members of the Board of Directors, or of any committee designated by
the Board, may participate in a meeting of such Board or 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 participation in a
meeting by such means shall constitute presence in person at such meeting. An
annual meeting of the Board of Directors shall be held at the same place and
immediately following the annual meeting of stockholders, and no notice thereof
need be given. The Board of Directors may fix times and places for regular
meetings of the Board and no notice of such meetings need be given. A special
meeting of the Board of Directors shall be held whenever called by the Chairman
of the Board or by the President, or by a majority of the directors in office,
at such time and place as shall be specified in the notice or waiver thereof.
Whenever a special meeting is called pursuant to the preceding sentence, notice
of such special meeting shall be given by the Secretary or by a person calling
the meeting to each director by (i) in the case of a special meeting called by
the Chairman of the Board or by the President, mailing the same, postage
prepaid, not later than the second day before the meeting, or personally or by
telegraphing or telephoning the same not later than the day before the meeting,
or (ii) in the case of a special meeting called by a majority of the directors
in office, mailing the same, postage prepaid, not later than the seventh day
before the meeting, or personally or by telegraphing or telephoning the same not
later than the fifth day before the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice of such meeting.
SECTION 2.8 QUORUM AND VOTING. A majority of the whole Board
of Directors shall constitute a quorum for the transaction of business, but, if
there be less than a quorum at any meeting of the Board of Directors, a majority
of the directors present may adjourn the meeting from time to time, and no
further notice thereof need be given other than announcement at the meeting
which shall be so adjourned. Except as otherwise provided by law or by these
By-Laws, the vote of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
SECTION 2.9 WRITTEN CONSENT OF DIRECTORS IN LIEU OF A MEETING.
Any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all
members of the Board or of such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
SECTION 2.10 COMPENSATION. Directors may receive compensation
for services to the Corporation in their capacities as directors or otherwise in
such manner and in such amounts as may be fixed from time to time by the Board
of Directors.
SECTION 2.11 CONTRACTS AND TRANSACTIONS INVOLVING DIRECTORS.
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if: (1) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (2)
the material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (3) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof, or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
ARTICLE III
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 3.1 APPOINTMENT AND POWERS. The Board of Directors may
from time to time, by resolution passed by the Board, designate one or more
committees, each committee to consist of one or more directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. The resolution of the Board of Directors
may, in addition or alternatively, provide that in the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors 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, except as otherwise provided by law. Unless the
resolution of the Board of Directors expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock. Any such committee may adopt rules governing the method of
calling and time and place of holding its meetings. Unless otherwise provided by
the Board of Directors, one-third of any such committee shall constitute a
quorum for the transaction of business, and the vote of a majority of the
members of such committee present at a meeting at which a quorum is present
shall be the act of such committee. Each such committee shall keep a record of
its acts and Proceedings and shall report thereon to the Board of Directors
whenever requested so to do. Any or all members of any such committee may be
removed, with or without cause, by resolution passed by the Board of Directors.
ARTICLE IV
OFFICERS, AGENTS AND EMPLOYEES
SECTION 4.1 APPOINTMENT AND TERM OF OFFICE. The officers of
the Corporation shall include a Chairman of the Board, a President, a Secretary
and a Treasurer, and may include a Vice Chairman of the Board, one or more Vice
Presidents, one or more Assistant Secretaries and one or more Assistant
Treasurers. All such officers shall be appointed by the Board of Directors or by
a duly authorized committee thereof. All officers appointed by the Board of
Directors shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article IV,
together with such other powers and duties as from time to time may be conferred
by the Board of Directors or any committee thereof. The Chairman of the Board
shall be chosen from among the directors. Any number of such offices may be held
by the same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity. Except as may be prescribed otherwise by
the Board of Directors or a committee thereof in a particular case, each officer
shall hold office at the pleasure of the Board until the meeting of the Board of
Directors following the next annual meeting of stockholders and until his
successor has been elected and qualified. The Board of Directors may appoint,
and may delegate power to appoint, such other officers, agents and employees as
it may deem necessary or proper, who shall hold their offices or positions for
such terms, have such authority and perform such duties as may from time to time
be determined by or pursuant to authorization of the Board of Directors.
SECTION 4.2 RESIGNATION AND REMOVAL. Any officer may resign at
any time upon written notice to the Corporation. Any officer, agent or employee
of the Corporation may be removed by the Board of Directors, or by a duly
authorized committee thereof, with or without cause at any time. The Board of
Directors or such a committee thereof may delegate such power of removal as to
officers, agents and employees not appointed by the Board of Directors or such a
committee. Such removal shall be without prejudice to a person's contract
rights, if any, but the appointment of any person as an officer, agent or
employee of the Corporation shall not of itself create contract rights.
SECTION 4.3 COMPENSATION AND BOND. The compensation of the
officers of the Corporation shall be fixed by the Board of Directors, but this
power may be delegated to any officer in respect of other officers under his
control. The Corporation may secure the fidelity of any or all of its officers,
agents or employees by bond or otherwise.
SECTION 4.4 CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of stockholders and of the Board of Directors, and
shall have such other powers and duties as may be delegated to him by the Board
of Directors. In addition, the Chairman of the Board shall be the chief
executive officer of the Corporation, unless the Board of Directors appoints the
President as chief executive officer. As chief executive officer, the Chairman
of the Board shall have general charge of, and (subject to control by the Board
of Directors) full power and complete authority in the management of, the
business and affairs of the Corporation. Also as chief executive officer, the
Chairman of the Board may employ and discharge employees and agents of the
Corporation, except such as shall be appointed by the Board of Directors, and
may delegate these powers; he may vote the stock or other securities of any
other domestic or foreign corporation of any type or kind which may at any time
be owned by the Corporation; he may execute any stockholders' or other consents
in respect thereof; and he may, in his discretion, delegate such powers by
executing proxies, or otherwise, on behalf of the Corporation.
SECTION 4.5 VICE CHAIRMAN OF THE BOARD. The Vice Chairman of
the Board, if there be one, shall preside at all meetings of stockholders and of
the Board of Directors in the absence of the Chairman of the Board, and shall
have such other powers and duties as may be delegated to him by the Board of
Directors.
SECTION 4.6 PRESIDENT. The President shall act in a general
executive capacity and shall assist the Chairman of the Board in the
administration and operation of the Corporation's business and general
supervision of its policies and affairs. In the absence of the Chairman of the
Board and the Vice Chairman of the Board, or if there be none, the President
shall preside at all meetings of stockholders and of the Board of Directors, and
shall have such other powers and duties as may be delegated to him by the Board
of Directors. If appointed chief executive officer by the Board of Directors,
the President shall have the powers and duties conferred upon the Chairman of
the Board, in his capacity as chief executive officer, set forth in Section 4.4
of Article IV of these By-Laws.
SECTION 4.7 VICE PRESIDENTS. Each Vice President shall have
such powers and perform such duties as the Board of Directors or the President
may from time to time prescribe. In the absence or inability to act of the
President, unless the Board of Directors shall otherwise provide, the Vice
President who has served in that capacity for the longest time and who shall be
present and able to act, shall perform all the duties and may exercise any of
the powers of the President.
