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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PC QUOTE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 36-3131704
(State of incorporation or organization) (I.R.S. Employer Identification No.)
300 SOUTH WACKER DRIVE, CHICAGO, ILLINOIS 60606
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
COMMON STOCK, $.001 PAR VALUE AMERICAN STOCK EXCHANGE
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Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
PC Quote, Inc. (the "Company") incorporates by reference into this
Registration Statement the description of the Company's common
stock contained in (a) those sections of the Company's Proxy
Statement dated July 2, 1987 entitled "THE REINCORPORATION --
General; -- Purpose and Effects of the Reincorporation; --
Comparison of Stockholders' Rights" and attached as Exhbit A
hereto, and (b) the Company's Certificate of Incorporation
attached as Exhbit B hereto.
ITEM 2. EXHIBITS.
The securities described herein are to be registered on the
American Stock Exchange, on which no other securities of the
Registrant are registered. Accordingly, the following exhibits
required in accordance with Part II to the Instructions as to
exhibits for Form 8-A have been duly filed with the American
Stock Exchange but not with the Securities and Exchange
Commission:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994.
2. All other reports filed pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (the
"Act") since December 31, 1994.
3. The Company's Proxy Statement dated April 28, 1995.
4. The Company's Certificate of Incorporation, as amended.
5. The Company's By-Laws, as amended.
6. Specimen of the security being registered hereunder.
7. The Company's Annual Report to Stockholders dated
December 31, 1994.
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.
October 30, 1995
PC QUOTE, INC.
By: /s/ Louis J. Morgan
------------------------------------
Louis J. Morgan
Chairman and Chief Executive Officer
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EXHIBIT 99(A)
On June 4, 1984, the Board of Directors granted options under the 1984 Option
Plan to four officers of the Company to purchase up to an aggregate of 26,250
Common Shares at $2.00 per share (as adjusted to reflect the one-for-twenty
reverse Common Share stock split). Of the options granted, options to purchase
7,500, 7,500, 3,750 and 7,500 shares were granted to Ms. Johnson and Messrs.
George, Walsh and Wagner, respectively. The options vest in three equal
installments as of June 4, 1985, June 4, 1986 and June 4, 1987 and are
exercisable through June 4, 1989.
On May 19, 1985, the Board of Directors granted options under the 1984 Option
Plan to purchase up to an aggregate of 50,000 Common Shares at $2.50 per share.
Of these additional options granted, options to purchase 13,750, 13,750, 15,000
and 7,500 shares were granted to Messrs. George, Walsh and Kreutzjans and Ms.
Johnson, respectively. The options vest in three equal installments as of April
19, 1986, April 19, 1987, April 19, 1988, and are exercisable through April 18,
1991.
On September 12, 1986, the Board of Directors granted options under the 1984
Option Plan to purchase up to an aggregate of 50,000 Common Shares at $4.825 per
share. Of these additional options, options to purchase 20,000, 20,000 and
10,000 shares were granted to Messrs. George, Walsh and Kreutzjans,
respectively. The options vest in three equal installments as of September 12,
1987, September 12, 1988, September 12, 1989 and are exercisable through
September 12, 1991.
On February 20, 1987, the Board of Directors granted options under the 1984
Option Plan to purchase up to an aggregate of 23,750 Common Shares at $4.75 per
share. Of these additional options, options to purchase 9,500, 9,500 and 4,750
shares were granted to Messrs. George, Walsh and Kreutzjans, respectively. The
options vest in three equal installments as of February 20, 1988, February 20,
1989, February 20, 1990 and are exercisable through February 20, 1992.
The Board of Directors may from time to time amend or terminate the 1984 Option
Plan without action by the Company's shareholders, but no such amendment may
increase the number of Common Shares that may be issued under the 1984 Option
Plan, permit the grant of options to persons other than officers or key
employees, reduce the minimum option price per Common Share, permit the exercise
of an option unless full payment for the shares is made or impair the rights of
holders of outstanding options without their consent.
THE REINCORPORATION
GENERAL
The Board of Directors believes it is in the best interest of the Company and
the shareholders to change the state of incorporation of the Company from
Illinois to Delaware. The Board of Directors has unanimously approved and
recommended to the shareholders for adoption the Reincorporation Agreement by
and between the Company and Delaware P.C. Quote. Delaware P.C. Quote is a
wholly-owned subsidiary of the Company formed under the authorization of the
Board of Directors for the purpose of effecting the Reincorporation. Upon
approval of the Reincorporation Agreement at the Annual Meeting, the Company
will merge with and into Delaware P.C. Quote, Delaware P.C. Quote, as the
surviving corporation, will have the same capitalization, business, assets,
liabilities, management and shareholders (other than those who properly perfect
their dissenters' rights under Illinois law as described below under "Rights of
Dissenting Shareholders") as the Company. The directors of the Company elected
at the Annual Meeting will become the directors of Delaware P.C. Quote upon
consummation of the Reincorporation.
