As filed with the Securities and Exchange Commission [ ]
Registration No. 33-[ ]
Securities and Exchange Commission
Washington, D.C. 20549
------------------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
Spectrum Information Technologies, Inc.
(Exact name of registrant as specified in its charter)
Delaware 75-1940923
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2700 Westchester Avenue 10577
Purchase, New York (Zip Code)
(Address of Principal Executive
Offices)
Spectrum Information Technologies, Inc.
1996 Incentive Deferral Plan
Donald J. Amoruso
2700 Westchester Avenue
Purchase, New York 10577
(914) 251-1800
(Name, address and telephone
number of agent for service)
Copy to:
Arthur Kohn, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
registered registered Share (1) Price (1) Fee
- -------------- ------------ ----------- ------------ --------------
Common Stock, 220,000 $5.32 1,170,400 $354.67
par
value $.001
- -------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) on the basis of the
average of the high bid ($.15) and the low offer ($.165) sales
prices per share of Spectrum Information Technologies, Inc.
Common Stock as reported by the National Quotation Bureau for
stock traded on the NASDAQ OTC Bulletin Board and giving effect
to Spectrum's reorganized capital structure as set forth in its
confirmed chapter 11 plan of reorganization. Following the
consummation of the plan of reorganization, Spectrum expects that
a total of approximately 2,271,864 shares of reorganized common
stock and Class A Preferred Stock will be issued and outstanding
on March 31, 1997. Based on the market capitalization of Spectrum
on March 21, 1997 of $12,076,383, Spectrum has estimated the per
share price of common stock to be $5.32 (i.e.,
$12,076,383/2,271,864=$5.32). This estimate is not intended to
forecast the effect of Spectrum's recapitalization on the trading
price of Spectrum's common stock.
Page 1 of 6 total pages
Exhibit Index appears on page 6
<PAGE>
Part 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this
Part I will be sent or given to employees as specified by Rule
428(b)(1). These documents and the documents incorporated by
reference in the registration statement pursuant to Item 3 of
Part II of this form, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities
Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed by Spectrum
Information Technologies, Inc. (the "Company" or "Registrant")
with the Securities and Exchange Commission are hereby
incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended March 31, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for the
periods ended June 30, 1996, September 30, 1996 and December 31,
1996.
(c) The Company's Current Reports on Form 8-K dated March
14, 1996 and August 14, 1996.
(d) The description of the Company's common stock contained
in its Registration Statement on Form 10, dated April 10, 1987
(File No. 015596), filed with the Commission pursuant to Section
12(g) of the Exchange Act, and any amendment or report filed for
the purpose of updating such information, including the
description of the Company's common stock contained in the
Disclosure Statement (including exhibits thereto) filed as
Exhibit 5.1 to the Company's Current Report on Form 8-K dated
March 14, 1996.
All documents hereafter filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment hereto which indicates
that all securities have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to
be part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Registrant is incorporated in Delaware. Under Section
145 of the General Corporation Law of the State of Delaware (the
"DGCL"), a Delaware corporation generally has the power to
indemnify its present and former directors, officers, employees
and agents against expenses and liabilities incurred by them in
connection with any action, suit or proceeding to which they are,
or are threatened to be made, a party by reason of their serving
in those positions so long as they acted in good faith and in a
manner they reasonably believed to be in, or not opposed to, the
best interests of the company, and with respect to any criminal
action or proceeding, so long as they had no reasonable cause to
believe their conduct was unlawful. The statute expressly
provides that the power to indemnify authorized thereby is not
exclusive of any rights granted under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise.
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<PAGE>
The Restated Certificate of Incorporation of the Registrant
provides that the Company shall indemnify to the full extent
authorized or permitted by law (as now or hereafter in effect)
any person made, or threatened to be made a party or witness to
any action, suit or proceeding (whether civil or criminal or
otherwise) by reason of the fact that he, his testator or
intestate, is or was a director or an officer of the Company or
by reason of the fact that such person, at the request of the
Company, is or was serving any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise,
in any capacity. The Restated Certificate of Incorporation
further provides that nothing contained in such provision shall
affect any rights to indemnification to which employees other
than directors and officers may be entitled by law, and that no
amendment or repeal of such provision shall apply to or have any
effect on any right to indemnification provided pursuant to such
provision with respect to any acts or omissions occurring prior
to such amendment or repeal.
In accordance with Section 102(b)(7) of the DGCL, the
Restated Certificate of Incorporation of the Registrant provides
that directors of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for
any breach of fiduciary duty as a director, except (i) for any
breach of the director's duty of loyalty to the corporation or
its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under pursuant to Section 174 (relating to liability
for unauthorized acquisitions or redemptions of, or dividends on,
capital stock) of the DGCL, or (iv) for any transactions from
which any such director derived an improper personal benefit. The
Restated Certificate of Incorporation of the Registrant contains
such a provision.
The Registrant maintains insurance for the protection of its
directors and officers against claims asserted against them in
their official capacities.
The Registrant has entered into separate indemnity
agreements with certain of its executive officers (the
"Indemnitees"), under which the Registrant will, upon proper
request of the Indemnitee, indemnify him if such Indemnitee is a
party to or is threatened to be made a party to or is otherwise
involved in any third party proceedings or proceedings by or in
the right of the Registrant to procure a judgment in its favor by
reason of the fact that the Indemnitee is or was director,
officer, employee or agent of the Registrant or is or was serving
at the request of the Registrant as a director, officer, employee
or agent of another corporation, partnership, joint venture,
trust or other enterprise, against all expenses, judgments, fines
and penalties, actually and reasonably incurred by the Indemnitee
in connection with the defense or settlement of any of such
proceedings. Such right shall be a contract right and shall
include the right to be paid by the Registrant expenses incurred
in defending any such proceeding in advance of its final
disposition; provided, however, that the payment of such expenses
incurred by the Indemnitee in his capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by an Indemnitee while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of such proceeding will be paid
only upon delivery to the Registrant of an undertaking, by or on
behalf of the Indemnitee, to repay all amounts so advanced if it
should be determined ultimately that the Indemnitee is not
entitled to be indemnified under this section or otherwise.
The preceding discussion of the Restated Certificate of
Incorporation of the Registrant and the DGCL is not intended to
be exhaustive and is qualified in its entirety by reference to
the complete texts of the Restated Certificate of Incorporation
of the Registrant and to the DGCL.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following are filed as exhibits to this Registration
Statement:
Exhibits
4.1 Restated Certificate of Incorporation of the Company.
4.2 Restated Bylaws of the Company (incorporated by reference
to Exhibit 5.1 of the Registrant's Current Report on Form
8-K dated March 14, 1996).
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton.
3
<PAGE>
24.1 Consent of BDO Seidman, LP.
24.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included
in Exhibit 5.1).
28.1 Spectrum Information Technologies, Inc. 1996 Incentive
Deferral Plan.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information
with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement; PROVIDED, HOWEVER,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15 (d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Purchase, State of New York, on March 31, 1997.
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By /s/ Donald J. Amoruso
------------------------------------
Donald J. Amoruso
Chief Executive Officer, President and
Chairman of the Board
By: /s/ Barry J. Hintze
------------------------------------
Barry J. Hintze
Controller and Principal Accounting
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities set forth on March 31, 1997.
