SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 3, 1998
EQUIVEST FINANCE, INC.
(Exact name of registrant as specified in its charter)
Delaware 333-29015 59-2346270
(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
2 CLINTON SQUARE
SYRACUSE, NEW YORK 13202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (315) 422-9088
INFORMATION TO BE INCLUDED IN REPORT
Item 1. Changes in Control of Registrant
Not applicable.
Item 2. Acquisition or Disposition of Assets
Not applicable.
Item 3. Bankruptcy or Receivership
Not applicable.
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Item 4. Changes in Registrant's Certifying Accountant
Not applicable.
Item 5. Other Events
On December 4, 1998, pursuant to an agreement and
plan of merger dated December 3, 1998, Equivest Finance, Inc.
("Equivest"), a Florida corporation, completed a merger with
and into Equivest Reincorporation, Inc. (the "Delaware
Subsidiary"), a Delaware corporation and a wholly owned
subsidiary of Equivest (the "Merger").
Pursuant to the terms of the Merger, the Delaware
Subsidiary was the surviving corporation (the "Surviving
Corporation") in the Merger and, upon consummation of the
Merger, was renamed "Equivest Finance, Inc." The sole purpose
of the Merger was to change the state of incorporation of
Equivest from Florida to Delaware.
As a result of the Merger, each issued and
outstanding share of the common stock of Equivest, par value
$.05 per share, was converted into one fully paid and
non-assessable issued and outstanding share of the Surviving
Corporation, par value $.01 per share. As the common stock of
Equivest was registered under Section 12(g) of the Securities
Exchange Act of 1934 (the "Exchange Act") prior to the Merger,
upon the consummation of the Merger, the common stock of the
Surviving Corporation was automatically deemed registered
under Section 12(g) of the Exchange Act, pursuant to Rule
12g-3(a) of the Exchange Act.
Item 6. Resignation of Registrant's Directors
Not applicable.
Item 7. Financial Statements and Exhibits
(a) Financial statements of businesses acquired.
Not applicable.
(b) Pro forma financial information.
Not applicable.
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(c) Exhibits.
The following exhibits are being filed herewith:
Exhibit No. Exhibit
----------- -------
3.1 Amended and Restated Certificate of
Incorporation of the Registrant
3.2 By-laws of the Registrant
10.1 Agreement and Plan of Merger dated
as of December 3, 1998 between
Equivest Finance, Inc. and Equivest
Reincorporation, Inc.
Item 8. Change in Fiscal Year
Not applicable.
Item 9. Sales of Equity Securities Pursuant to Regulation S
Not applicable.
SIGNATURES
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.
EQUIVEST FINANCE, INC.
Date: December 16, 1998 By: /s/ Gerald L. Klaben
---------------------------
Name: Gerald L. Klaben
Title: Senior Vice-President and Chief
Financial Officer
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INDEX TO EXHIBITS
Exhibit No: Exhibit
- ----------- -------
3.1 Amended and Restated Certificate of Incorporation of the
Registrant
3.2 By-laws of the Registrant
10.1 Agreement and Plan of Merger dated as of December 3, 1998 between
Equivest Finance, Inc. and Equivest Reincorporation, Inc.
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EQUIVEST REINCORPORATION, INC.
EQUIVEST REINCORPORATION, INC., a corporation organized and
existing under the laws of the State of Delaware (hereinafter referred to as the
"Corporation"), hereby certifies as follows:
(1) The name of the Corporation is Equivest Reincorporation,
Inc. The original Certificate of Incorporation was filed on December 1,
1998. The name under which the Corporation was originally incorporated
was also "Equivest Reincorporation, Inc."
(2) This Amended and Restated Certificate of Incorporation
amends and restates in its entirety the Certificate of Incorporation of
the Corporation.
(3) Pursuant to Sections 245 and 253(b) of the General
Corporation Law of the State of Delaware, the text of the Certificate
of Incorporation is hereby amended and restated to read in its entirety
as follows:
ARTICLE I.
Name of Company
The name of this corporation shall be EQUIVEST FINANCE, INC.
(the "Corporation").
ARTICLE II.
General Nature of Business
The Corporation may engage in any activity or business
permitted under the laws of the United States and of the State of Delaware.
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ARTICLE III.
Capitalization
The amount of the authorized capital stock of the Corporation
shall be as follows:
A. 50,000,000 shares of common stock at a par value of $.01
per share and
B. 1,000,000 shares of preferred stock at a par value of $3.00
per share. The Board of Directors is vested with authority to divide the
authorized preferred stock into one or more series of such shares and to fix and
determine the relative rights and preferences of any such series. A series of
such shares may, among other matters, establish (i) the number of preferred
shares to constitute such series and the distinct designations thereof; (ii) the
rate and preference of dividends, if any, the time of payment of dividends,
whether dividends are cumulative and the date from which any dividend shall
accrue; (iii) the liquidation preferences payable on preferred shares in the
event of involuntary or voluntary liquidation; and (iv) voting rights, if any.
The Board of Directors, without the approval of the Corporation's shareholders,
has the power to authorize the issuance of preferred stock with voting and
conversion rights which could adversely affect the voting power of the common
stock (the "Common Stock").