The Company's Articles of Incorporation (the "Company's Articles") presently
authorize the issuance of 10,000,000 Common Shares, without par value, of which
4,187,750 were issued and outstanding as of June 24, 1987, and 2,500,000
Preferred Shares, par value $1,312,704,617 per share, of which 1,523,572 were
issued and outstanding as of June 24, 1987. The Reincorporation will not alter
the structure of the Company's authorized capital stock, except that the
Reincorporation will change the par value of the Company's Common Shares from no
par value to a par value of $0.001 per share. The purpose of the change in par
value of the Company's Common Shares is to reduce the Company's Delaware
franchise tax liability. Upon the effective date of the Reincorporation, each
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issued and outstanding Common Share of the Company (excluding shares held by
those who duly exercise dissenters' rights under Illinois law as described below
under "Rights of Dissenting Shareholders") will automatically become one share
of Common Stock of Delaware P.C. Quote, and each issued and outstanding
Preferred Share of the Company (excluding shares held by those who duly exercise
dissenters' rights under Illinois law as described below under "Rights of
Dissenting Shareholders") will automatically become one share of Preferred Stock
of Delaware P.C. Quote.
The Reincorporation will be effective upon filing of
appropriate papers under applicable law, which is intended to occur as promptly
as practicable after the Annual Meeting if shareholder approval is given.
However, the Reincorporation Agreement permits the Board of Directors of the
Company to amend the Reincorporation Agreement in a manner not adverse to
shareholders or to defer or abandon the Reincorporation if, in the Board's
judgment, such action becomes in the best interest of the Company and the
shareholders. A copy of the Reincorporation Agreement is attached as Appendix A
to this Proxy Statement and incorporated herein and all statements herein
concerning the Reincorporation Agreement should be read in conjunction with, and
are qualified in their entirety by, this reference thereto.
PURPOSE AND EFFECTS OF THE REINCORPORATION
The Board of Directors determined to reincorporate the Company in Delaware
primarily because of their dissatisfaction with a recent amendment to the
Illinois Business Corporation Act of 1983 (the "Illinois Statute") and their
desire to take advantage of the fact that, for many years, Delaware has
followed a policy of encouraging incorporation in that State. To further that
policy, Delaware has adopted comprehensive, modern and flexible corporate
laws that are periodically updated and revised to meet changing business
needs. As a result, many major corporations have initially chosen Delaware
for their domicile or have subsequently reincorporated in Delaware. The
Delaware courts have developed considerable expertise in dealing with
corporate issues, and a substantial body of case law has developed construing
Delaware corporate law and establishing public policies with respect to
Delaware corporations, thereby providing greater predictability with respect
to corporate legal affairs. A key factor in the Board's determination to
reincorporate in Delaware was the recent enactment in Delaware of specific
statutory provisions relating to director liability and indemnification
described below.
The Reincorporation will have the following material effects upon the Company:
DIRECTOR LIABILITY. Article Ninth of Delaware P.C. Quote's Certificate of
Incorporation ("Delaware P.C. Quote's Certificate") eliminates the personal
liability of directors to the Company and its stockholders for monetary damages
for violations of a director's fiduciary duty of care. This Article thus denies
shareholders a cause of action against directors for breach of fiduciary duty,
including grossly negligent business decisions involving a takeover of the
Company. This Article does not eliminate or limit the liability of a director
for breaching the director's duty of loyalty, failing to act in good faith,
engaging in intentional misconduct or knowingly violating a law or participating
in the payment of a dividend or a stock repurchase or redemption prohibited by
Delaware law, or obtaining an improper personal benefit for himself or herself.
This Article also does not eliminate or limit the liability of any director for
any act or omission occurring prior to its effective date or affect the
availability of equitable remedies, such as an injunction or rescission, for
breach of fiduciary duty (although, as a practical matter, such remedies may not
be available or effective) or limit liability for violations of federal
securities laws.
The Board of Directors believes that Article Ninth will generally improve the
atmosphere in which difficult corporate decisions are made by ameliorating
concerns over the risk of personal liability arising from a court's review, with
the benefit of hindsight, of business decisions made by directors. The Board
also believes that the diligence exercised by directors arises primarily from
their desire to act in the best interests of the Company and not from a fear of
monetary damage awards. Consequently, the Board believes that the level of care
exercised by directors will not be lessened by Article Ninth.
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The limitation of monetary liability provided by Article Ninth was expressly
authorized by a June, 1986 amendment to the Delaware General Corporation Law
(the "Delaware Law"). The official commentary on the amendment of the Delaware
Law indicates that it was adopted by the General Assembly in response to recent
changes in the market for directors' liability insurance, which has become a
relatively standard condition of employment by directors. Such changes,
including the unavailability of the traditional policies (and, in many cases,
the unavailability of any type of policy from the traditional insurance
carriers), have threatened the quality and stability of the governance of
Delaware corporations because directors have become unwilling, in many
instances, to serve without the protection which such insurance provides and, in
other instances, may be deterred by the unavailability of insurance from making
entrepreneurial decisions. The eventual effect of the amendment of the act (and
thus of Article Ninth) is subject to future judicial interpretation and
determination of its validity, which cannot be ascertained at the present time.
The Company currently carries no directors' liability insurance. Although the
Company has not had any litigation in the past involving the Board or its
members which would have been affected by the provisions of Article Ninth had it
been in effect at the time, the Company has been unable to obtain directors'
liability insurance except at premiums that are not economically feasible. The
Company has not experienced any difficulty in retaining its directors. The
Board believes, however, that the Company would experience difficulty in
attracting qualified new directors should it find it necessary to do so, and
that inclusion of Article Ninth could improve the Company's ability to secure
directors' liability insurance and could improve the Company's ability to retain
and attract directors. Consequently, the Board (recognizing its special
interest in provisions that may restrict the future potential personal liability
of directors) believes it is in the best interest of the Company to include
Article Ninth in Delaware P.C. Quote's Certificate and provide the
indemnification discussed below. The full text of Article Ninth is contained in
Appendix B hereto and shareholders are urged to read it carefully.