SECTION 4.8 TREASURER. The Treasurer shall have charge of all
funds and securities of the Corporation, shall endorse the same for deposit or
collection when necessary and deposit the same to the credit of the Corporation
in such banks or depositaries as the Board of Directors may authorize. He may
endorse all commercial documents requiring endorsements for or on behalf of the
Corporation and may sign all receipts and vouchers for payments made to the
Corporation. He shall have all such further powers and duties as generally are
incident to the position of Treasurer or as may be assigned to him by the
Chairman of the Board, the President or the Board of Directors.
SECTION 4.9 SECRETARY. The Secretary shall record all the
Proceedings of the meetings of the stockholders and directors in a book to be
kept for that purpose and shall also record therein all action taken by written
consent of the directors in lieu of a meeting. He shall attend to the giving and
serving of all notices of the Corporation. He shall have custody of the seal of
the Corporation and shall attest the same by his signature whenever required. He
shall have charge of the stock ledger and such other books and papers as the
Board of Directors may direct, but he may delegate responsibility for
maintaining the stock ledger to any transfer agent appointed by the Board of
Directors. He shall have all such further powers and duties as generally are
incident to the position of Secretary or as may be assigned to him by the
Chairman of the Board, the President or the Board of Directors.
SECTION 4.10 ASSISTANT TREASURERS. In the absence or inability
to act of the Treasurer, any Assistant Treasurer may perform all the duties and
exercise all the powers of the Treasurer. An Assistant Treasurer shall also
perform such other duties as the Treasurer or the Board of Directors may assign
to him.
SECTION 4.11 ASSISTANT SECRETARIES. In the absence or
inability to act of the Secretary, any Assistant Secretary may perform all the
duties and exercise all the powers of the Secretary. An Assistant Secretary
shall also perform such other duties as the Secretary or the Board of Directors
may assign to him.
SECTION 4.12 DELEGATION OF DUTIES. In case of the absence of
any officer of the Corporation, or for any other reason that the Board of
Directors may deem sufficient, the Board of Directors may confer for the time
being the powers or duties, or any of them, of such officer upon any other
officer or upon any director.
ARTICLE V
INDEMNIFICATION AND INSURANCE
SECTION 5.1 RIGHT TO INDEMNIFICATION. Each person who was or
is made a party or is threatened to be made a party to or is otherwise 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,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of any
other corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to any employee benefit plan (hereinafter an
"Indemnitee"), 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 and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware (the "DGCL"),
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, without limitation, attorneys' fees, judgments, fines, excise taxes
or penalties under the Employee Retirement Income Security Act of 1974, as
amended, and amounts paid or to be paid in settlement) reasonably incurred by
such Indemnitee in connection therewith; PROVIDED, HOWEVER, that except as
provided in Section 5.3 with respect to Proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such Indemnitee seeking
indemnification in connection with a Proceeding (or part thereof) initiated by
such Indemnitee only if such Proceeding (or part thereof) was authorized by the
Board of Directors.
SECTION 5.2 RIGHT TO ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in Section 5.1 shall include the right to be paid by
the Corporation the expenses (including attorneys' fees) incurred in defending
any such Proceeding in advance of its final disposition (hereinafter an
"Advancement of Expenses"); provided, however, that, if the DGCL requires, an
Advancement of Expenses incurred by an Indemnitee 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 Indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such Indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"Final Adjudication") that such Indemnitee is not entitled to be indemnified for
such expenses under this Section 5.2 or otherwise.
SECTION 5.3 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim
under Section 5.1 or Section 5.2 is not paid in full by the Corporation within
thirty (30) days after a written claim has been received by the Corporation,
except in the case of a claim for an Advancement of Expenses, in which case the
applicable period shall be twenty (20) days, the Indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an Advancement of Expenses pursuant to the
terms of an undertaking, the Indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
Indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the Indemnitee to enforce a right of an Advancement of Expenses) it
shall be a defense that, and (ii) in any suit brought by the Corporation to
recover an Advancement of Expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the Indemnitee has not met any applicable standard for indemnification set
forth in the DGCL. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel or stockholders) that the Indemnitee has not met such applicable
standard of conduct, shall create a presumption that the Indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an Advancement of Expenses hereunder,
or brought by the Corporation to recover an Advancement of Expenses pursuant to
the terms of an undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such Advancement of Expenses, under this
Article V or otherwise shall be on the Corporation.
SECTION 5.4 NON-EXCLUSIVITY OF RIGHTS. The right to
indemnification and the Advancement of Expenses conferred in this Article V
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation,
provision of these By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
SECTION 5.5 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 expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
SECTION 5.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to the
Advancement of Expenses, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article V with respect to the
indemnification and Advancement of Expenses of directors and officers of the
Corporation.
SECTION 5.7 CONTRACT RIGHTS. The rights to indemnification and
to the Advancement of Expenses conferred in Section 5.1 and Section 5.2 shall be
contract rights and such rights shall continue as to an Indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the Indemnitee's heirs, executors and administrators.
ARTICLE VI
CAPITAL STOCK
SECTION 6.1 CERTIFICATES. Certificates for stock of the
Corporation shall be in such form as shall be approved by the Board of Directors
and shall be signed in the name of the Corporation by the Chairman of the Board,
the Vice Chairman of the Board, if any, or the President, or a Vice President,
and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. Such certificates may be sealed with the seal of the Corporation or a
facsimile thereof. Any of or all the signatures on a certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
SECTION 6.2 TRANSFERS OF STOCK. Transfers of stock shall be
made only upon the books of the Corporation by the holder, in person or by duly
authorized attorney, and on the surrender of the certificate or certificates for
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require. The
Board of Directors shall have the power to make all such rules and regulations,
not inconsistent with the Certificate of Incorporation and these By-Laws and the
law, as the Board of Directors may deem appropriate concerning the issue,
transfer and registration of certificates for stock of the Corporation. The
Board may appoint one or more transfer agents or registrars of transfers, or
both, and may require all stock certificates to bear the signature of either or
both.
SECTION 6.3 LOST, STOLEN OR DESTROYED CERTIFICATES. The
Corporation may issue a new stock certificate in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Corporation may require the owner of the lost, stolen or destroyed
certificate or his legal representative to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of any such new certificate. The Board of Directors may require such
owner to satisfy other reasonable requirements as it deems appropriate under the
circumstances.
SECTION 6.4 STOCKHOLDER 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 entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any 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 record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
Only such stockholders as shall be stockholders of record on the date so fixed
shall be entitled to notice of, and to vote at, such meeting and any adjournment
thereof, or to receive payment of such dividend or other distribution, or to
exercise such rights in respect of any such change, conversion or exchange of
stock, or to participate in such action, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after any record date so
fixed.
If no record date is fixed by the Board of Directors, (1) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the date on which notice is given, or, if notice is waived by all
stockholders entitled to vote at the meeting, at the close of business on the
day next preceding the day on which the meeting is held, and (2) the record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
A determination of stockholders of 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 adjourned meeting.
ARTICLE VII
SEAL
SECTION 7.1 SEAL. The seal of the Corporation shall be
circular in form and shall bear, in addition to any other emblem or device
approved by the Board of Directors, the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
ARTICLE VIII
WAIVER OF NOTICE
SECTION 8.1 WAIVER OF NOTICE. Whenever notice is required to
be given to any stockholder or director of the Corporation under any provision
of the DGCL or by statute or under any provision of the Certificate of
Incorporation or these By-Laws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. In the case of a stockholder, such waiver of notice
may be signed by such stockholder's attorney or proxy duly appointed in writing.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice.