Pursuant to the authority conferred upon the Board of
Directors under this Article, there is hereby established a series of authorized
preferred stock of the Corporation having a par value of $3.00 per share (the
"Preferred Stock"), which series shall be designated as Series 2 Class A
Preferred Stock (the "Series 2 Preferred Stock") and shall consist of fifteen
thousand (15,000) shares.
The relative rights and preferences of the shares of the
Series 2 Preferred Stock of the Corporation shall be as follows:
a. Rank. The Series 2 Preferred Stock shall, with respect to
dividend rights and rights on liquidation, winding up and dissolution,
rank senior to all other series and classes of capital stock of the
Corporation, whether such series and classes are now existing or are
created in the future.
b. Dividends. (1) The holders of the shares of Series 2
Preferred Stock shall be entitled to receive dividends when and as
declared by the Board of Directors out of funds legally available
therefor, provided, that no dividends shall be declared with respect to
the Series 2 Preferred Stock except as required by subparagraph b(4)(b)
or b(5) hereof. Such dividends shall be paid at the Corporation's
discretion (i) in cash, (ii) by the issuance of that number of whole
shares of Common Stock computed by dividing the amount of the dividend
by the market price applicable to such dividend or (iii) by the
issuance of that number of whole shares of Series 2 Preferred Stock at
the Liquidation
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Value (as defined hereafter). For the purposes of this Section b,
"market price" shall mean (i) the average of the daily closing sale
prices of the Common Stock for a period of the last ten (10)
consecutive trading days preceding the date of calculating the market
price, if available, or (ii) the average of the daily closing bid and
asked prices of the Common Stock for a period of the last ten (10)
consecutive trading days preceding the date of calculating the market
price. The closing price for each trading day shall be for any period
during which the Common Stock shall be listed for trading on a national
securities exchange, the last reported price per share of the Common
Stock as reported by the primary stock exchange or the NASDAQ Stock
Market, if the Common Stock is quoted on the NASDAQ Stock Market. Such
dividends shall be paid to the holders of record of the Series 2
Preferred Stock at the close of business on the date specified by the
Board of Directors of the Corporation at the time such dividend is
declared; provided, however, that such date shall not be more than 60
nor less than 10 days prior to the respective dividend payment date.
(2) All dividends paid with respect to shares of Series 2 Preferred
Stock pursuant to paragraph b(1) shall be paid pro-rata to the holders
entitled thereto.
(3) Notwithstanding anything contained herein to the contrary, no cash
dividends on shares of the Series 2 Preferred Stock shall be declared
by the Board of Directors or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement
of the Corporation, including any agreement relating to its
indebtedness, specifically prohibits such declaration, payment or
setting apart for payment or provides that such declaration, payment or
setting apart for payment would constitute a breach thereof or a
default thereunder; provided, however, that nothing herein contained
shall in any way or under any circumstances, except as expressly
described herein, be construed or deemed to require the Board of
Directors to declare or the Corporation to pay or set apart for payment
any dividends on shares of the Series 2 Preferred Stock at any time,
whether permitted by any of such agreements or not.
(4)(a) Holders of shares of the Series 2 Preferred Stock shall be
entitled to receive the dividends provided for in paragraph b(1) hereof
in preference to and in priority over any dividends upon the Common
Stock.
(b) So long as any shares of the Series 2 Preferred Stock are
outstanding, the Corporation shall not declare, pay or set
apart for payment any dividend on any of the Common Stock or
on any other capital stock of the Corporation ranking junior
to the Series 2 Preferred Stock or any warrants, rights, calls
or options exercisable for the Common Stock or make any
distribution in respect thereof, either directly or
indirectly, and whether in cash, obligations or shares of the
Corporation or other property (other than distributions or
dividends in Common Stock to the holders of such stock), and
shall not permit any corporation or other entity directly
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or indirectly controlled by the Corporation to purchase any of
the Common Stock or any warrants, rights, calls or options
exercisable for the Common Stock, unless prior to or
concurrently with such declaration, payment, setting apart for
payment, purchase or distribution, as the case may be, all
dividends accrued on the Series 2 Preferred Stock but unpaid
through the most recent "dividend payment date" as defined in
subparagraph b(5) hereof have been paid or set apart for
payment.
(5) From and after the date of the issuance of shares of Series 2
Preferred Stock, holders of the shares of the Series 2 Preferred Stock
shall be entitled to receive, when and as declared by the Board of
Directors, out of funds legally available for the payment of dividends,
in addition to the dividends required pursuant to subparagraph b(4)(b)
hereof, cumulative dividends at the annual rate of $60 per share, in
equal (except for the first such dividend amount) quarterly payments on
March 31, June 30, September 30 and December 31 (each of such dates
being a "dividend payment date") in each year with respect to the three
month period ending on the last day of the month in which the dividend
payment date occurs. Each of such quarterly dividends shall be fully
cumulative and shall accrue (whether or not declared), without
interest, from the first day of the three-month period in which such
dividend may be payable as herein provided, except that, with respect
to the first quarterly dividend, such dividend shall accrue from the
date of issuance of such shares of Series 2 Preferred Stock.
