SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-K
____________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report
August 5, 1994
Commission file number 1-8948
INTELOGIC TRACE, INC.
(Exact name of registrant as specified in its charter)
New York 74-2368260
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
Turtle Creek Tower I
P. 0. Box 400044, San Antonio, Tx. 78229-8415
(Address of principal executive offices) (Zip Code)
210-593-5700
(Registrant's telephone number, including area code)
<PAGE>
Item 3. BANKRUPTCY OR RECEIVERSHIP
Intelogic Trace, Inc. filed a voluntary petition on August
5, 1994 under Chapter 11 of the Bankruptcy Act, Case No. 94-
52172-C, in the United States Bankruptcy Court, Western District
of Texas, San Antonio Division, Judge Leif M. Clark presiding.
Intelogic Trace, Inc., as Debtor in Possession, will continue to
operate and manage its affairs. Intelogic Trace, Inc. also filed
on August 5, 1994, a proposed Chapter 11 plan, a copy of which is
attached as an Exhibit to this report. The plan has not yet been
approved by the Bankruptcy Court.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits. Chapter 11 Plan of Intelogic Trace, Inc.
dated August 5, 1994.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
INTELOGIC TRACE, INC.
Date: August 5, 1994 By: /Philip D. Freeman
Philip D. Freeman
Senior Vice President,
General Counsel and Secretary
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered Pages
2.1 Chapter 11 Plan of Intelogic 4
Trace, Inc.
UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
IN RE:
CHAPTER 11 CASE NO. 94-52172C
INTELOGIC TRACE, INC.,
DEBTOR.
CHAPTER 11 PLAN OF INTELOGIC TRACE, INC.
August 5, 1994
San Antonio, Texas
COX & SMITH INCORPORATED
Deborah D. Williamson
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
(210) 554-5500
ATTORNEYS FOR DEBTOR
<PAGE>
CHAPTER 11 PLAN OF INTELOGIC TRACE, INC.
Intelogic Trace, Inc. (the "Debtor"), proposes the
following plan of reorganization.
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 "Administrative Claim" shall mean a Claim or
portion of a Claim that is a cost or expense of
administration of the Chapter 11 Case allowed under section
503(b) or 507(b) of the Bankruptcy Code that is entitled to
priority under section 507(a)(1) of the Bankruptcy Code,
including, without limitation, (a) any actual and necessary
costs and expenses of preserving the estate of the Debtor,
(b) any actual and necessary costs and expenses of operating
the business of the Debtor, (c) any indebtedness or
obligations incurred or assumed by the Debtor in connection
with the conduct of its business or for the acquisition or
lease of property or the rendition of services, (d) any
allowances of compensation and reimbursement of expenses to
the extent allowed by Final Order under section 330 of the
Bankruptcy Code, whether arising before or after the
Effective Date, (e) any fees or charges assessed against the
estate of the Debtor under section 1930, chapter 123, title
28, United States Code, and (f) the Fidelity and First
Boston Expenses.
1.2 "Allowed," when used with respect to a Claim,
shall mean (a) a claim against the Debtor, proof of which
was filed on or before the date designated by the Bankruptcy
Court as the last date for filing that category of proof of
Claim, as to which no Objection has been interposed; or (b)
if no proof of Claim was filed, a Claim that has been or
hereafter is listed by the Debtor as liquidated in amount
and not disputed or contingent, as to which no Objection has
been interposed; or (c) a Claim as to which any Objection
has been interposed, to the extent the Objection has been
upheld by Final Order of the Bankruptcy Court.
1.3 "Assumed Contracts" shall mean all contacts of the
Debtor in the following categories:
(i) Service Agreements with end users, major equipment
manufacturers, and value added resellers;
(ii) Authorized Service Provider Agreements with
manufacturers;
(iii) Maintenance Spare Parts Agreements;
(iv) Subcontracting Arrangements with manufacturers;
(v) Solicitation and Commission Agreements with
independent sales organizations, dealers, and
distributors; and
(vi) "Service Orders", which includes master
maintenance agreements and maintenance reseller
agreements, but only for the labor portion of such
arrangements.
1.4 "Avoidance Action" shall mean a cause of action
assertable by the Debtor or its successors pursuant to
sections 542, 543, 544, 545, 547, 548, 549, 550, or 553 of
the Bankruptcy Code.
1.5 "Bankruptcy Code" shall mean title I of the
Bankruptcy Reform Act of 1978, as amended, and codified at
title 11 of the United States Code, as applicable to the
Chapter 11 Case and as in effect as of the date hereof or as
hereafter amended.
1.6 "Bankruptcy Court" shall mean the Bankruptcy
Court unit of the United States District Court for the
Western District of Texas, San Antonio Division, or such
other court having jurisdiction over all or any part of the
Chapter 11 Case.
1.7 "Bankruptcy Rules" shall mean the Federal Rules
of Bankruptcy Procedure, as promulgated by the United States
Supreme Court pursuant to 28 U.S.C. Sec. 2075 and, to the
extent not inconsistent therewith, the local rules of the
Bankruptcy Court, as amended from time to time.
1.8 "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which commercial banks in
the City of New York, State of New York, are required or
authorized to close.
1.9 "Cash" shall mean and include U.S. currency on
hand, U.S. currency on deposit in any bank account, and cash
equivalents including, but not limited, to any check or
other similar negotiable instrument denominated in U.S.
currency, shares in any money market or similar fund that
are actively traded on any established securities market
located within the United States, commercial paper having a
maturity of 90 days or less and denominated in U.S.
currency, and any obligation of the United States of America
(or any agency or instrumentality thereof) denominated in
U.S. currency.
1.10 "Chapter 11 Case" shall mean the case commenced
by the Debtor under the Bankruptcy Code by a voluntary
chapter 11 petition filed on the Petition Date.
1.11 "Claim" shall mean any right to payment from the
Debtor, whether or not the right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured,
unmatured, contested, uncontested, legal, equitable,
secured, or unsecured; or any right to an equitable remedy
for breach of performance if the breach gives rise to a
right of payment from the Debtor, whether or not the right
to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, contested, uncontested,
secured, or unsecured.
1.12 "Class" shall mean a category or group of
holders of Claims or Equity Interests as designated pursuant
to Article III of this Plan.
1.13 "Completion Bond Claims" shall mean the Claims
of vendors or other parties to contracts with the Debtor
under which the Debtor has posted a bond securing the
completion of its obligations, as set forth on Exhibit "A"
to this Plan.
1.14 "Confirmation Date" shall mean the date of entry
of the Confirmation Order.
1.15 "Confirmation Order" shall mean the order of the
Bankruptcy Court confirming this Plan.
1.16 "Contested Claim" shall mean a Claim against the
Debtor, as to which an Objection to all or any part of the
Claim has been interposed.
1.17 "Contested Claim Amount," with respect to any
Contested Claim, shall mean the asserted amount of a Claim
that was filed on or before the date designated by the
Bankruptcy Court as the last date for filing that category
of proof of Claim, which is a Contested Claim, and which has
not been Allowed or Disallowed before the Effective Date.
1.18 "Contested Claim Reserve" shall mean the account
maintained by the Reorganized Debtor for the benefit of
holders of Contested Claims, containing Cash, New Preferred
Stock, or New Common Stock, as appropriate, in amounts
necessary to reserve for the distributions allocable to the
Contested Claims until they are Allowed or Disallowed.
1.19 "Convenience Claim" shall mean an Allowed
Unsecured Claim (other than Note Claims) of $_____ or less;
provided, however, that all Allowed Unsecured Claims of one
holder (other than Note Claims held by that holder) shall be
aggregated for determining this limit.
1.20 "Creditor" shall mean the holder of a Claim.
1.21 "Creditors' Committee" shall mean the Official
Unsecured Creditors' Committee, if any, appointed in the
Chapter 11 Case pursuant to section 1102 of the Bankruptcy
Code, as reconstituted from time to time pursuant to order
of the Bankruptcy Court or determination of the United
States Trustee for the Western District of Texas.
1.22 "Datapoint" shall mean Datapoint Corporation, a
Delaware corporation.
1.23 "Datapoint Common Stock" shall mean the
2,700,000 shares of the common stock of Datapoint, $0.25 per
share, held in trust for the benefit of the Debtor.
1.24 "Datapoint Option" shall mean the option granted
by the Datapoint Option Agreement.
1.25 "Datapoint Option Agreement" shall mean that
certain Option Agreement dated November 9, 1990, between the
Debtor and Datapoint.
1.26 "Debtor" shall mean Intelogic Trace, Inc., a New
York corporation.
1.27 "Debtor in Possession" shall mean the Debtor in
its capacity as debtor-in-possession under section 1101(1)
of the Bankruptcy Code.
1.28 "Deficiency Amount" shall mean the amount by
which the total amount of a Secured Claim exceeds the value
of the collateral securing the Claim as of the date the
determination is made.
1.29 "Disallowed," when used with respect to all or
any part of a Claim, shall mean the status of that portion
of a Claim that is Contested, upon entry of a Final Order by
the Bankruptcy Court upholding the Objection.
1.30 "Disclosure Statement" shall mean the Disclosure
Statement filed under Bankruptcy Code section 1125 in
support of this Plan.
1.31 "Distribution Date" when used with respect to
each Claim, shall mean the later of the Effective Date, or
the date upon which the Claim becomes an Allowed Claim.
1.32 "Effective Date" shall mean the later of (a) the
first Business Day on which no stay of the Confirmation
Order is in effect and that is ten (10) days (as calculated
in accordance with Bankruptcy Rule 9006(a)) after the
Confirmation Date and (b) the date on which each of the
conditions precedent set forth in Article VIII of this Plan
have been either satisfied or waived in writing by the
holders of a majority in amount of the Note Claims.
1.33 "Employee Agreement" shall mean an employment
contract between the Debtor and any of its employees as of
either the Petition Date or the Effective Date.
1.34 "Exit Financing Provider" shall mean the entity
that enters into an agreement with the Debtor to provide a
loan facility pursuant to Section 8.2 of this Plan.
1.35 "Final Order" shall mean an order or judgment of
the Bankruptcy Court or any other court or adjudicative
body, as to which the time to appeal or seek rehearing or
petition for certiorari shall have expired or which order or
judgment shall no longer be subject to appeal, rehearing or
certiorari proceeding and with respect to which no appeal,
motion for rehearing or certiorari proceeding or stay shall
then be pending.
1.36 "Fidelity" shall mean Fidelity Capital & Income
Fund, a Massachusetts business trust.
1.37 "First Boston" shall mean CS First Boston Asset
Management Company.
1.38 "Fidelity and First Boston Expenses" shall mean
the fees or expenses of Fidelity and First Boston (including
fees and expenses of professionals rendering services on
their behalf) incurred in connection with the negotiation,
documentation, implementation, and consummation of the
transactions contemplated by this Plan in such amounts as
determined and awarded by Final Order of the Bankruptcy
Court, to the extent not satisfied by the Debtor as of the
Effective Date by a payment not subject to reversal,
modification, or avoidance for any reason.
1.39 "Foothill" shall mean Foothill Capital
Corporation, a California corporation.
1.40 "Indemnification Claims" shall mean the Claims
of the Debtor's present and former directors and officers
arising out of the Debtor's Indemnification Obligations.
1.41 "Indemnification Obligations" shall mean the
obligations of the Debtor to indemnify its present and
former directors and officers pursuant to any provisions of
the Debtor's charter, its by-laws, and/or applicable state
law to the extent such obligations are Allowed Claims.
1.42 "Indemnification Policies" shall mean the
insurance policy or policies obtained by the Debtor to cover
its Indemnification Obligations.
1.43 "Indenture" shall mean that certain Indenture
dated July 15, 1986, between the Debtor and Manufacturers
Hanover Trust Company, as trustee, governing the Debtor's
11.99% Subordinated Debentures due July 15, 1996.