ARTICLE IX
CHECKS, NOTES, DRAFTS, ETC.
SECTION 9.1 CHECKS, NOTES, DRAFTS, ETC. Checks, notes, drafts,
acceptances, bills of exchange and other orders or obligations for the payment
of money shall be signed by such officer or officers or person or persons as the
Board of Directors or a duly authorized committee thereof may from time to time
designate.
ARTICLE X
FISCAL YEAR
SECTION 10.1 FISCAL YEAR. The fiscal year of the Corporation
shall be fixed, and shall be subject to change, by the Board of Directors.
ARTICLE XI
AMENDMENTS
SECTION 11.1 AMENDMENTS. (A) BY THE STOCKHOLDERS. Subject to
the provisions of the DGCL, the Certificate of Incorporation and these By-Laws,
these By-Laws may be altered, amended or repealed, or new By-Laws enacted, at
any special meeting of the stockholders if duly called for that purpose, or at
any annual meeting, PROVIDED, HOWEVER, that, in the case of amendments by
stockholders, notwithstanding any other provisions of these By-Laws or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or
series of stock required by law, the Certificate of Incorporation or these
By-Laws, the affirmative vote of a majority of the voting power of the then
outstanding Voting Stock either present or represented by proxy, voting together
as a single class, shall be required to alter, amend or repeal any provision of
these By-Laws.
(B) BY THE BOARD OF DIRECTORS. Subject to the provisions of
the DGCL, the Certificate of Incorporation and these By-Laws, these By-Laws may
also be altered, amended or repealed, or new By-Laws enacted, by the Board of
Directors.
EXHIBIT 4.1
CUSIP NO. 04362N103
COMMON STOCK CERTIFICATE
-----------------------------
ASCENT ASSURANCE, INC.
Incorporated under the laws of the State of Delaware
This certifies that ____________, is the owner of ___________
fully paid and non-assessable shares of Common Stock of Ascent Assurance, Inc.,
(hereinafter called the "Corporation") transferable on the books of the
Corporation in person or by duly authorized attorney, upon surrender of this
Certificate property endorsed. This Certificate and the shares represented
hereby are issued and shall be subject to all of the provisions of the
Certificate of Incorporation of the Corporation and of the amendments thereto,
to all of which the holder by acceptance hereof, assents. This Certificate is
not valid unless countersigned by the Transfer Agent and registered by the
Registrar.
Witness the facsimile seal of the Corporation and the
facsimile signatures of its duly authorized officers.
ASCENT ASSURANCE, INC.
By: /S/ PATRICK J. MITCHELL
Chairman of the Board
Attest:
/S/ PATRICK H. O'NEILL
Secretary
Dated:
Countersigned:
LaSalle National Bank,
as Warrant Agent,
By:
Authorized Officer
<PAGE>
ASCENT ASSURANCE, INC.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -as tenants in common UNIF GIFT MIN ACT - ..Custodian..
TEN ENT -as by the entireties (Cust) (Minor)
JT TEN -as joint tenants with right of under Uniform Gifts to Minors
Survivorship and not as tenants Act..........................
in common (State)
Additional abbreviations may also be used though not in the above list.
For Value Received, ___________________ hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- - ------------------------------------------------------------------------------
(Please print or typewrite name and address of Assignee)
- - ------------------------------------------------------------------------------
_________________________________________________Shares of the stock represented
by the within Certificate, and do hereby irrevocably constitute and appoint
_______________________________________________Attorney, to transfer the said
stock on the books of the within named Corporation with full power of
substitution in the premises.
Dated _________________________
------------------------------------------------
Notice: The Signature to this Assignment must correspond
with the name as written upon the Fact of the
Certificate, in every particular, without alteration or
enlargement, or any change whatever.
------------------------------------------------
Notice: The Signature to this Assignment must correspond
with the name as written upon the Fact of the
Certificate, in every particular, without alteration or
enlargement, or any change whatever.
Signature(s) Guaranteed By ______________________________
The Signature should be guaranteed by an eligible guarantor
institution (Banks, Stockbrokers, savings and loan
associations and credit unions with membership in an
approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17 Ad-15.
<PAGE>
EXHIBIT 4.3
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of March 24, 1999, between ASCENT
ASSURANCE, INC., a Delaware corporation formerly known as WESTBRIDGE CAPITAL
CORP. (the "Company"), and LaSalle National Bank, a national banking association
corporation (the "Warrant Agent").
Pursuant to Section V.C.3 of the First Amended Plan of
Reorganization of the Company under Chapter 11 of the Bankruptcy Code dated
October 30, 1998, as the same may have been amended or supplemented from time to
time prior to the date hereof and has been approved by the United States
Bankruptcy Court for the District of Delaware (the "Plan of Reorganization"),
the Company is obligated to issue stock purchase warrants (hereinafter called
the "Warrants") entitling the holders thereof initially to purchase an aggregate
of 971,266 shares of the Company's new Common Stock, $.01 par value (hereinafter
called the "Common Stock").
The Warrant Agent, at the request of the Company, has agreed
to act as the agent of the Company in connection with the issuance,
registration, transfer, exchange and exercise of Warrants.
NOW THEREFORE, in consideration of the premises and mutual
agreements herein set forth: SECTION 1. APPOINTMENT OF WARRANT AGENT. The
Company hereby appoints the Warrant Agent to act as agent for the Company in
accordance with the instructions hereinafter set forth, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. FORM OF WARRANT CERTIFICATES. The certificates evidencing the
Warrants (the "Warrant Certificates") (and the forms of election to purchase
shares and of assignment to be printed on the reverse thereof) shall be
substantially as set forth in Exhibit A hereto and may have such letters,
numbers or other marks of identification or designation or such legends,
summaries or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Warrant Agreement or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which the Warrants may from time to time be listed, or to
conform to usage. Each Warrant Certificate shall be dated as of the date of
issuance thereof by the Warrant Agent, whether upon initial issuance or upon
transfer or exchange, and each Warrant initially shall entitle the holder
thereof to purchase an aggregate of one share of Common Stock, but the number of
such shares and the Exercise Price (as defined in Section 6) shall be subject to
adjustments as provided herein.
SECTION 3. COUNTERSIGNATURE AND REGISTRATION. (a) The Warrant Agent, upon
receipt of written instructions provided by the Chairman of the Board of
Directors, the Chief Executive Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company ("Company Instructions") and Warrant
Certificates executed on behalf of the Company, shall countersign and deliver
such Warrant Certificates to holders of Westbridge's old Series A Cumulative
Convertible Redeemable Exchangeable Preferred Stock, par value $.10 per share,
and holders of Westbridge's old common stock, par value $.10 per share, each as
of December 10, 1998, all pursuant to the Exchange Agent Agreement dated as of
the date hereof.