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The Company's
current by-laws contain indemnification provisions which grant all directors,
officers, employees or agents of the Company or any person serving at the
request of the Company in any such capacity in any other corporation,
partnership, joint venture, trust or other enterprises indemnification and
payment of certain expenses actually and reasonably incurred provided that
certain standards of conduct are met or, in the alternative, the person is
successful on the merits or otherwise. The Company's current by-laws require a
case-by-case determination for the advancement of such expenses and contain no
provisions for indemnification agreements.
Article Eighth of Delaware P.C. Quote's Certificate and Section 6.5 of Delaware
P.C. Quote's by-laws contain indemnification provisions which grant all
directors, officers, employees or agents of the Company or any person serving at
the request of the Company in any such capacity in any other corporation,
partnership, joint venture, trust or other enterprise, indemnification and
payment of expenses to the fullest extent permitted by the Delaware Law. The
by-laws also set forth procedures and presumptions which are intended to make it
easier and faster for an indemnitee to receive payment of indemnification and
advance payment of expenses and specifically permit the Company to enter into
indemnification agreements with its directors, officers, employees or agents
that are consistent with Delaware P.C. Quote's Certificate and by-laws and
applicable law. Although the Company has not determined to enter into nor
prepared any form of any indemnification agreement, such agreements would
typically offer directors, officers, employees and agents of the Company
significant assurance that they will be indemnified for actions taken in good
faith and in a manner they believed to be in the best interest of the Company.
Unlike an indemnification bylaw, the agreements are not subject to unilateral
revisions or repeal by the Company in the event of a sudden change in
composition or philosophy of the Board. In view of the fact that the Company
has no directors' liability insurance, a large damage award could adversely
affect shareholders' equity. A shareholder's vote "FOR" or "AGAINST" the
Reincorporation is also a vote "FOR" or "AGAINST" adoption
and ratification of such by-law and any indemnification agreement consistent
therewith entered into by the Board with such indemnitees, including, without
limitation, directors. The full text
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of Article Eighth of Delaware P.C. Quote's Certificate is contained in Appendix
B hereto and the full text of Section 6.5 of Delaware P.C. Quote's by-laws is
attached as Appendix C hereto and shareholders are urged to read them carefully.
COMPARISON OF STOCKHOLDERS' RIGHTS
Upon consummation of the Reincorporation, shareholders of the Company, an
Illinois corporation, will become stockholders of Delaware P.C. Quote, a
Delaware corporation. Differences between the corporation laws of Delaware and
Illinois, in addition to those already discussed, will result in several changes
in the rights of the Company's shareholders. Although it is not practical to
compare all the differences between the Illinois Statute and the Delaware Law,
the following is a summary of certain of those differences which may
significantly affect the rights that shareholders presently have under the
Illinois Statute:
1. SPECIAL MEETINGS OF STOCKHOLDERS. The Illinois Statute provides that
special meetings of stockholders may be called by the president, the board of
directors or the holders of not less than one-fifth of all outstanding shares
entitled to vote on the matter for which the meeting is called or by such other
officers or persons as may be provided in the articles of incorporation or the
by-laws.
Under the Delaware Law, a special meeting of the stockholders may be called by
the board of directors or such persons as may be authorized by the certificate
of incorporation or the by-laws. Delaware P.C. Quote's by-laws currently
provide that special meetings of stockholders may be called by Delaware P.C.
Quote's Board of Directors or by a duly designated committee of Delaware P.C.
Quote's Board of Directors, but not by the stockholders.
2. DISTRIBUTIONS TO STOCKHOLDERS. Under the Illinois Statute, a corporation's
board of directors may make distributions to stockholders (dividends,
distributions by purchase, redemptions or other acquisitions of the
corporation's shares) unless, after giving effect to any distribution, the
corporation would be insolvent or the net assets of the corporation would be
less than zero or less than the maximum amount payable at the time of
distribution to stockholders having preferential rights in liquidation if the
corporation were to be liquidated.
The Delaware Law permits dividends to be paid out of surplus or, if there is no
surplus, the corporation's net profits of the current or preceding fiscal year,
or both, unless after the payment of dividends the corporation's capital is less
than the aggregate amount of the capital represented by the outstanding
preferred stock of all classes having a preference upon distribution of assets.
3. STOCKHOLDER CONSENT TO ACTION WITHOUT MEETING. The Illinois Statute
provides that, unless otherwise provided in a corporation's articles of
incorporation (the Company's Articles do not so provide), any action required to
be taken at any annual or special meeting of stockholders may be taken without a
meeting and without a vote, if a consent in writing describing the action so
taken shall be signed (i) by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voting, if five days prior notice of the proposed action is given in
writing to all of the stockholders entitled to vote with respect to the subject
matter thereof, or (ii) by all of the stockholders entitled to vote with respect
to the subject matter thereof.
The Delaware Law permits the taking of corporate action without a meeting of
stockholders upon the written consent of that number of shares necessary to
authorize the proposed corporate action being taken, unless the certificate of
incorporation expressly provides otherwise. Delaware P.C. Quote's Certificate
does not so otherwise provide.