1.44 "Indenture Trustee" shall mean [Chemical Trust
Company,] as successor to Manufacturers Hanover Trust
Company, the trustee under the Indenture.
1.45 "IT Canada" shall mean IT Canada Inc., a
Canadian corporation, all of whose 1,000 issued and
outstanding shares of common stock, zero par value per
share, and 1,785 issued and outstanding shares of preferred
stock, zero par value per share, are owned by the Debtor.
1.46 "Lien" shall mean any lien, charge, encumbrance,
or interest in or against property to secure payment of a
debt or enforcement of an obligation.
1.47 "New Preferred Stock" shall mean the shares of
10% Preferred Stock, with a liquidation preference per share
equal to $15 plus accrued dividends, to be issued by the
Reorganized Debtor on the Effective Date, having the rights,
powers, privileges, and preferences more fully set forth in
the Restated Charter.
1.48 "New Common Stock" shall mean the additional
shares of common stock, $0.01 par value per share, issued by
the Reorganized Debtor on the Effective Date.
1.49 "Note Claim" shall mean an Unsecured Claim
arising out of the Indenture, including any accrued but
unpaid interest owing thereunder.
1.50 "Old Common Stock" shall mean the shares of
common stock, $0.01 par value per share, issued by the
Debtor and outstanding prior to the Effective Date.
1.51 "Old Preferred Stock" shall mean the $10
Redeemable Preferred Stock issued by the Debtor, all of
which is owned by Datapoint.
1.52 "Objection" shall mean an objection to the
allowance of a Claim interposed within the applicable period
of limitation fixed by this Plan, the Bankruptcy Code, the
Bankruptcy Rules, or the Bankruptcy Court.
1.53 "Option Release Agreement" shall mean the Option
Release Agreement between the Debtor and Datapoint in
substantially the form attached to this Plan as Exhibit "B",
which shall effectuate the provisions of Section 8.1 of this
Plan.
1.54 "Person" shall mean an individual, corporation,
partnership, joint venture, trust, estate, unincorporated
association, unincorporated organization, governmental
entity or unit or political subdivision thereof, or any
other entity.
1.55 "PBGC" shall mean the Pension Benefit Guaranty
Corporation.
1.56 "PBGC Claim " shall mean the Claim of the PBGC
against the Debtor.
1.57 "Petition Date" shall mean August 5, 1994.
1.58 "Plan" shall mean this chapter 11 plan for the
Debtor, as it may be modified from time to time, and all
exhibits and schedules thereto.
1.59 "Plan Ballot Deadline" shall mean the date fixed
by the Bankruptcy Court by which the ballot that accompanies
this Plan as validly executed by the holder of an Allowed
Claim must be received by the Debtor or its solicitation
agent, which date is set forth in the Disclosure Statement.
1.60 "Plan Documents" shall mean Exhibits "A" through
"___" to this Plan, which Exhibits will be filed in the
Bankruptcy Court not later than the conclusion of the
hearing on confirmation of this Plan, unless specifically
provided otherwise in this Plan.
1.61 "Priority Non-Tax Claim" shall mean a Claim
entitled to priority pursuant to section 507(a)(3),
507(a)(4), or 507(a)(6) of the Bankruptcy Code.
1.62 "Priority Tax Claim" shall mean a Claim entitled
to priority pursuant to section 507(a)(7) of the Bankruptcy
Code.
1.63 "Pro Rata" shall mean the proportion that the
amount of a Claim in a particular Class bears to the
aggregate amount of all Claims in the Class.
1.64 "Registration Rights Agreement" shall mean the
agreement in substantially the form attached to this Plan as
Exhibit "C".
1.65 "Reorganized Debtor" shall mean the Debtor from
and after the Effective Date.
1.66 "Restated Charter" shall mean the amended and
restated certificate of incorporation of the Reorganized
Debtor in substantially the form attached as Exhibit "D" to
this Plan, which shall be in form and substance satisfactory
to the holders of a majority in amount of the Note Claim.
1.67 "Secured Claim" shall mean any Claim secured by
a valid, perfected, and enforceable Lien on or against
property of a Debtor, but only to the extent of the value of
the collateral securing the Claim.
1.68 "Shareholder Derivative Action" shall mean any
action brought by shareholders of the Debtor against the
Debtor and its Board of Directors demanding that the Debtor
seek damages from its Board of Directors.
1.69 "Shelf Registration Statement" shall mean a
registration statement relating to resales of the New Common
Stock and the New Preferred Stock filed by the Debtor with
the Securities and Exchange Commission under Rule 415
promulgated under the Securities Act of 1933.
1.70 "Tax Code" shall mean the Internal Revenue Code
of 1986, as amended, or corresponding provisions of any
subsequent federal revenue act.
1.71 "Tax Return" shall mean any consolidated federal
income tax return filed by the Debtor or the Reorganized
Debtor.
1.72 "Transfer Agent" shall mean the person
designated by the Debtor to distribute New Preferred Stock
and New Common Stock under this Plan and to keep the
registry of the holders thereof from and after the Effective
Date.
1.73 "Unsecured Claim" shall mean a Claim, other than
an Administrative Claim, a Priority Tax Claim, a Priority
Non-Tax Claim, a Secured Claim, or a Convenience Claim,
including any Unsecured Claim awarded to the PBGC in
settlement or satisfaction of all or any part of the PBGC
Claim.
1.74 "Working Capital Facility" shall mean the
General Loan and Security Agreement entered into as of June
20, 1991, between Foothill and the Debtor.
1.75 Interpretation. Unless otherwise specified, all
section, article, and exhibit references in this Plan are to
the respective section in, article of, or exhibit to, this
Plan, as the same may be amended, waived, or modified from
time to time. The exhibits annexed to this Plan and each of
the Plan Documents is incorporated into and is a part of
this Plan as if fully set forth in this Plan. The headings
in this Plan are for convenience of reference only and shall
not limit or otherwise affect the provisions hereof. Words
denoting the singular number shall include the plural number
and vice versa, and words denoting one gender shall include
the other gender.
ARTICLE II
PROVISIONS FOR PAYMENT
OF ADMINISTRATIVE AND PRIORITY TAX CLAIMS
2.1 Administrative Claims.
(a) Except as set forth in subsection (b)
below, each Administrative Claim shall be paid in full
in Cash on the Effective Date; provided, however, that
Allowed Administrative Claims representing obligations
incurred in the ordinary course of business or
otherwise assumed by the Debtor pursuant to this Plan
shall be paid or performed by the Debtor in accordance
with the terms and conditions of each agreement
relating thereto and consistent with past practice.
The Debtor consents to the compensation and
reimbursement of the Fidelity and First Boston Expenses
and acknowledges that Fidelity and First Boston have
made and will continue to make a "substantial
contribution" to the Chapter 11 Case as that term is
used in section 503(b) of the Bankruptcy Code.
(b) Compensation and Reimbursement. All
holders of Administrative Claims that are awarded
compensation or reimbursement of expenses by the
Bankruptcy Court under sections 503(b)(2), 503(b)(3),
503(b)(4) or 503(b)(5) of the Bankruptcy Code shall be
paid in Cash in full in such amounts as are allowed by
the Bankruptcy Court, (a) upon the later of (i) the
Effective Date and (ii) the date upon which the
Bankruptcy Court enters an order with respect to any
Administrative Claim or (b) upon such other terms as
the holder of the Administrative Claim may accept.
2.2 Priority Tax Claims.
(a) Except as set forth in subsection (b)
below, each holder of an Allowed Priority Tax Claim
shall receive at the option of the Debtor (i) the
amount of the holder's Allowed Claim in one Cash
payment on the Distribution Date or (ii) the amount of
the holder's Allowed Claim, with interest thereon, as
the Bankruptcy Code requires, in equal annual Cash
payments on each anniversary of the Distribution Date,
until the last anniversary of the Distribution Date
that precedes the sixth anniversary of the date of
assessment of the Allowed Claim.
(b) A Priority Tax Claim that is a Contested
Claim shall neither receive any distribution on the
Effective Date nor be discharged by the confirmation of
this Plan, but instead shall be resolved by the Debtor
via litigation or other means appropriate to the
character of the Priority Tax Claim and satisfied by
the Reorganized Debtor upon its resolution.
ARTICLE III
CLASSIFICATION OF CLAIMS
Claims and Equity Interests in the Debtor are
classified as follows:
3.1 Class 1. Class 1 shall contain all Priority
Non-Tax Claims.
3.2 Class 2. Class 2 shall contain the claim of
Foothill arising out of the Working Capital Facility.
3.3 Class 3. Class 3 shall contain all Completion
Bond Claims.
3.4 Class 4. Class 4 shall contain all Convenience
Claims.
3.5 Class 5. Class 5 shall contain the PBGC Claim.
3.6 Class 6. Class 6 shall contain all Unsecured
Claims not specifically classified in other Classes.
3.7 Class 7. Class 7 shall contain the Old
Preferred Stock.
3.8 Class 8. Class 8 shall contain the Old Common
Stock.
ARTICLE IV
IDENTIFICATION OF IMPAIRED CLASSES OF
CLAIMS AND EQUITY INTERESTS
4.1 Unimpaired Classes of Claims. Classes 1 and 3
are not impaired under this Plan.
4.2 Impaired Classes of Claims and Equity Interests.
With the exception of the unimpaired Classes specified in
Section 4.1 of this Plan, all Classes of Claims and all
Equity Interests are impaired under this Plan.
4.3 Impairment Controversies. If a controversy
arises as to whether any Class of Claims or Equity Interests
is impaired under this Plan, the Bankruptcy Court shall,
after notice and a hearing, determine the controversy.
ARTICLE V
PROVISIONS FOR TREATMENT OF
CLASSIFIED CLAIMS AND INTERESTS
5.1 Class 1 - Priority Non-Tax Claims. Each holder
of an Allowed Priority Non-Tax Claim shall receive the
amount of its Allowed Claim in one Cash payment on the
Distribution Date. The Pro Rata share of Cash allocable to
holders of Priority Non-Tax Claims that are Contested Claims
shall be distributed to the Contested Claim Reserve pursuant
to Sections 7.2 and 7.3 of this Plan.
5.2 Class 2 - Working Capital Facility. The Secured
Claim of Foothill arising out of the Working Capital
Facility shall be satisfied by the Exit Financing Provider,
which shall succeed to the interest of Foothill's Secured
Claim. The terms and conditions on which the Exit Financing
Provider shall satisfy Foothill's Secured Claim shall be
negotiated and disclosed to the Bankruptcy Court not later
than ten (10) days prior to the date set for hearing of
confirmation of this Plan and shall be such as to be
satisfactory in form and substance to the holders of a
majority in amount of the Note Claims. Any Deficiency
Amount arising on account of the Secured Claim of Foothill
shall be deemed zero and shall receive no distribution under
this Plan as an Unsecured Claim or otherwise, other than as
set forth above.
5.3 Class 3 - Completion Bond Claims. The
Completion Bond Claims shall be unimpaired.
5.4 Class 4 - Convenience Claims.
(a) Distributions. On the Distribution Date,
each holder of an Allowed Convenience Claim shall
receive a payment in Cash equal to ___% of its Allowed
Convenience Claim. A payment of Cash equal to the same
percentage of each Convenience Claim that is a
Contested Claim shall be distributed to the Contested
Claim Reserve pursuant to Sections 7.2 and 7.3 of this
Plan.
(b) Time and Manner of Election. Any holder
of an Allowed Unsecured Claim other than a Note Claim
that desires treatment of its Claim as a Convenience
Claim in accordance with Section 6.3 of this Plan shall
make the election on the ballot to be provided to
holders of Unsecured Claims and return the ballot
before the Plan Ballot Deadline. Any election made
after the Plan Ballot Deadline shall not be binding
unless the Plan Ballot Deadline is expressly waived in
writing by the Debtor.