(b) The Warrant Certificates shall be executed on behalf of the Company by
the Chairman of the Board, the Chief Executive Officer, the President or any
Vice President, by facsimile signature, and have affixed thereto a facsimile of
the Company's seal which shall be attested by the Secretary or an Assistant
Secretary of the Company by facsimile signature. The Warrant Certificates shall
be manually countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. In the event that any officer of the Company
who shall have signed any of the Warrant Certificates shall cease to be such
officer of the Company before countersignature by the Warrant Agent and issuance
and delivery by the Company, such Warrant Certificates, nevertheless, may be
countersigned by the Warrant Agent, issued and delivered with the same force and
effect as though the person who signed such Warrant Certificates had not ceased
to be such officer of the Company; and any Warrant Certificates may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Warrant Certificates, shall be a proper officer of the Company to sign such
Warrant Certificates, although at the date of the execution of this Warrant
Agreement any such person was not such an officer.
(c) The Warrant Agent will keep or cause to be kept, at its office in
Chicago, Illinois, books for registration and transfer of the Warrant
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Warrant Certificates, the number of Warrants
evidenced on its face by each of the Warrant Certificates and the date of each
of the Warrant Certificates.
(d) Prior to due presentment for registration of transfer of the Warrant
Certificates, the Company and the Warrant Agent may deem and treat the
registered holder thereof as the absolute owner of the Warrant Certificates
(notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Company or the Warrant Agent) for the purpose of any
exercise thereof and of any distribution to the holder thereof and for all other
purposes.
(e) The Warrant Agent shall countersign a Warrant Certificate only (i) upon
initial issuance of the Warrants in accordance with written instructions as
provided in subsection (a) hereof or (ii) upon exchange, transfer or
substitution for one or more previously countersigned Warrant Certificates as
hereinafter provided.
SECTION 4. TRANSFER AND EXCHANGE. Subject to Section 6 hereof, the Warrant
Agent shall, from time to time, register the transfer of any outstanding Warrant
Certificate upon the books to be maintained by the Warrant Agent for that
purpose, upon surrender thereof for transfer properly endorsed or accompanied by
appropriate instruments of transfer and written instructions for transfer, duly
signed by the registered holder or holders thereof or by the duly appointed
legal representative thereof or by a duly authorized attorney, such signature to
be guaranteed by a commercial bank or trust company having an office in the
United States, by a broker or dealer that is a member of the National
Association of Securities Dealers, Inc., or by a member of a national securities
exchange. Upon any such registration of transfer, a new Warrant Certificate
shall be issued to the transferee and the surrendered Warrant Certificate shall
be canceled by the Warrant Agent. After the date of this Agreement, any Warrant
Certificate may be exchanged at the option of the holder thereof, upon surrender
at the office or agency of the Warrant Agent maintained for that purpose in the
Borough of Manhattan in The City of New York or the City of Chicago in the State
of Illinois (each a "Warrant Agent Office"), for another Warrant Certificate, or
other Warrant Certificates of different denominations, representing in the
aggregate the right to purchase a like number of shares of Common Stock, and the
surrendered Warrant Certificate shall be canceled by the Warrant Agent. No
fractional Warrant Certificates will be issued. The Company may require from the
transferor payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Warrant
Certificates and shall notify the Warrant Agent of any applicable amounts
payable hereunder.
SECTION 5. COMMON STOCK AND WARRANT COMMON STOCK. As hereinafter used in
this Agreement, Common Stock shall mean the Common Stock, $.01 par value, of the
Company as authorized at the date hereof and stock of any other class into which
such presently authorized Common Stock may hereafter be changed, and "Warrant
Common Stock" shall mean the Common Stock issuable upon exercise of Warrants. In
case, by reason of the operation of Section 7, the Warrants shall entitle the
registered holders thereof to purchase any other shares of stock or other
securities or property of the Company or of any other corporation, any reference
in this Agreement to the exercise of Warrants shall be deemed to refer to and
include the purchase of such other shares of stock or other securities or
property upon such exercise.
SECTION 6.
EXERCISE PRICE OF WARRANTS. (a) The registered holder of any Warrant Certificate
may exercise the Warrants evidenced thereby, in whole or in part and in
accordance with the provisions of Section 9, at any time after the date of this
Agreement, upon surrender of the Warrant Certificate with the form of election
to purchase on the reverse side thereof duly executed, to the Warrant Agent at a
Warrant Agent Office, together with payment of the purchase price for each share
of Common Stock as to which the Warrants are exercised, at or prior to 5:00 p.m.
(New York City time) on March 24, 2004 (the "Expiration Date") or on the
Acceleration Date (as defined in Section 10) for such Warrant, at which time all
rights evidenced by the Warrant Certificates shall cease and the Warrants shall
become void.
(b) The purchase price for each share of Common Stock pursuant to the
exercise of a Warrant (the "Exercise Price") shall initially be $9.04 shall be
subject to adjustment as provided in Section 7 hereof and shall be payable in
lawful money of the United States of America.
SECTION 7. WARRANT ADJUSTMENTS. The Exercise Price and the number of shares
purchasable upon exercise of a Warrant shall be subject to adjustment as
follows:
(a) STOCK DIVIDENDS, SUBDIVISIONS, COMBINATIONS AND RECLASSIFICATIONS. In
case the Company shall at any time after the date of this Agreement (i) declare
a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide
or reclassify the outstanding Common Stock or (iii) combine or reclassify the
outstanding Common Stock into a smaller number of shares, the Exercise Price in
effect on the record date for such dividend or on the effective date of such
subdivision, combination or reclassification shall be adjusted by multiplying
such Exercise Price by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately prior to such event and the
denominator of which is the number of shares of Common Stock outstanding
immediately after such event. Such adjustment shall be made successively
immediately after the record date, in the case of a dividend or distribution, or
on the effective date, in the case of a subdivision, combination or
reclassification. In connection with any such adjustment, the number of shares
of Common Stock issuable upon exercise of the Warrants also shall be
simultaneously adjusted by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of shares of Common Stock issuable upon
the exercise of each Warrant immediately prior to the adjustment required by the
first sentence of this paragraph, and dividing the product so obtained by the
adjusted Exercise Price after giving effect to the adjustment required by the
first sentence of this paragraph.
(b) SUBSCRIPTIONS. If at any time after the date of this Agreement the
Company shall fix a record date for the issuance of rights or warrants to all
holders of its Common Stock entitling them (for a period expiring within 45 days
after such record date) to subscribe for or to purchase shares of Common Stock
(or securities convertible into shares of Common Stock) at a price per share, or
having a conversion price per share of Common Stock (if a security is
convertible into Common Stock), less than the Average Market Price per share of
Common Stock on such record date (as determined in the manner prescribed in
Section 8 hereof), the Exercise Price shall be decreased to an amount determined
by multiplying such Exercise Price in effect immediately prior to such record
date by a fraction, the numerator of which is the sum of (x) the total number of
shares of Common Stock outstanding on such record date and (y) the number of
shares of Common Stock which the aggregate offering price of the total number of
shares of Common Stock to be so offered (or the aggregate initial conversion
price of the convertible securities to be so offered plus any subscription or
purchase price of such Securities) would purchase at such Average Market Price
and the denominator of which shall be the sum of (a) the number of shares of
Common Stock outstanding on such record date and (b) the number of additional
shares of Common Stock to be offered for subscription or purchase (or into which
the convertible securities to be so offered are initially convertible). In the
event such subscription or purchase price is paid, in whole or in part, with
consideration other than cash, the value of such consideration shall be as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and described in a statement filed with the Warrant Agent. The
number of shares purchasable upon the exercise of each Warrant on such record
date shall be increased to a number of shares equal to (i) the number of shares
purchasable on such record date multiplied by the Exercise Price in effect
immediately prior to the adjustment required by the preceding sentence, divided
by (ii) the adjusted Exercise Price computed pursuant to the preceding sentence.