4. CERTIFICATE AMENDMENTS. Under the Illinois Statute, amendments to a
corporation's articles of incorporation must be approved by the affirmative vote
of at least two-thirds of the outstanding shares entitled to vote on such
amendments unless the articles of incorporation provide otherwise (the Company's
Articles do not so provide). Under the Delaware Law, amendments to a
certificate of incorporation must be approved by the affirmative vote of a
majority of the outstanding shares entitled to vote on such amendments unless
the certificate of incorporation provides otherwise.
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Delaware P.C. Quote's Certificate provides that such amendments must be approved
by the affirmative vote of at least two-thirds of the outstanding shares
entitled to vote thereon. AS A RESULT, THE REINCORPORATION WILL NOT AFFECT
SHAREHOLDERS' RIGHTS ON CERTIFICATE AMENDMENTS.
5. STOCKHOLDER APPROVAL FOR MERGERS AND SALES OF ASSETS. The Illinois Statute
requires the vote of the holders of two-thirds of the outstanding shares
entitled to vote to approve mergers and the sale of all or substantially all of
a corporation's assets other than in the ordinary course unless the articles of
incorporation otherwise provide (which the Company's Articles do not). Under
the Delaware Law, the affirmative vote of the holders of a majority of the
outstanding shares entitled to vote is necessary to approve mergers and the sale
of all or substantially all of a corporation's assets, unless the certificate of
incorporation otherwise requires. Delaware P.C. Quote's Certificate requires
the vote of the holders of two-thirds of the outstanding shares entitled to vote
to approve mergers and the sale of all or substantially all of a corporation's
assets. AS A RESULT, THE REINCORPORATION WILL NOT AFFECT SHAREHOLDERS' RIGHTS
ON THE APPROVAL OF MERGERS AND SALES OF ASSETS.
Effective in August, 1985, the Illinois Statute was amended to provide that
business combinations between a corporation and a shareholder (or an affiliate
or associate of a shareholder) who owns securities constituting at least 10% of
the outstanding voting power of such corporation must be approved by both an
affirmative vote of at least 80% of the combined voting power of all voting
shares of such corporation and an affirmative vote of a majority of all such
voting shares not held by such shareholder. The higher vote requirement does
not apply to a business combination where the proposed combination has been
approved by two-thirds of the disinterested members of the corporation's Board
of Directors or if certain price and procedural requirements are satisfied. In
addition, the higher vote requirement does not apply to a business combination
with a subsidiary wherein all shareholders are treated proportionately.
Delaware Law does not mandate and Delaware P.C. Quote's Certificate does not
contain provisions comparable to those of the Illinois Statute. The amendment
to the Illinois Statute was aimed at preventing certain "two-tier" acquisitions
of Illinois corporations by so-called corporate raiders. It has been criticized
by legal writers as internally inconsistent, unnecessarily broad and, possibly,
constitutionally infirm. The Board of Directors of the Company does not favor
special high voting requirements for business combinations, and believes the
two-thirds vote required by the Illinois Statute prior to the 1985 amendment and
adopted in Delaware P.C. Quote's Certificate provides adequate protection for
shareholders.
6. DISSOLUTION. The Illinois Statute requires the vote of the holders of two-
thirds of the outstanding shares entitled to vote to approve the voluntary
dissolution of a corporation. Under Delaware Law the affirmative vote of the
holders of a majority of the outstanding shares entitled to vote is necessary to
approve the voluntary dissolution of a corporation, unless the certificate of
incorporation provides otherwise. Delaware P.C. Quote's Certificate provides
that a voluntary dissolution must be approved by the affirmative vote of at
least two-thirds of the outstanding shares entitled to vote thereon. AS A
RESULT, THE REINCORPORATION WILL NOT AFFECT SHAREHOLDERS' RIGHTS REGARDING
APPROVAL OF A VOLUNTARY DISSOLUTION.
7. REMOVAL OF DIRECTORS. Under both the Illinois Statute and Delaware Law, a
majority of the shares outstanding entitled to vote thereon is sufficient to
remove a director of a corporation with or without cause, provided that in the
case of a corporation having cumulative voting, if less than the entire board is
to be removed, a director cannot be removed without cause (under the Illinois
Statute, with or without cause) if the votes cast against his or her removal
would be sufficient to elect him or her if then cumulatively voted at an
election of the entire board of directors. Neither the Company nor Delaware
P.C. Quote has cumulative voting.
8. APPRAISAL RIGHTS. The Illinois Statute grants appraisal rights in the event
of a merger or consolidation, in the case of a sale or exchange of all or
substantially all the property and assets of a corporation other than in the
usual course of business, and in the case of an amendment to a corporation's
articles of incorporation that materially and adversely affects the dissenters
by
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abolishing a preferential right or right of redemption, or that limits or
eliminates cumulative voting in a corporation incorporated prior to January 1,
1982. The Company was incorporated prior to January 1, 1982.
Delaware Law grants appraisal rights only in the case of a merger. Even in a
merger, however, Delaware Law denies such rights to holders of shares listed on
a national securities exchange or held of record by more than 2,000
stockholders, or to stockholders who receive shares of another corporation which
is either listed on a national securities exchange or held of record by more
than 2,000 stockholders. Such denial is not meaningful at present to the
Company or its shareholders as shares of the Company are not listed on a
national securities exchange, and the Company had approximately 500 holders of
record as of June 24, 1987.