Signature Title
/s/ Donald J. Amoruso Director
- -----------------------------
Donald J. Amoruso
/s/ Sheldon Buckler Director
- -----------------------------
Sheldon Buckler
/s/ George Bugliarello Director
- -----------------------------
George Bugliarello
/s/ Robert Dalziel Director
- -----------------------------
Robert Dalziel
5
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EXHIBIT INDEX
Exhibit
No. Description Page No.
4.1 Restated Certificate of Incorporation of the Company
4.2 Restated Bylaws of the Company (incorporated
by reference to Exhibit 5.1 of the Registrant's Current
Report on Form 8-K dated March 14, 1996).
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton
24.1 Consent of BDO Seidman, LP
24.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included
in Exhibit 5.1)
28.1 Spectrum Information Technologies, Inc. 1996
Incentive Deferral Plan (incorporated by reference
to Exhibit 5.1 of the Registrant's Current Report
on Form 8-K dated March 14, 1996).
6
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RESTATED
CERTIFICATE OF INCORPORATION
OF
SPECTRUM INFORMATION TECHNOLOGIES, INC.
----------------
The undersigned, Donald J. Amoruso, Chief Executive
Officer and Chairman of the Board of the Debtors and Debtors in
Possession (collectively, "Debtors") in the cases ("Chapter 11
Cases") filed in the United States Bankruptcy Court for the
Eastern District of New York ("Bankruptcy Court"), entitled "In
re Spectrum Information Technologies, Inc. and Spectrum Cellular
Corporation," Chapter 11 Case Nos. 195 10690 260 and 195 10693
260, respectively, under Chapter 11 of Title 11, United States
Code ("Bankruptcy Code"), pursuant to an Order, dated August 14,
1996, of the Bankruptcy ("Order"), hereby certifies that:
1. The name of the Corporation is Spectrum Information
Technologies, Inc. (hereinafter the "Corporation").
2. The original Certificate of Incorporation was filed
with the Secretary of State of Delaware on April 1, 1987, under
the name Spectrum Cellular Corporation.
3. This Restated Certificate of Incorporation is
authorized, pursuant to Sections 245 and 303 of the General
Corporation Law of the State of Delaware (the "GCL"), by Order of
the Bankruptcy Court upon confirmation of the Debtors' Plan of
Reorganization, filed with the Bankruptcy Court on February 9,
1996, as amended (the "Plan"), a copy of which is attached hereto
as Exhibit A, in the Chapter 11 Cases by the Bankruptcy Court
and, upon filing with the Secretary of State in accordance with
Section 103 of the GCL, shall henceforth supersede the original
Certificate of Incorporation and shall, as it may thereafter be
amended in accordance with its terms and applicable law, be the
Certificate of Incorporation of the Corporation. This Restated
Certificate of Incorporation shall be effective on March 31,
1997.
4. The text of the Certificate of Incorporation of
the Corporation is hereby amended and restated to read in its
entirety as follows:
ARTICLE I
Name
The name of the Corporation (which is hereafter
referred to as the "Corporation") is:
Spectrum Information Technologies, Inc.
<PAGE>
ARTICLE II
Address
The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at that address is The Corporation Trust
Company.
ARTICLE III
Purpose
The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized
under the General Corporation Law of the State of Delaware (the
"GCL").
ARTICLE IV
Capital Stock
A. Authorized Stock. The total number of shares of all
classes which the Corporation shall have authority to issue is
13.5 million shares, of which 10 million shares, par value $.001
per share, shall be of a class designated "Common Stock", 1.5
million shares, par value $.001 per share, shall be of a class
designated "Class A Stock", and 2 million shares, par value $.001
per share, shall be of a class designated "Preferred Stock".
B. Non-Voting Stock Prohibited. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary,
the Corporation shall not issue non-voting stock or similar
securities.
C. Liquidation Preference of Class A Stock. Until
March 31, 1999, holders of Class A Stock shall have a liquidation
preference over holders of Common Stock to the extent that, in
the event that within two years of March 31, 1997, the
Corporation again becomes a debtor in a bankruptcy case under
Title 11 of the United States Code (the "Bankruptcy Code")
(unless the case is an involuntary case and is dismissed before
an order for relief is entered therein against the Corporation),
interests of holders of Class A Stock will have priority in such
proceedings over interests of holders of Common Stock.
D. Conversion of Class A Stock.
(i) Until March 31, 1999, each holder of Class A Stock
shall have the right to convert each of the shares of Class
A Stock held by such holder into one share of Common Stock
for the purposes of sale.
(ii) Each outstanding share of Class A Stock that has
not been converted into Common Stock pursuant to Subsection
(i) above shall automatically convert into one share of
Common Stock on March 31, 1999. The board of directors of
the Corporation (the "Board of Directors") shall have the
authority to make any determination of beneficial ownership
and changes thereof required to effectuate this Section D
of Article IV.
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(iii) The Corporation shall not be obligated to issue to
any holder of Class A Stock certificates evidencing shares
of Common Stock issuable upon the conversion of Class A
Stock into Common Stock pursuant to either Subsection (i)
or (ii) above until certificates evidencing the shares of
Class A Stock are delivered to either the Corporation or
any transfer agent of the Corporation. As promptly as
practicable thereafter (and after surrender of the
certificate or certificates representing shares of Class A
Stock to the Corporation or any transfer agent of the
Corporation), the Corporation shall issue and deliver to or
upon the written order of such holder a certificate or
certificates for the number of full shares of Common Stock
to which such holder is entitled. The person in whose name
the certificate or certificates for Common Stock are to be
issued shall be deemed to have become a holder of record of
such Common Stock effective on the date of conversion.
(iv) The Corporation shall pay all documentary, stamp,
transfer or other transactional taxes attributable to the
issuance or delivery of shares of Common Stock upon
conversion of any shares of Class A Stock; provided, that
the Corporation shall not be required to pay any taxes
which may be payable in respect of any transfer involved in
the issuance or delivery of any certificate for such shares
in a name other than that of the registered holder of the
Class A Stock in respect of which such shares are being
issued.
(v) So long as there are any shares of Class A Stock
outstanding, the Corporation shall reserve at all times,
free from preemptive rights, out of its treasury stock or
its authorized but unissued shares of Common Stock, or
both, solely for the purpose of effecting the conversion of
the shares of Class A Stock, sufficient shares of Common
Stock to provide for the conversion of all outstanding
shares of Class A Stock.
E. Preferred Stock. The Board of Directors is
authorized, subject to limitations prescribed by law and the
provisions of this Article IV, to provide for the issuance from
time to time in one or more series of any number of shares of
Preferred Stock, and, by filing a certificate pursuant to the GCL
(the "Preferred Stock Designation"), to establish the number of
shares to be included in each series, and to fix the designation,
relative rights, preferences, qualifications and limitations of
the shares of each such series. The authority of the Board of
Directors with respect to each series shall include, but not be
limited to, determination of the following:
(i) The designation of the series, which may be by
distinguishing number, letter or title.