5.5 Class 5 - PBGC Claim. The PBGC Claim shall be
satisfied on terms and conditions agreed to between the
Debtor and the PBGC, subject to the limitation set forth in
Section 8.3 of this Plan.
5.6 Class 6 - Other Unsecured Claims. As soon as
practicable after the Effective Date, but in no event more
than twenty (20) Business Days thereafter, each holder of an
Allowed Unsecured Claim shall receive pursuant to the
provisions of Article VII of this Plan its Pro Rata share of
the New Preferred Stock and New Common Stock issued under
this Plan. The Pro Rata share of New Preferred Stock and
New Common Stock allocable to holders of Unsecured Claims
that are Contested Claims shall be distributed to the
Contested Claim Reserve pursuant to Sections 7.2 and 7.3 of
this Plan.
5.7 Class 7 - Old Preferred Stock. No distributions
shall be made on account of the Old Preferred Stock. All of
the Old Preferred Stock shall be cancelled as of the
Effective Date.
5.8 Class 8 - Old Common Stock. The existing
holders of Old Common Stock shall retain their Old Common
Stock under this Plan, subject to the four-for-one reverse
stock split provided for in the Restated Charter, and then
subject to dilution by the issuance of the New Common Stock
under this Plan. All options to purchase Old Common Stock
or New Common Stock in the Debtor shall be cancelled as of
the Effective Date.
ARTICLE VI
ACCEPTANCE OR REJECTION OF PLAN
AND ELECTIONS ON BALLOTS
6.1 Classes Entitled to Vote. Each impaired Class
of Claims shall be entitled to vote separately to accept or
reject this Plan. Any unimpaired Class of Claims shall not
be entitled to vote to accept or reject this Plan.
6.2 Class Acceptance Requirement. Whether a Class
of Claims or Equity Interests has accepted this Plan shall
be determined in accordance with section 1126 of the
Bankruptcy Code.
6.3 Unsecured Claim Reduction Election. By voting
to accept this Plan, and marking the ballot in the space
provided for electing the treatment, the holder of an
Allowed Unsecured Claim other than a Note Claim may elect to
reduce the amount of the holder's Allowed Claim to
$_____________ and receive treatment as an Allowed
Convenience Claim having a value of $_____________ on the
terms provided in this Plan. Such an election shall
constitute a waiver of the amount of the Allowed Unsecured
Claim in excess of $____________, and the holder of the
Allowed Claim shall be deemed to release the Debtor from any
and all liability for the excess amount. The holder of an
Allowed Convenience Claim that elects to reduce the amount
of its Allowed Claim shall be deemed the holder of an
Allowed Convenience Claim for classification, voting, or
other purposes under this Plan.
ARTICLE VII
MEANS FOR IMPLEMENTATION OF
PLAN OF REORGANIZATION
7.1 Cash Payments on the Effective Date. Payments
of Cash to holders of Administrative Claims, Priority Tax
Claims, Priority Non-Tax Claims, and Convenience Claims as
set forth in Article V shall be made on the Effective Date.
7.2 Contested Claim Reserve. As soon as practicable
after the Effective Date, but in no event more than twenty
(20) Business Days thereafter, the Contested Claim Reserve
shall be established and funded with an amount of Cash, New
Preferred Stock, and New Common Stock allocable to the Pro
Rata share of each Contested Claim Amount in relation to the
total Claims in any Class.
7.3 New Preferred Stock. A total of 1,133,333
shares of New Preferred Stock shall be issued as soon as
practicable after the Effective Date, but in no event more
than twenty (20) Business Days thereafter; provided,
however, that if the aggregate Unsecured Claims other than
the Note Claims exceed $5 million, the total number of
shares of New Preferred Stock to be issued shall be
increased such that the aggregate liquidation preference is
increased by 80% of the amount by which the aggregate
Unsecured Claims other than Note Claims exceed $5 million;
and provided, further, that if holders of the Note Claims
elect to serve as the Exit Financing Providers as provided
in Section 8.2 of this Plan, additional shares of New
Preferred Stock shall be issued to them as provided in that
section. The New Preferred Stock shall be delivered to the
Transfer Agent for further distribution pro rata to the
holders of Unsecured Claims. The New Preferred Stock shall
have the rights, powers, privileges, and preferences set
forth in the Restated Charter; provided, however, that if
any person or group (as those terms are defined in Rule 13d
promulgated under the Securities Exchange Act of 1934, as
amended) shall become the owner (whether pursuant to a stock
purchase, merger, consolidation, other business combination,
or otherwise) of a majority of the outstanding common stock
of the Debtor after the Petition Date and before the
issuance of the New Preferred Stock, then the holders of the
New Preferred Stock shall have the right to cause the
Reorganized Debtor to redeem the New Preferred Stock in
accordance with Section 3(c) of the Restated Charter
immediately upon issuance of the New Preferred Stock. The
New Preferred Stock shall bear no restrictive legends of any
kind.
7.4 New Common Stock. As soon as practicable after
the Effective Date, but in no event more than ten (10)
Business Days thereafter, the Debtor shall effectuate a
reverse split of Old Common Stock as set forth in the
Restated Charter. A number of shares of New Common Stock
equal to three (3) times the number of shares of Old Common
Stock outstanding after the reverse split shall then be
issued pro rata to the holders of Unsecured Claims. The
New Common Stock shall be of the same class as the Old
Common Stock and have the same rights, powers, and
privileges pertaining thereto. The New Common Stock shall
be delivered to the Transfer Agent for further distribution
pro rata to the holders of Unsecured Claims. The Debtor
shall use its best efforts to establish and/or maintain the
listing of the New Common Stock and the Old Common Stock on
the New York Stock Exchange. The New Common Stock shall
bear no restrictive legends of any kind.
7.5 Restated Charter. On the Effective Date, the
Debtor's corporate charter shall be amended as provided in
the Restated Charter.
7.6 Board of Directors. The Board of Directors of
the Reorganized Debtor shall be reconstituted on the
Effective Date in a manner consistent with the Restated
Charter and acceptable to the holders of a majority in
amount of the Note Claims.
7.7 Record Date for Holders of Note Claims. The
record date for purposes of distributing New Preferred Stock
and New Common Stock to holders of Unsecured Claims under
this Plan shall be the close of business on the Effective
Date.
7.8 Cancellation of Note Claims. As of the
Distribution Date, the instruments that previously evidenced
ownership of the Note Claims and the rights of the holders
of the Note Claims shall be canceled and shall be null and
void, the holders thereof shall have no further rights
thereunder, and the instruments shall evidence no rights
except the right to receive the distributions provided
herein.
7.9 Surrender of Instruments Representing Note
Claims.
(a) No holder of a Note Claim shall be
entitled to distributions from under this Plan, unless
and until the holder either
(i) has first surrendered or caused to be
surrendered to the Transfer Agent the original
instruments evidencing the Note Claim held by it
or,
(ii) if the instruments have been lost,
destroyed, stolen or mutilated, has first
executed and delivered to the Transfer Agent an
affidavit of loss and indemnity with respect
thereto in form customarily utilized for such
purposes that is reasonably satisfactory to the
Reorganized Debtor and, if requested by the
Reorganized Debtor, has first furnished a bond in
form, substance, and amount reasonably
satisfactory to the Reorganized Debtor; provided,
however, that no affidavit of loss and indemnity
shall be required in respect of Note Claims held
by any institutional investor whose
stockholders' equity or net assets exceed $100
million.
(b) In accordance with section 1143 of the
Bankruptcy Code, any holder of a Note Claim that fails
to surrender its instruments or deliver an affidavit of
loss and indemnity as provided herein within five (5)
years from and after the Distribution Date shall be
deemed to have forfeited all rights and claims and
shall not participate in any distribution on account of
the Note Claims hereunder.
(c) Upon the expiration of the five (5) year
period referenced in subsection (b) above, all Note
Claims shall be voided; any New Preferred Stock or New
Common Stock then held by the Reorganized Debtor and
available for distribution in respect of the Note
Claims shall be distributed Pro Rata to the members of
the Class 6 other than the holders of Note Claims
referenced in subsection (b) above.
7.10 Distribution of New Preferred Stock and New
Common Stock.
(a) New Preferred Stock and New Common Stock
shall be distributed to holders of Unsecured Claims
other than Note Claims as soon as practicable after the
Effective Date, but in no event more than twenty (20)
Business Days thereafter.
(b) New Preferred Stock and New Common Stock
shall be distributed to holders of Note Claims as soon
as practicable after the surrender or delivery of the
original instruments evidencing the applicable Note
claim or an affidavit of loss and indemnity and the
furnishing of any bond requested by the Debtor, as
provided in Section 7.9 of this Plan.
(c) Each holder of New Preferred Stock and New
Common Stock shall have recorded in the books of the
Reorganized Debtor in exchange for its Unsecured Claim
or Old Common Stock, as the case may be, the number of
New Preferred Stock or New Common Stock to which it is
entitled.
7.11 Means of Cash Payment. Cash payments made
pursuant to this Plan shall be in United States funds, by
check drawn on a domestic bank, or by wire transfer from a
domestic bank.
7.12 Delivery of Distributions.
(a) Distributions and deliveries to holders of
Allowed Claims and Equity Interests shall be made at
the addresses set forth on the proofs of claim or
proofs of interest filed by the holders (or at the last
known addresses of the holders if no proof of claim or
proof of interest is filed or if the Debtor has been
notified of a change of address), or in the case of
holders of Allowed Note Claims, shall be made at the
addresses contained in the records of the Debtor.
(b) If any holder's distribution is returned
as undeliverable, no further distributions to the
holder shall be made unless and until the Debtor or the
Transfer Agent, as the case may be, is notified of the
holder's then current address, at which time all missed
distributions shall be made to the holder without
interest.
(c) Amounts in respect of undeliverable
distributions made by the Debtor or the Transfer Agent
shall be returned to the Debtor or the Transfer Agent,
as the case may be, until the distributions are
claimed.
(d) All claims for undeliverable distributions
shall be made on or before the fifth anniversary of the
Distribution Date, after which time all unclaimed
property shall be treated under section 347(b) of the
Bankruptcy Code, and then all Claims against the Debtor
or the Reorganized Debtor shall be discharged and
forever barred.
7.13 Distributions from Contested Claim Reserve. All
Cash, New Preferred Stock, and New Common Stock held in the
Contested Claim Reserve shall be distributed as follows.
(a) On the date that all or part of any
Contested Claim is Allowed, the Reorganized Debtor
shall withdraw from the Contested Claim Reserve an
amount of Cash, or a number of shares of New Preferred
Stock and New Common Stock, allocable to the portion of
the Contested Claim that has been Allowed.
(b) On the date that all or part of any
Contested Claim is Disallowed, any New Preferred Stock
and New Common Stock corresponding to the Disallowed
portion shall be cancelled, and any Cash corresponding
to the Disallowed portion shall be released from the
Contested Claim Reserve and retained by the Reorganized
Debtor.
7.14 Allocation of Distributions. All consideration
distributed under the Plan to a holder of an Allowed Note
Claim shall be allocated first to the principal balance of
the Allowed Note Claim and then, to the extent the
consideration exceeds the amount of that principal balance,
shall be allocated next to the accrued but unpaid interest
that is included in the Allowed Note Claim.
7.15 Time Bar to Cash Payments.
(a) Checks issued by the Reorganized Debtor in
respect of Administrative Claims, Priority Non-Tax
Claims, Priority Tax Claims, and Convenience Claims
shall be null and void if not cashed within ninety days
of the date of issuance thereof.
(b) Requests for reissuance of any check shall
be made directly to the Reorganized Debtor by the
holder of the Allowed Claim with respect to which the
check originally was issued.