(6) Subject to the foregoing provisions of this Section b, the Board of
Directors may declare and the Corporation may pay or set apart for
payment dividends and other distributions on the Common Stock and may
purchase or otherwise redeem any warrants, rights or options
exercisable for Common Stock, and the holders of the shares of the
Series 2 Preferred Stock shall not be entitled to share therein.
c. Liquidation Preference. (1) In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the holders of shares of Series 2 Preferred Stock then
outstanding shall be entitled to be paid ratably out of the assets of
the Corporation available for distribution to its stockholders after
the payment or provision for any payment of amounts due to holders of
securities ranking senior to the Series 2 Preferred Stock an aggregate
amount in cash equal to $1,000 per share (the "Liquidation Value"),
plus all accrued and unpaid dividends, whether or not such accrued and
unpaid dividends have been declared by the Board of Directors of the
Corporation, before any payment shall be made or any assets distributed
to the holders of the Common Stock.
(2) For the purposes of this Section c, the voluntary sale, conveyance,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or any substantial part of the property or assets
of the Corporation or the consolidation or merger of the Corporation
with one or more corporations shall be deemed to be a liquidation,
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dissolution or winding up, voluntary or involuntary, of the affairs of
the Corporation for purposes of determining the relative amounts of
consideration to be paid to the holders of any class of capital stock
of the Corporation.
d. Voting Rights. For all the shares of Series 2 Preferred
Stock held, the holders thereof shall in the aggregate be entitled to
that number of votes which is equal to twenty percent (20%) of the
total number of votes of the Corporation, taking into account shares of
Common Stock and any other series and classes of capital stock of the
Corporation, whether such series and classes are now existing or are
created in the future, on all matters presented to the stockholders of
the Corporation for their vote. Except as otherwise provided by law or
the Certificate of Incorporation of the Corporation, as amended hereby
and as hereafter amended from time to time, the holders of Series 2
Preferred Stock shall vote with the holders of the outstanding Common
Stock and any other series or class of capital stock entitled to vote
on such matter and not as a separate class or series.
(1) So long as any shares of the Series 2 Preferred Stock remain
outstanding, the Corporation will not, either directly or indirectly or
through merger or consolidation with any other corporation, without the
affirmative vote at a meeting or the written consent with or without a
meeting of the holders of at least 662/3% of the shares of Series 2
Preferred Stock then outstanding, amend, alter or repeal any of the
provisions of the Statement establishing the Series 2 Preferred Stock
or the Certificate of Incorporation, as amended, of the Corporation, or
authorize any reclassification of the Series 2 Preferred Stock, so as
in any such case to affect adversely the preferences, special rights or
powers of the Series 2 Preferred Stock, or authorize any capital stock
of the Corporation ranking, either as to payment of dividends or upon
liquidation, dissolution or winding up of the Corporation, prior to the
Series 2 Preferred Stock.
(2) So long as any shares of the Series 2 Preferred Stock remain
outstanding, the Corporation will not, either directly or indirectly or
through merger or consolidation with any other corporation, without the
affirmative vote at a meeting or the written consent with or without a
meeting of stockholders of at least 662/3% in voting power of shares of
the Series 2 Preferred Stock then outstanding, increase the authorized
number of shares of Series 2 Preferred Stock or create, or increase the
authorized number of shares of, any other class of capital stock of the
Corporation ranking on a parity with the Series 2 Preferred Stock
either as to payment of dividends or upon liquidation, dissolution or
winding up of the Corporation.
(3) No consent of holders of the Series 2 Preferred Stock shall be
required for (i) the creation of any indebtedness of any kind of the
Corporation or (ii) the issuance or any Common Stock of the
Corporation.
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e. Redemption. (1) The Corporation may, at its option, redeem
shares of Series 2 Preferred Stock issued at any time after the seventh
anniversary of the issuance of the Series 2 Preferred Stock in
accordance with this Section e. To effect such redemption, the
Corporation shall pay a sum in cash equal to the Liquidation Value (the
"Redemption Price"). The date fixed for redemption as provided in this
Section e(1) is referred to herein as the "Redemption Date."
(2) Not less than thirty (30) nor more than ninety (90) days before the
Redemption Date, written notice (the "Redemption Notice") shall be
given by mail, postage prepaid, to the holders of record of Series 2
Preferred Stock to be redeemed at their respective address as shown on
the records of the Corporation, specifying the number of shares of
Series 2 Preferred Stock to be redeemed, the Redemption Price, the
place and date of such redemption and the name and address of the
Corporation's transfer agent for the Series 2 Preferred Stock. The
Redemption Price for the shares of Series 2 Preferred Stock to be
redeemed shall be paid on or after the Redemption Date, upon surrender
of the certificate of certificates evidencing such shares. If the
Redemption Notice shall have been duly given and if on or before the
Redemption Date the funds necessary for redemption shall have been set
aside so as to be available therefor, then, notwithstanding that any
certificate evidencing shares of Series 2 Preferred Stock to be
redeemed shall not have been surrendered for cancellation, after the
close of business on the Redemption Date, the shares of Series 2
Preferred Stock shall no longer be deemed outstanding, the dividends
thereon shall cease to accrue, and all rights with respect to such
shares shall cease after the close of business on the Redemption Date,
except for the right of the holders thereof to receive upon
presentation of the certificate or certificates evidencing shares so
called for redemption, the Redemption Price therefor, payable to or on
the order of the person whose name appears on such certificates or
certificates as the owner thereof, without interest thereon.