(ii) The number of shares of the series, which number
the Board of Directors may thereafter (except where
otherwise provided in the Preferred Stock Designation)
increase or decrease (but not below the number of shares
thereof then outstanding).
(iii) The voting rights, if any, of the holders of shares
of the series.
(iv) Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series, and the
preferences, if any, over any other series (or of any other
series over such series) with respect to dividends.
(v) Dates at which dividends, if any, shall be payable.
(vi) The redemption rights and price or prices, if any,
for shares of the series.
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(vii) The amounts payable on, and the preferences, if
any, of shares of the series in the event of any voluntary
or involuntary liquidation, dissolution, distribution of
assets or winding up of the affairs of the Corporation.
(viii) The terms and amount of any purchase,
retirement or sinking fund provided for the purchase or
redemption of shares of the series.
(ix) Whether the shares of the series shall be
convertible into or exchangeable for shares of any other
class or series, or any other security, of the Corporation
or any other corporation, and, if so, the specification of
such other class or series of such other security, the
conversion or exchange price or prices or rate or rates,
any adjustments thereof, the date or dates at which such
shares shall be convertible or exchangeable and all other
terms and conditions upon which such conversion or exchange
may be made.
(x) Whether the issuance of additional shares of
Preferred Stock shall be subject to restrictions as to
issuance, or as to the powers, preferences or other rights
of any other series.
(xi) The right of the shares of such series to the
benefit of conditions and restrictions upon the creation of
indebtedness of the Corporation or any subsidiary of the
Corporation, upon the issue of any additional stock
(including additional shares of such series or any other
series) and upon the payment of dividends or the making of
other distributions on, and the purchase, redemption or
other acquisition by the Corporation or any subsidiary of
any outstanding stock of the Corporation.
(xii) Such other powers, preferences and relative,
participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof as the
Board of Directors shall determine.
The holders of Preferred Stock shall not have any
preemptive rights except to the extent such rights shall be
specifically provided for in the resolution or resolutions
providing for the issuance thereof adopted by the Board of
Directors.
F. Common Stock. The Common Stock shall be subject to the
express terms of the Preferred Stock and any series thereof. Each
share of Common Stock shall have the right to cast one vote for
each share for the election of Directors and on all other matters
upon which stockholders are entitled to vote.
G. Voting.
(i) As used in this Section G of Article IV, the
following terms have the respective meanings as set forth below:
"Allowed Claim" or "Allowed Interest" means a Claim
against or Interest in either of the Debtors which entitles
the holder of such Claim or Interest to receive Common
Stock from a Disbursing Agent pursuant to the Plan.
"Claim" means a claim as such term is defined in
section 101(5) of the Bankruptcy Code.
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"Class Action Plaintiffs" means all plaintiffs in the
Class Action Suits.
"Class Action Settlement" means the settlement of the
Class Action Suits pursuant to the terms authorized by the
Final Order and Judgment, dated February 28, 1997, of the
United States District Court for the Eastern District of
New York granting the Motion for Approval of the Settlement
of the Class Action Suits filed with such District Court on
November 12, 1996.
"Class Action Suits" means the securities class action
litigation against the Corporation and certain of its
officers and directors ( In Re Spectrum Information
Technologies Litigation, No. 93 Civ. 2295 (FB)) that was
settled pursuant to the Class Action Settlement.
"Class Action Trust" means the trust established for
the benefit of the Class Action Plaintiffs pursuant to the
terms of the Class Action Settlement.
"Class Action Trust Agreement" means the agreement
governing the trust to be established as part of the Class
Action Settlement.
"Class Action Trustee" means the Trustee or Trustees
appointed pursuant to the Class Action Trust Agreement.
"Disbursing Agent" means the Corporation and/or any
other person or persons that may be and are designated
under the Plan or by the Corporation to disburse property
pursuant to the Plan.
"Disputed Claim" means any Claim or Interest, to the
extent such Claim or Interest has not been allowed pursuant
to the Plan.
"Interest" means an equity security as defined in section
101(16) of the Bankruptcy Code.
(ii) Authorized and issued shares of Common Stock held
by a Disbursing Agent for distribution to the holder of an
Allowed Claim or Allowed Interest shall not be voted in any
election of directors of the Corporation, or any other
matter requiring the vote of stockholders, until such time
as such Common Stock has actually been distributed to
holders of an Allowed Claim or Allowed Interest. In
addition, a holder of a Disputed Claim or Disputed Interest
shall not be entitled to vote in any election of directors
of the Corporation, or any other matter requiring the vote
of stockholders until such time as the Disputed Claim has
become an Allowed Claim or Allowed Interest, and the holder
of such Allowed Claim or Allowed Interest has received its
distribution and become a stockholder of record of the
Corporation.
(iii) The Class Action Trustee shall be entitled to
vote Class A Stock that has not yet been distributed to a
Class Action Plaintiff pursuant to the Class Action
Settlement and the Plan and is held by the Class Action
Trustee; however, the Class Action Trustee shall be
required to vote the Class A Stock in the same proportions
and the same manner as the holders of shares of Common
Stock have voted.
(iv) Subject to Subsections (ii) and (iii) of this
Section G of Article IV, each holder of record of Class A
Stock and Common Stock shall have one vote for each share
outstanding in his name on the books of the Corporation and
entitled to vote. Cumulative voting shall not be permitted.
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(v) Subject to Subsections (ii) and (iii) of this
Section G of Article IV, so long as there are any shares of
Class A Stock outstanding, any of the actions of the
Corporation specified in Sections (B), (D) or (I) of
Article X shall require the affirmative vote of the
plurality of the shares of each of the Class A Stock and
the Common Stock, each voting separately as a class.
(vi) Subject to Subsections (ii) and (iii) of this
Section G of Article IV, except as may be otherwise
required by law, this Article IV or Article VII, the
holders of Class A Stock and Common Stock shall vote
together as a single class.
H. Record Holders. Subject to Subsections (ii) and
(iii) of this Section G of Article IV, the Corporation shall be
entitled to treat the person in whose name any share of its stock
is registered as the owner thereof for all purposes and shall not
be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person, whether
or not the Corporation shall have notice thereof, except as
expressly provided by applicable law.
I. Quorum. So long as any shares of Class A Stock are
outstanding, the holders of (i) a majority of the issued and
outstanding shares of Class A Stock and (ii) a majority of the
issued and outstanding shares of Common Stock, present in person
or represented by proxy, will constitute a quorum for the
transaction of any business at any duly called meeting of
shareholders. Thereafter, the holders of a majority of all issued
and outstanding shares entitled to vote generally in the election
of directors ("Voting Stock"), present in person or represented
by proxy, will constitute a quorum for the transaction of any
business at any duly called meeting of shareholders.
J. Limitations on Five Percent Stockholders.
(i) As used in this Section J of Article IV, the
following terms have the respective meanings set forth
below:
"Code" means the Internal Revenue Code of 1986, as amended.
"Five Percent Stockholder" means a Person or group of
Persons identified as a "five percent shareholder" of the
Corporation for purposes of Section 382 of the Code and the
Treasury Regulations promulgated thereunder.