(c) Any Claim in respect of such a voided
check shall be made on or before the later of the fifth
anniversary of the Distribution Date or ninety days
after the date of issuance of the check, after which
time all Claims in respect of void checks shall be
discharged and forever barred, and the funds or
distributions shall be distributed pro rata to holders
of Unsecured Claims unless the Reorganized Debtor
elects to deposit them with the clerk of the Bankruptcy
Court under section 347 of the Bankruptcy Code because
the expense of redistribution is impracticable.
7.16 Vesting of Assets. As of the Effective Date,
all property of the Debtor shall vest in the Reorganized
Debtor free and clear of all Claims and Equity Interests,
except as specifically provided in this Plan.
7.17 Effectuating Documents. Prior to the conclusion
of the Confirmation Hearing, the Debtor shall file the Plan
Documents with the Bankruptcy Court.
7.18 Avoidance Actions. Avoidance Actions belonging
to the Debtor shall vest in the Reorganized Debtor and be
retained and litigated thereby as deemed appropriate by the
Reorganized Debtor.
7.19 Allowance of Note Claims. The entry of the
Confirmation Order shall be deemed a finding and
determination by this Court that each of the Note Claims is
an Allowed Claim that is not subject to any counterclaim,
offset, right of recoupment, or other reduction or
alteration.
7.20 Indemnity Insurance. The Debtor shall use its
best efforts to maintain its Indemnification Policies from
and after the Effective Date, to the extent available at a
reasonable cost, to cover Indemnification Obligations
arising on, after, or before the Effective Date. The
Debtor's officers and directors shall have no Claims against
the Debtor for Indemnification Obligations arising on or
before the Effective Date, but instead shall be restricted
to their rights to assert claims under the Indemnification
Policies; provided, however, that Indemnification Claims
arising out of indemnifiable liability in connection with
any Shareholder Derivative Action shall constitute an
Administrative Claim against the Debtor; provided further,
however, that recovery under any such Administrative Claim
shall be limited to (a) the proceeds of the Indemnification
Policies received by the Debtor and (b) any recovery
obtained by the Debtor as a result of any Shareholder
Derivative Action.
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF PLAN
8.1 Release of Datapoint Option. It shall be a
condition to the consummation of this Plan on the Effective
Date that the Option Release Agreement, shall have been
approved by the Bankruptcy Court and executed and delivered
to the Debtor on or before the Effective Date. If the
Option Release Agreement has not been approved by the
Bankruptcy Court by the Confirmation Date, entry of the
Confirmation Order shall constitute the Bankruptcy Court's
approval of the Option Release Agreement. Under the Option
Release Agreement, on the Effective Date, the Debtor shall
transfer 2,400,000 shares of the Datapoint Common Stock to
Datapoint, in exchange for which Datapoint shall transfer to
the Debtor all of the Old Preferred Stock owned by Datapoint
and release all of its rights thereunder. In addition,
Datapoint shall release the Datapoint Option and any other
rights under the Datapoint Option Agreement, and there shall
be no further restrictions on the Debtor's right and power
to sell or issue the remaining 300,000 shares of the
Datapoint Common Stock to any person.
8.2 Exit Financing. It shall be a condition to the
consummation of this Plan on the Effective Date that the
Debtor shall have obtained a firm commitment for a working
capital facility from the Exit Financing Provider on terms
and conditions satisfactory to the holders of a majority in
amount of the Note Claims; provided, however, that if no
firm commitment has been obtained from an Exit Financing
Provider by the Effective Date, the holders of a majority in
amount of the Note Claims shall have the option, but not the
obligation, to extend to the Debtor a working capital
facility of up to $10 million, on terms and conditions no
less favorable to the holders of Note Claims extending the
facility than those that were offered by the Debtor to other
potential Exit Financing Providers, in addition to which,
the holders of Note Claims extending the working capital
facility shall be entitled to a loan commitment fee equal to
5% of the principal amount advanced, payable in the form of
additional New Preferred Stock.
8.3 Satisfaction of PBGC Claim. It shall be a
condition to the consummation of this Plan on the Effective
Date that the Debtor shall have negotiated a settlement of
the PBGC Claim on terms and conditions satisfactory to the
holders of a majority of the Note Claims.
8.4 Resales of New Preferred Stock and New Common
Stock. Entry of the Confirmation Order shall constitute a
finding and determination by the Bankruptcy Court that the
issuance of the New Preferred Stock and New Common Stock
under this Plan is entitled to exemption from the securities
laws under Bankruptcy Code section 1145. It shall be a
condition to the consummation of this plan that the Debtor
shall have executed and delivered the Registration Rights
Agreement to the holders a majority in amount of the Note
Claims.
ARTICLE IX
TREATMENT OF
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
9.1 Rejected If Not Assumed. This Plan shall be
deemed to constitute and incorporate a motion by the Debtor
to reject all executory contracts and unexpired leases to
which the Debtor is a party or is otherwise bound, except
for the contracts and leases that (a) have been assumed or
rejected pursuant to an order of the Bankruptcy Court, (b)
are specifically treated otherwise in this Plan, or (c) are
the subject of a motion to assume that is pending before the
Bankruptcy Court on the Confirmation Date. The
Confirmation Order shall represent and reflect an order of
the Bankruptcy Court approving the assumptions or rejections
as of the Confirmation Date, unless otherwise provided in
this Section 9.1.
9.2 Bar to Rejection Damages. If the rejection of
an executory contract or unexpired lease by the Debtor
results in damages to the other party or parties to the
contracts or leases, a Claim for the damages, if not
evidenced by a filed proof of claim as of the Effective
Date, shall be forever barred and shall not be enforceable
against the Debtor, its successors, or its properties unless
a proof of claim is filed with the Bankruptcy Court and
served upon the Debtor or the Reorganized Debtor by thirty
days after entry of the Confirmation Order or by such
earlier date as may be fixed by an order of the Bankruptcy
Court authorizing rejection of the contract or lease.
9.3 Employee Agreements. Each Employee Agreement
shall be rejected, and any claim for damages for the breach
or termination under the Employee Agreement shall be treated
as an Unsecured Claim subject to any applicable limitations
under the Bankruptcy Code, except as follows:
(a) The Reorganized Debtor shall assume
modified Employee Agreements as of the Effective Date
with Mark S. Helwege and Philip D. Freeman in
substantially the forms attached to this Plan as
Exhibits "E" and "F", which must be in a form and of a
substance satisfactory to the holders of a majority in
amount of the Note Claims. These modified agreements
shall reflect no material modifications other than a
revised bonus compensation plan and a revised stock
option plan, to provide for release of any claims
against the Debtor under this Plan or otherwise. Mr.
Helwege and Mr. Freeman shall have no Claim against the
Debtor except as specifically set forth in the modified
Employee Agreements.
(b) The Reorganized Debtor shall assume a
modified Employee Agreement as of the Effective Date
with Asher B. Edelman in substantially the form
attached to this Plan as Exhibit "G" which must be in a
form and of a substance satisfactory to the holders of
a majority in amount of the Note Claims. This modified
agreement shall provide only for a severance benefit
payable over 24 months in equal monthly installments of
$15,000, for a total of $360,000; and for release of
any claims against the Debtor under this Plan or
otherwise. Mr. Edelman shall have no Claim against the
Debtor except as specifically set forth in the modified
Employee Agreement.
(c) As a condition to confirmation, prior to
the Effective Date, the Employment Agreement with
Michael E. Schultz shall be rejected and any claims
arising under such Agreement shall be limited to
compensation through September 30, 1994. Mr. Schultz
shall have no other Claim against the Debtor.
9.4 Assumption of Specified Contracts. Entry of the
Confirmation Order shall constitute authorization of the
Bankruptcy Court to the Debtor to assume the Assumed
Contracts.
ARTICLE X
PROCEDURES FOR RESOLVING AND TREATING
CONTESTED CLAIMS
10.1 Objection Deadline. As soon as practicable, but
in no event later than ninety (90) days following the
Effective Date, the Reorganized Debtor shall file Objections
to Claims with the Bankruptcy Court and serve copies of the
Objections upon the holders of each of the Claims to which
Objections are made. This Section 10.1 shall not limit the
Reorganized Debtor's right to object to Claims, if any,
filed or amended more than ninety (90) days after the
Effective Date.
10.2 Prosecution of Objections. The Reorganized
Debtor shall litigate to judgment, settle, or withdraw
Objections to Contested Claims.
10.3 No Distributions Pending Allowance.
Notwithstanding any other provision of this Plan, no
payments or distributions shall be made to the holder of a
Contested Claim to which an Objection has been interposed
unless and until the Contested Claim has been Allowed.
10.4 Time for Filing Administrative Claims.
Administrative Claims against the Debtor must be filed no
later than thirty (30) days after the Effective Date.
ARTICLE XI
CREDITORS' COMMITTEE AND COUNSEL
11.1 Dissolution of the Creditors' Committee. The
Creditors' Committee shall be dissolved as of the Effective
Date.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Compliance with Tax Requirements. In connection
with this Plan, the Reorganized Debtor shall comply with all
withholding and reporting requirements imposed by federal,
state, local, and foreign taxing authorities and all
distributions hereunder shall be subject to the withholding
and reporting requirements.
12.2 Compliance with All Applicable Laws. If
notified by any governmental authority that it is in
violation of any applicable law, rule, regulation, or order
of the governmental authority relating to its business, the
Reorganized Debtor shall comply with the law, rule,
regulation, or order; provided, however, that nothing
contained herein shall require such compliance if the
legality or applicability of the requirement is being
contested in good faith in appropriate proceedings and, if
appropriate, for which an adequate reserve has been set
aside on the books of the Reorganized Debtor.
12.3 Setoffs. Except as otherwise provided in this
Plan, the Reorganized Debtor may, but shall not be required
to, set off against any Claim and the payments or other
distributions to be made pursuant to this Plan in respect of
the Claim, claims of any nature whatsoever the estate may
have against the holder of the Claim, but neither the
failure to do so nor the allowance of any Claim hereunder
shall constitute a waiver or release by the Reorganized
Debtor of any Claim that the estate may have against the
holder; provided, however, the Reorganized Debtor will not
seek to set off any obligation that is not yet due.
12.4 Maintenance of Causes of Action. From and after
the Effective Date, the Reorganized Debtor may litigate any
Avoidance Action or any other causes of action, rights to
payments, or claims that belong to the estate, that may be
pending on the Effective Date or instituted by the
Reorganized Debtor after the Effective Date.
12.5 Request for Cramdown under Section 1129(b) of
the Bankruptcy Code. This Plan shall be deemed a request
for cramdown under section 1129(b) of the Bankruptcy Code of
any other Class or Classes entitled to vote that do not
accept this Plan under section 1126 of the Bankruptcy Code.
ARTICLE XIII
CONSUMMATION OF PLAN
13.1 Retention of Jurisdiction. The Bankruptcy Court
shall retain and have exclusive jurisdiction over the
Chapter 11 Case for the following purposes, except to the
extent the Bankruptcy Court elects to retain concurrent
jurisdiction or decides to relinquish jurisdiction:
(a) To determine any and all required
applications for allowances of compensation and
reimbursement of expenses and any other fees and
expenses authorized to be paid or reimbursed under the
Bankruptcy Code or this Plan;
(b) To determine any applications pending on
the Effective Date for the rejection or assumption of
executory contracts or unexpired leases or for the
assumption and assignment, as the case may be, of
executory contracts or unexpired leases to which the
Debtor is a party or with respect to which the Debtor
may be liable, and to hear and determine, and if need
be to liquidate, any and all claims arising therefrom;
(c) To determine any and all applications,
adversary proceedings, and contested or litigated
matters that may be pending on the Effective Date;
(d) To consider any modifications of this
Plan, remedy any defect or omission or reconcile any
inconsistency in any order of the Bankruptcy Court,
including the Confirmation Order, to the extent
authorized by the Bankruptcy Code;
(e) To determine all controversies, suits, and
disputes that may arise in connection with the
interpretation, enforcement, or consummation of this
Plan or any person's obligations under this Plan;
(f) To issue such orders in aid of execution
of this Plan to the extent authorized by section 1142
of the Bankruptcy Code; and
(g) To determine such other matters as may be
set forth in the Confirmation Order or which may arise
in connection with this Plan or the Confirmation Order.