Such adjustment shall be made successively whenever such a record date is fixed
and, in the event that such rights or warrants are not issued, the Exercise
Price and the number of shares of Common Stock purchasable upon exercise of the
Warrants shall be readjusted to the price and the number of shares which were in
effect prior to such record date.
(c) DISTRIBUTIONS. If at any time after the date hereof the Company shall
fix a record date for the making of a distribution to all holders of its Common
Stock of evidences of its indebtedness or assets (excluding cash distributions
made as a dividend payable out of earnings or out of surplus legally available
for dividends under the laws of the jurisdiction of the Company), securities
convertible into Common Stock of the Company or rights to subscribe (excluding
those referred to in subsection (b) above), then in each case the Exercise Price
in effect immediately prior to such record date shall be decreased to an amount
determined by multiplying such Exercise Price by a fraction, the numerator of
which is the Average Market Price on such record date less than the fair market
value per share of Common Stock (as determined by the Board of Directors of the
Company, whose determination shall be conclusive and described in a statement
filed with the Warrant Agent) of the assets or evidences of indebtedness so
distributed or of such subscription rights and the denominator of which is the
Average Market Price on such date. The number of shares purchasable upon the
exercise of each Warrant on such record date shall be increased to a number of
shares equal to (i) the number of shares purchasable on such record date
multiplied by the Exercise Price in effect immediately prior to the adjustment
required by the preceding sentence, divided by (ii) the adjusted Exercise Price
computed pursuant to the preceding sentence. Such adjustments shall be made
successively whenever such a record date is fixed and, in the event that such
distribution is not so made, the Exercise Price and the number of shares of
Common Stock purchasable upon exercise of the Warrants shall be adjusted to the
price and the number of shares which were in effect prior to such record date.
(d) CONSOLIDATION, MERGER OR SALE OF ASSETS. In case the Company shall be a
party to any transaction (including, without limitation, a merger,
consolidation, sale of all or substantially all of the Company's assets or
recapitalization of the Common but excluding any transaction to which SECTION
7(A) applies) in which the previously outstanding Common Stock shall be changed
into or, pursuant to the operation of law or the terms of the transaction to
which the Company is a party, exchanged for different securities of the Company
or common stock or other securities of another corporation or interests in a
noncorporate entity or other property (including cash) or any combination of any
of the foregoing, then, as a condition of the consummation of such transaction,
lawful and adequate provision shall be made so that the holders of Warrants
shall be entitled, upon the exercise thereof, to an amount per share equal to
(A) the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged times (B) the number of shares of Common
Stock for which each Warrant is exercisable immediately prior to the
consummation of such transaction. In case the Company shall be a party to a
transaction described in this SECTION 7(D), effective provision shall be made by
way of a supplemental agreement to this Agreement so that the provisions set
forth herein for the protection of the exercise rights of the Warrants shall
thereafter be applicable, as nearly as reasonably may be, to any such other
shares of stock and other securities and property deliverable upon exercise of
the Warrants; and the resulting or surviving corporation or other corporation
issuing or delivering such shares, other securities or property shall expressly
assume the obligation to deliver, upon the exercise of the Warrants, such
shares, securities or property as the holders of the Warrants shall be entitled
to receive, pursuant to the provisions hereof, and to make provision for the
protection of the exercise right as above provided. In case shares, securities
or property other than Common Stock shall be issuable or deliverable upon
exercise as aforesaid, then all references to Common Stock in this SECTION 7
shall be deemed to apply, so far as provided and as nearly as is reasonable, to
any such shares, other securities or property.
(e) CALCULATIONS TO THE NEAREST CENT AND ONE-HUNDREDTH OF A SHARE. No
adjustment in the Exercise Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in such price; PROVIDED, HOWEVER,
that any adjustments which by reason of this Section 7(e) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this section 7 shall be made to the nearest
cent and to the nearest one-hundredth of a share, as the case may be.
(f) NOTICE OF WARRANT ADJUSTMENT. Whenever the Exercise Price or the number
of shares purchasable upon exercise of a Warrant shall be adjusted as provided
in this Section 7, the Company shall forthwith file with the Warrant Agent a
certificate, signed by a firm of independent public accountants, showing in
detail the facts requiring such adjustment and the Exercise Price and number of
shares so purchasable that will be effective after such adjustment. The Company
shall also cause a notice setting forth any adjustments to be sent by mailing
first-class, postage prepaid, to each registered holder of a Warrant Certificate
or Warrant Certificates at its address appearing on the Warrant register and, at
its option, may cause a copy of such notice to be published once in an English
language newspaper of general circulation in the Borough of Manhattan in The
City of New York. The Warrant Agent shall have no duty with respect to any
certificate filed with it except to keep the same on file and available for
inspection by registered holders of Warrant Certificates during reasonable
business hours. The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of a Warrant certificate to determine whether any
facts exist which may require any adjustment of the Exercise Price, or with
respect to the nature of any adjustment of the Exercise Price when made, or with
respect to the method employed in making such adjustment.
(g) OTHER NOTICES. In case the Company after the date hereof shall propose
to take any action of the type described in subsection (a), (b), (c) or (d) of
this Section 7, the Company shall file with the Warrant Agent a certificate,
signed by the Chairman of the Board, the Chief Executive Officer, the President
or any Vice President of the Company and by its Treasurer or Assistant Treasurer
or Secretary or Assistant Secretary specifying the date on which such action
shall take place and shall also set forth such facts with respect thereto as
shall be reasonably necessary to indicate the effect of such action (to the
extent such fact may be known on the date of such notice) on the Exercise Price
and the number, or kind, or class of shares or other securities or property
which shall be purchasable upon exercise of Warrants. Such notice shall be
given, in the case of any action of the type specified in subsections (a), (b)
and (c), at least 10 days prior to the record date with respect thereto and in
the case of any action of the type specified in subsection (d) at least 10 days
prior to the taking of such proposed action. The Company shall also cause a
notice setting forth any adjustments to be sent by mailing first-class, postage
prepaid, to each registered holder of a Warrant Certificate or Warrant
Certificates at its address appearing on the Warrant register and, at its
option, may cause a copy of such notice to be published once in an English
language newspaper of general circulation in the Borough of Manhattan in The
City of New York. Failure to give such notice or any defect therein shall not
affect the legality or validity of such action.
(h) NO CHANGE IN WARRANT TERMS ON ADJUSTMENT. Irrespective of any of the
adjustments in the Exercise Price or the number of shares of Warrant Common
Stock, Warrant Certificates theretofore or thereafter issued may continue to
express the same prices and number of shares as are stated in a similar Warrant
Certificate issuable initially, or at some subsequent time, pursuant to this
Agreement and such number of shares specified therein shall be deemed to have
been so adjusted.