(3) If the funds of the Corporation legally available for redemption
are insufficient to redeem the total number of shares of Series 2
Preferred Stock and other shares of any other series of redeemable
preferred stock to be redeemed on any Redemption Date, the funds that
are legally available shall be used to redeem shares of Series 2
Preferred Stock and all shares of any such other series to be redeemed
on such date on a pro rata basis among the holders of such shares in
proportion to the number of shares then held by such holders.
f. Notice. The holders of shares of the Series 2 Preferred
Stock shall receive notice not less than thirty (30) days before the
occurrence of any of the following: (i) the declaration of any record
date; and (ii) any meeting of the holders of shares of the Common Stock
called by the Corporations' Board of Directors (which notice must set
forth in reasonable detail the business to be transacted at such
meeting).
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ARTICLE IV.
Corporate Existence
This Corporation shall have perpetual existence unless sooner
dissolved according to law.
ARTICLE V.
Number of Directors
The number of directors of this Corporation shall be at least
one (1).
ARTICLE VI.
Registered Office and Registered Agent
The registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
ARTICLE VII.
Denial of Preemptive Rights
No shareholders of the Corporation shall have a preemptive
right because of his shareholding to have first offered to him any part of any
of the presently authorized shares of this Corporation hereafter issued,
optioned or sold, or any part of any debenture, bonds, notes, or securities of
this Corporation convertible into shares hereafter issued, optioned, or sold by
this Corporation. This provision shall operate to defeat rights in all shares
and classes of shares not authorized and in all debentures, bonds, notes, or
securities of the Corporation which may be convertible into shares, and also to
defeat preemptive right in any and all shares and classes of shares and
securities convertible into shares which this Corporation may be hereafter
authorized to issue by any amended certificate duly filed. Thus, any and all of
the shares of this Corporation presently authorized, and any and all debentures,
bonds, notes or securities of this Corporation convertible into shares and any
and all of the shares of this Corporation which may hereafter be authorized, any
at any time be issued, optioned, and contracted for sale, and/or sold and
disposed of by direction of the Board of Directors of the Corporation to such
persons, and upon such terms and conditions as may to the Board of Directors
seem proper and advisable, without first offering the said shares or securities
or any part thereof to existing shareholders.
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IN WITNESS WHEREOF, said Equivest Reincorporation, Inc. has
caused this Amended and Restated Certificate of Incorporation to be signed by
Richard C. Breeden, its Chairman and Chief Executive Officer this 3rd day of
December, 1998.
EQUIVEST REINCORPORATION, INC.
By /s/ Richard C. Breeden
-------------------------------------------
Name: Richard C. Breeden
Title: Chairman and Chief Executive Officer
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Exhibit 3.2
BY-LAWS
OF
EQUIVEST REINCORPORATION, INC.
(A Delaware Corporation)
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EQUIVEST REINCORPORATION, INC.
BY-LAWS
ARTICLE I
OFFICES
Section 1. The registered office shall be at such place within
the State of Delaware as the board of directors may, from time to time,
determine.
Section 2. The corporation may also have offices, including
its principal executive offices, at such other places both within and without
the State of Delaware as the board of directors may from time to time determine
or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election
of directors shall be held in the State of Delaware, at such place as may be
fixed, from time to time by the board of directors, or at such other place
either within or without the State of Delaware as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on
the fifteenth day of the fifth month following the end of each fiscal year or as
soon thereafter as practicable, but in no case more than 13 months since the
last meeting, as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect by a
plurality vote a board of directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating place,
date and hour of the meeting shall be given to each stockholder of record
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting, either personally or by first class mail, by or
at the direction of the president, the secretary, or the officer or persons
calling the meeting. If the notice is mailed at least thirty days before the
date of the meeting, it may be done by a class of the United States mail other
than first class. If mailed such notice shall be deemed
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to be delivered when deposited in the United States mail addressed to the
shareholder at his address as it appears on the stock transfer books of the
corporation with postage thereon prepaid.
Section 4. The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting or an adjournment thereof, arranged in alphabetical order and showing
the address of each stockholder and the number of, class and series of shares
registered in the name of each voting stockholder entitled to vote. Such list
shall be open to the examination of any stockholder, for any purpose (germane to
the meeting), during ordinary business hours, for a period of at least ten days
prior to the meeting, either at the registered office of the corporation, at the
principal place of business of the corporation, or at the office of the transfer
agent or registrar of the corporation. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the chairman of the board of
directors or the president or the board of directors, holders of not less than
one-tenth of all shares entitled to vote at the meeting, or such other persons
or group as may be authorized by the certificate of incorporation or these
by-laws. Such request shall state the purpose or purposes of the proposed
meeting.
Section 6. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than sixty days
before the date of the meeting, to each stockholder entitled to vote at such
meeting, either personally or by first class mail, by or at the direction of the
president, the secretary, or the officer or persons calling the meeting. If the
notice is mailed at least thirty days before the date of the meeting, it may be
done by a class of the United States mail other than first class. If mailed such
notice shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at his address as it appears on the stock transfer
books of the corporation with postage thereon prepaid.