13.2 Modification of Plan. Modifications of this
Plan (including the Plan Documents) may be proposed in
writing by the Debtor at any time before confirmation,
provided that the Plan, as modified, (a) is in form and
substance satisfactory to holders of a majority in amount of
the Note Claims, and (b) meets the requirements of sections
1122 and 1123 of the Bankruptcy Code, and the Debtor shall
have complied with section 1125 of the Bankruptcy Code.
This Plan may be modified at any time after confirmation and
before its substantial consummation, provided that the Plan,
as modified, meets the requirements of sections 1122 and
1123 of the Bankruptcy Code and the Bankruptcy Court, after
notice and a hearing, confirms the Plan, as modified, under
section 1129 of the Bankruptcy Code, and the circumstances
warrant the modification. A holder of a Claim or Equity
Interest that has accepted or rejected this Plan shall be
deemed to have accepted or rejected this Plan as
unless, within the time fixed by the Bankruptcy Court, the
holder changes its previous acceptance or rejection.
Dated: San Antonio, Texas
August , 1994
Respectfully submitted,
INTELOGIC TRACE, INC., Debtor
By:_________________________
<PAGE>
EXHIBITS
Exhibit A List of Completion Bond Claims
Exhibit B Option Release Agreement
Exhibit C Registration Rights Agreement
Exhibit D Restated Charter
Exhibit E Modified Employee Agreement with Mark S. Helwege
Exhibit F Modified Employee Agreement with Philip D. Freeman
Exhibit G Modified Employee Agreement with Asher B. Eldelman
<PAGE>
EXHIBIT A
LIST OF COMPLETION BOND CLAIMS
Information to be provided supplementally.
<PAGE>
EXHIBIT B
OPTION RELEASE AGREEMENT
Information to be provided supplementally.
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of _____ __, 1994 among INTELOGIC TRACE,
INC., a New York corporation (the "Company"), FIDELITY CAPITAL &
INCOME FUND, a Massachusetts business trust ("Fidelity"), and CS
FIRST BOSTON INVESTMENT MANAGEMENT COMPANY, a _________
corporation ("First Boston"). Fidelity and First Boston will own
shares of the Common Stock, $.01 par value per share, of the
Company (the "Common Shares") and shares of 10% Preferred Stock,
$.01 par value, of the Company (the "Preferred Shares").
The parties hereby agree as follows:
SECTION I. Securities Subject to this Agreement. The
term "Registrable Securities" means the Common Shares and
Preferred Shares (including any shares from time to time received
from the Company in exchange therefor or as a result of
dividends, splits or similar actions with respect to Registrable
Securities) to be received by each of Fidelity and First Boston
and by any other holder of such Common Shares and Preferred
Shares who becomes a signatory to this Agreement as contemplated
by Section 8(b) of this Agreement (the "Holders" or a "Holder,"
or the "Sellers" or a "Seller") as of the effectiveness (the
"Effective Date") of the restructuring of the Company's 11.99%
Subordinated Debentures that were due July 15, 1996 pursuant to a
plan of reorganization under chapter 11 of title 11 of the United
States Code, which has been confirmed by Final Order entered on
_____ __, 1994 of the United States Bankruptcy Court for the
Western District of Texas, San Antonio Division, the court having
jurisdiction over the Company's chapter 11 case. For
convenience, unless the context otherwise indicates, the various
agreements made herein with respect to Fidelity and First Boston
shall be deemed to be made on behalf of the respective Holders or
Sellers, and references herein to "Signatories" shall include
Fidelity, First Boston and any other holder of Registrable
Securities as of the Effective Date that becomes a party to this
Agreement.
SECTION II. Registration.
(a) The Company shall (i) cause to be filed with the
Securities and Exchange Commission (the "Commission") on or
before _____ __, 1994, [30 days following the Effective Date of
the Plan] a shelf Registration Statement on Form S-1 (the "Shelf
Registration Statement") covering the Registrable Securities in
accordance with Rule 415 under the Securities Act of 1933, as
amended (the "Act"), relating to the offer and sale of
Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the
Sellers and set forth in the Shelf Registration Statement, (ii)
use its best efforts to cause the Shelf Registration Statement to
be declared effective by the Commission at the earliest possible
time, but in no event later than _____ __, 1994, (60 days
following the Effective Date of the Plan) and (iii) in connection
with the foregoing, file (A) all pre-effective amendments to the
Shelf Registration Statement as may be necessary in order to
cause such Registration Statement to become effective, and (B) if
applicable, a post-effective amendment to the Shelf Registration
Statement pursuant to Rule 430A under the Act.
(b) The Company shall use its best efforts to keep the
Shelf Registration Statement continuously effective in order to
permit the prospectus forming part thereof to be usable by the
Holders for a period of three years or such shorter period that
will terminate when all the Registrable Securities covered by the
Shelf Registration Statement have been sold pursuant to such
Registration Statement (in any such case, such period being
called the "Shelf Registration Period").
(b) In the event that, following the Shelf Registration
Period, the Company shall receive from any Holder or Holders of
Registrable Securities comprising not less than __% of the issued
and outstanding Common Shares or Preferred Shares, a written
request that the Company effect the registration of Registrable
Securities, the Company will (i) promptly, and in any event
within 15 days, give written notice thereof to each other Holder,
(ii) cause to be filed with the Commission as promptly as
possible (and in any event within 60 days after the Company
receives such request) a Registration Statement on Form S-1 (or
on an alternative form if such alternative form is then
authorized for the sale to the public of the Registrable
Securities and such form would permit registration of the
Registrable Securities for sale by or on behalf of the Holders)
(each a "Registration Statement", which term shall include the
Shelf Registration Statement) covering the Registrable Securities
as are specified in such request, together with all or such
portion of the Registrable Securities of any Holder or Holders
joining in such request as are specified in a written request
received by the Company within 15 days after receipt of the
written notice by the Company pursuant to clause (i), relating to
the offer or sale of Registrable Securities by the Holders in
accordance with the methods of distribution elected by the
Sellers and set forth in the Registration Statement, (iii) use
its best efforts to cause such Registration Statement to be
declared effective by the Commission at the earliest possible
time, and (iv) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become
effective, and (B) if applicable, a post-effective amendment to
such Registration Statement pursuant to Rule 430A under the Act.
The Company shall not be required to effect more than two
registrations pursuant to this Section 2(c). The Company may
postpone for a reasonable period of time (not to exceed 30 days)
the filing of any registration statement otherwise required to be
prepared and filed by it pursuant to this Section 2(c) if, at the
time it receives a request for registration: the Board of
Directors of the Company shall determine in good faith that such
offering will interfere materially with a pending or contemplated
financing, merger, sale of assets, recapitalization or other
similar corporate action of the Company and the Company shall
have furnished to the Holders seeking such registration a
certificate signed by the President of the Company to that
effect, accompanied by a certified copy of the relevant board
resolutions.
(d) Selection of Counsel. The Holders of the
Registrable Securities to be included in each Registration
Statement shall select one counsel reasonably acceptable to the
Company to represent their interests in connection with such
offering. The reasonable expenses of such counsel to the Holders
shall be borne by the Company.
(e) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Registrable Securities may include any of its Registrable
Securities in any Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company
in writing, within 10 business days after receipt of a request
therefor, such information as the Company may reasonably request
for use in connection with the Registration Statement or
prospectus or preliminary prospectus included therein. No Holder
of Registrable Securities shall be entitled to liquidated damages
pursuant to Section 3 hereof unless and until such Holder shall
have provided all such reasonably requested information.
SECTION 3. Liquidated Damages. If (i) the Shelf
Registration Statement is not filed with the Commission on or
prior to the date specified for such filing in this Agreement,
(ii) the Shelf Registration Statement has not been declared
effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement, or (iii) the Shelf
Registration Statement is filed and declared effective but,
during the period the Company is required to maintain its
effectiveness, shall thereafter cease to be effective or fail to
be usable for its intended purpose (each such event referred to
in clauses (i) through (iii), a "Registration Default"), the
Company agrees to pay liquidated damages to the Holders of
Registrable Securities in an amount equal to $5,000 per week,
apportioned ratably among such Holders based on the number of
Common Shares held by each such Holder, for each week or portion
thereof that the Registration Default continues. All accrued
liquidated damages shall be paid to the Holders of Registrable
Securities by the Company by wire transfer of, or check of,
immediately available funds, on the first business day of each
month following a Registration Default. Following the cure of
all Registration Defaults relating to any particular Registrable
Securities, the accrual of liquidated damages with respect to
such Registrable Securities will cease.
SECTION 4. Registration Procedures. In connection
with any Registration Statement to be filed pursuant to Section 2
of this Agreement, the Company will as expeditiously as possible:
(a) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration Statement
effective (i) in the case of the Shelf Registration Statement,
for the Shelf Registration Period, and (ii) in the case of each
other Registration Statement, for at least 180 days (or such
shorter period as shall terminate when all Registrable Securities
covered by such Registration Statement have been sold), and
comply with the provisions of the Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act") applicable to it
with respect to the disposition of all Registrable Securities of
the Company covered by such Registration Statement during such
period;
(b) furnish to each Signatory, without charge, at
least one signed copy of the Registration Statement and any post-
effective amendment thereto, as soon as such documents become
available to the Company, and such number of conformed copies
thereof and such number of copies of the prospectus (including
any preliminary prospectus) and any amendments or supplements
thereto, and any documents incorporated by reference therein, as
such Signatory may reasonably request as soon as such documents
become available to the Company in order to facilitate the
disposition of the Registrable Securities being sold by each
Seller (it being understood that the Company consents to the use
of the prospectus and any amendment or supplement thereto by each
Seller of such Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the
prospectus or any amendment or supplement thereto);
(c) on or prior to the effective date of the
Registration Statement, or thereafter if necessary, use its best
efforts to register or qualify the Registrable Securities under
such other securities or blue sky laws of such jurisdictions as
each Signatory reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to
enable each Seller to consummate the disposition in such
jurisdictions of such Registrable Securities owned by such
Seller; provided, however, that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this
paragraph, or (ii) subject itself to general taxation in any such
jurisdiction;
(d) use its best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Company to enable the Sellers to consummate the
disposition of such Registrable Securities;
(e) notify each Signatory at any time while the
Registration Statement is required to be effective under
paragraph (a) above of the happening of any event which results
in the Prospectus containing an untrue statement of a material
fact or omitting to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and, as promptly as practicable, the Company will
prepare a supplement or amendment to such Prospectus so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(f) enter into customary agreements and make such
representations and warranties to the Sellers of Registrable
Securities as in form, substance and scope are customarily made
by issuers to selling securityholders and take such other actions
as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(g) in connection with any underwritten offering,
enter into an underwriting agreement with the underwriter of such
offering in the form customary for such underwriter for similar
offerings, including such representations and warranties by the
Company, provisions regarding the delivery of opinions of counsel
for the Company and accountants' letters, provisions regarding
indemnification and contribution, and such other terms and
conditions as are at the time customarily contained in such
underwriter's underwriting agreement for similar offerings (and,
at the request of any Holder of Registrable Securities that are
to be distributed by such underwriter(s), any or all (as
requested by such Holder) of the representations and warranties
by, and the other agreements on the part of, the Company to and
for the benefit of such underwriter(s) shall also be made to and
for the benefit of such Holder);
(h) make available for inspection during regular
business hours by Fidelity and First Boston and any attorney,
accountant or other agent retained by them and their attorneys
and agents (collectively, the "Inspectors"), all financial and
other records, corporate documents, books and records,
questionnaires, agreements, properties of the Company and other
information (collectively, the "Records") as shall be reasonably
requested to enable them to exercise "due diligence," and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any such Inspector in
connection with the Registration Statement;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, earnings statements which need not be audited,
covering a period of twelve months beginning after the effective
date of the Registration Statement, which earnings statements
shall satisfy the provisions of Section 11(a) of the Act;
(j) notify each Signatory of any stop order or other
suspension of effectiveness of the Registration Statement;
(k) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement at the earliest possible moment;
(l) use its best efforts to cause the Registrable
Securities to be listed on the New York Stock Exchange or any
other national securities exchange or automated quotation system
on which a listing for Common Shares or Preferred Shares is
maintained; and
(m) cooperate with the Sellers of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing securities to be sold under the
Registration Statement (which certificates shall be in DTC-
eligible form) and enable such securities to be in such
denominations and registered in such names as such Sellers may
request.