The availability of appraisal rights to shareholders of the Company who dissent
from the Reincorporation is discussed under "Rights of Dissenting Shareholders"
below.
9. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. Under
both the Illinois Statute and Delaware Law, a corporation may generally
indemnify any person who was or is a party, or is threatened to be made a
party to any action or suit by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation against
expenses incurred by such person in connection with such action or suit,
provided that such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation or, in the alternative, such person is successful on the merits
or otherwise. Under both the Illinois Statute and Delaware Law, a person
entitled to indemnification must submit an undertaking to repay expenses
advanced by the corporation if it is ultimately determined that he or she
is not entitled to be indemnified. The Illinois Statute requires the Board
of Directors to make a case-by-case authorization of advancement of
indemnification expenses. Delaware Law, however, does not require such
authorization, thus permitting general undertakings to advance indemnification
expenses. See "Purposes and Effects of the Reincorporation--Indemnification
of Directors, Officers, Employees and Agents."
10. DIRECTOR LIABILITY. As previously indicated, Delaware Law permits the
elimination of personal liability of directors for monetary damages in certain
instances. See "Purposes and Effects of the Reincorporation--Director
Liability." The Illinois Statute has no comparable provision.
FEDERAL INCOME TAX CONSEQUENCES
No tax ruling has been requested from the Internal Revenue Service with respect
to the Reincorporation; however, the Company has received the opinion of Arvey,
Hodes, Costello & Burman, its counsel, as to all material federal income tax
consequences of the Reincorporation to shareholders. Such opinion is to the
effect that:
For federal income tax purposes, the Reincorporation will constitute a
reorganization under Section 368 of the Internal Revenue Code of 1986, as
amended, and shareholders of the Company, other than those shareholders who
exercise dissenters' rights, will not recognize any gain or loss as a
result of the Reincorporation. For federal income tax purposes, each
holder of Common Shares of the Company will retain the same tax basis in
his Delaware P.C. Quote Common Stock as he had in the corresponding Common
Shares of the Company held by him immediately prior to the effective date
of the Reincorporation, and his holding period for his Delaware P.C. Quote
Common Stock will include the period during which he held the corresponding
Common Shares of the Company, provided that such corresponding Common
Shares were held by him as a capital asset at the effective date of the
Reincorporation. For federal income tax purposes, each holder of Preferred
Shares of the Company will retain the same tax basis in his Delaware P.C.
Quote Preferred Stock as he had in the corresponding Preferred Shares of
the Company held by him immediately prior to the effective date of the
Reincorporation and his holding period for his Delaware P.C. Quote
Preferred Stock will include the period during which he held the
corresponding Preferred Shares of the Company, provided that such
corresponding Preferred Shares were held by him as a capital asset at the
effective date of the Reincorporation.
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EXHIBIT 99(B)
CERTIFICATE OF INCORPORATION
OF
DELAWARE P.C. QUOTE, INC.
* * * * *
FIRST: The name of the Corporation is
DELAWARE P.C. QUOTE, INC.
SECOND: The registered office of the Corporation in the State of Delaware is
229 South State Street, in the City of Dover, County of Kent, and the name of
the registered agent of the Corporation at that address is The Prentice Hall
Corporation System, Inc.
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 Delaware.
FOURTH: The total number of shares of stock which the Corporation shall have
authority to issue is twelve million, five hundred thousand (12,500,000) shares,
divided into ten million (10,000,000) shares of Common Stock, par value $0.001
per share, and two million five hundred thousand (2,500,000) shares of Preferred
Stock, par value $1.312704617 per share. The powers, preferences, rights and
designations, and the qualifications, limitations or restrictions thereof in
respect of the shares of each class are:
The holders of shares of the Preferred Stock shall be entitled to receive in
each year, when and as declared by the Board of Directors, dividends in an
amount equal to the par value thereof multiplied by the percentage equal to
the annual rate of interest publicly announced from time to time by Centerre
Bank National Association of St. Louis, Missouri, as its "prime" rate of
interest, said percentage to change when and as said "prime" rate of interest
changes (and no more), payable quarter-annually on such dates as may be
determined by the Board of Directors, before any dividends shall be declared,
paid upon or set apart for the Common Stock, and shall be fully cumulative so
that if in any quarter-annual period dividends at the rate specified above
shall not have been paid upon or set apart for the Preferred Stock, any
deficiency shall be fully paid or set apart, but without interest, before any
dividends shall be declared or paid upon or set apart for the Common Stock.
Whenever full dividends on the Preferred Stock at the rate specified above
shall have been paid upon or set apart for the Preferred Stock in respect of
any quarter-annual period and for all prior quarter-annual periods during
which shares of the Preferred Stock shall have been outstanding, and a sum of
money equal to the aggregate par value of all of the issued and outstanding
shares of the Preferred Stock shall have been set aside for the future
redemption of the Preferred Stock, then dividends upon the Common Stock may
be declared by the Board of Directors out of the remaining assets, if any, of
the corporation available for the payment of dividends, as permitted by law
and may be paid. In the event of any dissolution, liquidation or winding-up
of the corporation, whether voluntary or involuntary, the holders of the then
outstanding shares of the Preferred Stock shall be entitled to receive a sum
equal to the par value thereof plus an amount equal to all accrued and unpaid
dividends thereon, if any, to the date of distribution, and no more. After
such payment to the holders of the shares of the Preferred Stock, the
remaining assets and funds of the corporation shall be distributed pro-rata
among the holders of shares of the Common Stock. A consolidation, merger or
reorganization of the corporation with any other corporation or corporations,
or a sale of all or substantially all of the assets of the corporation, shall
not be considered a dissolution, liquidation or winding up of the corporation
within the meaning of these provisions.