(i) OPTIONAL REDUCTION IN EXERCISE PRICE. The Company may, at its option,
at any time until the Expiration Date, reduce the then current Exercise Price to
any amount deemed appropriate by the Board of Directors of the Company for any
period of at least 20 consecutive days (as evidenced in a resolution adopted by
such Board of Directors), but only upon giving the notice required by Section
7(g) at least twenty days prior to taking such action.
(j) ADJUSTMENTS UPON EXPIRATION OF CERTAIN UNEXERCISED SECURITIES. Upon the
expiration of any rights, warrants or convertible securities the issuance of
which resulted in an adjustment of the Exercise Price and the number of shares
of Common Stock purchasable upon the exercise of a Warrant pursuant to this
Section 7, if any thereof shall not have been exercised, the Exercise Price and
the number of shares of Common Stock purchasable upon the exercise of a Warrant
shall, upon such expiration, be readjusted and shall thereafter be such as it
would have been had it been originally adjusted (or had the original adjustment
not been required, as the case may be) on the basis of (i) the only shares of
Common Stock so issued were the shares of Common Stock, if any, actually issued
or sold upon the exercise of such rights, options or convertible securities and
(ii) such shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise plus the
consideration, if any, actually received by the Company for the issuance, sale
or grant of all such rights, warrants or convertible securities whether or not
exercised; PROVIDED, HOWEVER, that no such readjustment shall have the effect of
increasing the Exercise Price by an amount in excess of the amount of the
adjustment initially made in respect of the issuance, sale or grant or such
rights, warrants or convertible securities.
SECTION 8. AVERAGE MARKET PRICE. For all purposes of this Agreement, the
Average Market Price per share of Common Stock on any date shall be deemed to be
the average of the Market Prices (as defined below) for the 30 consecutive
Business Days (as defined below) commencing 45 Business Days before such date.
The "Market Price" for each day shall be the last reported sale price or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices of the Common Stock, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if the Common Stock is not
listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System or such
other system then in use, or, if on any such date the Common Stock is not quoted
by any such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the Common Stock
selected by the Board of Directors of the Company. If the Common Stock is not
publicly held or so listed or publicly traded, the "Market Price" shall be the
fair market value per share as determined in good faith by the Board of
Directors of the Company. For the purposes of this Agreement, "Business Day"
shall mean any day other than a Saturday, Sunday or legal holiday in the State
of New York or Texas or any other day on which securities are not traded in the
system or on the exchange that is the principal market for the Common Stock.
SECTION 9. EXERCISE OF WARRANTS. (a) Subject to the provisions of
this Agreement, each registered holder of a Warrant Certificate shall have the
right, which may be exercised as provided in such Warrant Certificate, to
purchase from the Company (and the Company shall issue and sell to such
registered holder) all or part of the number of fully paid and nonassessable
shares of Warrant Common Stock specified in such Warrant Certificate (subject to
the adjustments as herein provided), upon surrender to the Company at the
Warrant Agent Office, of such Warrant Certificate with the exercise form on the
reverse thereof duly filled in and signed (with any required signature
guarantee), and upon payment to the Warrant Agent to the account of the Company
of the Exercise Price for the number of shares of Warrant Common Stock in
respect of which such Warrants are then exercised. Upon surrender of such
Warrant Certificate, it shall be canceled by the Warrant Agent. The date of
exercise of any Warrant shall be deemed to be the date of its receipt by the
Warrant Agent duly filled in and signed and accompanied by proper funds as
hereinafter provided. Payment of the Exercise Price may be made in cash or by
certified or official bank check. No adjustment shall be made for any cash
dividends declared or paid on shares of Common Stock prior to the exercise of a
Warrant. Upon such surrender of Warrants, and payment of the Exercise Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the registered holder of such Warrants,
and in such name or names as such registered holder may designate, a certificate
or certificates for the number of full shares of Warrant Common Stock so
purchased upon the exercise of such Warrants together with cash in respect of
any fraction of a share of such stock issuable upon such surrender, as provided
in section 11 of this Agreement.
(b) Each person in whose name any certificate for shares of Common Stock is
issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of the Common Stock represented thereby on, and such
certificate shall be dated, the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Exercise Price
(and any applicable transfer taxes) was made; PROVIDED, HOWEVER, that if the
date of such surrender and payment is a date upon which the Common Stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding day on which the Common Stock transfer books of the Company
are open.
SECTION 10. ACCELERATION OF WARRANTS BY THE COMPANY. (a) The Company shall
have the right to accelerate the expiration of any or all Warrants at any time
by causing them to expire at 5:00 p.m., New York City time, on a specified date
not earlier than March 24, 2000 (the "Acceleration Date") if the Market Price of
the Common Stock equals or exceeds 150% of the then effective Exercise Price
(without taking into account any reduction in Exercise Price pursuant to Section
7(i)) on any 20 Business Days within a period of 30 consecutive Business Days
ending no more than five Business Days prior to the date on which the Company
gives notice to the Warrant Agent of its election to accelerate the expiration
of the Warrants.
(b) In the event of an acceleration of less than all of the Warrants, the
Warrant Agent shall select the Warrants to be accelerated by lot.
(c) Notice of an acceleration specifying the Acceleration Date, shall be
sent by first-class mail, postage prepaid, not more than 60 days nor less than
30 days before the Acceleration Date to each registered holder of a Warrant
Certificate representing an accelerated Warrant at such holder's address as it
appears on the Warrant register. Such notice of an acceleration also shall be
given no more than 20 days, and no less than 10 days, prior to the mailing of
notice to registered holders of Warrants pursuant to this section, by
publication at least once in an English language newspaper of general
circulation in the Borough of Manhattan in The City of New York.
(d) Any Warrant accelerated may be exercised until 5:00 p.m., New York City
time, on the Acceleration Date (or, if such day is not a Business Day, the next
succeeding Business Day). The Exercise Price shall be payable as provided in
Sections 6 and 9.
SECTION 11. ELIMINATION OF FRACTIONS. The Company shall not be required to
issue fractional shares of stock upon any exercise of Warrants. As to any final
fraction of a share which the same registered holder of one or more Warrant
Certificate, the rights under which are exercised in the same transaction or
series of related transactions, would otherwise be entitled to purchase upon
such exercise, the Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to the same fraction of the Market Price on the
Business Day which next precedes the day of exercise.
SECTION 12. ISSUE TAXES. The Company will pay all documentary stamp taxes
attributable to the initial issuance of shares of Warrant Common Stock upon the
exercise of any Warrant; PROVIDED, HOWEVER, that neither the Company nor the
Warrant Agent shall be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue or delivery of any certificates
for shares of Warrant Common Stock in a name other than that of the registered
holder of the Warrant Certificate representing the Warrant in respect of which
such shares are initially issued.
SECTION 13. RESERVATION OF SHARES. The Company shall, from the date hereof
through the date on which all Warrants shall have been exercised or shall have
expired, reserve and keep available out of its authorized but unissued stock,
for the purpose of effecting the issuance of stock upon exercise or conversion
of Warrants, such number of shares of its duly authorized Common Stock as shall
from time to time be sufficient to effect the issuance of shares of Warrant
Common Stock upon exercise of all Warrants at the time outstanding.