The Company may require each Seller of Registrable
Securities as to which any registration is being effected to
furnish to the Company information regarding the distribution of
such securities and such other information relating to the Seller
and its ownership of Registrable Securities as the Company may
from time to time reasonably request for inclusion in the
Registration Statement
Each Holder of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(e) hereof, such holder
will forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable
Securities until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(e)
hereof and, if so directed by the Company, such Holder will
deliver to the Company (at the expense of the Company), all
copies, other than permanent file copies then in such Holder's
possession of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
SECTION 5. Registration Expenses. All expenses
incident to the Company's performance of or compliance with
Section 2 of this Agreement including, without limitation, all
registration and filing fees, and expenses of compliance with
state securities or blue sky laws (including fees and
disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), messenger and
delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of the Company's officers
and employees performing legal or accounting duties), printing
costs, fees and expenses of counsel for the Company and its
independent certified public accountants (including the expenses
of any special audit required by or incident to such
performance), liability insurance for claims under the Act and
the Exchange Act (it being understood that the Company has no
obligation to obtain such insurance), fees and expenses of
counsel for the Sellers under Section 2(d) above and the fees and
expenses of any special experts retained by the Company in
connection with such registration (all such expenses being herein
called "Registration Expenses") shall be borne by the Company;
provided, however, that in no event shall Registration Expenses
include any discounts, commissions or underwriting fees
attributable to the sale of the Registrable Securities.
SECTION 6. Indemnification; Contribution.
(a) Indemnification by the Company. The Company
agrees to indemnify, to the full extent permitted by law, each
participating Holder of Registrable Securities, its officers,
directors, partners, employees and agents and each person or
entity that controls such Holder (within the meaning of the Act),
and any investment advisor thereof or agent therefor
(collectively, the "Indemnified Holders") against all losses,
claims, damages, liabilities and expenses (including reasonable
out-of-pocket costs of investigation and reasonable legal
expenses) arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any Registration
Statement or prospectus (or any amendment or supplement thereto)
or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the
circumstances under which they are made) not misleading;
provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement or prospectus, or
such amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by
any of the Holders specifically for use in the preparation
thereof. This indemnity is in addition to any liability which
the Company may otherwise have. The Company will also indemnify
any selling brokers, dealer managers and similar securities
industry professionals participating in the distribution and
their officers and directors and each person who controls such
persons or entities (within the meaning of the Act) to the same
extent as provided above with respect to the indemnification of
the Holders of Registrable Securities.
(b) Indemnification by Holders of Registrable
Securities. In connection with any Registration Statement in
which a Holder of Registrable Securities is participating, each
such Holder will furnish to the Company, in writing, such
information and affidavits with respect to such Holder as the
Company reasonably requests for use in connection with such
Registration Statement or any prospectus included therein and
agrees to indemnify, to the extent permitted by law, the Company,
its directors, officers, employees and agents and each person or
entity that controls the Company (within the meaning of the Act),
and any investment advisor thereof or agent therefor against any
losses, claims, damages, liabilities and expenses (including
reasonable out-of-pocket costs of investigation and reasonable
legal expenses) arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in the
Registration Statement or prospectus or any omission or alleged
omission to state therein a material fact required to be stated
or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they
were made) not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in or should
have been contained in any information or affidavit with respect
to such Holder so furnished in writing by such Holder expressly
for inclusion in such Registration Statement; provided, however,
that the obligation of such Holder under this Section 6 shall in
no event exceed the proceeds received by such Holder upon the
sale of the Registrable Securities in the offering covered by
such Registration Statement.
(c) Conduct of Indemnification Proceedings. Any
person or entity entitled to indemnification hereunder agrees to
give prompt written notice to the indemnifying party after the
receipt by such person or entity of any written notice of the
commencement of any action, suit or proceeding against such
person or entity or investigation thereof for which such person
or entity will claim indemnification or contribution pursuant to
this Agreement and, unless in the reasonable judgment of such
indemnified party a conflict of interest exists between such
indemnified party and the indemnifying party with respect to such
claim, permit the indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to such
indemnified party. If the indemnifying party is not entitled to,
or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one lead
counsel with respect to such claim (plus local counsel fees, if
required), unless in the reasonable judgment of counsel to such
indemnified party a conflict of interest exists between such
indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party
shall be obligated to pay the fees and expenses of such
additional counsel or counsels. The indemnifying party will not
be subject to any liability for any settlement made without its
consent, which consent shall not be unreasonably withheld.
(d) Contribution. If the indemnification provided for
in this Section 6 from the indemnifying party is unavailable to
an indemnified party hereunder in respect of any losses, claims,
damages, liabilities or expenses referred to therein by reason
other than that set forth in the proviso at the end of the first
sentence of Section 6(a) hereof, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with the
actions or inactions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact,
has been made by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such action. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 6(c), any legal
or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this paragraph were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph.
If indemnification is available under this Section 6,
the indemnifying parties shall indemnify each indemnified party
to the full extent provided in Sections 6(a) and (b) without
regard to the relative fault of said indemnifying party or
indemnified party or any other equitable consideration provided
for in this Section 6.
SECTION 7. Rule 144A.
The Company hereby agrees with each Signatory, for so
long as any Registrable Securities remain outstanding, to make
available to any Signatory or beneficial owner of Registrable
Securities in connection with any sale thereof and any
prospective purchaser of such Registrable Securities from such
Signatory or beneficial owner, the information required by Rule
144(d)(4) under the Act in order to permit resales of such
Registrable Securities pursuant to Rule 144A.
SECTION 8. Miscellaneous.
a. Remedies. Each party hereto, in addition to being
entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of
its rights under this Agreement. Each party agrees that monetary
damages may not be adequate compensation for any loss incurred by
reason of a breach of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
b. Additional Signatories. If the Company determines
that any persons, other than the original signatories hereto, who
are to receive Common Shares or Preferred Shares as of the
Effective Date may be deemed to be underwriters within the
meaning of the Act with respect to such securities, upon the
written consent of Fidelity and First Boston such persons may
become additional Signatories to the Agreement and their Shares
shall be deemed to be Registrable Securities.
c. Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers and consents to or departures from the provisions hereof
may not be given unless the Company has obtained the written
consent of Holders of a majority of the Registrable Securities.
d. Notices. All notices and other communications
provided for or permitted hereunder shall be made by telecopy
(followed by registered first-class mail or overnight courier
delivery of a hard-copy), by overnight courier or by hand-
delivery:
(i) if to the Company, at:
Turtle Creek Tower I
P.O. Box 400044
San Antonio, Texas 78229-8415
Attention: Philip Freeman, Esq.
Telecopy: (210) 593-2201
with a copy to:
Cox & Smith Incorporated
1120 E. Pecan Street
Suite 1800
San Antonio, Texas 78205
Attention: James B. Smith, Jr., Esq.
Telecopy: (210) 226-8395
(ii) if to Fidelity, at:
82 Devonshire Street
Boston, Massachusetts 02109
Attention: Judy K. Mencher, Esq.
Telecopy: (617) 570-7688
with a copy to:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attention: Bruce R. Zirinsky, Esq.
Telecopy: (212) 310-8007; and
(iii) if to First Boston, at:
Attention:
Telecopy:
with a copy to:
Attention:
Telecopy:
(e) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto, including without
limitation and without the need for an express assignment,
subsequent Holders of the Registrable Securities; provided,
however, that this Agreement shall not inure to the benefit of or
be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign acquired Registrable
Securities from such Holder.
(f) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York.
(i) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and
of the remaining provisions contained herein shall not be in any
way impaired thereby.
(j) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such subject matter.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
INTELOGIC TRACE, INC.
By:
Name:
Title:
FIDELITY CAPITAL & INCOME FUND
By:
Name:
Title:
FIRST BOSTON INVESTMENT MANAGEMENT COMPANY
By:
Name:
Title
EXHIBIT D
RESTATED CHARTER
CERTIFICATE OF AMENDMENT AND RESTATEMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
INTELOGIC TRACE, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"Corporation") is INTELOGIC TRACE, INC. The date of filing of
the original Certificate of Incorporation of the Corporation with
the Secretary of State of the State of New York was June 24,
1985.
2. The Amended and Restated Certificate of
Incorporation hereby adopted restates, integrates and further
amends the Certificate of Incorporation of the Corporation as in
effect on the date hereof by striking out Articles FIRST through
NINTH thereof and substituting in lieu thereof new Articles FIRST
through NINTH which are set forth in the Amended and Restated
Certificate of Incorporation below.
3. In connection with such amendment, effective upon
the filing of this Amended and Restated Certificate of Incorpora-
tion with the Secretary of State of the State of New York, (i)
each [four (4)] Common Shares, par value $.0l, of the Corporation
issued and outstanding immediately prior to the filing of this
Amended and Restated Certificate of Incorporation shall thereby
and thereupon be combined into and shall constitute and represent
one (1) validly issued, fully paid and nonassessable Common
Share, par value $.0l, of the Corporation, [(ii) there shall be
transferred from the stated capital account of the Corporation to
its earned surplus account $.01 for each share eliminated in
respect of such combination,] (iii) fractional share interests
created as a result of this combination shall be rounded up to
the next whole number of shares by the Corporation, and (iv) the
Board of Directors of the Corporation shall be reconstituted by
the removal from the Board of Directors, without cause, of all
directors of the Corporation in office immediately prior to the
filing hereof and the appointment, effective upon the filing
hereof, of the following individuals as directors of the
Corporation, each to serve until the next annual meeting of the
shareholders of the Corporation and the election and
qualification of his successor or until his earlier death,
resignation, removal or incapacity:
[Add names of the new directors]
4. The Amended and Restated Certificate of
Incorporation of the Corporation certified herein has been duly
made, executed and acknowledged in accordance with the provisions
of Section 808 of the Business Corporation Law of the State of
New York, pursuant to a plan of reorganization under chapter 11
of title 11 of the United States Code, which has been confirmed
by Final Order entered _______ __, 1994 of the United States
Bankruptcy Court for the Western District of Texas, San Antonio
Division, the court having jurisdiction over the Corporation's
chapter 11 case, which order is in effect on the date hereof.
5. The Amended and Restated Certificate of
Incorporation of the Corporation shall become effective upon the
filing hereof with the Secretary of State of the State of New
York and shall read as follows:
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INTELOGIC TRACE, INC.
FIRST: The name of the corporation is INTELOGIC TRACE,
INC. (hereinafter referred to as the "Corporation").
SECOND: The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be
organized under the Business Corporation Law of the State of New
York (the "Business Corporation Law"). The Corporation is not
being formed to engage in any act or activity requiring the
consent or approval of any state official, department, board,
agency or other body without such consent or approval first being
obtained.
THIRD: The county within the State of New York in
which the office of the Corporation is to be located is the
county of New York.
FOURTH: The Corporation is authorized to issue
_________ common shares, par value $.01 per share ("Common
Shares"), and _________ preferred shares, par value $.01 per
share, of which [1,333,333] shares shall be designated as
"10% Preferred Shares."