"Percentage Stock Ownership" means percentage
beneficial or legal ownership of Stock as determined in
accordance with Section 382 of the Code and the Treasury
Regulations promulgated thereunder.
"Person" means an individual, corporation, estate,
trust, association, company, partnership or similar
organization.
"Prohibited Transfer" means any purported Transfer of
Stock to the extent that such Transfer would be prohibited
and void under this Section G of Article IV.
"Restriction Release Date" means the date one day
following March 31, 2000.
"Stock" means (i) shares of Common Stock, (ii) shares of
Class A Stock, (iii) shares of Preferred Stock (except to the ex-
tent that such Preferred Stock meets the requirements of Section
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1504(a)(4) of the Code), (iv) warrants, rights or options
(within the meaning of Treasury Regulation Section
1.382-4(d)) to purchase Common Stock, Class A Stock or
Preferred Stock (except to the extent that such Preferred
Stock meets the requirements of Section 1504(a)(4) of the
Code) from the Corporation and (iv) any other interests
that would be treated as "stock" of the Corporation
pursuant to Treasury Regulation Section 1.382-2T(f)(18).
"Transfer" means any sale, transfer, assignment,
conveyance, pledge or other disposition or the issuance of
any option to sell, transfer, assign, convey, pledge or
otherwise dispose.
"Treasury Regulation Section 1.382" means the final
and temporary income tax regulations promulgated under
Section 382 of the Code and any successor temporary or
final regulation or regulations. Each reference to any
subsection of such regulations includes references to any
successor to such subsection.
(ii) Any Transfer of legal or beneficial ownership of
Stock prior to the Restriction Release Date, or any
attempted Transfer of Stock under any agreement (including
any arrangement treated as an option under Treasury
Regulation Section 1.382-4) entered into prior to the
Restriction Release Date shall be prohibited and void ab
initio, regardless of whether such transfer has been
recorded by the transfer agent of the Corporation (the
"Agent") and new certificates have been issued, to the
extent that, as a result of such purported Transfer (or any
series of Transfers of which such purported Transfer is a
part), either (a) any Person or group of Persons would
become a Five Percent Stockholder or (b) the Percentage
Stock Ownership of any Five Percent Stockholder would be
increased; provided, that the foregoing provisions shall
not preclude the settlement of any transaction entered into
through the facilities of any national securities exchange
in any Stock of the Corporation listed on such national
securities exchange; and provided further, that any such
Transfer described in the foregoing proviso shall
nonetheless constitute a Prohibited Transfer for the
purposes of this Section J of Article IV. The prohibition
set forth in the preceding sentence shall not apply to (y)
any Transfer that has been approved in advance by the Board
of Directors of the Corporation, which approval may be
withheld only if, in the judgment of the board of
directors, such Transfer may increase the risk that the use
of the Corporation's (or a predecessor of the
Corporation's) net operating loss carryforwards, tax losses
recognized in the future or other tax attributes will be
subject to limitation under Section 382 of the Code and (z)
any Transfer made in compliance with exceptions provided by
the Board of Directors in a resolution or resolutions
adopted from time to time.
(iii) No employee or agent of the Corporation shall
record any Prohibited Transfer, and the purported
transferee of such a Prohibited Transfer (the "Purported
Transferee") shall not be recognized as a stockholder of
the Corporation for any purpose whatsoever in respect of
the Stock that is the subject of the Prohibited Transfer
(the "Excess Stock"). The Purported Transferee shall not be
entitled, with respect to such Excess Stock, to any rights
of a stockholder of the Corporation, including without any
limitation, the right to vote such Excess Stock and to
receive dividends or distributions in respect thereof, if
any.
(iv) If a purported Transfer of Stock would constitute
a Prohibited Transfer, then the Purported Transferee shall
transfer or cause to be transferred upon demand of the
Corporation any certificate or other evidence of ownership
of all Excess Stock then within the Purported Transferee's
possession or control, together with all dividends or
distributions, if any, that may have been received by the
Purported Transferee from the Corporation with respect to
such Excess Stock ("Prohibited Distributions"), to the
Agent. The Agent shall thereupon sell the Excess Stock
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transferred to it in an arm's length transaction or
transactions (over the principal securities exchange on
which the appropriate class or series of Stock is traded,
if possible). If the Purported Transferee shall have resold
any Excess Stock before receiving the foregoing demand from
the Corporation, the Purported Transferee shall be deemed
to have sold such Excess Stock on behalf of the Agent and
shall be required to transfer to the Agent any Prohibited
Distributions and the proceeds of such sale, except to the
extent that the Agent grants written permission to the
Purported Transferee to retain a portion of such sales
proceeds not exceeding the amount that the Purported
Transferee would have received from the Agent pursuant to
the following sentence if the Agent rather than the
Purported Transferee had resold such Excess Stock. The
Agent shall apply any Prohibited Distributions and any
proceeds of a sale by it of Excess Stock and, if the
Purported Transferee has previously resold such Excess
Stock, any amounts received by it from a Purported
Transferee as follows: (a) first, such amounts shall be
paid to the Agent to the extent necessary to cover its
costs and expenses incurred in connection with its duties
hereunder; (b) second, any remaining amounts shall be paid
to the Purported Transferee, up to the amount paid by the
Purported Transferee for such Excess Stock (or the fair
market value, calculated on the basis of the closing market
price for the appropriate class or series of Stock on the
trading day immediately preceding the Transfer, of such
Excess Stock at the time of the purported Transfer to the
purported Transferee by gift, inheritance, or similar
Transfer), which amount (or fair market value) shall be
determined by the board of directors in its sole
discretion; and (c) third, any remaining amounts shall be
paid to the purported transferor of such Prohibited
Transfer if such person can be identified, otherwise in
equal shares to the American Cancer Society. The recourse
of any Purported Transferee in respect of any Prohibited
Transfer shall be limited to the amount specified in clause
(b) of the preceding sentence. In no event shall the
proceeds of any sale of Excess Stock pursuant to this
Section J of Article IV inure to the benefit of the
Corporation.
(v) If the Purported Transferee fails to surrender
Excess Stock or the proceeds of a sale thereof to the Agent
within thirty business days from the date on which the
Corporation makes a demand pursuant to the preceding
Subsection (iv), then the Corporation shall institute legal
proceedings to compel the surrender.
(vi) Insofar as necessary or appropriate, the Bylaws
of the Corporation shall make appropriate provisions to
effectuate the requirements of this Section J of Article
IV. All certificates representing Stock issued prior to the
Restriction Release Date shall bear a legend to the effect
that such Stock and any Stock acquired prior to the
Restriction Release Date upon exercise or conversion of
such Stock are subject to the restrictions set forth in
this Section J of Article IV. A majority of the directors
of the Corporation shall have the power to determine all
matters necessary to determine compliance with this Section
J of Article IV, including without limitation (a) whether a
new Five Percent Stockholder would be required to be
identified in certain circumstances, (b) whether a
purported Transfer is a Prohibited Transfer, (c) the
Percentage Stock Ownership of any holder of Stock, (d)
whether an instrument constitutes Stock, (e) the amount (or
fair market value) due to a Purported Transferee and (f)
any other matters which a majority of the directors
determine to be relevant; and the good faith determination
of a majority of the directors on such matters shall be
conclusive and binding on the Corporation and all holders
of Stock.