The whole or any part of the Preferred Stock may be called for redemption and
redeemed at any time at the option of the Board of Directors upon thirty (30)
days' notice by mail to the holders of
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record of such shares, given in such manner as may be determined and prescribed
by resolution of the Board of Directors, by paying therefor in cash the
redemption price per share of 150% of the par value thereof, plus an amount
equal to all accrued and unpaid dividends thereon, if any, to the date fixed by
the Board of Directors for such redemption. If at any time less than the whole
of the Preferred Stock then outstanding shall be called for redemption, the
Preferred Stock so called for redemption shall be determined by lot or by such
other method as may be determined by the Board of Directors. Ten (10) business
days after the funds necessary to effect such redemption shall have been
tendered to the holders of such shares and set aside for such purpose and
provided that they continue to be available therefor, or upon payment of the
redemption price, all rights and privileges existing in the Preferred Stock so
called for redemption, shall cease, except the right to be paid the redemption
price. Shares of the Preferred Stock which are redeemed shall be cancelled and
shall not be reissued.
The holders of shares of the Common Stock shall have the exclusive voting power
for all purposes, and the holders of shares of the Preferred Stock shall have no
voting rights whatsoever except as may be required by law and except as
hereinafter provided as follows: (1) At all elections of directors, the holders
of shares of the Preferred Stock shall have the right, voting separately as a
class, to elect one-fourth of the total number of directors of the corporation
or such number as shall constitute not less than one-fourth of the total number
of directors of the corporation; (2) in the event that the corporation shall be
in default in the payment of any quarterannual dividend upon the Preferred
Stock and such default shall have continued for ten (10) business days after
written notice of such default to the corporation from the holders of not less
than ten percent (10%) of all of the outstanding shares of the Preferred Stock,
then, until and only until all accrued and unpaid dividends on the Preferred
Stock shall have been paid in full, the holders of shares of the Preferred Stock
shall have the right, voting separately as a class, to elect three-fourths of
the total number of directors of the corporation, or such number as shall
constitute not less than three-fourths of the total number of directors of the
corporation. The remaining number of directors shall be elected by the holders
of the shares of Common Stock, voting separately as a class. Within ten (10)
days after the occurrence of any event pursuant to which the holders of any
class of stock shall acquire or reacquire the right to elect a number of
directors greater than before the occurrence of such event, the Secretary of the
Corporation shall call a special meeting of the stockholders, upon not less than
ten (10) days', nor more than twenty-one (21) days', written notice, to elect a
new Board of Directors, and the term of office of the directors then in office
shall expire upon the election of such new Board of Directors. No stockholder
of any class shall have any cumulative voting right with respect to the election
of members of the Board of Directors.
Any holder of shares of the Preferred Stock may at any time (subject to the
prior redemption of such shares) convert all or any of the shares of such stock
held by him into shares of the Common Stock of the corporation, as hereinafter
specified, by surrender to the corporation, for cancellation, of the certificate
or certificates representing the Preferred Stock so to be converted, and, upon
such surrender, shall be entitled to receive therefor one or more certificates
for the number of shares of the Common Stock which, on said conversion, as
hereinafter specified, the corporation shall be required to issue and a
certificate or certificates for the balance, if any, of such holder's Preferred
stock not so converted; provided, however, that the corporation shall not be
required upon any such conversion, to issue certificates representing any
fraction or fractions of a share of Common Stock, but may issue in lieu thereof
one or more nondividend-bearing certificates in such form or forms as shall be
approved by the Board of Directors, each of said certificates representing a
fractional right to receive one share of Common Stock when presented with other
like certificates representing other fractional rights in the aggregate equal to
one share of Common Stock.
The basis for said conversion shall be at the rate of one share of Common Stock
for one share of Preferred Stock, without any adjustment for dividends for the
current quarter annual period, but accrued and unpaid dividends on the Preferred
Stock for prior quarter-annual periods shall continue to be an obligation of the
corporation as herein provided. The aforesaid conversion rate shall be subject
to the following adjustments:
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if the corporation shall pay any stock dividend upon its Common Stock, it
shall deliver, upon conversion thereafter of shares of Preferred Stock, in
addition to the shares of Common Stock above specified, such additional
number of shares as the shares of Common Stock issued upon such conversion
would have been entitled to had they been outstanding upon the record date
for the payment of such stock dividend. A stock dividend shall be a dividend
payable in stock of any class of the corporation. If there shall be any
subdivision or any combination of Common Stock, then upon the conversion
thereafter of Preferred Stock, the number of shares of Common Stock to be
delivered by the corporation shall be appropriately adjusted to reflect such
prior subdivision or combination of Common Stock, as the case may be.