SECTION 14. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
(a) Any corporation into which the Warrant Agent may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In the case of Warrant Certificates
which have been countersigned by the Warrant Agent, but not delivered at the
time any such successor to the Warrant Agent succeeds to the agency created by
this Agreement, any such successor may adopt the countersignature of the
original Warrant Agent and deliver such Warrant Certificates so countersigned;
and in case at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of such successor Warrant Agent; and in all such cases such Warrant Certificates
shall have the full force and effect provided in the Warrant Certificates and in
this Agreement.
(b) In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrant Certificates so countersigned; and in case at that time
any of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name; and in all such cases such Warrant Certificates shall have the
full force and effect provided in the Warrant Certificates and in this
Agreement.
SECTION 15. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANTS. ETC. (a) The
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all moneys received by the Warrant
Agent for the purchase of shares of Common Stock through the exercise of such
Warrants.
(b) The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrant Certificates during normal business hours at
each Warrant Agent Office.
SECTION 16. SUPPLEMENTS AND AMENDMENTS. The parties hereto may from time to
time supplement or amend this Agreement without the approval of any holders of
Warrant Certificates to cure any ambiguity or to correct or supplement any
provision contained in this Agreement which may be defective or inconsistent
with any other provision contained herein, or to make such other provisions with
respect to any change or any supplemental agreement as the parties may deem
necessary or desirable and which shall not materially adversely affect the
interests of the registered holders of the Warrant Certificates.
SECTION 17. MUTILATED OR MISSING WARRANT CERTIFICATES. If any Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Warrant Agent
shall deliver a new Warrant Certificate of like tenor and denomination in
exchange and substitution therefor upon surrender and cancellation of the
mutilated Warrant Certificate or, in the case of a lost, stolen or destroyed
Warrant Certificate, upon receipt of evidence satisfactory to the Company and
the Warrant Agent of the loss, theft or destruction of such Warrant Certificate
and, in either case, upon receipt of such indemnity as the Company or the
Warrant Agent may reasonably require Applicants for substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Warrant Agent or the Company may prescribe.
Any such new Warrant Certificate shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed Warrant Certificate shall be at any time enforceable by anyone.
SECTION 18. DUTIES OF THE WARRANT AGENT. The Warrant Agent undertakes the
duties and obligations imposed by this Warrant Agreement upon the following
terms and conditions, by all of which the Company and the holders of Warrant
Certificates, by their acceptance thereof, shall be bound:
(a) The Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Warrant
Certificates (except its countersignature thereof and except such as describes
the Warrant Agent or action taken by it) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have been made by
the Company only. The Warrant Agent shall not be under any responsibility in
respect of the validity or execution of any Warrant Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Warrant Certificate to be complied with by the Company; nor shall it be
responsible for the making of any adjustment in the Exercise Price or the number
of shares issuable upon the exercise of a Warrant required under the provisions
of Section 7 or responsible for the manner, method or amount of any such change
or the ascertaining of the existence of facts that would require any such
change; nor shall it by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any shares to be issued
pursuant to this Agreement or any Warrant or as to whether any shares will, when
issued, be validly issued and fully paid and nonassessable.
(b) The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, agents or employees.
(c) The Warrant Agent may consult at any time with legal counsel
satisfactory to it (who may be legal counsel for the Company) and the advice of
such counsel shall be full and complete authorization and protection to the
Warrant Agent as to any action taken or omitted by it in good faith and in
accordance with such advice.
(d) The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of a Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or other
paper, document or instrument believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent the fees set forth in
Schedule I hereto for all services rendered by the Warrant Agent in the
execution of this Warrant Agreement, to reimburse the Warrant Agent for all
expenses (including reasonable counsel fees), taxes and governmental charges and
other charges of any kind and nature incurred by the Warrant Agent in the
execution of this Warrant Agreement and to indemnify the Warrant Agent and save
it harmless against any and all liabilities, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant Agent in
the execution of this Warrant Agreement except as a result of the Warrant
Agent's gross negligence, wilful misconduct or bad faith. The foregoing
indemnities in this paragraph shall survive termination or removal of the
Warrant Agent or termination of this Agreement.
(f) The Warrant Agent and any stockholder, director, officer or employee of
the Warrant Agent may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant Agent
under this Warrant Agreement. Nothing herein shall preclude the Warrant Agent
from acting in any other capacity for the Company or for any other legal entity.
(g) The Warrant Agent shall act hereunder solely as agent for the Company
and in a ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own gross negligence, wilful misconduct or bad faith.
SECTION 19. CHANGE OF WARRANT AGENT. The Warrant Agent may resign and be
discharged from its duties under this Agreement upon 30 days' prior notice in
writing mailed to the Company by registered or certified mail, and to the
holders of the Warrant Certificates by first-class mail. The Company may remove
the Warrant Agent or any successor Warrant Agent upon 30 days' prior notice in
writing, mailed to the Warrant Agent or successor Warrant Agent, as the case may
be, and to each transfer agent of the Common Stock by registered or certified
mail, and to the holders of the Warrant Certificates by first-class mail. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by the holder of a
Warrant Certificate (who shall, with such notice, submit his Warrant Certificate
for inspection by the Company), then the registered holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Warrant Agent. Any successor Warrant Agent, whether appointed by the
Company or by such a court, shall be a corporation organized and doing business
under the laws of the United States or of any state thereof, in good standing,
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Warrant Agent a combined capital and
surplus of at least $50,000,000. After appointment, the successor Warrant Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Warrant Agent without further act or deed; but
the predecessor or Warrant Agent shall deliver and transfer to the successor
Warrant Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of such appointment the Company shall
file notice thereof in writing with the predecessor Warrant Agent and each
transfer agent of the Common Stock, and mail a notice thereof in writing to the
registered holders of the Warrant Certificates. Failure to give any notice
provided for in this Section 19, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Warrant
Agent or the appointment of the successor Warrant Agent, as the case may be.
SECTION 20. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment of
any subsequent transfer agent for shares of the Common Stock, the Company will
file with the Warrant Agent a statement setting forth the name and address of
such transfer agent.
SECTION 21. NOTICES. Any notice pursuant to this Agreement to be given by
the Warrant Agent or by the registered holder of any Warrant Certificate to the
Company shall be sufficiently given if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Warrant Agent) as follows:
Ascent Assurance, Inc.
110 West Seventh Street
Suite #300
Fort Worth, Texas 76102
Attention: General Counsel
with a copy to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attention: Robert S. Reder, Esq.
Any notice pursuant to this Agreement to be given by the Company or by the
registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing by the Warrant Agent with the
Company) as follows:
LaSalle National Bank
135 South LaSalle Street, Suite 1960
Chicago, IL 60603
Attention: Corporate Trust Services Division
SECTION 22. SUCCESSORS. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
SECTION 23. GOVERNING LAW. This Agreement and each Warrant issued hereunder
shall be deemed to be a contract made under the laws of the State of Delaware
and for all purposes shall be construed in accordance with the laws of the State
of Delaware without regard to the conflicts of laws principles thereof.
SECTION 24. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrant Certificates any legal
or equitable right, remedy or claim under this Agreement.
SECTION 25. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed and delivered as of the day and year first above
written.
ASCENT ASSURANCE, INC.