ARTICLE V
Legends on Certificates
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(A) Legend on Class A Stock. All certificates for shares
of Class A Stock issued by the Corporation and all shares of Common
Stock to be issued on conversion of Class A Stock will
conspicuously bear a legend in substantially the following form:
"IN ORDER TO PRESERVE CERTAIN TAX BENEFITS UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN PROVISIONS OF THE CORPORATION'S CERTIFICATE
OF INCORPORATION AND BYLAWS WHICH LIMIT THE
TRANSFERABILITY OF SUCH SECURITIES. A COPY OF THE
CERTIFICATE OF INCORPORATION HAS BEEN DEPOSITED WITH
THE CORPORATION AT ITS PRINCIPAL OFFICE, AND THE
CORPORATION WILL FURNISH A COPY THEREOF TO THE RECORD
HOLDER OF THESE SECURITIES WITHOUT CHARGE UPON WRITTEN
REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF
BUSINESS."
(B) Legend on Common Stock. All certificates for
shares of Common Stock issued by the Corporation including shares
of Common Stock distributed by the Disbursing Agent, will
conspicuously bear a legend in substantially the following form:
"IN ORDER TO PRESERVE CERTAIN TAX BENEFITS UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN PROVISIONS OF THE CORPORATION'S CERTIFICATE
OF INCORPORATION AND BYLAWS WHICH LIMIT THE
TRANSFERABILITY OF SUCH SECURITIES. A COPY OF THE
CERTIFICATE OF INCORPORATION HAS BEEN DEPOSITED WITH
THE CORPORATION AT ITS PRINCIPAL OFFICE, AND THE
CORPORATION WILL FURNISH A COPY THEREOF TO THE RECORD
HOLDER OF THESE SECURITIES WITHOUT CHARGE UPON WRITTEN
REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF
BUSINESS."
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ARTICLE VI
Rights Agreements
The Board of Directors is hereby authorized to create
and issue, whether or not in connection with the issuance and
sale of any of its stock or other securities or property, rights
entitling the holders thereof to purchase from the Corporation
shares of stock or other securities of the Corporation or any
other corporation, recognizing that, under certain circumstances,
the creation and issuance of such rights could have the effect of
discouraging third parties from seeking, or impairing their
ability to seek, to acquire a significant portion of the
outstanding securities of the Corporation, to engage in any
transaction which might result in a change of control of the
Corporation or to enter into any agreement, arrangement or
understanding with another party to accomplish the foregoing or
for the purpose of acquiring, holding, voting or disposing of any
securities of the Corporation. The times at which and the
specific terms upon which such rights are to be issued will be
determined by the Board of Directors and set forth in the
contracts or instruments that evidence such rights. The authority
of the Board of Directors with respect to such rights shall
include, but not be limited to, determination of the following:
(A) The initial purchase price per share or other unit
of the stock or other securities or property to be
purchased upon the exercise of such rights.
(B) Provisions relating to the times at which and the
circumstances under which such rights may be exercised or
sold or otherwise transferred, either together with or
separately from, any other stock or other securities of the
Corporation.
(C) Provisions which set forth the type and amount of
stock for which such rights are exercisable and provisions
which adjust the number or exercise price of such rights in
the event of a combination, split or recapitalization of
any stock of the Corporation, a change in ownership of the
Corporation's stock or other securities or a
reorganization, merger, consolidation, sale of assets or
other occurrence relating to the Corporation or any stock
of the Corporation, and provisions restricting the ability
of the Corporation to enter into any such transaction
absent an assumption by the other party or parties thereto
of the obligations of the Corporation under such rights.
(D) Provisions which deny the holder of a specified
percentage of the outstanding stock or other securities of
the Corporation the right to exercise such rights and/or
cause the rights held by such holder to become void.
(E) Provisions which permit the Corporation to redeem
or exchange such rights, which redemption or exchange may
be within the sole discretion of the Board of Directors, if
the Board of Directors reserves such right to itself.
(F) The appointment of a rights agent with respect to
such rights.
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ARTICLE VII
Board of Directors
(A) The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors.
Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specific circumstances,
the Board of Directors shall consist of no more than 7 directors,
the exact number of directors to be determined from time to time
by resolution adopted by affirmative vote of a majority of the
entire Board of Directors. The directors, other than those who
may be elected by the holders of any series of Preferred Stock,
shall be divided into three classes, designated Class I, Class II
and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors
constituting the entire Board of Directors. Initially, Class I
directors shall be elected for a one-year term, Class II
directors for a two-year term, and Class III directors for a
three-year term. At each succeeding annual meeting of
stockholders beginning after the first annual meeting following
March 31, 1997, successors to the class of directors whose terms
expire at the annual meeting shall be elected for a three-year
term.
(B) Subject to the rights of holders of any series of
Preferred Stock to elect additional directors under specific
circumstances, if the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal
as possible, and any additional director of any class elected to
fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining
term of that class, but in no case will a decrease in the number
of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected, subject, however, to prior death, resignation,
retirement or removal from office. Any vacancy on the Board of
Directors that results from an increase in the number of
directors may be filled by a majority of the directors then in
office, provided that a quorum is present, and any other vacancy
occurring in the Board of Directors may be filled by a majority
of the directors then in office, even if less than a quorum, or
by a sole remaining director. Any director elected to fill a
vacancy not resulting from an increase in the number of directors
shall have the same remaining term as that of his predecessor or,
if such director has no predecessor, as that of the class of
directors to which such director has been elected.
(C) Subject to the rights of the holders of any series
of Preferred Stock to elect additional directors under specific
circumstances, so long as there are any shares of Class A Stock
outstanding, the election of any director shall require the
affirmative vote of a plurality of the shares of each of the
Class A Stock and the Common Stock, voting separately as a class;
thereafter, the election of any director shall require the
affirmative vote of a plurality of all shares of Voting Stock,
voting together as a single class.
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ARTICLE VIII
Transactions with Related Persons
(A) In addition to any affirmative vote required by
law or this Certificate of Incorporation or the Bylaws of the
Corporation, and except as otherwise expressly provided in
Section C of this Article VIII, a Business Combination (as
hereinafter defined) with, or proposed by or on behalf of, any
Interested Stockholder (as hereinafter defined) or any Affiliate
or Associate (as hereinafter defined) of, any Interested
Stockholder or any person who thereafter would be an Affiliate or
Associate of such Interested Stockholder shall require the
affirmative vote of at least 66 2/3 percent of the votes entitled
to be cast by the holders of all the then outstanding shares of
Voting Stock, voting together as a single class, excluding Voting
Stock Beneficially Owned (as hereinafter defined) by such
Interested Stockholder. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a
lesser percentage or separate class vote may be specified, by law
or in any agreement with any national securities exchange or
otherwise.
(B) The provisions of Section A of this Article VIII
shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative
vote, if any, as is required by law or by any other provision of
this Certificate of Incorporation or the Bylaws of the
Corporation, or any agreement with any national securities
exchange, if the Business Combination shall have been approved,
either specifically or as a transaction which is within an
approved category of transactions, by a majority of the Board of
Directors prior to the Acquisition Date (as hereinafter defined).