Without limiting any of the foregoing, in case the corporation shall pay any
stock dividend upon any outstanding shares of Common Stock, or subdivide or
combine its Common Stock, or make any distribution (other than cash
dividends) to the holders of shares of its Common Stock, or in case the
corporation shall authorize and offer for subscription, to the holders of
shares of its Common Stock, any shares of Common Stock additional to (a)
those shares of Common Stock of the corporation outstanding immediately after
the Effective Time of the reincorporation merger provided for in that certain
Agreement and Plan of Merger (the "Agreement of Merger") proposed to be
entered into on or about June 19, 1987 by and between the corporation and
P.C. Quote, Inc., an Illinois corporation, and (b) those shares of Common
Stock of the corporation in respect of which the corporation has granted
options or warrants to purchase which are outstanding immediately after the
Effective Time of the Agreement of Merger (hereinafter collectively referred
to as the "Existing Common Stock"), then the corporation shall give to the
holders of shares of the Preferred Stock previous notice of the date on which
the books shall close for, or of the date as of which stockholders of record
shall be entitled to participate in, such dividend, subdivision, combination,
distribution, or subscription rights. Such notice shall be given by mail at
least sixty (60) days previous to the closing of the books or the record date
for such distribution or issuance of rights, or, in the case of payment of a
dividend, or a subdivision or combination of shares of Common Stock, at least
thirty (30) days previous to such closing or record date, to the end that
during the period of such notice, the holders of shares of the Preferred
Stock outstanding may exercise their conversion privilege and be entitled, in
respect of the shares of Common Stock resulting therefrom, to receive such
dividend, subdivision, combination or other distribution, or to exercise such
subscription rights, as the case may be. Without limiting any of the
foregoing, in the event the corporation shall authorize and offer to holders
of shares of Common Stock the right to subscribe for any shares of Common
Stock in addition to the Existing Common Stock, then the holders of shares of
the Preferred Stock who do not elect to convert their Preferred Stock into
Common Stock shall have the right to exercise such subscription right for the
same number of shares of Common Stock and on the same basis as if they had
theretofore converted all or some portion of their Preferred Stock into
Common Stock. Such subscription rights shall be exercised, if at all, by
notice in writing from the holder of shares of Preferred Stock to the
corporation on or before the closing of the books or the record date for such
issuance of subscription rights. Said notice shall state the number of
shares of Preferred Stock of such holder with respect to which he elects to
exercise such subscription right.
Similarly, in case of any capital reorganization or reclassification of the
capital stock of the corporation, or in case of the consolidation or merger of
the corporation with or into another corporation, the corporation shall give to
the holders of shares of the Preferred Stock outstanding, previous written
notice of the date on which such capital reorganization, reclassification,
consolidation, or merger will take place, and of the date as of which
stockholders of record of the corporation shall be entitled to exchange their
stock for other stock of the corporation, pursuant to such capital
reorganization or reclassification, or for stock of any corporation resulting
from such merger or consolidation, as the case may be. Such notice shall be
given by mail at least sixty (60) days previous to the date on which such
capital reorganization, reclassification, consolidation or merger will take
place and at least thirty (30) days previous to such record date, to the end
that during the period of such notice, the holders of shares of the Preferred
Stock outstanding may exercise their conversion privilege and be entitled, in
respect of the shares of Common Stock
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resulting therefrom, to participate in such reorganization, reclassification,
consolidation, merger or exchange, as the case may be. In the event that (a)
any holder of shares of Preferred Stock does not exercise such holder's
conversion privilege prior to such record date, and (b) such holder delivers to
the corporation on or before such record date written objection to the proposed
merger, consolidation, reclassification or reorganization, then if the
corporation consummates such merger consolidation, reclassification or
reorganization, said objecting holder of shares of Preferred Stock shall have
the right to require the corporation to repurchase all (but not less than all)
of said holder's shares of Preferred Stock for cash at the rate of 150% of the
par value thereof. Such right shall be exercised, if at all, by notice in
writing to the corporation on or before ten (10) business days after the holder
receives written notice from the corporation of the consummation of such merger,
consolidation, reclassification or reorganization, and the repurchase of
Preferred Stock shall be consummated within thirty (30) days after the
corporation receives said notice.
1,523,572 shares of Common Stock are hereby reserved for the conversion of
shares of the Preferred Stock (subject, however, to the prior redemption of such
shares). The number of reserved shares shall be adjusted from time to time as
hereinbefore provided and shall at all times be sufficient to permit the
conversion of Preferred Stock upon the basis hereinbefore set forth, and the
number thereof so reserved shall not at any time be reduced except as the number
of shares so reserved shall no longer be needed for the conversion of shares of
Preferred Stock. None of such shares of Preferred Stock so converted shall be
reissued, nor shall any such stock be issued in lieu thereof or in exchange
therefor, and the total authorized capital stock of the corporation shall be
decreased by the number of shares so converted, which, upon such conversion,
shall be duly cancelled and retired. The right to convert Preferred Stock into
Common Stock shall not be exercised while the books for the transfer of either
of such two classes of stock shall be closed; provided, however, that said right
shall not in any case be suspended for a period longer than fifteen (15) days,
nor at any time during the sixty (60) day period of any call for redemption of
Preferred Stock; and provided, further, that upon the surrender of any
certificate for Preferred Stock for conversion, the holder thereof shall be
deemed for all purposes to be a holder of shares of Common Stock to the extent
of the number of shares of Common Stock to which he shall be entitled upon
such conversion.