Section 7. Business transaction at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation, but in no event shall a quorum consist of less
than one-third of the shares entitled to vote at the meeting. When a specified
item of business is required to be voted on by a class or series of stock, a
majority of the shares of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series. If, however, such
quorum shall not be present or represented at any meeting of the
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stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting, at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such meeting
and shall be the act of the stockholders, unless the question is one upon which
by express provision of the statutes, of the certificate of incorporation or
other provisions of the by-laws, a different vote is required in which case such
express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy executed in writing for each share of
the capital stock having voting power held by such stockholder, but no proxy
shall be voted on after 11 months from its date, unless the proxy provides for a
longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
Section 12. At each meeting of the stockholders, the chairman
of the board, or in his absence or inability to act, any person chosen by the
majority of those stockholders present in person or represented by proxy shall
act as chairman of the meeting. The secretary or, in his absence or inability to
act, any person appointed by the chairman of the meeting shall act as secretary
of the meeting and keep the minutes thereof.
Section 13. The board may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting shall appoint
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of
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shares outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result, and do such acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting or any stockholder entitled to vote
thereat, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and shall execute a certificate of any
fact found by them. No director or candidate for the office of director shall
act as an inspector of an election of directors. Inspectors need not be
stockholders.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the
whole board shall be not less than one nor more than nine. The number of
directors shall be determined by resolution of the board of directors or by the
stockholders at the annual meeting of the stockholders, except as provided in
Section 2 of this Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute.
Section 3. The business of the corporation shall be managed by
its board of directors which may exercise all such powers of the corporation and
do all such lawful acts and things as are not by statute or by the certificate
of incorporation or by these by-laws directed or required to be exercised or
done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of
directors shall be held immediately following the annual meeting of stockholders
at the place of such annual meeting of stockholders and no notice of such
meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event such
meeting is not held immediately following the annual meeting of stockholders at
the place of
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such annual meeting of stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be
held without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
president on one day's notice to each director, either personally or by mail or
by telegram; special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of two directors (one
director in the event that there be a single director in office).
Section 8. At all meetings of the board a majority of the
directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 11. No contract or other transaction between this
corporation and any other corporation shall be void or voidable nor shall any
director be liable in any way by reason of the fact that any one or more of the
directors of this corporation is or are interested in, or is a director or
officer, or are directors of such other corporation, provided that such facts
are disclosed or made known to the board of directors or the contract is fair
and reasonable as to the corporation at the time it is authorized by its board,
a committee or the stockholders.
Any director, personally and individually, may be a party to
or may be interested in any contract or transaction of this corporation, and no
director shall be liable in any way by reason of such interest, provided that
the fact of such interest be disclosed or made known to the
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board of directors, and provided that the board of directors shall authorize,
approve or ratify such contract or transaction by the vote (not counting the
vote of any such director) of a majority of a quorum, notwithstanding the
presence of any such director at the meeting at which such action is taken. Such
director or directors may be counted in determining the presence of a quorum at
such meeting. This Section shall not be construed to impair or invalidate or in
any way affect any contract or other transaction which would otherwise be valid
under the law (common, statutory or otherwise) applicable thereto.
COMMITTEES OF DIRECTORS
Section 12. The board of directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at a meeting in the place of any
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the board of directors, shall have and may exercise all the
powers and authority of the board of directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to approve or recommend to shareholders
actions or proposals required by this chapter to be approved by shareholders;
designate candidates for the office of director for purposes of proxy
solicitation or otherwise; fill vacancies on the board of directors or any
committee thereof; amend the by-laws; authorize or approve the requisition of
shares unless pursuant to a general formula or method specified by the board of
directors; authorize or approve the issuance or sale of or any contract to issue
or sell shares or designate the terms of a series of a class of shares except
that the board of directors having acted regarding general authorization for the
issuance or sale of shares or any contract therefor and in the case of a series
of designation thereof may, pursuant to a general formula or method specified by
the board by resolution or by adoption of a stock option or other plan,
authorizing the committee to fix the terms of any contract for the sale of the
shares and to fix the terms upon which such shares may be issued or sold,
including, without limitation, the price, the rate or manner of payment of
dividends, provisions for redemption, sinking fund, conversion and voting or
preferential rights, and provisions for other features of a class of shares, or
a series of a class of shares with full power and such committee to adopt any
final resolution setting forth all the terms thereof an to authorize the
statement of the terms of a series for filing with the Department of State under
the Delaware General Corporation Law. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the board of directors. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
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COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by-laws, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or
of the certificate of incorporation or of these by-laws, notice is required to
be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram. If the notice is mailed at
least thirty days before the date of a meeting, it may be done by a class of the
United States Mail other than first class.