No nonvoting securities of the Corporation shall be
issued; this provision is included in this Amended and Restated
Certificate of Incorporation in compliance with section 1123 of
the Bankruptcy Code, 11 U.S.C. Sec. 1123, and shall have no force
or effect except to the extent, and only for so long as, such
section is applicable to the Corporation.
The rights, preferences, privileges and restrictions
granted to and imposed upon the 10% Preferred Shares are set
forth as follows:
1. Dividends. So long as any 10% Preferred Shares
shall be outstanding, the holders of such 10% Preferred Shares
shall be entitled to receive, when and as declared by the Board
of Directors, out of any funds legally available therefor,
cumulative preferential dividends in cash, payable quarterly on
the first business day of each ______, ______, ______ and ______,
commencing on ______ __, 1994, or if such date is not a business
day, on the immediately succeeding business day (each a "Dividend
Payment Date"), in an amount equal to (i) $___ per share for the
Dividend Payment Date on ______ __, 1994 and (ii) for each
Dividend Payment Date thereafter, the sum of (A) $.375 per share
plus (B) an additional amount calculated at a rate of 10% per
annum on the amount of any dividends payable prior to such
Dividend Payment Date that remained unpaid during the quarterly
period ending on such Dividend Payment Date. Dividends on the
10% Preferred Shares shall accumulate and accrue from the date of
issuance thereof and shall accrue from day to day thereafter,
whether or not earned or declared.
2. Preference on Liquidation. In the event of any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of the 10%
Preferred Shares then outstanding shall be entitled to be paid an
amount equal to the Liquidation Preference (as hereinafter
defined) of the 10% Preferred Shares out of the assets of the
Corporation available for distribution to its shareholders,
whether such assets are capital, surplus or earnings, before any
payment or declaration and setting apart for payment of any
amount shall be made in respect of the Common Shares or any
preferred shares ranking junior to the 10% Preferred Shares as to
dividends or upon liquidation, dissolution or winding up of the
Corporation. The "Liquidation Preference" of the 10% Preferred
Shares shall be $15.00 per share plus an amount equal to all
accrued and unpaid dividends thereon, whether or not earned or
declared, to and including the date of payment in connection with
such liquidation, dissolution or winding up. If upon any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the assets to be distributed to
the holders of the 10% Preferred Shares shall be insufficient to
permit the payment to such shareholders of the full preferential
amounts aforesaid, then all of such assets of the Corporation
shall be distributed ratably to the holders of the 10% Preferred
Shares in proportion to the amounts that each would have been
entitled to receive if the Corporation's assets were sufficient
to permit distribution to the full extent provided for above.
3. Redemptions. (a) Mandatory Redemption. On _______
__, 2004 (the "Mandatory Redemption Date"), the Corporation shall
redeem, from funds legally available therefor, all of the then
outstanding 10% Preferred Shares at a redemption price per 10%
Preferred Share equal to the Liquidation Preference determined in
accordance with paragraph 2 of this Article Fourth. In the event
the Corporation does not have surplus legally available to redeem
all of the then outstanding 10% Preferred Shares, (i) the
Corporation shall first redeem the maximum number of 10%
Preferred Shares that it may redeem with the surplus legally
available therefor pro rata to the holders of the 10% Preferred
Shares, based on the number of shares held by each such holder
and (ii) the Corporation shall redeem the remainder of the 10%
Preferred Shares as soon as it has surplus legally available to
do so.
(b) Company Optional Redemption. On or after _______
__, 199_, to the extent the Corporation shall have funds legally
available therefor, the Corporation may, upon notice as provided
in paragraph 3(d), redeem all or any portion of the 10% Preferred
Shares then outstanding at the redemption prices per share set
forth below:
If redeemed at any time Redemption Price
on or before ______ __, 199_ $
from ______ __, 199_ to
______ __, ____ $
on or after ______ __, ___ $
plus, in each case, an amount per share equal to all accrued and
unpaid dividends to and including the date of redemption.
If less than all of the 10% Preferred Shares at the time
outstanding are to be redeemed, the shares so to be redeemed
shall be determined pro rata to the holders of 10% Preferred
Shares, based on the number of shares held by each such holder,
or in such other manner as the Board of Directors may determine
to be fair and proper.
(c) 10% Preferred Shareholder Optional Redemption. In
the event that (i) the Corporation agrees to sell, assign,
transfer or lease all or substantially all of its assets to any
person or group (as such terms are defined in Rule 13d under the
Securities Exchange Act of 1934, as amended) or (ii) any person
or group (as such terms are defined in Rule 13d under the
Securities Exchange Act of 1934, as amended), [other than any
record owner of not less than __% of the issued and outstanding
Common Shares of the Corporation on the date of original issuance
of the 10% Preferred Shares], shall become the record owner
(whether pursuant to a stock purchase, merger, consolidation,
other business combination or otherwise) of a majority of the
Common Shares of the Corporation, the Corporation shall provide
each holder of the 10% Preferred Shares with written notice, at
such holder's address as the same appears on the books of the
Corporation or any transfer agent for the 10% Preferred Shares,
of the occurrence of such event and the right of such holder to
cause the Corporation to redeem the 10% Preferred Shares pursuant
to this paragraph 3(c). At the written request of any holder of
the 10% Preferred Shares received by the Corporation within 20
business days after delivery of the Corporation's notice pursuant
to the preceding sentence, the Corporation shall redeem any or
all shares of 10% Preferred Shares owned of record by such holder
at the Liquidation Preference upon the later to occur of the
consummation of the transaction giving rise to such right of
redemption or the surrender of stock certificates as provided in
paragraph 3(e).
(d) Notice. The Corporation shall, not less than 30
days nor more than 60 days prior to any redemption date pursuant
to paragraph 3(a) or (b), mail written notice (the "Redemption
Notice"), postage prepaid, to each holder of record of 10%
Preferred Shares to be redeemed at such holder's post office
address last shown on the records of the Corporation or any
transfer agent for the 10% Preferred Shares. The Redemption
Notice shall state:
(i) the total number of 10% Preferred Shares that the
Corporation intends to redeem;
(ii) the number of 10% Preferred Shares held of record
by the holder that the Corporation intends to redeem;
(iii) the redemption date and the redemption price of
the 10% Preferred Shares that the Corporation intends to
redeem;
(iv) the time, place and manner in which the holder is
to surrender to the Corporation the certificate or
certificates representing the 10% Preferred Shares to be
redeemed; and
(v) that dividends on the 10% Preferred Shares to be
redeemed will cease to accrue on such redemption date.
(e) Each holder of 10% Preferred Shares to be redeemed
pursuant to this paragraph 3 shall tender the certificate or
certificates representing the shares subject to redemption to the
Corporation at its principal executive office or to the transfer
agent for the 10% Preferred Shares, if any, duly assigned or
endorsed for transfer to the Corporation (or accompanied by duly
executed stock powers relating thereto) and accompanied by
written notice specifying, if all the shares represented by the
certificates so surrendered are not subject to redemption, the
number of shares surrendered for redemption, and the name or
names of the person or persons to whom such holder wishes payment
for the shares to be redeemed to be made and in which the
certificate or certificates for any shares not redeemed should be
registered and the address to which payment for redeemed shares
and such certificate or certificates, if any, should be sent, and
such holder shall thereupon be entitled to payment of the
redemption price, subject to the provisions of paragraph 7 of
this Article Fourth regarding payment of taxes, by check made
payable to the order of the person so designated sent by first-
class mail, postage prepaid, to the address so designated, as
soon as practicable after the redemption date. In case less than
all of the shares represented by any such surrendered
certificates are to be redeemed, the Corporation shall, subject
to the provisions of paragraph 7 of this Article Fourth regarding
payment of taxes, issue and deliver in the same manner a new
certificate or certificates representing the shares not redeemed
in the name or names so requested.
(f) Any redemption of 10% Preferred Shares pursuant to
paragraph 3(a) or (b) of this Article Fourth shall be effective
as of the close of business on the date fixed for redemption by
the Board of Directors (which date shall be not less than thirty
(30) days after the Corporation shall have given notice of
redemption). Prior to the effective date of any redemption
pursuant to this paragraph 3, holders of 10% Preferred Shares
subject to redemption shall be entitled to all powers, rights and
preferences attributable to such shares, but after such effective
date, if the funds necessary for the redemption shall be
available therefor, such shares shall no longer be deemed to be
outstanding, and a holder of such shares shall be entitled to no
further dividends, powers, preferences or other rights as a
shareholder of the Corporation, other than the right to receive
payment of the redemption price upon surrender of the
certificates representing such shares in accordance with this
paragraph 3.
(g) No sinking fund shall be created for the redemption
or purchase of the 10% Preferred Shares.
4. Voting Rights. (a) Limited Voting Rights. The
holders of 10% Preferred Shares shall not be entitled to any
voting rights except as otherwise provided by law or as set forth
in paragraphs (b) and (c) below.
(b) Right to Elect Directors. (i) Whenever quarterly
dividends payable (whether or not declared) on the 10% Preferred
Shares as provided in paragraph 2 are in arrears in an aggregate
amount at least equal to four full quarterly dividends (which
need not be consecutive) or if the Corporation defaults on its
redemption obligations pursuant to paragraph 3(a) or 3(c) hereof,
the number of directors constituting the Board of Directors of
the Corporation shall, without further action, be increased by
two (the "Additional Directors") and the holders of the 10%
Preferred Shares shall have, in addition to the rights set forth
in paragraph 4(c), the special right, voting separately as a
single class, to elect two directors to fill such newly created
directorships at a special meeting called in accordance with
paragraph 4(b)(v) or at the next succeeding annual meeting of
shareholders (and at each succeeding annual meeting of
shareholders thereafter until such right shall terminate as
hereinafter provided).
(ii) At each meeting of shareholders at which the
holders of the 10% Preferred Shares shall have the right to vote
as a class, as provided in this paragraph 4(b) and in paragraph
4(c), the presence in person or by proxy of the holders of record
of a majority of the total number of 10% Preferred Shares then
outstanding shall be necessary and sufficient to constitute a
quorum of such class for such election by such shareholders as a
class. At any such meeting or adjournment thereof, (x) the
absence of a quorum of holders of the 10% Preferred Shares shall
not prevent the election of directors other than those to be
elected by the holders of the 10% Preferred Shares and the
absence of a quorum of the holders of any other class of shares
for the election of such other directors shall not prevent the
election of the Additional Directors by the holders of the 10%
Preferred Shares, and (y) in the absence of a quorum of the
holders of the 10% Preferred Shares, a majority of the holders
present in person or by proxy shall have the power to adjourn the
meeting from time to time and place to place without notice other
than announcement at the meeting until a quorum shall be present.
At any such meeting or adjournment thereof, the affirmative vote
of a majority of the quorum shall constitute the action of the
holders of the 10% Preferred Shares. Any action to be taken by
holders of the 10% Preferred Shares may be taken by written
consent of the holders of a majority of the then outstanding 10%
Preferred Shares.
(iii) Subject to the termination of voting rights as
set forth in paragraph 4(vi) below, each Additional Director
shall hold office for one year and until his successor, if any,
is elected by the holders of the 10% Preferred Shares and
qualified, or until his earlier death, resignation, removal or
incapacity.
(iv) An Additional Director may be removed with or
without cause only by the holders of the 10% Preferred Shares.
If an Additional Director shall resign, die or be removed, such
vacancy may be filled for the unexpired portion of the term by
vote of the remaining Additional Director theretofore elected by
such shareholders, or such director's successors in office, or by
the vote of such shareholders given at a special meeting of such
shareholders called for that purpose.