(C) The following definitions shall apply with respect
to this Article VIII:
(i) The terms "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule
12b-2 promulgated under the Exchange Act of 1934 (the
"Exchange Act") as in effect on the date this Certificate
of Incorporation became effective under the GCL (the term
"registrant" in said Rule 12b-2 meaning in this case the
Corporation).
(ii) The term "Acquisition Date" shall mean the date
on which any person becomes the Beneficial Owner of Voting
Stock representing 10 percent or more of the votes entitled
to be cast by the holders of all the then outstanding
shares of Voting Stock.
(iii) A person shall be deemed the "Beneficial Owner"
of, and shall be deemed to "Beneficially Own", shares of
Capital Stock:
(a) which such person or any of such person's
Affiliates or Associates, directly or indirectly, has
the sole or shared right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to
Rule 13d-3 promulgated under the Exchange Act or
pursuant to any successor provision), pursuant to any
agreement, arrangement or understanding, whether or
not in writing; provided, that a person shall not be
deemed the "Beneficial Owner" of, or to "Beneficially
Own", any security under this Subsection (a) as a
result of an agreement, arrangement or understanding
to vote such security that both (y) arises solely from
a revocable proxy given in response to a public proxy
or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the
rules and regulations promulgated under the Exchange
Act and (z) is not reportable by
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such person on Schedule 13D promulgated under the
Exchange Act (or any comparable or successor report)
without giving effect to any applicable waiting
period; or
(b) which are Beneficially Owned, directly or
indirectly, by any other person (or any Affiliate or
Associate thereof) with which such person (or any of
such person's Affiliates or Associates) has any
agreement, arrangement or understanding, whether or
not in writing, for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy as
described in the proviso to Subsection (a) above) or
disposing of any Capital Stock;
provided, that (y) no director or officer of the
Corporation (nor any Affiliate or Associate of any such
director or officer) shall, solely by reason of any or all
of such officers acting in their capacities as such, be
deemed the "Beneficial Owner" of or to "Beneficially Own"
any shares of Capital Stock that are Beneficially Owned by
any other such director or officer, and (z) no person shall
be deemed the "Beneficial Owner" of or to "Beneficially
Own" any shares of Voting Stock held in any voting trust,
any employee stock ownership plan or any similar plan or
trust if such person does not posses the right to vote, to
direct the voting of or to be consulted with respect to the
voting of such shares.
(iv) The term "Business Combination" shall mean:
(a) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined)
with (y) any Interested Stockholder or (z) any other
company (whether or not itself an Interested
Stockholder) which is or after such merger or
consolidation would be an Affiliate or Associate of an
Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition or security arrangement,
investment, loan, advance, guarantee, agreement to
purchase, agreement to pay, extension of credit, joint
venture participation or other arrangement (in one
transaction or a series of transactions) with or for the
benefit of any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder involving the
Corporation or any Subsidiary and any assets,
securities or commitments of the Corporation, any
Subsidiary or any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder
which (except for any arrangement, whether as
employee, consultant or otherwise, other than as a
director, pursuant to which any Interested Stockholder
or any Affiliate or Associate thereof shall, directly
or indirectly, have any control over or responsibility
for the management of any aspect of the business or
affairs of the Corporation, with respect to which
arrangements the value tests set forth below shall not
apply), together with all other such arrangements
(including all contemplated future events), has an
aggregate Fair Market Value (as defined below) and/or
involves aggregate commitments of $5,000,000 or more
or constitutes more than 5 percent of the book value
of the total assets (in the case of transactions
involving assets or commitments other than Capital
Stock) or 5 percent of the stockholders' equity (in
the case of transactions in Capital Stock) of the
entity in question (a "Substantial Part"), as
reflected in the most recent fiscal year-end
consolidated balance sheet of such entity existing at
the time the stockholders of the Corporation would be
required to approve or authorize the Business
Combination involving the assets, securities and/or
commitments constituting any Substantial Part; or
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(c) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation; or
(d) any reclassification of securities of the
Corporation (including any reverse stock split), or
recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not
with or otherwise involving an Interested Stockholder)
that has the effect, directly or indirectly, of
increasing the proportionate share of any class or
series of Capital Stock, or any securities convertible
into Capital Stock or into equity securities of any
Subsidiary, that is Beneficially Owned by any
Interested Stockholder or any Affiliate or Associate
of any Interested Stockholder; or
(e) any agreement, contract or other arrangement
providing for any one or more of the actions specified
in the foregoing clauses (a) to (d).
(v) The term "Capital Stock" shall mean all capital
stock of the Corporation authorized to be issued from time
to time under Article IV of this Certificate of
Incorporation.
(vi) The term "Fair Market Value" shall mean (y) in
the case of stock, the highest closing sale price during
the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for
New York Stock Exchange listed stocks, or, if such stock is
not quoted on the Composite Tape, on the New York Stock
Exchange or, if such stock is not listed on such exchange,
on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed
on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 60-day
period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use in its stead,
or if no such quotations are available, the fair market
value on the date in question of a share of such stock as
determined by the Board of Directors in accordance with
Subsection (i) of Section D of this Article VIII, and (z)
in the case of property other than cash or stock, the fair
market value of such property on the date in question as
determined by the Board of Directors in accordance with
Subsection (i) of Section D of this Article VIII.
(vii) The term "Interested Stockholder" shall mean any
person (other than the Corporation or any Subsidiary and
other than any profit-sharing, employee stock ownership or
other employee benefit plan of the Corporation or any
Subsidiary or any trustee of or fiduciary with respect to
any such plan when acting in such capacity), who (a) is the
Beneficial Owner of 10 percent or more of the then
outstanding Voting Stock; or (b) is an Affiliate or
Associate of the Corporation and at any time within the
two-year period immediately prior to the date in question
was the Beneficial Owner of 10 percent or more of the then
outstanding Voting Stock.
(viii) The term "person" shall mean any individual,
firm, corporation, partnership or other entity and shall
include any group comprised of any person and any other
person with whom such person or any Affiliate or Associate
of such person has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of Capital Stock.
(ix) The term "Subsidiary" means any company of which a
majority of any class of equity security is beneficially owned
by the Corporation; provided, however, for the purpose of the
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definition of Interested Stockholder set forth in Paragraph
(vii) of this Section C, the term "Subsidiary" shall mean
only a company of which a majority of each class of equity
securities is Beneficially Owned by the Corporation.
(D)(i) A majority of the Board of Directors shall have
the power to determine for the purpose of this Article
VIII, all questions arising under this Article VIII,
including, without limitation, (a) whether a person is an
Interested Stockholder, (b) the number of shares of Capital
Stock or other securities Beneficially Owned by any person,
(c) whether a person is an Affiliate or Associate of
another, (d) whether a Business Combination is with, or
proposed by, or on behalf of an Interested Stockholder or
an Affiliate or Associate of an Interested Stockholder, (e)
whether the assets that are the subject of any Business
Combination have, or the consideration to be received for
the issuance or transfer of securities by the Corporation
or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $5,000,000 or more or
constitutes more than 5 percent of the book value of the
total assets or 5 percent of the stockholders' equity of
the entity in question, (f) whether the assets or
securities that are the subject of any Business Combination
constitute a Substantial Part, (g) the date on which an
Interested Stockholder became an Interested Stockholder,
(h) the date on which an Acquisition Date occurred, (i) the
Fair Market Value of stock or other property in accordance
with Subsection (vi) of Section C of this Article VIII, and
(j) any other matter relating to the applicability or
effect of this Article VIII. Any such determination shall
be binding and conclusive on all parties.