Section 2. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by
the board of directors and shall be a president, a vice-president, a secretary
and a treasurer. The board of directors may also choose a chairman,
vice-chairman, additional vice-presidents, and one or more
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assistant secretaries and assistant treasurers. Any number of offices may be
held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
Section 2. The board of directors at its first meeting after
each annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the board of directors may be removed at any time by the affirmative vote of
a majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE CHAIRMAN OF THE BOARD AND THE PRESIDENT
Section 6. The chairman of the board, if any, shall be the
chief executive officer of the corporation and shall have general and active
management of the business of the corporation and general and active supervision
and direction over the other offices, agents and employees and shall see that
their duties are properly performed. He shall, if present, preside at each
meeting of the stockholders and of the board and shall be an ex officio member
of all committees of the board. He shall perform all duties incident to the
office of chairman of the board and chief executive officer and such other
duties as may from time to time be assigned to him by the board.
The president shall be the chief operating officer (and if
there is no chairman of the board, then also the chief executive officer) of the
corporation and shall have general and active supervision and direction over the
business operations and affairs of the corporation and over its several
officers, agents and employees, subject, however, to the direction of the
chairman of the board and the control of the board of directors. At the request
of chairman of the board, or in the case of his absence or inability to act, the
president shall perform the duties of the chairman of the board and when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the chairman of the board. In general, the president shall have such other
powers and shall perform such other duties as usually pertaining to office of
president or as from time to time may be assigned to him by the board, the
chairman of the board or these by-laws.
Section 7. The chairman or president shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof
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shall be expressly delegated by the board of directors to some other officer or
agent of the corporation.
THE VICE PRESIDENTS
Section 8. In the absence of the president or in the event of
his inability or refusal to act, the vice president (or in the event there be
more than one vice president, the vice presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant,
secretary, shall have the authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than
one, the assistant secretaries in the order determined by the board of directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the secretary and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
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Section 12. He shall disburse the funds of the corporation as
may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all its transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall
give the corporation a bond (which shall be renewed every six years) in such sum
and with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 14. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by,
the president or a vice-president and the secretary or an assistant secretary of
the corporation, and may be sealed with the seal of the corporation or facsimile
thereof, certifying the number of shares owned by him in the corporation.
If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided by statute, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
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Section 2. Any of or all the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
Section 3. Each certificate representing shares shall state
upon the face thereof the name of the corporation, that the corporation is
organized under the laws of the State of Delaware, the name of the person or
persons to whom issued, the number and class of shares and the designation of
the series, if any, which said certificate represents, the par value of each
share represented by such certificate or statement that shares are without par
value.
LOST CERTIFICATES
Section 4. The board of directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
sole discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or give, the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 5. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
FIXING RECORD DATE
Section 6. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty or less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a
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meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 7. The original stock transfer book shall be prime
facie evidence as to who are the shareholders entitled to examine lists of
stockholders or to vote at any meetings of the shareholders.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any time, pursuant to law
except when the corporation is insolvent, when the payment thereof would render
the corporation insolvent, or when the declaration or payment thereof would be
contrary to any restrictions contained in the certificate of incorporation.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation, only out of the
unreserved and unrestricted earned surplus of the corporation or out of capital
surplus, however rising, when each dividend paid out of capital surplus shall be
identified as a distribution of capital surplus, and the amount per share paid
from such surplus shall be disclosed to the shareholders receiving the same
concurrently with the distribution.
Section 2. Dividends may be declared and paid in its own
treasury shares or in its own authorized but unissued shares out of any
unreserved and unrestricted surplus of the corporation if a dividend is payable
and its own shares having par value, such shares shall be issued at not less
than par value thereof and shall be transferred to stated capital at the time
such dividend is paid in an amount of surplus equal to the aggregate par value
of the share certificate issued as a dividend or, if a dividend is payable in
its own shares without par value, such shares shall be issued at such stated
value as shall be fixed by the board of directors by resolution adopted at the
time such dividend is declared, and it shall be transferred to stated capital at
the time such dividend is paid an amount of surplus equal to the aggregate
stated value so fixed in respect of such shares, and the amount per share so
transferred to stated capital shall be disclosed to shareholders receiving such
dividend concurrently with the payment thereof.
Section 3. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for
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such other purposes as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 4. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 5. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 6. The fiscal year of the corporation shall end on
December 31 of each year.
SEAL
Section 7. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed
or new by-laws may be adopted by the board of directors unless reserved to the
shareholders by the certificate of incorporation, at any meeting of the
stockholders or of the board of directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice of such
special meeting. The by-laws may also be amended by the stockholders pursuant to
Section 11 of Article II without prior notice of alteration, amendment, repeal
or adoption of new by-laws. The power to adopt, amend or repeal by-laws by the
board of directors shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
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ARTICLE IX
CORPORATE INDEMNIFICATION PLAN
The corporation shall indemnify any person:
(1) Who was or is a party, or is threatened to be made a
party, to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative
(other than an action by, or in the right of, the corporation) by
reason of the fact that he is or was a director, officer, employee, or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise
against such costs and expenses, and to the extent and in the manner
provided in Section 145 of the Delaware General Corporation Law;
(2) Who was or is a party, or is threatened to be made a
party, to any threatened, pending, or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee, or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of the corporation or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust, or other enterprise against such costs and expenses, and to the
extent and in the manner provided in Section 145 of the Delaware
General Corporation Law.