By: /S/ PATRICK J. MITCHELL
President
Attest:
/S/ PATRICK H. O'NEILL
Secretary
LaSALLE NATIONAL BANK,
as Warrant Agent,
By: /S/ G. MALATIA
Attest:
/S/ MARK RIMKUS
<PAGE>
EXHIBIT 4.2
EXHIBIT A
EXERCISABLE AT OR PRIOR TO 5:00 P.M.,
NEW YORK CITY TIME, ON MARCH 24, 2004, UNLESS ACCELERATED
WARRANT CERTIFICATE
--------------------
Ascent Assurance, Inc., a Delaware corporation (hereinafter
called the "Company"), for value received, hereby certifies that
_______________________ or registered assigns is the registered holder of
__________ Warrants, and is entitled, upon surrender of this Warrant Certificate
at the office of LaSalle National Bank (the "Warrant Agent), in the City of
Chicago, State of Illinois, or at the office or agency of the Warrant Agent
maintained for that purpose in the Borough of Manhattan in The City of New York
(each a "Warrant Agent Office") at any time at or prior to 5:00 p.m., New York
City time, on March 24, 2004, to purchase one share of Common Stock of the
Company at the price of $9.04 per share for each Warrant held.
The Company may accelerate the expiration of any Warrant to a date not
earlier than March 24, 2000, if the Market Price of the Common Stock equals or
exceeds 150% of the then effective Exercise Price (without taking into account
any reductions in the Exercise Price made at the option of the Company) on any
20 Business Days within a period of 30 consecutive Business Days ending no more
than five Business Days prior to the date on which the Company notifies the
Warrant Agent of its election to accelerate the expiration of the Warrants. Any
Warrant accelerated may be exercised until 5:00 p.m., New York City time, on the
date to which the expiration of the Warrants is accelerated.
The Company may, at its option, at any time until March 24, 2004,
reduce the then current Exercise Price to any amount deemed appropriate by the
Board of Directors of the Company for any period of at least 20 consecutive days
(as evidenced in a resolution adopted by such Board of Directors), but only upon
giving notice to the holders of the Warrants at least 20 days prior to taking
such action.
The per share purchase price shown above and the number of shares
issuable upon exercise of the Warrants represented by this Warrant Certificate
are subject to adjustment for the occurrence of certain events, including stock
dividends and splits, combinations, reorganizations, reclassifications,
consolidations, mergers or sales of properties and assets and upon the issuance
of certain rights or warrants to holders of Common Stock or the distribution to
such holders of assets or indebtedness, as set forth in the Warrant Agreement
hereinafter referred to. A complete statement with respect to such adjustments
and to other terms and conditions pertaining to the Warrants is contained in the
Warrant Agreement, dated as of March 24, 1999, between the Company and the
Warrant Agent (the "Warrant Agreement"; all terms used in this Warrant
Certificate which are defined in the Warrant Agreement shall have the meanings
assigned to them in the Warrant Agreement), a copy of which may be examined by
the registered holder hereof at a Warrant Agent Office.
Upon the exercise of the Warrants represented by this Warrant
Certificate, the form of election to purchase on the reverse hereof must be duly
executed, and the accompanying instructions for the registration and delivery of
the stock must be filled in.
The Warrants represented by this Warrant Certificate are transferable
(subject to the conditions set forth the preceding paragraphs) at a Warrant
Agent Office by the registered holder hereof in person or by attorney duly
authorized in writing, upon surrender of this Warrant Certificate. Upon any such
transfer, a new Warrant Certificate, representing the right to purchase a like
number of shares of the Company's Common Stock, will be issued to the transferee
in exchange for this Warrant Certificate.
This Warrant Certificate and similar Warrant certificates when
surrendered at a Warrant Agent Office by the registered holder hereof in person
or by attorney duly authorized in writing may be exchanged for another Warrant
Certificate or Warrant Certificates, representing in the aggregate the right to
purchase a like number of shares of the Company's Common Stock.
No fractional shares of Common Stock will be issued upon the exercise
of any Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Common Stock or of
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Warrant Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance or otherwise) or, except as provided in the Warrant Agreement, to
receive notice of meetings, or to receive dividends or subscription rights or
otherwise, until the Warrant or warrants evidenced by this Warrant Certificate
shall have been exercised as provided in the Warrant Agreement.
<PAGE>
No Warrant evidenced hereby may be exercised after 5:00 p.m., New York
City time on March 24, 2004, or such earlier date to which the expiration of any
such warrant has been accelerated by the Company, and to the extent not
exercised by the time of its expiration, any such Warrant shall become void.
ASCENT ASSURANCE, INC.
By: /S/ PATRICK J. MITCHELL
President
Attest:
/S/ PATRICK H. O'NEILL
Secretary
This Warrant Certificate is not valid until countersigned by the
Warrant Agent.
Dated: March 24, 1999
Countersigned:
LaSalle National Bank,
as Warrant Agent,
By: /S/ G. MALATIA
Authorized Officer
<PAGE>
EXHIBIT 4.2
FORM OF EXERCISE
(Form of exercise to be executed by the Warrant
Holder at the time of exercise)
To LaSalle National Bank
135 South LaSalle Street, Suite 1960
Chicago, IL 60603
Attention: Corporate Trust Services Division
or its successor as Warrant Agent:
The undersigned, holder of the within Warrant certificate,
hereby (1) irrevocably exercises his right to purchase __________ shares of
Common Stock, $.01 par value, of Ascent Assurance, Inc. (the "Company") which
the undersigned is entitled to purchase under the terms of the within Warrant
Certificate, or such other securities as the undersigned shall be entitled to
purchase under the terms of the Warrant Agreement referred to in such Warrant
Certificate by reason of the occurrence of certain events specified therein, and
(2) elects to make payment in full for the number of shares of Common Stock so
purchased by payment of $________ in cash or certified or official bank check.
Please issue the certificate for shares of Common Stock in the
name of, and pay any cash for any fractional share to:
- - -------------------------------------------------------------------------------
Print or type name
- - ------------------------------------------------------------------------------
Social Security or other Identifying Number
- - -------------------------------------------------------------------------------
Street Address
- - -------------------------------------------------------------------------------
City State Zip Code
<PAGE>
If such number of shares shall not be all the shares purchasable upon the
exercise of the Warrants evidenced by this Warrant Certificate, a new Warrant
Certificate for the balance of such Warrants remaining unexercised shall be
registered in the name of and delivered to:
Please insert social security
or other identifying number
- - -------------------------------------------------------------------------------
(Please print name and address)
- - -------------------------------------------------------------------------------
- - -------------------------------------------------------------------------------
Dated: __________________
---------------------------
Signature
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate)
(Signature Guaranteed): ________________________ Date:_________________
(If the Common Stock, cash in lieu of fractional shares or Warrants for any
unexercised balance are to be issued or paid to a person other than the person
in whose name the within Warrant is registered, or if otherwise requested by the
Company or the Warrant Agent, a signature guarantee is required.)
<PAGE>
EXHIBIT 4.2
ASSIGNMENT
(Form of assignment to be executed if Warrant
Holder desires to transfer Warrant)
FOR VALUE RECEIVED, _____________________________________
hereby sells, assigns and transfers unto ____________________________________
this Warrant certificate together with all right, title or interest therein, and
does hereby irrevocably appoint _____________ attorney to transfer the within
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
: ------------------------------
Signature
Signature Guaranteed: (Signature must conform in all respects to name
of holder as specified on the face of the
Warrant Certificate)
- - ---------------------------