(ii) The Board of Directors shall have the right to
demand that any person who it believes is or may be an
Interested Stockholder (or who holds of record shares of
Capital Stock that are Beneficially Owned by any person
that the Board of Directors believes is or may be an
Interested Stockholder) supply the Corporation with
complete information as to: (a) the record holders of all
shares of Capital Stock that are Beneficially Owned by such
person; (b) the number of shares of each class or series of
Capital Stock that are Beneficially Owned by such person
and held of record by each such record holder and the
numbers of the stock certificates evidencing such shares;
and (c) any other matter relating to the applicability or
effect of this Article VIII as the Board of Directors may
reasonably request. Each such person shall furnish such
information within 10 days after the receipt of such
demand.
(E) Nothing contained in this Article VIII shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law or to be in derogation of any
action, past or future, which has been or may be taken by the
Board of Directors or the stockholders with respect to the
subject matter contained herein.
(F) For the purposes of this Article VIII, a Business
Combination is presumed to have been proposed by, or on behalf
of, an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder or a person who thereafter would become
such if such Interested Stockholder, Affiliate, Associate or
person votes for or consents to the adoption of any such Business
Combination, unless as to such Interested Stockholder, Affiliate,
Associate or person a majority of the Board of Directors makes a
determination that such Business Combination is not proposed by
or on behalf of such Interested Stockholder, Affiliate, Associate
or person.
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ARTICLE IX
Personal Liability of Directors
(A) A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for any breach of fiduciary duty as a director,
except that this Section A of Article IX shall not eliminate or
limit a director's liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to
Section 174 of the GCL, or (iv) for any transaction from which
such director derived an improper personal benefit. If the GCL is
amended after the date this Certificate of Incorporation became
effective under the GCL to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the GCL,
as so amended from time to time.
Without limiting the generality or the effect of the
foregoing, the Corporation may enter into one or more agreements
with any person which provide for indemnification greater or
different than that provided in this Article IX.
Any repeal or modification of this Section A of
Article IX shall not increase the personal liability of any
director of this Corporation for any act or occurrence taking
place prior to such repeal or modification, or otherwise
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
The provisions of this Section A of Article IX shall
not be deemed to limit or preclude indemnification of a director
by the Corporation for any liability of a director which has not
been eliminated by the provisions of this Section A of Article
IX.
(B) The Corporation shall indemnify to the full extent
authorized or permitted by law (as now or hereafter in effect)
any person made, or threatened to be made a party or witness to
any action, suit or proceeding (whether civil or criminal or
otherwise) by reason of the fact that he, his testator or
intestate, is or was a director or an officer of the Corporation
or by reason of the fact that such person, at the request of the
Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, in any capacity. Nothing contained herein shall
affect any rights to indemnification to which employees other
than directors and officers may be entitled by law. No amendment
or repeal of this Section B of Article IX shall apply to or have
any effect on any right to indemnification provided hereunder
with respect to any acts or omissions occurring prior to such
amendment or repeal.
(C) The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against
such expense, liability or loss under the GCL. The Corporation
may also create a trust fund, grant a security interest and/or
use other means (including, but not limited to, letters of
credit, surety bonds and/or use other similar arrangements), as
well as enter into contracts providing indemnification to the
full extent authorized or permitted by law and including as part
thereof provisions with respect to any or all of the foregoing,
to ensure the payment of such amounts as may become necessary to
effect indemnification as provided therein or elsewhere.
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ARTICLE X
Supermajority Requirement
So long as any shares of Class A Stock are
outstanding, the affirmative vote of not less than two-thirds of
the directors present at any meeting at which a quorum is present
shall be required to effect any action by the Board with respect
to the matters set forth below, other than actions determined by
the Board to constitute Business Combinations within the meaning
of Article VIII of this Certificate of Incorporation.
(A) Any modification, revision, alteration, amendment,
repeal or rescission, in whole or in part, of any provision
of this Certificate of Incorporation or the Bylaws of the
Corporation.
(B) Entering into any agreement to merge or
consolidate the Corporation with or into any other person,
as defined in Subsection (viii) of Section C of Article
VIII.
(C) Entering into any agreement for the Corporation or
any of its subsidiaries to acquire all or substantially all
of the properties, assets or equity of another person, if
the value of the aggregate consideration for such
acquisition, including any liabilities to be assumed by the
Corporation or its subsidiaries, in the reasonable judgment
of the Board of Directors, exceeds $5 million or more or
constitutes more than 5 percent of the book value of the
total assets (in the case of transactions involving assets
or commitments other than capital stock) or of the
shareholders' equity (in the case of transactions in
capital stock) of the entity in question, as reflected in
the most recent fiscal year-end consolidated balance sheet
of such entity existing at the time the directors of the
Corporation would be required to approve or authorize such
transaction.
(D) Selling, leasing, exchanging or otherwise
disposing of all or substantially all of the business,
assets or properties of the Corporation and its
subsidiaries, taken as a whole.
(E) Issuing, selling, or modifying the terms of any
capital stock of the Corporation or its subsidiaries, or
any warrant, option, note, debenture, call or other
securities or rights convertible into or exchangeable
therefor, or engaging in any recapitalization or
reclassification involving any such capital stock or other
securities.
(F) Directly or indirectly redeeming, purchasing or
otherwise acquiring any of the Corporation's securities.
(G) Committing any voluntary act of insolvency or
bankruptcy on behalf of the Corporation, including but not
limited to (i) the filing of a voluntary petition in any
bankruptcy, reorganization, winding-up or liquidation
proceeding or other proceeding analogous in purpose and
effect, (ii) applying for or consenting to the appointment
of a receiver or trustee for a substantial portion of its
assets, (iii) making an assignment for the benefit of
creditors, (iv) admitting in writing its inability to pay
its debts, or (v) consenting to the entry to any court
order or judgment confirming its bankruptcy or insolvency
or approving any reorganization, winding-up or liquidation.
(H) Appointing or removing the Chief Executive Officer
of the Corporation.
(I) Appointing or replacing the Corporation's
independent public auditors.
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(J) Calling a special meeting of the stockholders or fixing
the date of an annual meeting of the stockholders.