The extent, amount, and eligibility for the indemnification
provided herein will be made by the board of directors. Said determinations will
be made by a majority vote of a quorum consisting of directors who were not
parties to such action, suit, or proceeding or by the shareholders by a majority
vote of a quorum consisting of shareholders who were not parties to such action,
suit, or proceeding.
The corporation will have the power to make further
indemnification as provided in Section 145 of the Delaware General Corporation
Law; however, the indemnification or advancement of expenses shall not be made
to or on behalf of any director, officer, employee or agent if a judgment or
other final adjudication establishes that his actions or omissions to act, were
material to the cause of action so adjudicated and constitute a violation of the
criminal law unless the director, officer, employee or agent has reasonable
cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful; a transaction which the director, officer, employee or
agent derived an improper personal benefit; in the case of a director, a
circumstance under which the liability provisions of Section 145 of the Delaware
General Corporation Law are applicable or wilful misconduct or conscious
disregard for the best
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interests of the corporation in proceeding by or in the right of the corporation
to procure a judgment in its favor or in a proceeding by or in the right of the
shareholder.
The corporation is further authorized to purchase and maintain
insurance for indemnification of any person as provided herein and to the extent
provided in Section 145 of the Delaware General Corporation Law.
ARTICLE X
MEDICAL EXPENSE PLAN
Section 1. Benefits. The corporation may reimburse all
employees for expenses incurred by themselves and their dependants, as defined
in IRC S152, as amended, for medical care, as defined in IRC S213(e), as
amended, subject to the conditions and limitations as hereinafter set forth.
It is the intention of the corporation that the benefits
payable to employees hereunder will be excluded from their gross income pursuant
to IRC S105, as amended.
Section 2. Employees Defined. The term "employees" as used in
this medical expense plan is hereby defined to include all individuals employed
by the corporation except the following:
(a) Employees who have not completed 36 months of service as
is provided in Section 105(h)(3)(B)(i) of the Internal Revenue Code;
(b) Employees who have not attained the age of twenty-five
(25) years;
(c) Employees who are part-time or seasonal as is defined in
section 105(h)(3)(B)(iii) of the Internal Revenue Code;
(d) Employees who are included in a unit of employees covered
by an agreement between employee representatives and one or more
employers found to be a collective bargaining agreement, where accident
and health benefits were the subject of good faith bargaining between
such employee representatives and such employer(s) as is defined in
Section 105(h)(3)(B)(iv) of the Internal Revenue Code;
(e) Employees who are nonresident aliens and who receive no
earned income from the employer which constitutes income from sources
within the United States as is further defined in Section
105(h)(5)(B)(v).
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Section 3. Limitations. The corporation will reimburse any
employee no more than $500.00 in any fiscal year for medical care expenses.
Reimbursement or payment provided under this plan will be made
by the corporation only in the event and to the extent that such reimbursement
or payment is not provided under any insurance policy(ies), whether owned by the
corporation or the employee, or under any other health and accident or wage
continuation plan.
In the event that there is such an insurance policy or plan in
effect providing for reimbursement in whole or in part, then to the extent of
the coverage under such policy or plan, the corporation will be relieved of any
and all liability hereunder.
Section 4. Submission of Proof. Any employee applying for
reimbursement under this plan will submit to the corporation, at least
quarterly, all bills for medical care, including premium-notices for accident or
health insurance, for verification by the corporation prior to payment. Failure
to comply herewith, may at the discretion of the corporation, terminate such
employee's right to said reimbursement.
Section 5. Discontinuation. This plan will be subject to
termination at any time by vote of the board of directors of the corporation;
provided, however, that medical care expenses incurred prior to such termination
will be reimbursed or paid in accordance with the terms of this plan.
Section 6. Determination. The president will determine all
questions arising from the administration and interpretation of the Plan except
where reimbursement is claimed by the President. In such case determination will
be made by the board of directors.
16
Exhibit 10.1
AGREEMENT AND PLAN OF MERGER
OF
EQUIVEST FINANCE, INC.
AND
EQUIVEST REINCORPORATION, INC.
AGREEMENT AND PLAN OF MERGER, dated as of December 3, 1998,
between Equivest Finance, Inc., a Florida corporation (the "Corporation") and
Equivest Reincorporation, Inc., a Delaware corporation (the "Delaware
Subsidiary") and a wholly owned subsidiary of the Corporation.
WHEREAS, the Board of Directors of the Corporation has
determined that it is advisable that the Corporation be merged with and into the
Delaware Subsidiary (the "Merger") , on the terms and subject to the conditions
contained herein and in accordance with the Florida Business Corporation Act
("FBCA") and in accordance with the Delaware General Corporation Law ("DGCL");
WHEREAS, the Corporation has authorized (i) 50,000,000 shares
of common stock, par value $.05 per share, of which 25,198,368 shares have been
duly issued and are now outstanding and (ii) 1,000,000 shares of preferred
stock, par value $3.00 per share that includes 15,000 shares being currently
authorized and designated as Series 2 Class A Preferred Stock, of which 10,000
shares have been duly issued and are now outstanding;
WHEREAS, solely in order to effectuate the Merger, the
Corporation acquired all of the outstanding capital stock of the Delaware
Subsidiary; and
WHEREAS, the Board of Directors of the Corporation has adopted
and approved this Agreement and Plan of Merger by resolution;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and in order to set forth the terms and conditions of the
Merger and the mode of carrying the same into effect, the Corporation and the
Delaware Subsidiary hereby agree as follows:
1. The Merger. At the Effective Time (as defined in Section 2), the
Corporation shall be merged with and into the Delaware Subsidiary, the
separate corporate existence of the Corporation shall cease, and the
Delaware Subsidiary shall continue as the surviving corporation
(hereinafter sometimes referred to as the "Surviving Corporation"), and
the
<PAGE>
Surviving Corporation, without further action, shall possess all the
rights, privileges, powers and franchises, public and private and all
of the property, real, personal, and mixed, of both the Corporation and
the Delaware Subsidiary and shall be subject to all the debts,
liabilities, obligations, restrictions, disabilities and duties of both
the Corporation and the Delaware Subsidiary.