(v) Whenever the voting rights set forth in this
paragraph 4(b) have vested, the Secretary of the Corporation may,
and upon the written request of any holder of the 10% Preferred
Shares (addressed to the Secretary at the principal office of the
Corporation) shall, call a special meeting of the holders of the
10% Preferred Shares to elect the Additional Directors, such call
to be made by notice similar to that provided in the By-laws of
the Corporation for a special meeting of the shareholders or as
then required by applicable law. If any such special meeting
required to be called as provided above shall not be called by
the Secretary within 20 days after receipt of any such request,
then any holder of the 10% Preferred Shares may call such meeting
upon the notice provided above, and for that purpose shall have
access to the 10% Preferred Share Register. Notwithstanding
anything herein contained, the Corporation shall not be required
to call a special meeting for any date less than 30 days prior to
a date previously fixed for any annual or special meeting or
prior to the date fixed by the By-laws of the Corporation for the
annual meeting, provided that in case the Corporation shall not
be required to call a special meeting, the holders of the 10%
Preferred Shares may elect the Additional Directors referred to
in this paragraph 4(b) at such special or annual meeting on the
date previously fixed.
(vi) Whenever all dividends accrued and unpaid on
the 10% Preferred Shares shall have been paid and dividends
thereon for the current quarterly period shall have been paid or
declared and set apart for payment and if the Corporation is not
then in default of its mandatory redemption obligation under
paragraph 3(a), the special right of the holders of the 10%
Preferred Shares to elect directors as provided in this paragraph
4(b) shall terminate, the term of office of the Additional
Directors shall forthwith, and without further action on the part
of the Corporation, expire and the number of directors
constituting the Board of Directors shall, without further
action, be reduced by the number of Additional Directors, but
subject always to the same provisions for the re-vesting of such
special right of the holders of the 10% Preferred Shares to elect
directors as hereinabove provided.
(c) Certain Actions. (i) So long as any 10%
Preferred Shares are outstanding, the Corporation shall not
declare or pay any dividends on, or any other distribution of any
kind in respect of, the Corporation's Common Shares or any
preferred shares ranking junior to the 10% Preferred Shares as to
dividends or upon liquidation, dissolution or winding up of the
Corporation, or make, directly or indirectly, any payment on
account of the purchase, redemption or other acquisition of the
Common Shares or such preferred shares ranking junior to the 10%
Preferred Shares, unless concurrently with or prior to such
payment all 10% Preferred Shares then outstanding shall have been
redeemed in accordance with paragraph 3 of this Article Fourth;
provided, however, that this restriction shall not apply to the
repurchase of Common Shares or preferred shares from employees of
the Corporation or any of its subsidiaries pursuant to agreements
under which the Corporation has the option to repurchase such
shares upon the termination of employment by or service to the
Corporation or any of its subsidiaries].
(ii) So long as any 10% Preferred Shares are
outstanding, the Corporation shall not, without approval by vote
or written consent of the holders of the outstanding 10%
Preferred Shares in accordance with paragraph 4(b)(ii), voting as
a class, in person or by proxy, at a special or annual meeting of
shareholders called for that purpose, effect or validate (1) the
creation or authorization of any additional class or series of
shares ranking senior to or on parity with the 10% Preferred
Shares (either as to dividends or upon liquidation, dissolution
or winding up); or any increase in the authorized number of 10%
Preferred Shares or of any other class or series of preferred
shares ranking senior to or on parity with the 10% Preferred
Shares (either as to dividends or upon liquidation, dissolution
or winding up); or the creation or authorization of any
obligation or security convertible into preferred shares of any
class or series ranking senior to or on parity with the 10%
Preferred Shares (either as to dividends or upon liquidation,
dissolution or winding up), whether any such creation or
authorization or increase shall be by means of amendment of the
Certificate of Incorporation of the Corporation, merger,
consolidation or otherwise; (2) the issuance of 10% Preferred
Shares other than the initial issuance of [1,333,333] such shares
upon the filing of this Amended and Restated Certificate of
Incorporation; or (3) the amendment, alteration or repeal of any
provision of this Amended and Restated Certificate of
Incorporation in any manner which would materially alter the
relative rights and preferences of the 10% Preferred Shares so as
to adversely affect the holders thereof.
(iii) So long as any 10% Preferred Shares remain
outstanding, the Corporation shall not, and shall not permit any
subsidiary to, without approval by vote or written consent of the
holders of the outstanding 10% Preferred Shares in accordance
with paragraph 4(b)(ii), voting as a class, in person or by
proxy, at a special or annual meeting of shareholders called for
that purpose:
(w) redeem, purchase or otherwise acquire for
value, any 10% Preferred Share except by redemption in
accordance with paragraph 3 hereof;
(x) institute proceedings to be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against it, or consent to, or file a
petition seeking, reorganization or relief under any
applicable federal or state law relating to bankruptcy, or
consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official)
of the Corporation or a substantial part of its property, or
make any assignment for the benefit of creditors, or admit
in writing its inability to pay its debts generally as they
become due, or take corporate action in furtherance of any
such action; or
(y) enter into any agreement, contract or
understanding or otherwise incur any obligation which
by its terms would violate, be in conflict with, or
restrict the rights of the holders of 10% Preferred
Shares hereunder or the Corporation's performance of
the terms of this Amended and Restated Certificate of
Incorporation.
5. No Reissuance of 10% Preferred Shares. No 10%
Preferred Shares acquired by the Corporation by reason of
redemption, purchase, conversion or otherwise shall be reissued,
and all such shares shall be canceled, retired and eliminated
from the shares which the Corporation shall be authorized to
issue.
6. Waivers. With the written consent of the holders
of 10% Preferred Shares that would otherwise be required to amend
a particular provision of this Article Fourth, the obligations of
the Corporation and the rights of the holders of the 10%
Preferred Shares under such provision of this Article Fourth may
be waived (either generally or in a particular instance, either
retroactively or prospectively and either for a specified period
of time or indefinitely). Upon the effectuation of each such
waiver, the Corporation shall promptly give written notice
thereof to the holders of 10% Preferred Shares who have not
previously consented thereto in writing.
7. Miscellaneous. (a) The Corporation shall pay any
and all stock transfer and documentary stamp taxes that may be
payable in respect of any issuance or delivery of 10% Preferred
Shares. The Corporation shall not, however, be required to pay
any such tax which may be payable in respect of any transfer
involved in the issuance and delivery of 10% Preferred Shares or
other securities in a name other than that in which the 10%
Preferred Shares with respect to which such shares are issued
were registered, or any payment to any person other than the
registered holder thereof, and shall not be required to make any
such issuance or delivery unless and until the person otherwise
entitled to such issuance or payment has paid to the Corporation
the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid or
is not payable.
(b) In the event a holder of 10% Preferred Shares shall
not by written notice designate the name in which payment upon
redemption of 10% Preferred Shares should be made or the address
to which the certificate or certificates representing such
shares, or such payment, should be sent, the Corporation shall be
entitled to register such shares, and make such payment, in the
name of the holder of such 10% Preferred Shares as shown on the
records of the Corporation or any transfer agent for the 10%
Preferred Shares and to send the certificate or certificates
representing such shares, or such payment, to the address of such
holder on the records of the Corporation or any transfer agent
for the 10% Preferred Shares.
(c) In respect to the payment of dividends and
distributions upon liquidation, dissolution or winding up of the
affairs of the Corporation, the 10% Preferred Shares shall rank
senior to each and every other class or series of common shares
and preferred shares of the Corporation now or hereafter existing
which by its terms ranks junior to the 10% Preferred Shares (it
being understood that consent to the creation of a series or
class of stock ranking senior to the 10% Preferred Shares must be
obtained pursuant to Section 4 of this Article Fourth).
(d) The Corporation may appoint, and from time to time
discharge and change, a transfer agent for the 10% Preferred
Shares. Upon any such appointment or discharge of a transfer
agent, the Corporation shall send notice thereof by first-class
mail, postage prepaid, to each holder of record of 10% Preferred
Shares.
(e) The Corporation shall maintain at its principal
executive offices and at the office of the transfer agent, if
any, for the 10% Preferred Shares a copy of this Amended and
Restated Certificate of Incorporation, which shall be available
for inspection during ordinary business hours by any holder of
10% Preferred Shares, and any such holder may copy or take
extracts therefrom, or obtain, without charge, a copy thereof
upon written request to the Corporation, attention: Secretary.
(f) Except as may otherwise be required by the Business
Corporation Law, the holders of 10% Preferred Shares shall not
have any powers, preferences and relative, participating,
optional or other special rights other than those specifically
set forth in this Amended and Restated Certificate of
Incorporation of the Corporation.
(g) If any provision of this Article Fourth is
determined to be invalid, unlawful or unenforceable by reason of
any rule of law or public policy, all provisions set forth herein
which can be given effect without giving effect to the invalid,
unlawful or unenforceable provision shall, nevertheless, remain
in full force and effect, and no provision hereof shall be deemed
dependent upon any other provision hereof, unless so expressed
herein.
FIFTH: No holder of shares of the Corporation of any
class, now or hereafter authorized, shall have any preferential
or preemptive right to subscribe for, purchase or receive any
shares of the Corporation of any class, now or hereafter
authorized, or any options or warrants for such shares, or any
rights to subscribe to or purchase such shares, or any securities
convertible to or exchangeable for such shares, which may at any
time be issued, sold or offered for sale by the Corporation.
SIXTH: The Secretary of State of the State of New York
is designated as the agent of the Corporation upon whom process
against the Corporation may be served. The post office address
within or without the State of New York to which the Secretary of
State shall mail a copy of any process against the Corporation
served upon such Secretary of State is ______________.
SEVENTH: A director shall not be personally liable to
the Corporation or its shareholders for damages for any breach of
duty as a director, except for any matter in respect of which
such director shall be liable by reason that, in addition to any
and all other requirements for such liability, there shall have
been a judgment or other final adjudication adverse to such
director that establishes that such director's acts or omissions
were in bad faith or involved intentional misconduct or a knowing
violation of law or that such director personally gained in fact
a financial profit or other advantage to which such director was
not legally entitled or that such director's acts violated
Section 719 of the Business Corporation Law. Neither the
amendment nor the repeal of this Article shall eliminate or
reduce the effect of this Article in respect to any matter
occurring, or any cause of action, suit or claim that, but for
this Article, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision. This Article
shall neither eliminate nor limit the liability of a director for
any act or omission occurring prior to the adoption of this
Article.
EIGHTH: The Corporation shall indemnify, to the full
extent permitted by the Business Corporation Law, as amended from
time to time, all directors and officers of the Corporation whom
it is permitted to indemnify pursuant thereto.
NINTH: Subject to any limitations contained elsewhere
in this Amended and Restated Certificate of Incorporation, By-
laws of the Corporation may be adopted, amended or repealed by a
majority of the Board of Directors of the Corporation, but any
By-laws adopted by the Board may be amended or repealed by the
shareholders entitled to vote thereon. Except as may otherwise
be specifically provided in this Amended and Restated Certificate
of Incorporation, no provision of this Amended and Restated
Certificate of Incorporation is intended by the Corporation to be
construed as limiting, prohibiting, denying or abrogating any of
the general or specific powers or rights conferred under the
Business Corporation Law upon the Corporation, upon its
shareholders, bondholders and security holders, and upon its
directors, officers and other corporate personnel.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be executed by ______, its _______, and attested
to by Philip D. Freeman, its Vice President, General Counsel and
Secretary, as of the ____ day of _________, 1994.
INTELOGIC TRACE, INC.
By:
Name:
Title:
ATTEST:
Name:
Title:
EXHIBIT E
MODIFIED EMPLOYEE AGREEMENT
WITH
MARK S. HELWEGE
Information to be provided supplementally.
<PAGE>
EXHIBIT F
MODIFIED EMPLOYEE AGREEMENT
WITH
PHILIP D. FREEMAN
Information to be provided supplementally.
<PAGE>
EXHIBIT G
MODIFIED EMPLOYEE AGREEMENT
WITH
ASHER B. EDELMAN
Information to be provided supplementally.