In case of any capital reorganization or reclassification of the capital stock
of the corporation, or in case of its consolidation or merger with or into
another corporation, the corporation shall and will, by proper legal action,
reserve or cause to be reserved, for the benefit of the holders of shares of the
Preferred Stock then outstanding and who elect to exercise their right to
convert all or part of said shares of Preferred Stock into shares of Common
Stock, such number of shares to stock of the corporation (in the case of such a
capital reorganization or reclassification of its capital stock), or such number
of shares of the stock of the corporation resulting from such merger or
consolidation, as the holder of a number of outstanding shares of Common Stock
of the corporation, equal to the number of shares of Common Stock into which
such shares of Preferred Stock would then be convertible, would be entitled to
receive upon such capital reorganization or reclassification of capital stock,
or upon such consolidation or merger, and thereafter, each holder of shares of
Preferred Stock shall be entitled to receive, in respect of each share thereof,
which such holder elects to convert into shares of Common Stock, the number of
shares of stock of the corporation, or of the corporation resulting from such
consolidation or merger, for which the shares of Common Stock of the corporation
called for upon any such conversion would have been exchangeable upon such
capital reorganization, reclassification of capital stock, consolidation, or
merger.
In case of the sale of the assets of the corporation as an entirety, or
substantially as an entirety, or in the case of any distribution of its assets
in dissolution or liquidation,the corporation will mail notice thereof to each
registered holder of its Preferred Stock and will make no distribution of the
consideration to be received by it from any such sale, or no such distribution
of assets, to and among its stockholders, until the expiration of sixty (60)
days from the date of mailing of such
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notice; provided, however, that in the case of any such sale, or in the case of
any such distribution of assets, the holders of Preferred Stock shall exercise
their conversion rights within sixty (60) days after the date of mailing of such
notice, and all conversion rights not so exercised within such sixty (60) day
period shall thereafter be and become null and void and of no effect whatever.
Nothing contained in this paragraph shall prevent or prohibit the corporation
from consummating any such sale or distribution without awaiting the expiration
of the sixty (60) day period aforesaid, so long as the consideration to be
received therefor shall not be distributed or the distribution of assets made to
and among its stockholders within such sixty (60) day period, it being the
intent and purpose hereof to enable the holders of Preferred Stock, upon the
exercise of their conversion rights, to participate as holders of Common Stock
in the distribution of the consideration to be received by the corporation upon
any such sale of its assets, or in the distribution of assets. In the event
that (a) any holder of Preferred Stock does not exercise such holder's
conversion privilege prior to the expiration of such sixty (60) day period, and
(b) such holder delivers to the corporation on or before such expiration date
written objection to the proposed sale or distribution, then if the corporation
consummates such sale or makes such distribution, said objecting holder of
Preferred Stock shall have the right to require the corporation to repurchase
all (but not less than all) of said holder's shares of Preferred Stock for cash
at the rate of 150% of the par value thereof. Such right shall be exercised, if
at all, by notice in writing to the corporation on or before ten (10) business
days after the holder receives written notice from the corporation of the
consummation of such sale or the making of such distribution, and the repurchase
of Preferred Stock shall be consummated within thirty (30) days after the
corporation receives said notice.
FIFTH: The name and mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
Donald E. Figliulo 180 North LaSalle Street
Chicago, Illinois 60601
SIXTH: The affirmative vote of the holders of two-thirds (66-2/3%) of the
outstanding shares of Common Stock of the Corporation, subject to the provisions
of any series of Preferred Stock which may at the time be outstanding, shall be
required:
A. to adopt an agreement for the merger or consolidation of the
Corporation with or into any other corporation; or
B. to authorize the sale, lease or exchange of all or substantially all of
the property and assets of the Corporation to another corporation, person
or entity; or
C. to amend the Certificate of Incorporation of the Corporation; or
D. to authorize the dissolution of the Corporation.
Pursuant to Section 102(b)(4) of the General Corporation Law of Delaware, the
provisions of this Article SIXTH shall supersede all provisions of the General
Corporation Law of Delaware as the same exists or may hereafter be amended that
require the vote of the holders of a lesser portion of the stock of the
Corporation for approval of any of the corporate actions referred to in A, B, C,
or D above.
SEVENTH: All the powers of the Corporation, insofar as the same may be lawfully
vested by this Certificate of Incorporation in the Board of Directors, are
hereby conferred upon the Board of Directors of the Corporation. In furtherance
and not in limitation of such power or the powers conferred by statute, the
Board of Directors shall have the power to adopt, alter or repeal from time to
time by-laws of the Corporation, and to authorize and cause to be executed
mortgages and liens upon the real and personal property of the Corporation.
EIGHTH: To the fullest extent permitted by the General Corporation Law of
Delaware as the same exists or may hereafter be amended, the Corporation shall
indemnify and advance indemnification expenses on behalf of all directors and
officers of the Corporation.
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NINTH: To the fullest extent permitted by the General Corporation Law of
Delaware as the same exists or may hereafter be amended, a director of the
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. No amendment to or
repeal of this Article NINTH shall apply to or have any effect on the liability
or alleged liability of any director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment or
repeal.
TENTH: The Corporation is to have perpetual existence.
ELEVENTH: Election of directors need not be by written ballot except as may be
provided in the by-laws of the Corporation from time to time.
TWELFTH: The Corporation reserves the right to amend, alter or repeal any
provision contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by law, and all rights conferred herein are subject to this
reserved power.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 17th day of June, 1987.
/s/ Donald E. Figliulo
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Donald E. Figliulo
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