2. Effective Time of the Merger. The Merger shall become effective
immediately upon the later of the filing of an Articles of Merger with
the Secretary of State of the State of Florida and the filing of a
Certificate of Ownership and Merger with the Secretary of State of the
State of Delaware (the time of such later filing being the "Effective
Time").
3. Certificate of Incorporation and By-laws. The Certificate of
Incorporation and By-laws of the Delaware Subsidiary, as in effect
immediately prior to the Effective Time, shall become the Certificate
of Incorporation and By-laws of the Surviving Corporation, except that
Article I of the Certificate of Incorporation shall be amended to read
as follows:
"ARTICLE I.
Name of Company
The name of this corporation shall be EQUIVEST FINANCE, INC.
(the "Corporation")."
4. Directors and Officers. The directors of the Corporation immediately
prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the
Certificate of Incorporation and By-laws of the Surviving Corporation,
and the executive officers of Corporation immediately prior to the
Effective Time shall be the initial executive officers of the Surviving
Corporation, in each case until their respective successors are duly
elected or appointed and qualified.
5. Further Assurance of Title. If at any time the Surviving Corporation
shall consider or be advised that any acknowledgments or assurances in
law or other similar actions are necessary or desirable in order to
acknowledge or confirm in and to the Surviving Corporation any right,
title, or interest of the Corporation held immediately prior to the
Effective Time, the Corporation and its authorized executive officers
and directors shall and will execute and deliver all such
acknowledgments or assurances in law and do all things necessary or
proper to acknowledge or confirm such right, title, or interest in the
Surviving Corporation as shall be necessary to carry out the purposes
of this Agreement and Plan of Merger, and the Surviving Corporation and
the authorized executive officers and directors thereof are fully
authorized to take any and all such action in the name of the
Corporation or otherwise.
6. Conversion of Shares. At the Effective Time, each issued and
outstanding share of common stock of the Delaware Subsidiary, par value
$.01 per share, shall be canceled and each issued and outstanding share
of the common stock of the Corporation, par value $.05 per share,
2
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shall, without any action on the part of the Corporation or the
Delaware Subsidiary, be deemed converted into one (1) fully paid and
non-assessable issued and outstanding share of common stock of the
Surviving Corporation, par value $.01 per share. Additionally, each
issued and outstanding share of the preferred stock of the Delaware
Subsidiary, par value $3.00 per share, shall be canceled and each
issued and outstanding share of the preferred stock of the Corporation,
par value $3.00 per share, shall, without any action on the part of the
Corporation or the Delaware Subsidiary, be deemed converted into one
(1) fully paid and non-assessable issued and outstanding share of
preferred stock of the Surviving Corporation, par value $3.00 per
share.
7. Service of Process on the Surviving Corporation. The Surviving
Corporation agrees that:
(a) it may be served with process in the State of Florida in any prior
proceeding for the enforcement of any obligation of any corporation
organized under the laws of the State of Florida or any foreign
corporation, previously amenable to suit in Florida, which is a party
to the Merger.
(b) the Secretary of State of the State of Florida shall be and hereby
is irrevocably appointed as the agent to accept service of process in
any such proceeding and the post office address to which the service of
process in any such proceeding shall be mailed is Equivest Finance,
Inc., 2 Clinton Square, Syracuse, New York 13202.
8. Termination. This Agreement and Plan of Merger may be terminated and
abandoned by action of the directors of the Corporation or the Delaware
Subsidiary at any time prior to the Effective Time, whether before or
after approval by the shareholders of the parties hereto.
9. Plan of Reorganization. The Corporation and the Delaware Subsidiary
intend that the Merger constitute a "reorganization" within the meaning
of Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as
amended. This Agreement and Plan of Merger constitutes a plan of
reorganization to be carried out in the manner, on the terms and
subject to the conditions herein set forth.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement and Plan of Merger to be executed as of the date first above written
by the respective executive officers thereunto duly authorized.
EQUIVEST FINANCE, INC.,
a Florida Corporation
By: /s/ Richard C. Breeden
---------------------------
Name: Richard C. Breeden
Title: Chairman and Chief Executive Officer
EQUIVEST REINCORPORATION, INC.,
a Delaware Corporation
By: /s/ Richard C. Breeden
---------------------------
Name: Richard C. Breeden
Title: Chairman and Chief Executive Officer
4