ARTICLE XI
Amendments to Bylaws
(A) In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized and empowered to:
(i) adopt, alter, amend, change or repeal the Bylaws
of the Corporation, provided, however, that the Bylaws
adopted by the Board of Directors under the powers hereby
conferred may be adopted, altered, amended, changed or
repealed by the Board of Directors subject to the
provisions of Article X of this Certificate of
Incorporation, or the stockholders having voting power with
respect thereto, provided further, that, subject to the
provisions of Article VIII of this Certificate of
Incorporation, in the case of amendments by stockholders,
the affirmative vote of the holders of at least 80 percent
of the voting power of the then outstanding Voting Stock,
voting together as a single class, shall be required to
alter, amend or repeal, the Bylaws; and
(ii) from time to time to determine whether and to
what extent, and at what times and places, and under what
conditions and regulations, the accounts and books of the
Corporation, or any of them, shall be open to inspection of
stockholders; and, except as so determined, or as expressly
provided in this Certificate of Incorporation or in any
Preferred Stock Designation, no stockholder shall have any
right to inspect any account, book or document of the
Corporation other than such rights as may be conferred by
law.
(B) The Corporation may in its Bylaws confer powers
upon the Board of Directors in addition to the foregoing and in
addition to the powers and authorities expressly conferred upon
the Board of Directors in this Certificate of Incorporation or by
law; provided, however, that no Bylaws hereafter adopted by the
stockholders or otherwise shall invalidate any prior act of the
directors which would have been valid if such Bylaws had not been
adopted.
ARTICLE XII
Shareholder Consent
Notwithstanding any other provision of this
Certificate of Incorporation or the Bylaws of the Corporation to
the contrary, no action required to be taken or which may be
taken at any annual or special meeting of stockholders of the
Corporation may be taken by written consent without such a
meeting except any action taken upon the signing of a consent in
writing by all stockholders of the Corporation having voting
power of the then outstanding Voting Stock setting forth the
action to be taken. Subject to the rights of the holders of any
class or series of Preferred Stock, special meetings of
stockholders of the Corporation may be called only by the Board
of Directors, the Chairman of the Board or the President of the
Corporation.
ARTICLE XIII
Other Constituencies
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The Board of Directors, when evaluating any (a) tender
offer or invitation for tenders, or proposal to make a tender
offer or request or invitation for tenders, by another party, for
any equity security of the Corporation or (b) proposal or offer
by another party to (i) merge or consolidate the Corporation or
any subsidiary with another corporation, (ii) purchase or
otherwise acquire all or a substantial portion of the properties
or assets of the Corporation or any subsidiary, or sell or
otherwise dispose of to the Corporation or any subsidiary all or
a substantial portion of the properties or assets of such other
party or (iii) liquidate, dissolve, reclassify the securities of,
declare an extraordinary dividend of, recapitalize or reorganize
the Corporation, shall take into account all factors which the
Board of Directors deems relevant, including, without limitation,
to the extent so deemed relevant, the potential impact on
employees, customers, suppliers, partners, joint venturors and
other constituents of the Corporation and the communities in
which the Corporation operates.
ARTICLE XIV
Amendments to Certificate of Incorporation
(A) Notwithstanding any other provision of this
Certificate of Incorporation or the Bylaws of the Corporation,
any agreement with any national securities exchange or any
provision of law which might otherwise permit a lesser vote or no
vote, but in addition to any affirmative vote of the holders of
any particular class or series of the Voting Stock required by
any other provision of this Certificate of Incorporation, any
agreement with any national securities exchange or any provision
of law, the affirmative vote of the holders of at least 80
percent of the voting power of the then outstanding Voting Stock,
voting together as a single class, excluding Voting Stock
Beneficially Owned, shall be required to alter, amend or repeal
Section J of Article IV, Article VI, Article VII, Article VIII,
Article XI, Article XII, Article XIII or this Article XIV or to
adopt any provision inconsistent therewith; provided, however,
that this Section (A) shall not apply to, and such 80 percent
vote shall not be required for, any alteration, amendment, repeal
or adoption recommended by more than 50 percent of the entire
Board of Directors.
(B) Except as may be expressly provided in this
Certificate of Incorporation, the Corporation reserves the right
at any time from time to time to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, or
a Preferred Stock Designation, and any other provisions
authorized by the laws of the State of Delaware at the time in
force may be added or inserted, in the manner now or hereafter
prescribed herein or by law; and all rights, preferences and
privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter
amended are granted subject to the right reserved in this Article
XIV; provided, however, that any amendment or repeal of Article
IX of this Certificate of Incorporation shall not adversely
affect any right or protection existing hereunder in respect of
any act or omission occurring prior to such amendment or repeal;
and provided further, that no Preferred Stock Designation shall
be amended after the issuance of any shares of the series of
Preferred Stock created thereby, except in accordance with the
terms of such Preferred Stock Designation and the requirements of
applicable law.
IN WITNESS HEREOF, said Spectrum Information
Technologies, Inc. has caused this Restated Certificate of
Incorporation to be signed by its President and attested by its
Secretary and has caused its corporate seal to be hereunto
affixed, as of this 31st day of March, 1997.
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SPECTRUM INFORMATION TECHNOLOGIES, INC.
By: /s/ Donald J. Amoruso
-------------------------------
Donald J. Amoruso
Chief Executive Officer and
Chairman of the Board
Attest: /s/ Christopher M. Graham
---------------------------
Christopher M. Graham
General Counsel and
Secretary
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[Letterhead of Cleary, Gottlieb, Steen & Hamilton]
Writer's Direct Dial: (212) 225-2920
March 31, 1997
Christopher Graham, Esq.
Spectrum Information Technologies, Inc.
2700 Westchester Avenue
Purchase, New York
Dear Sirs:
Spectrum Information Technologies, Inc., a Delaware
corporation, has requested our opinion in connection with a
Registration Statement on Form S-8 (the "Registration Statement")
to be filed by it today with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933,
as amended (the "Act"), relating to the shares of Common Stock,
$.001 par value, of Spectrum Information Technologies, Inc. to be
issued under the Spectrum Information Technologies, Inc. 1996
Incentive Deferral Plan (the "Plan").
We have examined and are relying on originals, or
copies certified or otherwise identified to our satisfaction, of
such corporate records and such other instruments, certificates
and representations of public officials, officers and
representatives of Spectrum Information Technologies, Inc. and
such other persons, and we have made such investigations of law,
as we have deemed appropriate as a basis for the opinion
expressed below.
Based on the foregoing, it is our opinion that the
shares of Spectrum Information Technologies, Inc. issuable under
the Plan are duly authorized and, when issued in accordance with
the terms of the Plan, at prices in excess of the par value
thereof, will be validly issued, fully paid and nonassessable.
<PAGE>
Christopher Graham, Esq., p. 2
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. By giving such consent, we do not
thereby admit that we are experts with respect to any part of the
Registration Statement, including this exhibit, within the
meaning of the term "expert" as used in the Act or the rules and
regulations of the Commission issued thereunder.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By: /s/ Arthur H. Kohn
--------------------------------
Arthur H. Kohn, a partner
<PAGE>
Exhibit 24.1
CONSENT OF BDO SEIDMAN L.P.
Spectrum Information Technologies, Inc.
Purchase, NY
We hereby consent to the incorporation by reference and inclusion
in the Prospectus constituting a part of this Registration
Statement of our report dated June 18, 1996, relating to the
consolidated financial statements and schedule of Spectrum
Information Technologies, Inc. and subsidiaries appearing in the
Company's Annual Report on Form 10-K for the year ended March 31,
1996.
/s/BDO Seidman, LLP
March 31, 1997
